United States v. Juan De La Cruz Morante

• Decision Date: 21 March 2019
• Docket Number: No. 5:18-CR-463,5:18-CR-463
• Citation: 375 F.Supp.3d 707
• Parties: UNITED STATES of America v. Juan BRAVO-DE LA CRUZ MORANTE TN: Juan De la Cruz BravoMorante
• Court: U.S. District Court — Southern District of Texas

375 F.Supp.3d 707

UNITED STATES of America

v.Juan BRAVO-DE LA CRUZ MORANTE TN: Juan De la Cruz BravoMorante

No. 5:18-CR-463

United States District Court, S.D. Texas, Laredo Division.

Signed March 21, 2019

Jose Angel Moreno, Office of U.S. Attorney, Laredo, TX, Financial Litigation, U.S. Attorney's Office Southern District of Texas, Houston, TX, for United States of America.

Ricardo Xavier Guerra, Federal Public Defender, Public Defender or Community Defender Appointment, Laredo, TX, for Juan Bravo-De La Cruz Morante TN:Juan De La Cruz BravoMorante.

ORDER

Jimmie V. Reyna, Circuit Judge

Defendant Juan De la Cruz Bravo-Morante was indicted on charges of illegal reentry into the United States in violation of 8 U.S.C. § 1326. On August 3, 2018, Defendant pleaded guilty to the charge. Defendant now requests this court to grant his Motion to Withdraw the Guilty Plea, Motion for Leave, and Motion to Dismiss the Indictment. (Dkt. No. 29). Defendant argues that the immigration court that issued the underlying order of deportation serving as the predicate for the illegal reentry charge lacked subject-matter jurisdiction over the removal proceeding. Defendant largely bases his argument on the Supreme Court decision in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). This court concludes that Pereira does not support Defendant's motions. Accordingly, for reasons stated in this Order, Defendant's motions (Dkt. No. 29) are DENIED .

I. BACKGROUND

Defendant, a citizen of Mexico, entered the United States without obtaining legal status. While illegally in the United States, Defendant engaged in criminal conduct that led to his arrest and custody with the United States Immigration and Customs Enforcement ("ICE") on charges of unauthorized entry into the United States. On January 4, 2011, Defendant was served with a notice to appear in immigration court for a removal proceeding before an immigration judge. It is undisputed that the notice to appear did not include a time, date, or place for the removal proceeding. (Dkt. No. 31-2). Defendant signed the notice to appear and requested an expedited hearing. (Dkt. No. 31-2). Moreover, in a notice of rights and request for disposition Defendant admitted that he was in the United States illegally, conceded that he does not believe he faces any harm upon return to his country, and waived his right to a hearing before the immigration court. (Dkt. No. 31-3). On January 24, 2011, Defendant attended a deportation hearing before an immigration judge and was ordered deported. He waived any appeal (Dkt. No. 31-4) and was deported to Mexico the following day.

On March 20, 2013, Defendant illegally re-entered the United States. Five years later, on June 1, 2018, immigration authorities found and detained Defendant near Laredo, Texas. On June 19, 2018, Defendant was indicted for illegal reentry into the United States, a felony, in violation of 8 U.S.C. § 1326. On August 3, 2018, Defendant appeared before U.S. Magistrate Judge Diana Song Quiroga and pleaded guilty to the offense. Magistrate Judge Song Quiroga accepted the plea of guilty upon finding that Defendant's plea was made knowingly and voluntarily. Following the plea colloquy, the court ordered probation to prepare a presentence investigation report, and the period of time for review and objections to the presentence investigation report passed. Defendant was scheduled to appear before the court for sentencing on September 25, 2018. But the day before his sentencing hearing, Defendant requested a continuance to evaluate the possibility of obtaining relief under Pereira . The Court granted the request and ordered deadlines for filing motions and responses. On November 1, 2018, Defendant moved to withdraw his guilty plea and for dismissal of his indictment. The government responded.

II. DISCUSSION

Defendant pleaded guilty to an indictment charging him with illegal reentry, in violation of 8 U.S.C. § 1326. An element of that offense is a prior "arrest and deportation." United States v. Flores-Peraza , 58 F.3d 164, 166 (5th Cir. 1995) (citing United States v. Cardenas-Alvarez , 987 F.2d 1129, 1131–32 (5th Cir. 1993) ); see also Fifth Circuit Pattern Jury Instructions (Criminal) § 2.03 (2015) (stating the government must prove "the defendant had previously been deported [denied admission][excluded][removed] from the United States" (brackets in original) ).¹ Here, the element of prior deportation is met by the 2011 deportation order and Defendant's actual deportation pursuant to that order. (Dkt. No. 29-2).

