United States v. Monsivais-Lopez
| Decision Date | 29 January 2019 |
| Docket Number | Cause No. 1:18-CR-218-LY |
| Citation | 363 F.Supp.3d 792 |
| Parties | UNITED STATES of America v. Leobardo MONSIVAIS-LOPEZ |
| Court | U.S. District Court — Western District of Texas |
363 F.Supp.3d 792
UNITED STATES of America
v.
Leobardo MONSIVAIS-LOPEZ
Cause No. 1:18-CR-218-LY
United States District Court, W.D. Texas, Austin Division.
Signed January 29, 2019
Douglas W. Gardner, 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 October 17, 2018 (Dkt. No.
32); Government's Response in Opposition to Defendant's Motion to Dismiss the Indictment filed November 2, 2018 (Dkt. No. 36); and Government's Notice of Supplemental Authority filed November 26, 2018 (Dkt. No. 37). On November 30, 2018, the court conducted a hearing at which all parties were represented by counsel. Having considered the motion, response, attached exhibits, supplemental authority, applicable law, and the arguments of counsel, the court will deny the motion for the reasons to follow.
I. BACKGROUND
On June 5, 2018, Monsivais-Lopez was indicted on one count of illegal reentry into the United States. See 8 U.S.C. § 1326(a). Monsivais-Lopez, a citizen of Mexico, while in immigration custody in Pearsall, Texas, was served in person with a United States Department of Homeland Security form titled "Notice to Appear" on April 6, 2010. The form notice states that Monsivais-Lopez is subject to removal because he is "an alien present in the United States who has not been admitted or paroled." The notice informed Monsivais-Lopez,
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 78207, on (Date) a date to be set, at (Time) a time to be set, to show why you should not be removed from the United States based on the charge set above.
The certificate-of-service portion of the notice indicates that Monsivais-Lopez 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." Immediately above the certificate of service, dated April 6, 2010, Monsivais-Lopez signed a request for an expedited removal hearing and waived his right to a 10-day waiting period before appearing before an immigration judge. The record does not include evidence that Monsivais-Lopez was ever personally served with a written notice of hearing containing the time and place of the hearing, though the Government asserts that "detained inmates are generally provided with written or oral notice of the hearing."1
Removal proceedings occurred on May 3, 2010. According to the Order of the Immigration Judge signed May 3, 2010, "the hearing was conducted by teleconferencing" with the immigration judge located in San Antonio and the hearing occurring in Pearsall. The order provides, "[u]pon the basis of respondent's [Monsivais-Lopez's] admissions" the immigration judge determined that [Monsivais-Lopez] is subject to removal on the charge in the Notice to Appear. Additionally, the order includes, "[Monsivais-Lopez] has made no application for relief from removal." The immigration judge ordered Monsivais-Lopez removed from the United States to Mexico. Although the record does not contain a signed waiver of appeal, the order includes the notation, "Appeal: WAIVED" at the end of the order. Monsivais-Lopez was removed from the United States on May 10, 2010.
The May 3, 2010 removal order was reinstated and Monsivais-Lopez was removed again on June 29, 2012.2 Monsivais-Lopez came to the attention of federal law-enforcement
authorities in Austin, Texas on May 29, 2016. Monsivais-Lopez however, did not enter federal custody until May 4, 2018, after he completed a two-year term of imprisonment for the state felony offense of driving while intoxicated. The charge at issue followed when a grand jury returned an indictment on June 5, 2018, for illegal reentry. See 8 U.S.C. § 1326(a). The May 3, 2014 removal order is the basis for the instant indictment. Although Monsivais-Lopez originally pleaded guilty to the charge alleged by the Government in the June 5, 2018 indictment, the court granted Monsivais-Lopez's request to withdraw his guilty plea on October 23, 2018 (Dkt. No. 35).
In order to prove illegal reentry, the Government must prove that Monsivais-Lopez "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?
Monsivais-Lopez first argues that the immigration court was without jurisdiction to enter the 2010 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, Monsivais-Lopez contends that, primarily based upon language in Pereira v. Sessions , the immigration court lacked jurisdiction to enter the May 3, 2010 removal order, because the notice to appear given to Monsivais-Lopez on April 6, 2010, 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"). Monsivais-Lopez contends that the removal order resulting from the May 3, 2010 immigration removal proceeding was void and cannot now be used as a basis for of his illegal-reentry offense.
Monsivais-Lopez'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...
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