United States v. Lopez-Urgel

• Decision Date: 14 November 2018
• Docket Number: 1:18-CR-310-RP
• Citation: 351 F.Supp.3d 978
• Parties: UNITED STATES of America v. Sobec LOPEZ-URGEL, Defendant.
• Court: U.S. District Court — Western District of Texas

351 F.Supp.3d 978

UNITED STATES of America

v.Sobec LOPEZ-URGEL, Defendant.

1:18-CR-310-RP

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

Signed November 14, 2018

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

Duty Pub. Defender-Austin, Jose I. Gonzalez-Falla, Office of the Federal Public Defender, Austin, TX, for Defendant.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Sobec Lopez–Urgel's ("Lopez") motion to dismiss the pending indictment. (Dkt. 16). Having considered the parties' briefs, the evidence, and the relevant law, the Court enters the following order.

I. BACKGROUND

Lopez has been indicted with a single count of illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). (Dkt. 10). Specifically, the Government alleges that Lopez is an alien who was found in the Travis County Jail on March 15, 2018, and that Lopez was previously removed from the United States to Mexico on or about December 14, 2017. (See Compl., Dkt. 1).

Lopez is a citizen of Mexico. (Gov't. Resp., Dkt. 22, at 3). Immigration authorities first found him on July 20, 2009, and served him with a notice to appear ("NTA") at a removal hearing. (See NTA, Dkt. 16-1). The NTA did not contain a date or time. (Id. at 1). Lopez was held in custody until the hearing, where he appeared and participated. (Gov't. Resp., Dkt. 22, n.2; Order, Dkt. 16-2). At the hearing, Lopez was ordered removed; he waived appeal. (Gov't. Resp., Dkt. 22, at 3; Order, Dkt. 16-2). This removal order has since been reinstated twice: once in October 2013 and again in December 2017. (Mot. Dismiss, Dkt. 16, at 2). It is this removal order that forms the basis of Lopez's indictment for illegal reentry.

Lopez now seeks to collaterally challenge his removal order. Relying on the Supreme Court's recent decision in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), Lopez argues that his pending indictment for illegal reentry must be dismissed because his sole prior removal order was invalid. (Mot. Dismiss, Dkt. 16, at 2). Specifically, he contends that because he received a Notice to Appear that did not indicate the removal hearing's date and time as required by statute, that notice was invalid and the immigration judge who ordered his removal had no jurisdiction to do so. (Id. ). The Government filed a response. (Dkt. 16). Both parties have also filed supplemental briefing. (Dkt. 25, 26, 28, 29).

II. DISCUSSION

A defendant charged with illegal reentry in violation of 8 U.S.C. § 1326 has a due process right to challenge the removal order upon which the charge is predicated in the criminal proceeding before the district court. United States v. Mendoza–Lopez , 481 U.S. 828, 837–38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). After Mendoza–Lopez , the Court of Appeals for the Fifth Circuit held that to collaterally attack a prior removal order in a criminal proceeding, the alien must demonstrate that: "(1) the removal hearing was fundamentally unfair; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the alien actual prejudice." United States v. Lopez–Ortiz , 313 F.3d 225, 229 (5th Cir. 2002).

The Fifth Circuit regards this test as "effectively codified" in 8 U.S.C. § 1326(d). United States v. Lopez–Vasquez , 227 F.3d 476, 483 n.13 (5th Cir. 2000). Section 1326(d) provides that an alien may not challenge the validity of a removal order unless the alien establishes that: "(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceeding at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). To successfully challenge a removal order, the alien must prove all three prongs. United States v. Cordova–Soto , 804 F.3d 714, 719 (5th Cir. 2015). "If the alien fails to establish one prong of the three part test, the Court need not consider the others." Id. (quoting United States v. Mendoza–Mata , 322 F.3d 829, 832 (5th Cir. 2003) ). The Fifth Circuit has also required a showing of prejudice. Id. at 719.¹ To show prejudice, the alien must show that " ‘there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported.’ " Id. (quoting United States v. Benitez–Villafuerte , 186 F.3d 651, 658–59 (5th Cir. 1999) ). The Government argues that Lopez fails to establish all three prongs and has failed to demonstrate prejudice. (Resp. Mot. Dismiss, Dkt. 16). The Court addresses each requirement of 8 U.S.C. § 1326(d), and the question of prejudice, in turn.

