United States v. Castro -Gomez

• Decision Date: 08 February 2019
• Docket Number: 1:18-CR-187-RP
• Citation: 365 F.Supp.3d 801
• Parties: UNITED STATES of America v. Hugo CASTRO-GOMEZ, also known as Hugo Castro, also known as Hugo Dominguez Castro, also known as Hugh Dominguez, also known as Hugo Gomez, also known as Hugo Gomez Casatro, Defendant.
• Court: U.S. District Court — Western District of Texas

365 F.Supp.3d 801

UNITED STATES of America

v.Hugo CASTRO-GOMEZ, also known as Hugo Castro, also known as Hugo Dominguez Castro, also known as Hugh Dominguez, also known as Hugo Gomez, also known as Hugo Gomez Casatro, Defendant.

1:18-CR-187-RP

United States District Court, W.D. Texas, Austin Division.

Signed February 8, 2019

Alan M. Buie, United States Attorney's Office, Austin, TX, for United States of America

Duty Pub. Defender-Austin, David M.C. Peterson, Federal Public Defender's Office, Austin, TX, for Defendant.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Under the Immigration and Nationality Act ("INA"), immigration judges are responsible for conducting proceedings that decide the inadmissibility or deportability of a noncitizen. 8 U.S.C. § 1229a(a)(1). Although the INA does not specify when jurisdiction vests in an immigration judge, federal regulations provide that jurisdiction vests when a "charging document" is filed with the immigration court. 8 C.F.R. § 1003.14(a). A charging document includes a notice to appear ("NTA"). 8 C.F.R. § 1003.13. But the INA and the federal regulations define "notice to appear" differently: the INA requires that an NTA provide the time and place of a removal hearing, while the federal regulations do not. Compare 8 U.S.C. § 1229(a)(1)(G)(i)with 8 C.F.R. § 1003.15(b). In this case, Defendant Hugo Castro-Gomez ("Castro-Gomez") was served an NTA that did not specify a time or place for his removal hearing. Yet Castro-Gomez appeared before an immigration judge and was ordered removed.

In this action, Castro-Gomez was found in the United States after having been removed, and was indicted for illegal reentry. (Dkt. 8). Before the Court is Defendant Castro-Gomez's Motion to Reconsider. (Dkt. 41). Castro-Gomez asks the Court to reconsider the denial of his motion to dismiss the indictment in this action. (Dkt. 40). Castro-Gomez challenges his prior removal order, in light of the Supreme Court's decision in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), because it did not specify a time or place for his removal hearing. As a result, Castro-Gomez argues that jurisdiction never vested with the immigration judge, and the removal order was issued ultra vires. After thoroughly reviewing the circumstances of Castro-Gomez's case, the arguments raised by both parties in their briefs, and the relevant law, the Court finds that both Castro-Gomez's motion to reconsider and his motion to dismiss the indictment should be granted.

I. BACKGROUND

Castro-Gomez was indicted with a single count of illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a). (Indictment, Dkt. 8; Gov't. Resp. Mot. Dismiss, Dkt. 35, at 2). Specifically, the Government alleges that Castro-Gomez is a noncitizen who was found in the United States on April 3, 2018, and that Castro-Gomez was previously removed from the United States to Mexico on or about July 30, 2004. (See Compl., Dkt. 1, at 1).

Castro-Gomez is a citizen of Mexico. (Gov't. Resp., Dkt. 35, at 2). He first came to the United States in 1972. (Mot. Dismiss, Dkt. 27, at 2–3). Castro-Gomez became a temporary resident under the Immigration Reform and Control Act of 1986 ("IRCA") in 1988, and in 1991, he was admitted as a lawful permanent resident. (Id. at 3). On March 6, 2003, Castro-Gomez was convicted of Assault—Family Violence. (See Indictment, Dkt. 27-3). His offense was enhanced to a third degree felony based on a previous conviction for Assault—Family Violence. (Id. at 2); see Tex. Penal Code § 22.01(b)(2)(A). Castro-Gomez pleaded guilty and was sentenced to two years' incarceration. (Judgment, Dkt. 27-3, at 12–13).

In September 2003, immigration authorities served Castro-Gomez with a notice to appear ("NTA") at a removal hearing. (See NTA, Dkt. 27-2, at 2). The NTA charged that Castro-Gomez was subject to removal under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), because he was convicted of an aggravated felony: Assault—Family Violence. (See NTA, Dkt. 27-2, at 2). The NTA did not name a time or place for the hearing. (Id. ).

At the hearing, Castro-Gomez was ordered removed, and he waived appeal. (Mot. Dismiss, Dkt. 27, at 4; Gov't Resp., Dkt. 35, at 4; Order, Dkt. 27-4). Castro-Gomez was removed from the United States on July 30, 2004 and advised that he could never again apply for permission to return based on his aggravated felony conviction. (Mot. Dismiss, Dkt. 27, at 4; see Warrant Removal, Dkt. 27-5; Warning Alien Removed, Dkt. 27-6). Castro-Gomez's removal order was reinstated on May 3, 2018, when he was found in the United States. (Order, Dkt. 27-7, at 3–4). It is this removal order that forms the basis of Castro-Gomez's illegal reentry indictment.

