United States v. Arroyo

• Decision Date: 21 December 2018
• Docket Number: EP-18-CR-02049-DCG
• Citation: 356 F.Supp.3d 619
• Parties: UNITED STATES of America, Plaintiff, v. Luis Roberto ARROYO, Defendant.
• Court: U.S. District Court — Western District of Texas

356 F.Supp.3d 619

UNITED STATES of America, Plaintiff,

v.Luis Roberto ARROYO, Defendant.

EP-18-CR-02049-DCG

United States District Court, W.D. Texas, El Paso Division.

Signed December 21, 2018

Michael Whyte, U.S. Attorney's Office, El Paso, TX, for Plaintiff.

Erik Anthony Hanshew, Federal Public Defender, El Paso, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Luis Roberto Arroyo's ("Defendant") "Motion to Dismiss" (ECF No. 26). Defendant, a citizen of Mexico, was indicated on one count of illegal reentry after removal in violation of 8 U.S.C. § 1326. Defendant moves to dismiss the Indictment on the ground that the prior removal order was invalid and void ab initio because the immigration judge that issued the order lacked "jurisdiction" to do so. That is, in turn, because, he says, the charging document in the removal proceeding was deficient as it omitted the date and time of removal hearing. For support, he relies on the Supreme Court's recent opinion in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). For the reasons that follow, the Court DENIES the motion.

I. BACKGROUND

In 1991, Defendant became a lawful permanent resident of the United States.¹ In 2001, he was convicted for possession of marijuana in an amount greater than 50 pounds but less than 2000 pounds in violation of Section 481.121 of the Texas Health and Safety Code. That conviction triggered removal proceedings.

On June 17, 2002, the Department of Homeland Security ("DHS") served a "Notice to Appear" ("NTA") on Defendant. Pursuant to Section 237(a)(2) of the Immigration and Nationality Act ("INA" or "Act"), as amended, the NTA charged him as removable for having committed an aggravated felony as defined in Section 101(a)(4)(B) of the Act.² The NTA did not specify the date and time of his removal hearing, but instead ordered him to appear before an immigration judge in El Paso, Texas ("IJ").³ The DHS filed the NTA with the Immigration Court in El Paso.⁴ On August 3, 2002, that court issued a "Notice of Hearing" ("NOH") containing the date, time, and place of the initial hearing and served it on Defendant.⁵ After the hearing date was rescheduled four times at the request of Defendant's counsel, the hearing finally took place in September 2002.⁶

At the hearing, Defendant and his counsel were present.⁷ The IJ ordered Defendant removed from the United States, and Defendant waived his right to appeal this order to the Board of Immigration Appeals ("BIA").⁸ Subsequently, Defendant submitted an Application for Stay of Removal and a Request for Prosecutorial Discretion, but they were denied.⁹ On October 15, 2002, Defendant was removed from the United States to Mexico.

More recently, on July 11, 2018, a grand jury sitting in El Paso, Texas, returned a single-count Indictment (ECF No. 10) charging Defendant with illegal reentry in violation of 8 U.S.C. § 1326. The Government alleges that Defendant was found in this country without permission on June 13, 2018, and that he had previously been removed from the United States on October 15, 2002.¹⁰ On October 23, 2018, Defendant filed the instant motion. Mot. to Dismiss, ECF No. 26. On November 15, 2018, the Government filed its response to the motion, Gov't's Resp., ECF No. 27, and on November 13, Defendant followed by filing his reply, Def.'s Reply, ECF No. 30.

II. DISCUSSION

Section 1326 is designed to punish an alien who was previously "deported[ ] or removed" and thereafter was found in the United States without the permission of the Attorney General or the Secretary of the DHS. 8 U.S.C. § 1326 ; United States v. Garcia-Ruiz , 546 F.3d 716, 718 (5th Cir. 2008). Under certain circumstances, an alien who is being prosecuted under § 1326 can assert a challenge to the underlying removal order—provided that he satisfies the three-prong test in § 1326(d). United States v. Benitez-Villafuerte , 186 F.3d 651, 658 (5th Cir. 1999) ; see also United States v. Cordova-Soto , 804 F.3d 714, 719 (5th Cir. 2015) (The defendant "must satisfy all three prongs.").

Defendant argues that the Government cannot prove that he was previously "removed" as a matter of law. Mot. to Dismiss at 8. In the alternative, he argues that he need not satisfy all prongs of test, and in any event, he satisfies them. Id. at 9–10. All this because, he claims, the removal order under which he was removed was "invalid," "void," and/or "void ab initio. " Id. at 1, 2, 8, 10. As to why the order was so, he explains that the NTA in the 2002 removal proceeding omitted the hearing time, and that omission deprived the IJ who issued the removal order of "jurisdiction" and authority to do so. Id. at 1.

