United States v. Hernandez-Mendez, Case No. 18-20055-01-DDC
| Decision Date | 15 May 2019 |
| Docket Number | Case No. 18-20055-01-DDC |
| Citation | 387 F.Supp.3d 1264 |
| Parties | UNITED STATES of America, Plaintiff, v. Ignacio HERNANDEZ-MENDEZ (01), Defendant. |
| Court | U.S. District Court — District of Kansas |
Scott C. Rask, Office of United States Attorney, Kansas City, KS, for Plaintiff.
This matter comes before the court on defendant Ignacio Hernandez-Mendez's Motion to Dismiss his Indictment (Doc. 18). For reasons explained below, the court denies Mr. Hernandez-Mendez's motion.
The government has charged Mr. Hernandez-Mendez, a Mexican citizen, with one count of illegal reentry under 8 U.S.C. § 1326. Doc. 1. He has entered the country illegally four times, and he describes each entry in his motion. Specifically, his arguments focus on two of those illegal entries.
First , Mr. Hernandez-Mendez illegally entered the country for the second time on November 15, 2017. Law enforcement officers arrested him in Kansas City, Kansas, and detained him. Doc. 18 at 2–3. That day, he received a Form I-862 (see Doc. 18-1)—a Notice to Appear—that ordered him to appear before a United States Department of Justice immigration judge on a date and at a time "[t]o be set." Doc. 18-1 at 1.1 Mr. Hernandez-Mendez also received a Spanish version of a Notice of Rights and Request for Disposition form, on which he indicated his request for a hearing before an immigration judge. Doc. 18 at 3. The Notice to Appear that Mr. Hernandez-Mendez conceded he received (see id. ) also contained a Certificate of Service noting that the law enforcement officer who had served the Notice to Appear orally informed Mr. Hernandez-Mendez of "the time and place of his ... hearing and of the consequences of failure to appear." Doc. 18-1 at 2; see also Doc. 18 at 3–4 n.3; Doc. 21 at 3. Mr. Hernandez-Mendez apparently signed both the Notice to Appear and the Certificate of Service. Doc. 18-1 at 2.
The government asserts that Mr. Hernandez-Mendez retained multiple attorneys to represent him and, through counsel and while detained, asked for a continuance. He was sent a "Notice of Hearing in Removal Proceedings" at the Versailles, Missouri, county jail where he was detained. Doc. 21 at 3–4; Doc. 23-1. The immigration court set his new hearing for January 9, 2018. At this hearing, Mr. Hernandez-Mendez conceded that he had "re-entered [the country] without permission." Doc. 18 at 3. Because Mr. Hernandez-Mendez already had departed the country once voluntarily, the presiding immigration judge informed him of his two options: (1) a removal order; or (2) additional time to find and consult counsel. Mr. Hernandez-Mendez chose the removal order. He was deported on January 19, 2018.
Second , Mr. Hernandez-Mendez illegally entered the country for the third time on February 6, 2018, when Border Patrol agents arrested him near Santa Teresa, New Mexico. This time, the Department of Homeland Security served him with a Notice of Intent/Decision to Reinstate Prior Order, or a Form I-871.2 Essentially, this Notice asserted that the government could reinstate the January 9, 2018, immigration court order to remove Mr. Hernandez-Mendez again. But, this time, the government didn't deport Mr. Hernandez-Mendez immediately. Instead, the United States Attorney's Office for the District of New Mexico prosecuted him. Mr. Hernandez-Mendez pleaded guilty to illegal reentry. The court sentenced him, and, on March 6, 2018, he was deported again.
Finally, Mr. Hernandez-Mendez entered the country illegally for the fourth time. On June 27, 2018, Immigration and Customs Enforcement ("ICE") officers arrested him in Kansas City, Kansas. Mr. Hernandez-Mendez told officers that he had entered the country illegally in April 2018. The Indictment in this case arises from this June 27 arrest.
The court held a hearing on Mr. Hernandez-Mendez's motion on April 25, 2019. See Doc. 22. In the sections below, the court discusses the statutory and case authorities governing the motion and addresses Mr. Hernandez-Mendez's arguments.
