United States v. Mayorga, Cause No. 1:17-CR-114-LY

• Decision Date: 29 January 2019
• Docket Number: Cause No. 1:17-CR-114-LY
• Citation: United States v. Mayorga, 359 F.Supp.3d 484 (W.D. Tex. 2019)
• Parties: UNITED STATES of America v. Milton MAYORGA
• Court: U.S. District Court — Western District of Texas

359 F.Supp.3d 484

UNITED STATES of America

v.Milton MAYORGA

Cause No. 1:17-CR-114-LY

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

Signed January 29, 2019

Mark H. Marshall, United States Attorney's Office, Austin, TX, for United States of America.

MEMORANDUM OPINION AND ORDER

LEE YEAKEL, UNITED STATES DISTRICT JUDGE

Before the court in the above-styled and numbered cause are Defendant's Motion to Dismiss filed November 27, 2018 (Dkt. No. 23) and Government's Response in Opposition to Defendant's Motion to Dismiss the Indictment filed November 29, 2018 (Dkt. No. 24). On November 30, 2018, the court conducted a hearing at which all parties were represented by counsel. Having considered the motion, response, attached exhibits, applicable law, and the arguments of counsel, the court will deny the motion for the reasons to follow.

I. BACKGROUND

On March 7, 2017, Mayorga was indicted on one count of illegal reentry into the United States. See 8 U.S.C. § 1326(a). Mayorga a citizen of Nicaragua. The record does not reflect when he was initially apprehended by federal law enforcement. While in immigration custody, on December 22, 2011, Mayorga was served in person with a United States Department of Homeland Security form titled "Notice to Appear." The form notice states that Mayorga was previously "admitted to the United States, but are removable." The notice further states that "you were admitted to the United States at Miami, Florida on or about January 23, 2001; as a nonimmigrant, B1 / B2 Visitor, with authorization to remain in the United States for a temporary period not to exceed July 22, 2001." Mayorga "remained in the United States beyond July 22, 2001, without authorization." The notice informed Mayorga,

YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at: 800 Dolorosa Street Suite 300 San Antonio Texas US 78207, on (Date) to be set, at (Time) to be set, to show why you should not be removed from the United States based on the charge set forth above.

The certificate-of-service portion of the notice indicates that Mayorga was provided with "oral notice in the Spanish language of the time and place of his [ ] hearing and of the consequences of failure to appear," but that he "refused to sign." Mayorga also did not sign a request for an expedited removal hearing or waive his right to a 10-day waiting period before appearing before an immigration judge. Mayorga received four Notices of Hearing that included a date, time, and a crossed out location of his immigration hearing. The first, dated January 6, 2012, was personally served on the Mayorga and notified him of a hearing on January 18, 2012, at 8:30 a.m. at 800 Dolorosa Street-Suite 300 San Antonio, TX 78207. The location, however, was crossed out and a stamp placed over the text of the notice, making the new location illegible. The second notice, dated January 18, 2012, was served on Mayorga's immigration counsel, and notified him of a hearing on February 2, 2012, but the location was again crossed out. The third notice, dated February 2, 2012, was served on Mayorga's counsel and notified him of a hearing on February 9, 2012. The location was crossed out, and "STDC" written in next to it. The fourth notice, dated February 9, 2012, was also served on Mayorga's counsel and notified him of a hearing on February 16, 2012, with the location again crossed out.¹

Removal proceedings occurred in San Antonio, Texas on February 16, 2012. The immigration judge rendered an "order of the immigration judge," which was "a summary of the oral decision entered." The order indicates that Mayorga's "application for voluntary departure was denied," and Mayorga "was ordered removed to Nicaragua." The order of removal, signed February 16, 2012, indicates that Mayorga was personally served with a copy of the order the same day. Although the record does not contain a signed waiver of appeal, "Appeal: Waived" is circled at the end of the order. Mayorga was removed from the United States on March 7, 2012.

The February 16, 2012 removal order was reinstated in May 12, 2013.² Mayorga eventually came to the attention of federal law-enforcement authorities on or about January 3, 2017. The charge at issue followed when a grand jury returned an indictment on March 7, 2017, for illegal reentry. See 8 U.S.C. § 1326(a). The February 16, 2012 removal order is the basis for the instant indictment.

