United States v. Niebla-Ayala

Decision Date05 December 2018
Docket NumberEP-18-CR-3067-KC
Citation342 F.Supp.3d 733
Parties UNITED STATES of America v. Francisco Javier NIEBLA-AYALA
CourtU.S. District Court — Western District of Texas

Sarah Valenzuela, U.S. Attorney's Office, El Paso, TX, for United States of America.

Elyse M. Bataller-Schneider, Federal Public Defender, El Paso, TX, for Francisco Javier Niebla-Ayala.



On this day, the Court considered Defendant Francisco Javier Niebla-Ayala's ("Niebla") Motion to Dismiss the Indictment in the above-captioned case. ECF No. 21. For the reasons that follow, the Motion is GRANTED .


On October 17, 2018, the grand jury sitting in El Paso, Texas, returned a single-count Indictment charging Niebla with illegal reentry in violation of 8 U.S.C. § 1326. ECF No. 10. The government alleges that Niebla is a noncitizen who was found in this country without permission on September 24, 2018, and that he had previously been removed from the United States on or about May 10, 2018. Id. ; ECF No. 1.

Prior to Niebla's removal on May 10, 2018, an officer employed by the Department of Homeland Security personally served Niebla with a document entitled "Notice to Appear" ("NTA") on March 29, 2018. Mot. Ex. C. The NTA ordered Niebla to appear before an immigration judge ("IJ") "to show why [he] should not be removed from the United States based on the charge(s) set forth [elsewhere in the NTA]." Id. However, the NTA did not provide Niebla with a date and time for the removal hearing. Instead, it simply stated he was to appear "TBD." Id.

From the time Niebla received the NTA, he remained in immigration detention at the Otero County Processing Center in Chaparral, NM. Id. ; ECF No. 23 Ex. H. His removal hearing before the IJ began on April 10, 2018. ECF No. 38, Ex. G ("Recording"), Track 1. It is not clear when Niebla learned of the date and time of this hearing. Indeed, the record shows he never received any notice of the date and time.1 But because Niebla did attend the hearing, albeit without counsel, immigration officials presumably transported him from the detention facility to the immigration court. See id.

The IJ opened the hearing by informing Niebla of his rights, including the right to be represented by a lawyer and the right to appeal any decision the IJ might make in the case. Id. at 1:06–2:03. Niebla responded that he understood his rights and that he wished to represent himself. Id. During the hearing, Niebla informed the IJ that he feared returning to Mexico. Recording, Track 2 at 2:16–19. In response, the IJ provided Niebla an asylum application with instructions on how to complete it, including that it be supported with evidence and written in English. Id. at 2:30–3:07. The IJ gave Niebla until April 26, 2018, to submit the application. Id. at 3:25–30.

On April 26, 2018, Niebla again appeared before the IJ without a lawyer. Recording, Track 4. Niebla explained that he could not prepare his asylum application because he does not speak English and could not find anyone to help him complete it in English. Id. at 2:40–58. The IJ stated, "That excuse is no excuse," but asked whether Niebla needed more time to submit the application. Id. at 3:50–4:00. Niebla responded that he would complete the application if given more time. Id. at 4:12–25. At this, the IJ questioned, "Well, what have you done in order to submit it at this time? Because the court is prepared to deem that you've abandoned it because you haven't submitted it to date." Id. at 4:25–37. Niebla again explained that he could not find someone to help him complete the application in English. Id. at 4:37–58. The IJ asked, "what assurances am I going to get from you that you'll have your application the next time we meet, sir? Because I have the order right here, ordering your removal because you didn't submit your application. Now, do you wish for me to sign that order?" Recording, Track 5 at 0:03–18. After a pause, Niebla, speaking more softly than before, stated: "Sí. " Id. at 0:23–25. The IJ then said he was "ordering Respondent removed from the United States back to his native country and that he's not filing relief and that he's abandoning that relief." Id. at 0:50–1:02. The IJ concluded, "Do you agree with that decision, sir?"Id. at 1:02–05. Quietly, Niebla again responded, "Sí. " Id. at 1:08. With that, the IJ circled the word "Waived" on the removal order, gave the order to Niebla, and concluded the hearing. Id. at 1:10–13; Mot. Ex. D. Niebla did not receive Form EOIR-26 or a Notice of Appeal, which are necessary to appeal the IJ's order. See generally Recording; see 8 C.F.R. § 1240.13(d). Niebla also did not receive instruction on the appeals process. See generally Recording; see 8 C.F.R. §§ 1240.13(d), 1240.15.

