United States v. Chavez-Flores, EP-18-CR-03229-FM
| Citation | 365 F.Supp.3d 782 |
| Decision Date | 05 February 2019 |
| Docket Number | EP-18-CR-03229-FM |
| Parties | UNITED STATES of America, v. Maria Francisca CHAVEZ-FLORES. |
| Court | U.S. District Court — Western District of Texas |
Joseph H. Gay, Jr., Assistant U.S. Attorney, San Antonio, TX, Sarah Valenzuela, U.S. Attorney's Office, El Paso, TX, for United States of America.
Felipe D.J. Millan, Felipe D.J. Millan, P.C., El Paso, TX, Marie Romero-Martinez, Asst. Federal Public Defender, El Paso, TX, for Maria Francisca Chavez-Flores.
Before this court are "Defendant's Motion to Dismiss" ("Motion") [ECF No. 25 ], filed January 14, 2019 by Maria Francisca Chavez-Flores ("Defendant"); and "Government's Response in Opposition to Defendant's Motion to Dismiss the Indictment" ("Response") [ECF No. 28 ], filed January 25, 2019 by United States of America ("Government"). Based on the Motion, Response, and applicable law, Defendant's Motion to Dismiss is GRANTED.
Defendant, a citizen of El Salvador, was previously found in the United States despite not being granted entry.1 On May 30, 2007, Defendant received a Notice to Appear ("NTA"), which required her to attend a removal proceedings hearing.2 A second NTA was issued on June 28, 2007.3 Neither NTA included a time or date for the hearing.4 Instead, each NTA stated she was to appear on a date "to be set" and a time "to be set."5 Defendant subsequently received a Notice of Hearing ("NOH") informing her the proceedings would commence on October 24, 2007.6 Defendant requested moving the hearing to Arizona, and she received a second NOH setting the new hearing date to December 3, 2007.7 The Immigration Court found sufficient evidence to deport her and she was subsequently removed to El Salvador on May 14, 2010.8
On November 7, 2018, Defendant was found in the United States and charged with illegal reentry in violation of 8 U.S.C. § 1326 (" Section 1326").9
Defendant now moves to dismiss the indictment on the grounds that the underlying removal order cannot support a conviction for illegal reentry under Section 1326.10 Defendant contends the NTA did not comply with Title 8 of the United States Code section 1229(a) (" Section 1229"), as it failed to include a time and date as required by the statutory language.11 Therefore, Defendant reasons a defective NTA cannot confer jurisdiction to the Immigration Court over the removal proceedings.12 According to Defendant, an underlying removal order without jurisdiction cannot sustain a Section 1326 conviction.13 As jurisdiction is not established, Defendant argues, she has met the Section 1326(d) requirements to collaterally attack her removal.14 Therefore, Defendant concludes she may not be convicted of illegal reentry.15
The Government argues that Defendant's collateral attack of the NTA and removal is untimely.16 The Government emphasizes that Defendant's attendance at the removal proceeding displays she did not suffer prejudice.17 Additionally, the Government reasons Pereira v. Sessions18 does not apply to Section 1326.19 Accordingly, the Immigration Court's order to remove Defendant was not fundamentally unfair under Section 1326(d)(3).20
In the alternative, the Government asserts the Immigration Court had jurisdiction over Defendant.21 8 C.F.R. 1003.15 does not require the NTA to contain the hearing's time and date.22 The Government also argues that, even if the NTA was deficient, the NOH cured any defect when it informed Defendant of the time and date of the removal hearing.23 The Government thus concludes Defendant is unable to show exhaustion of Section 1326(d) remedies, mandating the Motion be denied.24
As this issue has not been addressed by either the Supreme Court or the Fifth Circuit, this court looks to the statutory language to determine what information an NTA must contain. Under Section 1229a, an immigration judge presides over proceedings for the removal of a non-citizen.25 A charging document is required to initiate proceedings.26 A charging document is defined in 8 C.F.R. § 1003.13 as one of the following: (1) a Notice to Appear; (2) a Notice of Referral to Immigration Judge; and (3) a Notice of Intention to Rescind and Request for Hearing by Alien.27 Therefore, an NTA clearly qualifies as a charging document.28 Section 1229 defines an NTA as written notice which "shall be given" to the alien or alien's counsel.29 Section 1229(a)(1) provides:
In plain language, Section 1229 mandates that an NTA must include the date and time of a hearing,31 Under 8 C.F.R. § 1003.14, "Jurisdiction vests, and proceedings before an Immigration Judge commence , when a charging document is filed with the Immigration Court by the Service."32 This is critical, as 8 C.F.R. § 1003.13 clearly requires a charging document before the Immigration Court has jurisdiction over the removal proceedings.33 Thus, a proper NTA is a jurisdictional requirement for the Immigration Court.