Castro-Gomez moved to dismiss the illegal reentry indictment, relying on two recent decisions by the Supreme Court: Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), and Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). Castro-Gomez argued that his pending indictment for illegal reentry must be dismissed because his sole prior removal order was invalid under both Dimaya and Pereira. (Mot. Dismiss, Dkt. 27, at 2). First, he contended that, applying Dimaya retroactively, his conviction for Assault—Family Violence is not an aggravated felony, he was not deportable as charged, and his deportation violated the Due Process Clause of the Constitution. (Mot. Dismiss, Dkt. 27, at 1–2). Second, Castro-Gomez argued that he received an NTA that did not indicate the removal hearing's time or place as required by statute, rendering the removal proceeding invalid under Pereira. (Id. at 8–9). The Government filed a response. (Resp. Mot. Dismiss, Dkt. 35).

On November 28, 2018, this Court denied Castro-Gomez's motion to dismiss. (Order, Dkt. 40). The Court reasoned that because Castro-Gomez had not exhausted his challenge to the NTA in his earlier deportation proceeding, Castro-Gomez could not collaterally attack his conviction under the statutory requirements of 8 U.S.C. § 1326(d).¹ (Order, Dkt. 40, at 5).

Castro-Gomez now asks the Court to reconsider that decision, again re-urging his argument that because the NTA did not state a time and place for his removal hearing, he was not served a valid NTA under Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). (Mot. Reconsider, Dkt. 41). As a result, he contends that the immigration court lacked jurisdiction to order him removed, and the original removal order is invalid. (Id. at 1). Castro-Gomez also argues that any attempt to challenge the deficient NTA before the Board of Immigration Appeals ("BIA") is futile, because he has no opportunity to do so in current proceedings before the BIA. (Id. at 2). Thus, Castro-Gomez asks the Court to reconsider its order denying his motion to dismiss the indictment.

II. LEGAL STANDARD

A motion for reconsideration in the criminal context is a judicial creation not derived from statutes or rules. See United States v. Brewer , 60 F.3d 1142, 1143 (5th Cir. 1995) ; United States v. Salinas , 665 F.Supp.2d 717, 720 (W.D. Tex. 2009). District courts have continuing jurisdiction over criminal cases, and they are free to reconsider their own earlier decisions. See United States v. Scott , 524 F.2d 465, 467 (5th Cir. 1975) ; Salinas , 665 F.Supp.2d at 720. Still, "[m]otions for reconsideration ‘serve the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.’ " Salinas , 665 F.Supp.2d at 720 (quoting United States v. Banks , No. 1:08-CR-113, 2009 WL 585506, at *1 (E.D. Tex. Mar. 6, 2009) ); see also Waltman v. Int'l Paper Co. , 875 F.32d 468, 473 (5th Cir. 1989).

To prove a charge of illegal reentry into the United States by a previously deported noncitizen, the Government must prove beyond a reasonable doubt that Castro-Gomez "(1) was an alien at the time of the alleged offense; (2) had been previously deported; (3) attempted to enter the United States; and (4) had not received the express consent of the Attorney General or the Secretary of the Department of Homeland Security." United States v. Jara-Favela , 686 F.3d 289, 302 (5th Cir. 2012). Only the second element is at issue here: Castro-Gomez argues that he was never served an NTA, so his removal proceedings are void for want of jurisdiction, and he was never "previously deported." (See Mot. Reconsider, Dkt. 41, at 1–2). At the core of Castro-Gomez's motion to dismiss is whether he may collaterally attack the underlying removal order that supports his indictment for illegal reentry in this action.

III. DISCUSSION

Castro-Gomez makes two arguments that the Court should reconsider its order denying his motion to dismiss. First, he re-urges his position that an NTA that does not state a time and place is invalid for statutory purposes. (Mot. Reconsider, Dkt. 41, at 1). Castro-Gomez was issued an NTA that did not specify a date, time, or place for his removal proceeding, contrary to the definitional requirements under the INA. And without a valid NTA, Castro-Gomez argues that an immigration court lacks jurisdiction. (Mot. Dismiss, Dkt. 27, at 8 (quoting Pereira , 138 S.Ct. at 2115 ) ). Second, he argues that he is unable to make this argument to the BIA in a motion to reopen. Although Castro-Gomez is currently appealing the immigration judge's denial of his motion to reopen to the BIA, Castro-Gomez argues that any attempt to challenge the underlying removal order is futile, and thus is not an available administrative remedy. (Mot. Reconsider, Dkt. 41, at 2, 4–5). The Government argues that Castro-Gomez has not presented any new facts or arguments that were unavailable to him in the underlying motion to dismiss, (Resp. Mot. Reconsider, Dkt. 44, at 4), and that the Court correctly applied the statutory requirements under 8 U.S.C. § 1326(d) in finding that Castro-Gomez...