United States v. Pérez-Félex

• Decision Date: 21 December 2018
• Docket Number: Criminal No. 18-178 (FAB)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. CHRISTIAN PÉREZ-FÉLEX, Defendant.
• Court: U.S. District Court — District of Puerto Rico

UNITED STATES OF AMERICA, Plaintiff, v. CHRISTIAN PÉREZ-FÉLEX, Defendant.

Criminal No. 18-178 (FAB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

December 21, 2018

OPINION AND ORDER

BESOSA, District Judge.

Defendant Cristian Pérez-Félix ("Pérez") moves to dismiss the indictment pursuant to 8 U.S.C. section 1326(d) ("section 1326(d)"). (Docket Nos. 20 & 28.) For the reasons set forth below, the Court DENIES Pérez's motion to dismiss.

I. Background

This criminal action stems from Pérez's repeated attempts to enter and remain in the United States without authorization from the Department of Homeland Security ("DHS").¹ Pérez is a citizen of the Dominican Republic. (Docket No. 28 at p. 1.) In 2006, law enforcement officers apprehended Pérez after he entered the United States illegally. (Docket No. 35 at p. 2.) An immigration judgegranted Pérez's request to voluntarily depart the United States pursuant to 8 U.S.C. section 1229c(b). Id.²

Pérez again entered the United States illegally in 2010. (Docket No. 20 at p. 2.) Puerto Rico law enforcement officers arrested Pérez for purported violations of the Domestic Violence Act, P.R. Laws Ann. tit 8, sections 601-604, for possession of a firearm, for possession and use of an edged weapon, and for aggravated damages. (Docket No. 35 at p. 2.) The Commonwealth of Puerto Rico Superior Court ultimately dismissed the criminal complaint. Id. Immigration Customs Enforcement ("ICE") officers, then, placed Pérez in federal custody. Id.

Pérez received a Notice to Appear on June 25, 2018. (Docket No. 22, Ex. 1 at pp. 1-2.) The Notice to Appear alleged that Pérez was removable pursuant to 8 U.S.C. section 1182(a)(6)(A)(i), and ordered him to appear before an immigration judge on a date and time "to be set." Id.³ On July 12, 2010, Pérez's attorney filed a motion requesting bail and assuming legal representation. (Docket No. 25, Ex. 1.) The motion referred to a hearing on thefollowing day at 1:00 PM. Id. The removal proceeding occurred on July 13, 2010. (Docket No. 22, Ex. 4.) Pérez attended the hearing with the assistance of counsel. Id. His attorney and the immigration judge addressed the basis of removal:

Judge: Counsel, I understand that the respondent at this point in time has no relief from removal?

Counsel: Yes, Your Honor.

Judge: He was previously granted a voluntary departure by an Immigration Judge? I understand he was deported and returned illegally.

Counsel: That's correct your Honor . . . we believe it was in the year 2008.

(Docket No. 35 at p. 8.) The immigration judge issued a removal order. Id. Pérez waived his right to an appeal. Id. Law enforcement officers removed him from the United States on July 22, 2010. (Docket No. 35 at p. 3.)

Eight years later, a grand jury charged Pérez with conspiracy to possess with intent to distribute cocaine, attempting to possess with intent to distribute heroin, and attempting to possess with intent to distribute cocaine all in violation of 21 U.S.C. sections 846 and 841(b)(1)(A). See United States v. Maleno-Pérez, No. 18-125 (JAG).⁴ Subsequently, a grand jury returned a one-countindictment charging Pérez with illegal reentry in violation of 8 U.S.C. section 1326(a) ("section 1326"). (Docket No. 1.)

Pérez moves to dismiss the illegal reentry count, setting forth two arguments in support of dismissal. (Docket Nos. 20 & 28.) First, Pérez contends that the recent United States Supreme Court decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), invalidates the 2010 removal order. (Docket No. 20 at pp. 3-7.) Second, Pérez argues that the immigration judge neglected her "obligation to inform [Pérez] of apparent relief from deportation." (Docket No. 28 at p. 3.) Both arguments are unavailing.

