United States v. Nunez-Romero
| Decision Date | 09 March 2020 |
| Docket Number | Case No. 18-CR-00425-LHK-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. LUIS NUNEZ-ROMERO, Defendant. |
| Court | U.S. District Court — Northern District of California |
Before the Court is Defendant Luis Nunez-Romero's ("Defendant") motion to dismiss the indictment for illegal reentry following deportation in violation of 8 U.S.C. § 1326. ECF No. 17 ("Mot."). Having considered the filings of the parties, the relevant law, and the record in this case, the Court GRANTS Defendant's motion to dismiss the Indictment.
Defendant, a citizen of Mexico, was admitted to the United States on or around March 2, 2002. ECF No. 17-1 ("NTA"). On November 6, 2008, an Immigration Enforcement Agent interviewed Defendant while Defendant was held in Santa Clara County jail in Milpitas, California. ECF No. 19 ("Oidem Decl.") ¶ 7. The government then determined that Defendant had been convicted of an aggravated felony after Defendant's admission into the United States. Id. Accordingly, on November 7, 2008, Defendant was served a Form I-862, Notice to Appear ("NTA"). NTA at 1. The NTA charged that Defendant was subject to removal under "Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at any time after admission, you have been convicted of an aggravated felony as defined in Section 101(a)(43)(B) of the Act." Id. at 3. The NTA did not identify the address of the immigration court at which the NTA would be filed. Id. at 1. Instead, under the text, "YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at:," the NTA was left blank. Id.
Defendant was detained pending removal proceedings. Oidem Decl. ¶ 8. On November 13, 2008, the Immigration Court issued a "Notice of Custody Redetermination Hearing." ECF No. 19-3. The Notice of Custody Redetermination Hearing indicated that Defendant was scheduled for a "custody redetermination hearing" on November 24, 2008, at Immigration Court located at 630 Sansome Street, Room 475, San Francisco CA. Id. On November 24, 2008, Defendant appeared in front of the Immigration Court, where the Immigration Judge ordered Defendant removed ("November 2008 removal order"). Id.; ECF No. 17-3 ("November 2008 removal order"). Defendant waived his right to appeal. Id.
The November 2008 removal order was the sole removal order entered against Defendant. ECF No. 17 at 1. The removal order was subsequently reinstated against Defendant on September 8, 2009, April 18, 2011, and April 24, 2014. Id.; ECF No. 17-4.
On September 6, 2018, a grand jury in the Northern District of California returned an indictment ("Indictment") that charged Defendant with one count of a violation of 8 U.S.C. § 1326, Illegal Reentry Following Deportation. ECF No. 1 ("Indictment"). Specifically, the grand jury charged as follows: "On or about March 7, 2018, in Santa Clara County in the Northern District of California, the [D]efendant, . . . an alien, previously having been excluded, deported and removed from the United States on or about November 25, 2008, September 8, 2009, April18, 2011, and April 24, 2014, was found in the United States, with the Attorney General of the United States and the Secretary for Homeland Security not having expressly consented to a re-application by the [D]efendant for admission into the United States." Id.
On November 4, 2019, Defendant filed a motion to dismiss the Indictment. ECF No. 17 ("Mot"). On December 2, 2019, the government opposed the motion, ECF No. 18 ("Opp'n"), and on December 16, 2019, Defendant filed a reply, ECF No. 20 ("Reply").
On January 9, 2020, the government filed a statement of recent decision. ECF No. 22. On January 23, 2020 and February 26, 2020, Defendant filed two statements of recent decision.1 ECF Nos. 23, 26.
Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a defendant may move to dismiss an indictment on the ground that the indictment "fail[s] to state an offense." In considering a motion to dismiss an indictment, a court must accept the allegations in the indictment as true and "analyz[e] whether a cognizable offense has been charged." United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). "In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment." Id. A motion to dismiss an indictment can be determined before trial "if it involves questions of law rather than fact." United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.), cert. denied, 478 U.S. 1007 (1986).
