United States v. Calderon-Avalos, EP-18-CR-3156-PRM

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Docket NumberEP-18-CR-3156-PRM
Decision Date25 February 2019




February 25, 2019


On this day, the Court considered Defendant Jose Trinidad Calderon-Avalos's [hereinafter "Defendant"] "Motion to Dismiss" (ECF No. 24) [hereinafter "Motion"], filed on December 7, 2018; the Government's "Response in Opposition to Defendant's Motion to Dismiss Indictment" (ECF No. 28) [hereinafter "Response"], filed on December 18, 2018; and Defendant's "Reply to Government's Response in Opposition to Defendant's Motion to Dismiss Indictment" (ECF No. 29) [hereinafter "Reply"], filed on December 28, 2018, in the above-captioned cause. After due consideration, the Court is of the opinion that Defendant's Motion should be denied for the reasons that follow.


In August 2018, the Department of Homeland Security ("DHS")

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personally served a notice to appear on Defendant. Mot. Ex. A (Notice to Appear), at 2. In the notice to appear, DHS alleged that Defendant was a native and citizen of Mexico who had entered the United States without being admitted or paroled and charged Defendant as subject to removal pursuant to 212(a)(A)(i) of the Immigration and Nationality Act. Id. In addition, the notice to appear ordered that Defendant appear before an Immigration Judge ("IJ") on a date "[t]o be set" and a time "[t]o be set" to show why he should not be removed from the United States. Id. After receiving service of the notice to appear, Defendant was detained by DHS. Mot. Ex. B (Notice of Custody Determination). According to the Government, DHS filed the notice to appear with the Immigration Court in Philadelphia, Pennsylvania. Resp. 1. The Government also alleges that the Immigration Court in Pennsylvania issued a Notice of Hearing containing the date, time, and place of the immigration hearing and served it on Defendant. Resp. 2.1 Defendant does not dispute this allegation.

On August 20, 2018, Defendant attended his removal hearing and was

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ordered to be removed from the United States to Mexico. Mot. Exs. C (Audio Recording of Removal Proceedings in York, Pennsylvania Immigration Court on August 20, 2018 [hereinafter "Recording"]), D (Order of the Immigration Judge). At the removal hearing, the IJ explained to Defendant and other respondents that they have the right to appeal the IJ's decision within thirty days of the IJ's decision. Mot. Ex. C (Recording), at Track 3. Furthermore, the IJ explained to the respondents that if they waive appeal, then they cannot change their minds and later file an appeal. Id. When asked if Defendant wanted to appeal, Defendant replied, "No." Id. at Track 6. Defendant's waiver of his appeal was recorded in the IJ's Order. Mot. Ex. D (Order of the Immigration Judge).

On September 4, 2018, Defendant was removed from the United States to Mexico. Mot. Ex. E. The Government alleges that, in October 2018, Defendant reentered the United States and was found approximately 37 miles east of the Fort Hancock, Texas, Port of Entry. Compl., Oct. 3, 2018, ECF No. 1. On October 24, 2018, Defendant was charged in the instant Indictment with illegally reentering the United States after having previously been removed in violation of 8 U.S.C. § 1326(a). Indictment, ECF No. 10. On December 7, 2018, Defendant filed the instant Motion in which

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Defendant seeks to dismiss the Indictment.


Pursuant to Federal Rule of Criminal Procedure 12(b)(1), "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). Furthermore, pursuant to Federal Rule of Criminal Procedure 12(b)(3), a party must raise by pretrial motion a defect in the indictment, including a failure to state an offense "if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b)(3).

In the Fifth Circuit, "[t]he propriety of granting a motion to dismiss an indictment under [Federal Rule of Criminal Procedure] 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact." United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005) (quoting United States v. Korn, 557 F.2d 1089, 1090 (5th Cir. 1977)). "If a question of law is involved, then consideration of the motion is generally proper." Id.


Defendant moves for dismissal of the Indictment. First, Defendant

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argues that because the notice to appear filed in connection with Defendant's removal proceedings lacked a hearing time for the removal hearing, the removal proceedings never commenced, the IJ had no jurisdiction to conduct the removal proceedings, and the removal order is void. Mot. 1, 3. Accordingly, Defendant argues, the Government cannot prove that Defendant was "removed" as matter of law. Id. Second, Defendant seeks to collaterally attack the removal order pursuant to 8 U.S.C. § 1326(d). As Defendant's Motion primarily involves a question of law, the Court may properly consider the Motion pursuant to Federal Rule of Criminal Procedure 12.

The Court will first address Defendant's argument that the IJ lacked jurisdiction before considering Defendant's collateral attack on the removal order. After due consideration, the Court is of the opinion that Defendant's Motion should be denied.

A. Jurisdiction of the Immigration Court

An illegal reentry conviction pursuant to § 1326(a) requires that the accused has "been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding. . . ." 8 U.S.C. § 1326. Defendant argues that he

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cannot be convicted of illegal reentry pursuant to § 1326(a) because "the Government cannot prove that he was 'removed.'" Mot. 3. Specifically, Defendant argues that the notice to appear filed in Defendant's removal proceedings failed to satisfy the requirement, pursuant to § 1229(a) and Pereira v. Sessions, that a notice to appear contain the time of the removal proceedings. Id. at 3-4 (citing Pereira v. Sessions, 138 S. Ct. 2105, 2116 (2018)). Therefore, Defendant argues, jurisdiction did not vest under 8 C.F.R. § 1003.14(a). Id. at 5. Accordingly, Defendant argues, the IJ had no authority to issue an order of removal and Defendant's subsequent removal was unlawful. Id.

Evaluating Defendant's argument requires understanding the interplay between the statutory definition of "notice to appear" (8 U.S.C. § 1229(a)), the jurisdictional provision for removal proceedings in the Code of Federal Regulations (8 C.F.R. § 1003.14(a)), and the Supreme Court's decision in Pereira v. Sessions. Accordingly, the Court will summarize the relevant statutory and regulatory provisions, the Supreme Court's decision in Pereira v. Sessions, and relevant case law before and after Pereira. Following this background, the Court will analyze Defendant's claim.

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1. Statutory and Regulatory Framework

The Executive Office for Immigration Review is an office within the Department of Justice and is "subject to the direction and regulation of the Attorney General." 6 U.S.C. § 521. Congress has delegated to the Attorney General the power to establish regulations as deemed necessary to carry out the functions exercised by the Executive Office for Immigration Review. 8 U.S.C. § 1103(g). Within the Executive Office for Immigration Review are "immigration judges" ("IJs") who are administrative judges appointed by the Attorney General to conduct certain proceedings, including removal proceedings pursuant to 8 U.S.C. § 1229a. 8 U.S.C. § 1101; see 8 U.S.C. § 1229a(a)(1) (providing that IJs shall conduct removal proceedings); 8 U.S.C. § 1229a(a)(3) (providing that removal proceedings before an IJ are the "sole and exclusive procedure for determining whether an alien may be . . . removed from the United States").

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") revised the Executive Office for Immigration Review procedures. Pub. L. No. 104-208, 110 Stat. 3009-546. Relevant here, a new section, codified as 8 U.S.C. § 1229, was added to govern "[i]nitiation of removal proceedings." Id. at 3009-587, § 239. Section 1229(a) requires that

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a "notice to appear" be served on the alien, specifying the following:

(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions alleged to have been violated.
(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2).
(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title.
(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's address or telephone number.
(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.
(G)(i) The time and place at which the proceedings will be held.
(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.

8 U.S.C. § 1229(a)(1) (emphasis added). Significantly, 8 U.S.C. § 1229(a) requires that the notice to appear contain the time at which...

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