Defendant argues that the 2011 deportation order is void because the immigration court that issued it lacked "subject-matter jurisdiction." Defendant relies on the Supreme Court's decision in Pereira , which held that a putative notice to appear is not a "notice to appear" under 8 U.S.C. § 1229(a)(1) if it does not include the time and place of the removal proceeding (hearing). According to Defendant, because the 2011 notice to appear did not include time-and-place information, it is not a "notice to appear" as contemplated by 8 U.S.C. § 1229(a)(1). As a result, Defendant contends that the immigration court was not vested with subject-matter jurisdiction, the 2011 deportation order had no legal effect, and the prior deportation element under § 1326 is not met. And despite having pleaded guilty to the instant offense, Defendant asserts that he should be allowed to withdraw his guilty plea under 8 U.S.C. § 1326(d) and the Carr factors. See United States v. Carr , 740 F.2d 339, 343–44 (5th Cir. 1984).

As set out below, the court concludes that the Pereira decision does not address the precise issue in this case and is thus not dispositive given its limited relevance to this case. The court finds that the immigration court did not lack jurisdiction to conduct Defendant's deportation hearing or to issue the resulting deportation order. Moreover, the court is not persuaded that Defendant should be allowed to withdraw his plea of guilty to the illegal entry charge under § 1326(d) or the Carr factors.

A. Pereira

The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") provides that nonpermanent residents subject to removal (deportation) proceedings may be eligible for cancellation of those proceedings. 8 U.S.C. § 1229b. To be eligible for cancellation, the nonpermanent resident must have "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application" for cancellation of removal. Pereira , 138 S.Ct. at 2110 (quoting 8 U.S.C. § 1229b(b)(1)(A) ). This 10-year period of continuous physical presence is not without limitation. The IIRIRA provides that the alien's continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear. Id. (quoting 8 U.S.C. § 1229b(d)(1)(A) ). This limitation is commonly known as the "stop-time rule." Id. at 2109.

The statute provides that a notice to appear should include information about the time, place, and date for the removal proceeding. 8 U.S.C. § 1229(a)(1). The Department of Homeland Security ("DHS") is initially responsible for supplying the notice to appear and time-and-place information. In recent years, however, DHS increasingly served noncitizens with notices to appear that did not include the time-and-place information. Pereira , 138 S.Ct. at 2111 ; Hernandez-Perez v. Whitaker , 911 F.3d 305, 314 (6th Cir. 2018) ("[A]lmost 100 percent of [notices to appear] issued during the three years preceding Pereira did not include the time and date of the proceeding." (internal quotations omitted) ). This practice was institutionalized by a 1997 DHS regulation that provided that the time-and-place information need only be included in a notice to appear when practical. Pereira , 138 S.Ct. at 2111 (citing 62 Fed. Reg. 10332 (1997) ); In re Bermudez-Cota , 27 I. & N. Dec. 441, 443–44 (BIA 2018) ; 8 C.F.R. § 3.18 (1998). Under the practice, notices to appear that lacked time-and-place information were deemed to trigger the stop-time rule.

Pereira, a citizen of Brazil, entered the United States in 2000 as a temporary non-immigrant visitor. Pereira , 138 S.Ct. at 2112. After his non-immigrant visa expired, he remained in the United States in an unlawful status. Six years later, in 2006, Pereira was arrested for driving a vehicle under the influence of alcohol. While in detention, DHS served him with a document entitled "Notice to Appear." Id. The notice charged him with overstaying his visa and directed him to appear before an immigration judge in Boston at a date and time that was "to be set." Id. In 2007, the immigration court mailed Pereira a notice to appear that included the time and place of his initial removal hearing. The notice to appear, however, was returned as undeliverable because it was sent to the wrong address. Id. Pereira never received the notice, failed to appear at the hearing, and was ordered removed in absentia. Id.

In 2013, Pereira was arrested for a traffic violation and detained by ICE. By this time, Pereira had been continuously physically present in the United States for a period of over 10 years. Once the immigration court reopened his removal proceeding, Pereira argued that he was entitled to relief in the form of cancellation of the removal proceeding under 8 U.S.C. § 1229b(b)(1).² The government opposed and asserted the stop-time rule, arguing that Pereira's "continued presence" was "deemed to end" in 2006 when he was served with a notice to appear. See 8 U.S.C. § 1229b(d)(1).³ Pereira countered that the stop-time rule did not apply in his case because the 2006 notice to appear did not include the time-and-place information, as required by 8 U.S.C. § 1229(a).⁴ The immigration court disagreed, finding that the notice to appear did not require the time-and-place information to trigger the stop-time rule. Pereira unsuccessfully...