For support, Defendant leans on 8 C.F.R. § 1003.14 ("Regulation 1003.14"), 8 U.S.C. § 1229(a)(1), and Pereira. Regulation 1003.14(a) provides in relevant part: "Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." 8 C.F.R. § 1003.14(a). "Charging document" means "the written instrument which initiates a proceeding before an Immigration Judge," including an "Order to Show Cause" ("OSC") and an NTA, respectively for proceedings initiated prior to April 1, 1997 and for those initiated thereafter. 8 C.F.R. 1003.13. As we will see, Defendant treats "jurisdiction" as used Regulation 1003.14(a) as "subject matter jurisdiction."

In Pereira , the Supreme Court held that "[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under [Title 8,] section 1229(a) ’ and therefore does not trigger the stop-time rule" set forth in § 1229b(d)(1)(A). Pereira , 138 at 2110–11. Section 1229(a)(1) provides, in pertinent part, "[i]n removal proceedings under section 1229a of this title, written notice (in this section referred to as a "notice to appear") shall be given" to the alien specifying 10 listed categories of information, including "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1) ; but see 8 C.F.R. § 1003.15 (requiring a "notice to appear" to include all of the statutory categories of information, except the time of hearing). Defendant insists that the statutory definition of the NTA, not the regulatory definition applies to the "charging document" in Regulation 1003.14(a).

Although Defendant's specific arguments overlap, they raise the following issues: (A) whether Regulation 1003.14(a) implicates immigration judges' "subject matter jurisdiction" and if so, whether the 2002 removal order was "void" for want of that jurisdiction; (B) whether the 2002 removal proceeding complied with Regulation 1003.14(a) and § 1229(a)(1), even though the NTA omitted the hearing time, and if not, whether the 2002 removal order was invalid; and (C) whether, on the basis of alleged defect as to the prior removal order, the Indictment should be dismissed under § 1326(a) or (d). In the following, the Court addresses each issue in turn.

A. Regulation 1003.14(a) Does Not Implicate Immigration Judges' "Subject Matter Jurisdiction," and the IJ's Removal Order Was Not Void for Want of Such Jurisdiction.

Defendant claims that because the NTA failed to state the hearing date and time, "jurisdiction" did not vest under Regulation 1003.14(a). Mot. to Dismiss at 3–4. He concludes that "the IJ lacked authority to issue a removal order," id. at 4, and consequently, the 2002 removal order was "invalid" and "illegal," id. at 2–3. The Government responds that Defendant forfeited this claim because he personally appeared at the hearing, but failed to assert this claim before the IJ and further affirmatively waived appeal of the IJ's order to the BIA. Gov't's Resp. at 10, 17, 19.

Pressed by this response, Defendant equates "jurisdiction," as the term is used in Regulation 1003.14(a), with "subject matter jurisdiction." Relying on a number of judicial opinions by our sister courts, Defendant insists that the removal order was still void (and void ab initio ) because "subject matter jurisdiction" cannot be "waived." Def.'s Reply at 11–12 (citing cases); see also United States v. Romero-Caceres , No. 1:18-CR-354, 356 F.Supp.3d 541, 549 n.7, 2018 WL 6059381, at *5 n.7 (E.D. Va. Nov. 19, 2018) ("Some courts have taken the position that whether an immigration court is vested with jurisdiction under 8 C.F.R. § 1003.14 is an issue of subject matter jurisdiction, which cannot be waived." (collecting illustrative cases) ). In other words, according to Defendant, Regulation 1003.14(a) is "jurisdictional"¹¹ and therefore, implicates the immigration judges' "subject matter jurisdiction." The Court disagrees.

With regard to federal courts, "subject-matter jurisdiction" refers to "the courts' statutory or constitutional power to adjudicate" a given type of case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ; United States v. Morton , 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984).¹² When a requirement goes to subject-matter jurisdiction, it may lead to "drastic" consequences, and hence, the Supreme Court has—in recent years—cautioned against lightly attaching the "jurisdictional" label to a rule.¹³ Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ; Gonzalez v. Thaler , 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). The "drastic" and "untoward" consequences may follow, Sebelius v. Auburn Reg'l Med. Ctr. , 568 U.S. 145, 153–54, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013), because "[s]ubject-matter jurisdiction can never be waived or forfeited," Gonzalez , 565 U.S. at 141, 132 S.Ct. 641. The nonwaiver rule, in turn, flows from the limitations imposed by Article III, § 2 of the United States Constitution, and "notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that ...