United States v. Leon-Gonzalez

• Decision Date: 20 November 2018
• Docket Number: EP-18-CR-2593-DB
• Citation: 351 F.Supp.3d 1026
• Parties: UNITED STATES of America v. Juan Miguel LEON-GONZALEZ
• Court: U.S. District Court — Western District of Texas

351 F.Supp.3d 1026

UNITED STATES of America

v.Juan Miguel LEON-GONZALEZ

EP-18-CR-2593-DB

United States District Court, W.D. Texas, El Paso Division.

Signed November 20, 2018

Carlos Gerardo Hermosillo, United States Attorney's Office, El Paso, TX, Joseph H. Gay, Jr., Assistant U.S. Attorney, San Antonio, TX, for Plaintiff.

Erik Anthony Hanshew, Federal Public Defender, El Paso, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

DAVID BRIONES, SENIOR UNITED STATES DISTRICT JUDGE

On this day, the Court considered Defendant Juan Miguel Leon-Gonzalez's ("Mr. Leon-Gonzalez") "Motion to Dismiss Indictment" ("Motion"), filed in the above-captioned case on October 16, 2018. On October 29, 2018, the United States of America ("the Government") filed its "Response in Opposition to Defendant's Motion to Dismiss Indictment" ("Response"). On November 5, 2018, Mr. Leon-Gonzalez filed his "Reply to Government's Response in Opposition to Defendant's Motion to Dismiss Indictment" ("Reply"). On November 7, 2018, Mr. Leon-Gonzalez filed an "Advisory to the Court." On November 8, 2018, the Government filed its "Surreply to Defendant's Reply to Government's Response in Opposition to Defendant's Motion to Dismiss Indictment" ("Surreply"). On November 14, 2018, Mr. Leon-Gonzalez filed a second "Advisory to the Court." On November 19, 2018, the Government filed a "Notice of Supplemental Authority" ("Supplement"). After due consideration, the Court is of the opinion that Mr. Leon-Gonzalez's Motion should be granted.

BACKGROUND

On September 5, 2018, a Grand Jury sitting in the Western District of Texas returned a single count Indictment ("Indictment"), which charges Mr. Leon-Gonzalez with an alleged illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). Indictment, United States of America v. Juan Miguel Leon-Gonzalez , (W.D. Tex., Sept. 5, 2018), ECF No. 10. Specifically, the Indictment alleges that on or about August 12, 2018, Mr. Leon-Gonzalez, an undocumented immigrant who had previously been excluded, deported, and removed from the United States on or about February 13, 2015, attempted to enter, entered, and was found in the United States without having previously received express consent to reapply for admission from the United States Attorney General or the Secretary of Homeland Security. Id.

Mr. Leon-Gonzalez's immigration history indicates that he was first encountered after he was convicted of felony child abuse in violation of New Mexico law and sentenced to three years in prison. Resp., ECF No. 24, at 1. On November 21, 2011 the Department of Homeland Security served a Notice to Appear on the defendant that alleged he was subject to removal from the United States for being a noncitizen present in the United States without being admitted or paroled. Id. at Ex. A. The Notice to Appear stated that Mr. Leon-Gonzalez was to appear before a United States Department of Justice immigration judge at the El Paso Service Processing Center and included the address of the Center. Id. But it did not indicate the date and time of that hearing. Id. Instead, the Notice to Appear indicated that the hearing would be on "a date to be set" and "a time to be set." Id. The Department of Homeland Security filed the Notice to Appear with the immigration court in El Paso, Texas. Resp., ECF No. 24, at 2.

The immigration court issued a Notice of Hearing to Mr. Leon-Gonzalez. Id. at 2 n.3 (explaining that "[i]mmigration officials have represented to the U.S. Attorney's Office that this Notice of Hearing was served on the alien. Because the alien was detained, however, a copy of the Notice of Hearing was maintained in the Executive Office of Immigration Review record of proceedings, as opposed to the alien's A-File. The government is in the process of obtaining a copy of this notice and will provide it to defense counsel and the Court upon receipt." The Court notes that no such Notice of Hearing has been provided yet.). Mr. Leon-Gonzalez attended the hearing held before the immigration court on December 12, 2011, and Immigration Judge Thomas C. Roepke issued an order of removal. Id. at Ex. B. Mr. Leon-Gonzalez waived appeal and he was taken to Mexico on December 13, 2011. Id. at 2.

That 2011 removal order is the underlying removal order of the instant Indictment. Mot., ECF No. 20, at 2; see Indictment, ECF No. 10. The Indictment charges illegal reentry in violation of 8 U.S.C. § 1326 and was filed against him on September 5, 2018 after immigration authorities found Mr. Leon-Gonzalez in El Paso on August 12, 2018. Mot., ECF No. 20, at 2; Indictment, ECF No. 10. Mr. Leon-Gonzalez's Motion seeks to dismiss the Indictment.