Several statutes and regulations govern the issues underlying Mr. Hernandez-Mendez's motion. First, 8 U.S.C. § 1229 controls the "[i]nitiation of removal proceedings." That section specifically requires that "written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) specifying" several items. Id. at § 1229(a)(2). One of the items the Notice must include is "[t]he time and place at which the proceedings will be held." Id. at § 1229(a)(1)(G)(i). Second, 8 C.F.R. § 1003.14 explains the immigration court's jurisdiction. "Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration court...." Id. at § 1003.14(a). And, 8 C.F.R. § 1003.18 specifies that the notice to appear "shall provide ... the time, place and date of the initial removal hearing, where practicable."
A separate statute governs any attacks on "the validity of [a] deportation order." 8 U.S.C. § 1326(d)(1)–(3). This statute prohibits collateral attacks unless the alien can satisfy three requirements:
8 U.S.C. § 1326(d)(1)–(3).
Mr. Hernandez-Mendez's motion relies in large part on a 2018 Supreme Court case, Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), which interpreted statutory provisions governing removal. In that case, the Court considered a notice to appear that didn't contain a date and time for defendant Wescley Fonseca Pereira's initial removal hearing. "More than a year" after the government had sent the defendant the notice to appear, Pereira , 138 S. Ct. at 2107. Pereira remained unaware of the proceedings and the removal order, and he stayed in the United States.
Pereira evaluated 8 U.S.C. § 1229b, which provides that the Attorney General "may cancel removal of ... an alien who is inadmissible or deportable from the United States if the alien ... has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application[.]" Id. at § 1229b(b)(1)(A). But, the same section ends this 10-year period "when [an] alien is served a notice to appear under section 1229(a)." Id. at § 1229b(d)(1). The Court referred to § 1229b(d)(1) as the "stop-time rule." Pereira , 138 S. Ct. at 2108. Because § 1229b specifically references § 1229(a), the Court concluded that Congress had answered the "narrow[ ]" question whether "a ‘notice to appear’ that does not specify the ‘time and place at which the proceedings will be held,’ as required by § 1229(a)(1)(G)(i), trigger[s] the stop-time rule[.]" Id. at 2113. Since Congress had supplied a clear answer to this question, the Court concluded that it didn't need to "resort to Chevron deference" to agency interpretations and decisions. Id. The Court also employed several canons of statutory construction and evaluated practical considerations, but ultimately held that §§ 1229b(d)(1) and 1229(a) contained clear, unambiguous language. This language, the court held, meant that such a notice isn't sufficient to invoke the stop-time rule.
Mr. Hernandez-Mendez's motion here asserts two main arguments: one challenges the January 9, 2018, removal order, and the other challenges the March 6, 2018, removal based on the January 9 order. The court addresses these arguments, in turn, in the two sections, below.
Mr. Hernandez-Mendez primarily asserts that notices to appear must contain time and place information for removal hearings under Pereira . Without that crucial information, Mr. Hernandez-Mendez argues, a notice to appear is void, and it divests the immigration court of subject matter jurisdiction over those removal proceedings. Mr. Hernandez-Mendez recognizes that our court has rejected this argument several times. But, he asserts, the Supreme Court in Pereira categorized 8 U.S.C. § 1229(a) —which includes the "time and place" requirement—as "definitional." Doc. 18 at 14 (quoting Pereira , 138 S. Ct. at 2116 ). He also argues that, under established statutory construction rules, " ‘identical words ... used in different parts of the same act ... are intended to have the same meaning.’ " Id. (quoting Pereira , 138 S. Ct. at 2115 ). Mr. Hernandez-Mendez rejects BIA decisions and regulations such as 8 C.F.R. §§ 1003.14, 1003.15, and 1003.18, which don't require notices to appear to contain time, date, or place information. These decisions and regulations, he contends, directly contravene Congress's explicit requirement in 8 U.S.C. § 1229(a) that notices to appear must indeed contain the "time and place" of removal hearings.
But, recent cases from our court show that Mr. Hernandez-Mendez is not the first to invoke Pereira for these arguments. See generally United States v. Cardenas-Rodriguez , No. 18-10104-EFM-1, 2019 WL 1058197 (D. Kan. Mar. 6, 2019) ; United States v. Fernandez-Casas , No. 18-10126-EFM-1, 2019 WL 1058198 (D. Kan. Mar. 6, 2019) ; United States v. Garcia-Valadez , No. 18-10144-EFM-1, 2019...
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