Instead, Niebla was removed from the United States fourteen days later, on May 10, 2018. ECF No. 10. On September 24, 2018, Niebla returned to the United States, was detained by immigration authorities, and now faces the current prosecution. Id. ; ECF No. 1.


Niebla moves to dismiss the Indictment, arguing that because the NTA did not indicate the date or time of his removal hearing, the IJ lacked jurisdiction to order him removed on April 26, 2018. Mot. 3–5. Therefore, Niebla asserts, the government cannot prove he was "removed" as a matter of law. Id. Niebla also argues that his underlying removal proceedings violated due process because he never validly waived his right to appeal the IJ's removal order. Mot. 13–14; Reply 14–17. The government argues against dismissal, asserting that the IJ had jurisdiction to order Niebla's removal and that, in any event, Niebla has not satisfied the requirements to collaterally attack that order in this case. See generally Resp.

A noncitizen who has been removed from the United States commits a felony if he subsequently reenters the United States without permission. 8 U.S.C. § 1326. To convict under § 1326, the government must prove that the defendant has in fact been previously removed. United States v. Mendoza-Lopez , 481 U.S. 828, 835, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). The government typically relies upon the removal order itself, issued by the immigration court, to satisfy this burden. Yet, in Mendoza-Lopez , the Supreme Court held that a defendant prosecuted under § 1326 must be able to challenge the government's use of a prior removal as an element of the offense where the removal proceeding "effectively eliminate[d] the right of the alien to obtain judicial review." Id. at 839, 107 S.Ct. 2148.2

Congress "effectively codified" this holding in 8 U.S.C. § 1326(d). United States v. Benitez-Villafuerte , 186 F.3d 651, 659 n.8 (5th Cir. 1999). To collaterally attack an underlying removal order, a defendant must show that:

(1) [he or she] exhausted any administrative remedies that may have been available to seek relief against the order;
(2) The deportation proceedings at which the order was issued improperly deprived [him or her] of the opportunity for judicial review; and
(3) The entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d).

The defendant must satisfy all three requirements to lodge a successful collateral attack. United States v. Cordova-Soto , 804 F.3d 714, 719 (5th Cir. 2015).3 If the defendant fails to establish any one requirement, the court need not consider the others. Id. ; United States v. Mendoza-Mata , 322 F.3d 829, 832 (5th Cir. 2003). In addition, the Fifth Circuit requires the defendant to demonstrate that the underlying removal proceedings caused "actual prejudice." Benitez-Villafuerte , 186 F.3d at 658. "Actual prejudice" means "there was a reasonable likelihood that but for the errors complained of the defendant would not have been [removed]." Id. at 659.

Niebla's Motion to Dismiss relies upon the Supreme Court's recent opinion in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), to argue that because the NTA lacked the date and time of his removal hearing, the IJ had no jurisdiction to order him removed from the United States, thereby rendering his removal "invalid." Mot. 3–9. The Court agrees with Niebla that the IJ lacked jurisdiction to order him removed from this country. And, as explained below, the Court finds that Niebla has satisfied the requirements in 8 U.S.C. § 1326(d) to successfully challenge his removal order from April 26, 2018.

A. Niebla's NTA Was Defective and, as a Result, the IJ Lacked Jurisdiction to Order Niebla Removed.

Under 8 U.S.C. § 1229a, an IJ "shall conduct proceedings for deciding the inadmissibility or deportability" of a noncitizen present in the United States. 8 U.S.C. § 1229a(a)(1). Department of Justice ("DOJ") regulations delimit the jurisdiction of the IJ. In particular, "[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. The regulations define "charging document" to include "a Notice to Appear." Id. § 1003.13; see also Martinez-Garcia v. Ashcroft , 366 F.3d 732, 735 (9th Cir. 2004) ("The only charging document available after April 1, 1997, is the Notice to Appear."). The necessary contents of an NTA, in turn, are provided by statute, which states: "In removal proceedings under section 1229a of this title, written notice (in this section referred to as a ‘notice to appear’) shall be given ... to the alien ... specifying," inter alia , "[t]he time and place at which the proceedings will be held." 8 U.S.C.§ 1229(a)(1).

In Pereira , the Supreme Court examined this statutory framework and concluded, "[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).’ " 138 S.Ct. at 2113–14. The Court reasoned that the "plain text [of § 1229(a) ], the statutory context, and common sense all lead inescapably and unambiguously to that conclusion." Id. at...

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