ANALYSIS

Mr. Leon-Gonzalez petitioned the Court to dismiss the Indictment because the immigration court lacked subject matter jurisdiction to issue the original removal order after the Notice to Appear he received in 2008 failed to include a date and time. Mot., ECF No. 20, at 1-2. Because the immigration court lacked jurisdiction to order his removal, he argues that the removal was void and cannot form the basis for an indictment for illegal reentry as he was never "removed" as a matter of law. Id. at 1. In addition, Mr. Leon-Gonzalez argues that the removal did not comport with due process and that he satisfies the § 1326(d) factors for a collateral attack. Id.

First, the Government argues that Mr. Leon-Gonzalez cannot meet any of the three § 1326(d) factors and asserts that "a Defendant may not collaterally attack the validity of a prior removal without meeting his burden of satisfying § 1326(d)." Resp., ECF No. 24, at 3–4. Second, the Government's Response takes issue with the definition of a Notice to Appear in § 1229(a)(1), as opposed to the regulatory definition in 8 C.F.R. § 1003.15, which does not require a date and time to be in a Notice to Appear. Id. at 7. Third, the Government argues that the "lawfulness or validity of a prior removal order is not an element of a § 1326 offense." Id. at 3.

The Court agrees with Mr. Leon-Gonzalez that regardless of whether the § 1326(d) factors are met, no jurisdiction existed in the trial court and therefore his Motion shall be granted because there is no initial "removal" to form the predicate for a charge of illegal reentry.

1. Regardless of the § 1326(d) Factors, a Removal Order May Be Challenged for Lack of Subject Matter Jurisdiction.

Typically, an undocumented immigrant must meet all three requirements of 8 U.S.C. § 1326(d) to collaterally attack the validity of a removal order. These three requirements are (1) the alien must have exhausted any administrative remedies, (2) the proceedings at which the order was issued must have improperly deprived the alien of the opportunity for judicial review, and (3) the entry of the deportation order must have been fundamentally unfair. 8 U.S.C. § 1326(d)(1–3).

But Mr. Leon-Gonzalez's challenge is atypical. United States v. Cruz-Jimenez , No. 17-CR-00063-SS, 2018 WL 5779491, at *2, 2018 U.S. Dist. LEXIS 187870, at *4 (W.D. Tex. Nov. 2, 2018). He contends that because the Government failed to file an effective Notice to Appear, the immigration judge never had jurisdiction to commence removal proceedings against him. Mot., ECF No. 20, at 2–3. And because the immigration judge never had jurisdiction over his removal proceedings, the resulting removal order was void. Id.

First, the removal order against Mr. Leon-Gonzalez is an "order from which an appeal lies," which means it is a judgment. See 8 C.F.R. § 1003.38(a) ("Decisions of Immigration Judges may be appealed to the Board of Immigration Appeals ..."); FED. R. CIV. PRO. 54(a). Second, "any judgment may be collaterally attacked if it is void for lack of jurisdiction," despite § 1326(d)'s restrictions on the types of collateral attacks that may be made on a deportation order. Cruz-Jimenez , No. 17-CR-00063-SS, 2018 WL 5779491 at *2, 2018 U.S. Dist. LEXIS 187870 at *4 ; Order, United States of America v. Edgar Alfredo Valladares , No. 17-cr-00156, 2018 WL 6629653 (W.D. Tex. Oct. 30, 2018), ECF No. 44, at 3 (citing Jacuzzi v. Pimienta , 762 F.3d 419, 420 (5th Cir. 2014) (emphasis in original) ); see e.g. In re Reitnauer , 152 F.3d 341, 344 n.12 (5th Cir. 1998) ("It is true that (1) jurisdictional defects render a judgment void, and (2) void judgments are subject to collateral attack.").

The Government argues that Jacuzzi v. Pimienta does not control here because it does not create a different mechanism for collateral attack and was decided based on a lack of personal jurisdiction. Surreply, ECF No. 29, at 5. Similarly, the Government asserts that In re Reitnauer does not "create a separate mechanism for aliens to collaterally attack the jurisdictional validity of their prior removal orders outside § 1326(d)." Id. In support of its position that § 1326(d) provides the "exclusive mechanism" to challenge the validity of a removal order, the Government cites the text of the statute itself to show Congress's will: " ‘in a criminal proceeding under this section, an alien may not challenge the validity of the deportation order’ unless he demonstrates the three requirements." Id. (quoting § 1326(d) ).

Next the Government asserts that even if Jacuzzi and In re Reitnauer applied, the Supreme Court has held in Chicot County Drainage District v. Baxter State Bank and Travelers Indemnity Co. v. Bailey that "a party—like the defendant—who never contested a court's subject matter jurisdiction in the original court is not permitted to then mount a collateral attack of that jurisdiction in a subsequent litigation." Id. at 6 (citing Chicot County Drainage Dist. v. Baxter State Bank , 308 U.S. 371, 376-77, 60 S.Ct. 317, 84 L.Ed. 329 (1940) ; Travelers Indemnity v. Bailey , 557 U.S. 137, 152-53, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009) ).

However, in addition to Jacuzzi and In re Reitnauer , the Fifth Circuit has specifically held that when the Board of Immigration Appeals issues a removal order without statutory or...