In order to prove illegal reentry, the Government must prove that Mayorga "has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding." Id. The lawfulness or validity of a prior removal order is not an element of an illegal-reentry offense, and the Government need only prove the fact of a prior removal. United States v. Mendoza-Lopez , 481 U.S. 828, 834–35 & n.9, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). The only statutory defense available to a defendant charged with illegal reentry into the United States is a collateral attack on the defendant's prior removal order. See 8 U.S.C. § 1326(d) ( "1326(d)").

II. LEGAL STANDARD

A criminal defendant may allege a defect in an indictment in a pretrial motion. See Fed. R. Crim. P. 12(b)(3)(B). An indictment must contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). "[A] motion to dismiss an indictment for failure to state an offense is a challenge to the sufficiency of the indictment." United States v. Kay , 359 F.3d 738, 742 (5th Cir. 2004). When the court decides such a motion, it is required to "take the allegations of the indictment as true and to determine whether an offense has been stated." United States v. Hogue , 132 F.3d 1087, 1089 (5th Cir. 1998).

The propriety of granting a motion to dismiss an indictment ... by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact .... If a question of law is involved, then consideration of the motion is generally proper.

United States v. Fontenot , 665 F.3d 640, 644 (5th Cir. 2011) (internal citation omitted).

III. ANALYSIS

a. Did the immigration court lack jurisdiction to render removal order?

Mayorga first argues that the immigration court was without jurisdiction to enter the 2012 removal order, thus, as a matter of law, the current indictment lacks a sound basis, and this prosecution cannot continue.

Although the Constitution and governing statutes lack any reference to the jurisdiction of an immigration court, Mayorga contends that, primarily based upon language in Pereira v. Sessions , the immigration court lacked jurisdiction to enter the February 16, 2012 removal order, because the notice to appear given to Mayorga on December 22, 2011, was statutorily deficient—the notice failed to include a time at which the removal proceedings would be held.³ ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018) (considering Section 1229(a) requirements for notice to appear in context of Section 1229b, request to cancel removal proceedings, and stop-time rule⁴ ); 8 U.S.C. § 1229(a)(1)(G)(i) (notice to appear given to alien shall include "time and place at which the proceedings will be held"). Mayorga contends that the removal order resulting from the February 16, 2012 immigration removal proceeding was void and cannot now be used as a basis for of his illegal-reentry offense.

Mayorga's contention is not novel. Illegal-reentry defendants around the country, relying on language in Pereira v. Sessions , have filed similar motions to dismiss the Government's charges against them. The motions usually raise the same two contentions and similarly argue that based on a statutorily-deficient notice to appear, which fails to inform the defendant in writing of the scheduled time for the removal proceedings, the immigration court entering the initial removal order lacked jurisdiction to issue such an order. Thus, the initial removal order is void, and the subsequent indictment for illegal reentry must be dismissed. Courts presented with this issue have not spoken with one voice.⁵ This court has made an effort to review all decisions issued as of the date of this order in considering the motion.

The Pereira Court considered a similar statutorily-deficient notice to appear, but not in the context of an attack on an initial removal order in an illegal-reentry prosecution. The Pereira Court was presented with a direct appeal from a Board of Immigration ruling and the Court of Appeals for the First Circuit regarding a noncitizen's request for cancellation of removal proceedings.

Noncitizens subject to removal proceedings may be eligible for cancellation of removal proceedings if they have been physically present in the United States for a continuous period of 10 years immediately preceding the date of the Government's request for removal. 8 U.S.C. § 1229b(b)(1)(A). Under this "stop-time rule,"⁶ the period of continuous presence ends when the Government serves the noncitizen with a notice to appear under section 1229(a). 8 U.S.C. § 1229b(d)(1) (special rules relating to continuous residence or physical presence: "[f]or purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end ... when the alien is served a notice to appear under section 1229(a) of this title"). The date the Government serves the noncitizen with a Section 1229(a) notice to appear at a removal proceeding stops the noncitizen's continuous presence in the United States.

Pereira, a citizen of Brazil who had been present in the United States for several years, was served with a notice to appear stating that his removal proceeding would occur on a date and time "to be set." Pereira , 138 S.Ct. at 2112. Ahead of the removal hearing, the immigration court sent Pereira a notice...