In Pereira v. Sessions ,34 the Supreme Court recently analyzed Section 1229(a) and the NTA requirements, albeit in a different context: the stop-time rule.35 The 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 section 1229(a) ’ and therefore does not trigger the stop-time rule."36 In other words, Pereira held that Section 1229 required an NTA to include the time and place of the hearing.37 The Court also explained that an NTA serves multiple functions: (1) notice of the time and place of removal proceedings; and (2) a charging document.38 While the Court specified that Pereira is a narrow holding,39 it remains persuasive, as it addresses Section 1229's statutory requirements.40
Section 1229(a) plainly provides that an NTA must specify the time and place of the removal proceedings.41 This reading is strengthened, yet not controlled in the Section 1326 context, by the Court's holding in Pereira —which also required that an NTA contain the proceeding's time and place.42 Section 1229 does not grant any discretion whether the NTA includes the hearing's time and place. This court reiterates Section 1229 states the NTA "shall be given ... to the alien ... specifying ... (G)(i) the time and place ...."43 This language does not convey ambiguity whatsoever.
Section 1229 authorizes 8 C.F.R. § 1003.13, § 1003.14, and § 1003.15.44 As 8 C.F.R. § 1003.13 derives authority from Section 1229, it is controlled by those words and those words alone.45 Therefore, the NTA described in 8 C.F.R. § 1003.13 must comport with Section 1229's definitional requirements.
The Code of Federal Regulations' NTA requirements are outlined in 8 C.F.R. § 1003.15 and § 1003.1846 In 8 C.F.R. § 1003.15, the NTA must include specific information.47 However, the time and place of the hearing is not enumerated in 8 C.F.R. § 1003.15(b).48 Instead, the requirement to provide the removal hearing's time and place is enumerated in 8 C.F.R. § 1003.18(b).49 8 C.F.R. § 1003.18 states "the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. "50 This language is in direct conflict with Section 1229.
Section 1229 does contain the word "practicable" mere words before the NTA specifications. However, Section 1229 uses "practicable" to allow service through the mail where "personal service is not practicable...."51 Thus, Congress was clearly aware they could reduce the NTA time and place requirement to only where practicable. Instead of doing so, they unambiguously rejected loosening the NTA requirements by mandating the NTA include the removal hearings' time and place.52 Therefore, the plain language of Section 1229 compels the Government to serve NTA's containing the time and place of the hearing for jurisdiction to vest in an Immigration Court under 8 C.F.R. § 1003.14. Any NTA without such details does not comply with Section 1229 and is facially deficient. When regulations are in direct conflict with a statute, a Constitutional principle dating back to the 19th century governs—regulations do not supersede unambiguous statutes.53 Statutes and regulations have a master and servant relationship.54 Regulations are the means for an agency to effectuate the intent of the statute. The regulation cannot derive power or authority from the statute without reflecting the statute's clear and unambiguous intent. To hold otherwise would disregard the separation of powers principles upon which our Republic is based. Section 1229 is unambiguous. 8 C.F.R. § 1003.15 and § 1003.18 directly conflict with Section 1229's clear requirements. As a regulation may not claim authority whilst "defeating the obvious purpose of a statute[,]" an NTA not containing the time and place of the removal hearing is facially deficient.55
These facial deficiencies are critical to the Immigration Court's jurisdiction. Absent a specific time and place, the immigration judge acted without jurisdiction over the matter. Therefore, the Immigration Court had no authority to remove Defendant.
The Government argues that subject matter jurisdiction was waived because Defendant attended the hearing,56 However, this is incorrect as Defendant cannot waive subject matter jurisdiction through mere attendance alone.57 Indeed, it has...
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United States v. Zuniga-Hernandez, Case No. 1:18-cr-53
...omit, or only provide if practicable, the time and place of an alien's removal proceeding are invalid. See United States v. Chavez-Flores, 365 F. Supp. 3d 782, 788 (W.D. Tex. 2019) ("Section 1229 is unambiguous. 8 C.F.R. § 1003.15 and § 1003.18 directly conflict with Section 1229's clear re......