United States v. Castillo-Martinez

• Citation: 378 F.Supp.3d 46
• Decision Date: 06 May 2019
• Docket Number: Criminal Action No. 18-10247-NMG
• Parties: UNITED STATES of America, v. Jesus Leonardo CASTILLO-MARTINEZ, Defendant.
• Court: U.S. District Court — District of Massachusetts

378 F.Supp.3d 46

UNITED STATES of America,

v.Jesus Leonardo CASTILLO-MARTINEZ, Defendant.

Criminal Action No. 18-10247-NMG

United States District Court, D. Massachusetts.

Signed May 6, 2019

Kenneth G. Shine, Assistant US Attorney, United States Attorney's Office MA, Boston, MA for United States of America.

MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge

Defendant Jesus Leonardo Castillo-Martinez ("Castillo-Martinez" or "defendant") seeks to dismiss the indictment against him for illegal reentry pursuant to 8 U.S.C. § 1326(d). He submits that the removal order that underlies the sole count of illegal reentry is unlawful and thus there is no valid removal to form the necessary predicate for the charged offense.

Castillo-Martinez primarily relies upon the United States Supreme Court's recent decision in Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), for the proposition that a Notice to Appear ("NTA") that lacks notification of the time and place for the removal proceedings is facially deficient and cannot vest the Immigration Judge with jurisdiction over the matter. He contends that without such jurisdiction, the Immigration Judge lacks authority to issue a valid order of removal. Furthermore, he contends that his original removal order, based on an incorrect determination that his drug conviction was for an "aggravated felony", was wrongful and that he was not therefore automatically removable.

For the reasons that follow, the Court finds that the decision in Pereira is not controlling and the Immigration Judge had jurisdiction to issue Castillo-Martinez's order of removal. Moreover, defendant cannot satisfy the factors set forth in § 1326(d) to attack collaterally his prior order of removal.

I. Background

A. Criminal History

Castillo-Martinez was born in the Dominican Republic in 1973. He became a Lawful Permanent Resident ("LPR") in July, 1981, when he was eight years old.

In August, 1996, at age 23, Castillo-Martinez was convicted in Massachusetts state court of Distribution of a Class D Controlled Substance (marijuana) in violation of M.G.L. c. 94C, § 32C. He received a two-year suspended sentence and probation. In December, 2010, Immigration and Customs Enforcement ("ICE") officials encountered Castillo-Martinez at a jail in New Hampshire while he was awaiting trial on another drug trafficking charge for the sale of OxyContin. ICE lodged a detainer at that time.

In June, 2012, Castillo-Martinez was convicted in New Hampshire state court on the second drug-trafficking charge. He received a suspended sentence of 5 to 10 years. Defendant was then transferred into ICE custody and removal proceedings were initiated against him.

B. Removal Proceedings

Castillo-Martinez was served an NTA while in ICE custody. It notified him that he was removable from the United States based on his conviction of an aggravated felony but did not state a date, time or place for his removal hearing.¹ The sole grounds for removal listed in the NTA was defendant's 1996 drug conviction in Massachusetts state court.

In July, 2012, counsel for Castillo-Martinez filed a responsive pleading with the Immigration Court conceding defendant's removability but indicating that he would apply for deferral of removal pursuant to the Convention Against Torture ("the CAT"). After a hearing in November, 2012, the Immigration Judge denied defendant's application for relief under the CAT. Castillo-Martinez appealed that denial to the Board of Immigration Appeals ("the BIA") but it denied the petition and ordered his removal. The Department of Homeland Security ("DHS") deported Castillo-Martinez to the Dominican Republic in April, 2013.

C. Subsequent Reentry and Prosecution

In August, 2016, Castillo-Martinez was arrested in Massachusetts and taken into administrative custody by ICE. DHS reinstated his prior order of removal and he was again deported to the Dominican Republic in November, 2016.

In June, 2018, Castillo-Martinez was again arrested in Massachusetts and charged with trafficking in heroin. In August, 2018, he was charged in a one-count indictment with illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). That charge was based on the 2016 removal order which was itself a reinstatement of the initial 2013 removal order.

In February, 2019, defendant filed a motion to dismiss the indictment on the grounds that 1) based on a broad reading of the Supreme Court's decision in Pereira, the Immigration Judge lacked jurisdiction to enter the initial order of removal in 2013 that forms the basis of the present prosecution and 2) the sole charge of removability in the 2012 NTA was not based upon an "aggravated felony" within the meaning of 8 U.S.C. § 1101(a)(43)(B) and thus he was not removable as a result.