II. Discussion

An indictment is sufficient "if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy." United States v. Ford, 839 F.3d 94, 104 (1st Cir. 2016) (internal quotation marks and citation omitted). To secure a conviction pursuant to section 1326, the United States must prove that Pérez "(1) is an alien, (2) was previously deported, and (3) thereafter entered, or attempted to enter, the United States without permission." United States v. Palacios, 492 F.3d 39, 42 (1st Cir. 2007) (citation omitted). A defendant charged with illegal reentry, however, may wage a collateral attack by challenging the predicate deportation underlying the section 1326 allegation. Id.; see United States v. Mendoza-López, 481 U.S. 828, 839 (1987) (holding that "review [must] be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense"). To prevail on a collateral attack, Pérez must demonstrate that:

(1) [he] 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] of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). "These elements are in the conjunctive; therefore, a defendant must satisfy all of them to successfully attack his removal order." United States v. Luna, 436 F.3d 312, 317 (1st Cir. 2006).

A. Jurisdiction

Pérez attempts to circumvent the analysis set forth in section 1326. According to Perez, "the immigration judge lacked jurisdiction over [him] because the notice to appear was deficient." (Docket No. 20 at p. 4.) The Court disagrees.

The Immigration and Naturalization Act authorizes immigration judges to "conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1). The INA, however, is silent as to the procedure in which jurisdiction vests in an immigration court. Congress empowered the Attorney General to "establish such regulations" as he or she "determines to be necessary for carrying out" the INA. 8 U.S.C. § 1103(g)(2). These regulations provide that "jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." 8 C.F.R. § 1003.14(a). Charging 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." 8 C.F.R. § 1003.13; see Ka Cheung v. Holder, 678 F.3d 66, 67 n.1 (1st Cir. 2012) ("A Notice to Appear is a document that charges an alien with being removable under the INA. The Notice is served on the alien and then filed in immigration court, commencing removal proceedings").

Pursuant to 8 C.F.R. section 1003.15, the Notice to Appear must set forth specific information, such as "the charges against the alien and the statutory provision alleged to have been violated." 8 C.F.R. § 1005.15(b) & (c). The Notice to Appear should also include "the time, place and date of the initial removal hearing, where practicable." 8 C.F.R. § 1003.18. If the date and time are omitted in the Notice to Appear, the "Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing." Id.; see Guamanrriga v. Holder, 670 F.3d 404, 410 (2nd Cir. 2012) (noting that "circumstances often arise that make it impracticable for the DHS to provide an alien with the precise date and time of his initial removal hearing at the moment it serves the initial Notice to Appear, and in these instances, the DHS may indicate in the [Notice to Appear] that it will give the alien subsequent notice . . . once it files the NTA with the appropriate immigration court'") (internal quotation marks and citation omitted).

1. The 2010 Removal Order

The notice received by Pérez lacked the date and time of the removal hearing, stating that he must appear "on a date to be set, at a time to be set." (Docket No. 22, Ex. 1.)⁵ Despite the omission of this information, jurisdiction nevertheless vested inthe immigration court. See 8 C.F.R. § 1003.14(a).⁶ Indeed, the Notice to Appear need not contain the date and time of the removal hearing to trigger the immigration court's jurisdiction. See Herrera-Orozco v. Holder, 603 F. App'x 471, 472 (5th Cir. 2015) (affirming immigration judge's holding that "the process by which an alien who has received an NTA is subsequently notified of the date and time of his hearing by a hearing notice is a valid practice that does not negate an Immigration Court's jurisdiction"); Beltrán-Rodríguez v. Holder, 530 F. App'x 464, 465 (6th Cir. 2013) ("The BIA also properly determined that the alleged deficiencies in the notices to appear did not deprive the [immigration judge] of jurisdiction because the petitioners were subsequently notified in writing of the time and date of the hearing."); Dababneh v. Gonzales, 471 F.3d 806, 808 (7th Cir. 2006) (rejecting defendant's argument "that the [immigration judge] did not have jurisdiction to initiate his removal proceedings because DHS did not specify the date and time of his initial hearing in the NTA"); Haider v. Gonzales, 438 F.3d 902, 908 (8th Cir. 2006) (holding that a Noticeto Appear without the date and time "was sufficient to initiate removal proceedings against [the defendant] and thereby vest the Immigration Court with jurisdiction"); Popa v. Holder, 571 F.3d 890, 896 (9th Cir. 2009) ("[W]e hold that a Notice to Appear that fails to include the date and time of an alien's deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is in fact later sent to the alien."). Consequently, Pérez's argument regarding the immigration court's purported lack of jurisdiction is unpersuasive.

2. Pereira v. Sessions is Not Dispositive

Pérez invokes Pereira for the proposition that a deficient Notice to Appear negates the...