"For a defendant to be convicted of illegal reentry under 8 U.S.C. § 1326, the Government must establish that the defendant left the United States under order of exclusion, deportation, or removal, and then illegally reentered." United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir.2014) (internal quotation marks and citation omitted). "A defendant charged under § 1326 has a due process right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction." Id. (internal quotation marks and citation omitted).
To demonstrate that a prior deportation cannot serve as the basis for an indictment for illegal reentry, 8 U.S.C. § 1326(d) requires that a defendant "demonstrate that (1) he exhausted the administrative remedies available for seeking relief from the predicate removal order; (2) the deportation proceedings 'improperly deprived [him] of the opportunity for judicial review'; and (3) the removal order was 'fundamentally unfair.'" Id. (quoting 8 U.S.C. § 1326(d)) (brackets in original). "To satisfy the third prong—that the order was fundamentally unfair—the defendant bears the burden of establishing both that the deportation proceeding violated his due process rights and that the violation caused prejudice." Id. (internal quotation marks, citation, and brackets omitted).
In Defendant's motion to dismiss the Indictment, Defendant asserts that the United States Department of Homeland Security's failure to file a proper Form I-862, Notice to Appear ("NTA"), with the Immigration Court deprived the Immigration Court of jurisdiction to remove Defendant. Defendant asserts that this failure provides the grounds for Defendant to collaterally attack the Indictment under 8 U.S.C. § 1326(d). Defendant also claims that the Immigration Court lacked statutory authority to initiate removal proceedings because the NTA did not include the statutorily required time and place information.
For the reasons outlined below, the Court agrees with Defendant. The Immigration Court lacked jurisdiction to issue the November 2008 removal order because of the defective NTA. Further, this lack of jurisdiction permits Defendant to collaterally attack the Indictment under 8 U.S.C. § 1326(d). Because these facts are sufficient to warrant dismissal of the Indictment, the Court need not address Defendant's further argument that the Immigration Court lacked statutory authority.
Defendant argues that the November 2008 removal order cannot constitute a prior lawful deportation that supports the single count violation of 8 U.S.C. § 1326, Illegal Reentry Following Deportation, charged in the Indictment. Mot. at 1. This is so, Defendant claims, because the NTA "did not identify the immigration court address where [the NTA] would be filed, which is a jurisdictional requirement under the regulatory scheme, including 8 C.F.R. § 1003.14(a) and 8 C.F.R. § 1003.15(b)(6)." Id. at 2. The government makes two responses to this argument. First, the government asserts that the requirements of 8 C.F.R. § 1003.14(a) is not actually jurisdictional in nature. Instead, the government maintains that 8 C.F.R. § 1003.14(a) sets forth only a "claim-processing rule" that does not limit the Immigration Court's adjudicatory authority. Opp'n at 4-11. Second, the government asserts that even if 8 C.F.R. § 1003.14(a) is jurisdictional in nature, Defendant had "actual notice" of the removal hearing such that jurisdiction adequately vested in the Immigration Court in any event. Id. at 11-13. The Court agrees with Defendant. The defective NTA deprived the Immigration Court of jurisdiction over Defendant for the purposes of the November 2008 removal order. The government's actions following the filing of the defective NTA did not vest the Immigration Court with jurisdiction.
The Court begins by providing a brief background of the statutory and regulatory scheme that sets forth the contents an NTA must contain. The Court then analyzes the question of whether 8 C.F.R. § 1003.14(a) and 8 C.F.R. § 1003.15(b)(6) set forth jurisdictional rules. Finally, the Court turns to the question of whether Defendant's purported "actual notice" of the address of the Immigration Court in which the NTA was filed may remedy a jurisdictional defect in the NTA.
The Court begins by providing background on the regulatory scheme that sets forth the content that an NTA must contain. The Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., broadly delegates authority to the Attorney General to "establish such regulations . . . as the Attorney General determines to be necessary for carrying out this section." 8 U.S.C. § 1103(g)(2). Pursuant to this grant of authority, the Attorney General has promulgated regulations that speak to the "[j]urisdiction and commencement of proceedings" in Immigration Court. 8 C.F.R. § 1003.14.In particular, 8 C.F.R. § 1003.14(a) dictates that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court...
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