II. Motion to Dismiss the Indictment

A. Legal Standard

Title 8 U.S.C. § 1326(d) permits a non-citizen to mount a collateral attack against a prior deportation order in a prosecution for illegal reentry under limited circumstances. In order to succeed, the defendant must demonstrate that

(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). The third prong of fundamental unfairness requires a showing of both a procedural error and prejudice. United States v. Luna, 436 F.3d 312, 319, 321 (1st Cir. 2006) (requiring "a reasonable likelihood that the result would have been different if the error in the deportation proceeding had not occurred" (quoting United States v. Loaisiga, 104 F.3d 484, 487 (1st Cir. 1997) )). The defendant must satisfy all three prongs in order to attack successfully a prior order of removal. Id. at 317.

B. Relevant Law

The Immigration and Naturalization Act ("the INA" or "the Act") prescribes the process for conducting removal proceedings but does not specifically address the jurisdictional prerequisites for the Immigration Judge. See 8 U.S.C. § 1229a. Rather, the INA empowers the United States Attorney General to promulgate regulations governing those proceedings, including regulations that specify how and when jurisdiction vests with the Immigration Judge. See 8 U.S.C. § 1103(g)(2) ; 8 C.F.R. §§ 1003.13, 1003.14(a). Those regulations provide that

[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court ....

8 C.F.R. § 1003.14(a). That charging document includes an NTA. 8 C.F.R. § 1003.13.

The INA defines an NTA for purposes of removal proceedings under the statute as requiring "[t]he time and place at which the proceedings will be held". 8 U.S.C. § 1229(a)(1)(G)(i). For purposes of vesting jurisdiction with the Immigration Judge, however, the regulations require only that an NTA include "the time, place and date of the initial removal hearing, where practicable. 8 C.F.R. § 1003.18(b) (emphasis added). Where the initial NTA fails to include the time, place or date of the removal hearing, the Immigration Judge is required to provide the non-citizen with a subsequent Notice of Hearing containing that information. Id.

In Pereira, the Supreme Court interpreted the statutory definition of NTA in the context of the INA's so-called "stop-time rule" to determine whether an NTA lacking time or place information would warrant application of that provision. Pereira, 138 S. Ct. at 2109 ; see also 8 U.S.C. § 1229b(d)(1)(A). Explaining that the stop-time provision specifically cross-referenced the statutory definition of NTA in § 1229(a) and was therefore unambiguous, the Court held that only an NTA listing the time and place of the removal hearing could trigger the stop-time rule. Pereira, 138 S. Ct. at 2118 ("A document that fails to include such information is not a notice to appear under section 1229(a) and thus does not trigger the stop-time rule." (internal quotation marks omitted)).

The Court repeated throughout the opinion, however, that the issue presented in that case was "narrow" and it never discussed the vesting of jurisdiction in the Immigration Judge. See id. at 2110, 2113. The Court also noted that an NTA could serve several different functions in removal proceedings. See id. at 2115 n.7 ("[T]here is no reason why a notice to appear should have only one essential function ... [and] [e]ven if a notice to appear functions as a ‘charging document,’ that is not mutually exclusive with the conclusion that a notice to appear serves another equally integral function: telling a noncitizen when and where to appear.").

In addition, under the INA a non-citizen who has been convicted of an "aggravated felony" is both deportable, 8 U.S.C. § 1227(a)(2)(A)(iii), and ineligible for discretionary relief. 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i) (ineligible to apply for asylum); §§ 1229b(a)(3), (b)(1)(C) (ineligible for cancellation of removal or adjustment of status). The INA includes as an aggravated felony the "illicit trafficking in a controlled substance", 8 U.S.C. § 1101(a)(43)(B), which in turn encompasses a conviction of a drug offense that the Controlled Substances Act makes punishable by more than one year in prison. See 18 U.S.C. §§ 924(c)(2), 3559(a)(5).

In determining whether a state conviction qualifies as an aggravated felony under the INA, courts apply the "categorical approach" to determine whether the state offense corresponds to a federal offense listed in the Act. Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). Under this approach, courts do not look at the actual facts underlying the prior state conviction but rather analyze

whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony ... [such that] conviction of the state

...