A. Fundamental Fairness

To collaterally attack a prior removal order in a criminal proceeding, a noncitizen must show that "the removal hearing was fundamentally unfair." Cordova–Soto , 804 F.3d at 718–19 (quoting 8 U.S.C. § 1326(d)(c) ). Lopez argues that his removal order was fundamentally unfair because the immigration judge who issued the order lacked jurisdiction to do so. (Mot. Dismiss, Dkt. 16, at 3–6). The Court will consider whether the immigration judge had jurisdiction over Lopez's removal hearing and, if the immigration judge lacked jurisdiction, whether the removal hearing was fundamentally unfair.

1. Jurisdiction of the Immigration Judge

Federal regulation provides that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court." 8 C.F.R. § 1003.14(a). A charging document includes a NTA. Id. § 1003.13 ("Charging document means the written instrument which initiates a proceeding before an Immigration Judge.... [T]hese documents include a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien."). The statute governing removal proceedings defines a NTA as a "written notice" that "specif[ies]" certain information, including "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). In Pereira , the Supreme Court held that "[a] putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a ‘notice to appear under section 1229(a).’ " Pereira , 138 S.Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A) ). "The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion." Id. at 2110.

In this case, Lopez argues that without a date and time, the putative NTA he received in 2009 was not a NTA at all. (Mot. Dismiss, Dkt. 16, at 5). Without a NTA, Lopez argues, there was no charging document, and without a charging document, jurisdiction never vested in the immigration judge who issued Lopez's removal order. (Id. ). The Government counters that Pereira 's reading of § 1229(a) is limited to the specific facts of that case, which concerned whether a NTA lacking the time and place of a removal hearing triggered the "stop-time rule" for certain discretionary immigration relief. (Gov't. Resp., Dkt. 22, at 8; Pereira , 138 S.Ct. at 2110 ). The Government contends that a document lacking the time and place of a removal hearing nevertheless meets the regulatory definition of a NTA, thereby vesting jurisdiction with the immigration judge. (Gov't. Resp., Dkt. 22, at 8). Based on the plain language of the statute, as supported by the clear directive of the Supreme Court in Pereira , this Court finds that a notice to appear without a date and time is not a NTA and therefore cannot vest an immigration judge with jurisdiction.

Removal proceedings are regulated by statute under 8 U.S.C. § 1229a. The implementing regulations provide that "jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed." 8 C.F.R. § 1003.14(a). A charging document must "include a Notice to Appear." Id.§ 1003.13.² Accordingly, a document that does not "include a Notice to Appear" is not a charging document under the regulations, and therefore cannot establish jurisdiction. "[R]emoval proceedings commence when the [Department of Homeland Security] files the appropriate charging document with the immigration court." DeLeon–Holguin v. Ashcroft , 253 F.3d 811, 815 (5th Cir. 2001) (concluding that "removal proceedings ... commenced when the Notice to Appear was filed").

Both the statute and the regulations define a "Notice to Appear" for removal proceedings. The statute governing removal proceedings defines a Notice to Appear as a "written notice" that "specif[ies] ... [t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). The regulations that govern the jurisdiction of an Immigration Judge state that a Notice to Appear "must also include" a list of information that specifies all of the same information required by the statute under § 1229(a), except that the time and place of the removal proceeding are omitted. 8 C.F.R. § 1003.15(b). The regulations also state that "[i]n removal proceedings pursuant to section 240 of the Act, the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable." Id. § 1003.18(b).

The Government suggests that the regulations supply an alternative definition of a Notice to Appear, through which a Notice to Appear may vest an Immigration Judge with jurisdiction even though the NTA fails to meet the statutory definition. (See Gov't. Resp., Dkt. 22, at 11). The Court rejects this theory for several reasons.

First, a regulatory definition does not displace a statutory definition where the statute is unambiguous. "In the process of considering a regulation in relation to specific factual situations, a court may conclude the regulation is inconsistent with the...