United States v. Pszeniczny, 18-CR-00433

• Decision Date: 17 June 2019
• Docket Number: 18-CR-00433
• Citation: 384 F.Supp.3d 353
• Parties: UNITED STATES of America, v. Stanislaw PSZENICZNY, Defendant.
• Court: U.S. District Court — Eastern District of New York

384 F.Supp.3d 353

UNITED STATES of America,

v.Stanislaw PSZENICZNY, Defendant.

18-CR-00433

United States District Court, E.D. New York.

Signed June 17, 2019

For United States Andrew Grubin, United States Attorney's Office, 271 Cadman Plaza East, Brooklyn, NY 11201, 718-254-6322

For Defendant David Jason Cohen, Cohen & Forman, LLP, 950 Third Avenue, 10th Floor, New York, NY 10022, 212-766-9166

MEMORANDUM AND ORDER

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction... 354

II. Chronology... 354

III. Motion to Dismiss... 355

IV. Relevant Statutes and Regulations... 356

V. Pereira v. Sessions ... 356

A. Support against Applying Pereira in Instant Case... 358

B. Support for Applying Pereira in Instant Case... 360

VI. Applicability of 8 U.S.C. § 1326(d) Framework... 361

VII. Discussion of § 1326(d)'s Requirements... 362

A. Exhaustion of Administrative Remedies and Deprivation of an Opportunity for Judicial Review... 362

B. Entry of Order of Removal Was Fundamentally Unfair... 362

VIII. Waiver of Subject Matter Jurisdiction... 363

A. Waiver Generally... 363

B. Personal or Subject Matter Jurisdiction... 364

IX. Conclusion... 365

I. Introduction

Defendant Stanislaw Pszeniczny moves to dismiss his indictment. It reads as follows:

On or about June 13, 2018, with the Eastern District of New York, the defendant Stanislaw Pszeniczny, also known as "Stanislaw Pszenczny," an alien who had previously been removed and deported from the United States after a conviction for the commission of an aggravated felony, was found in the United States, without the Secretary of the United States Department of Homeland Security and the United States Attorney General having expressly consented to such alien's applying for admission." ( Title 8, United States Code, Section 1326(a) and 1326(b)(2) ; Title 18, United States Code, Section 3551 et seq. )

He claims he never received a proper Notice to Appear ("NTA") since the notice he did receive did not specify a date and time for the hearing, thus nullifying the original removal order, and exempting him from an underlying void removal.

In fact, he received a full notice of his hearings, he and his trial counsel participated in full hearings of which he had notice, he was afforded full due process, he was properly ordered removed, he was properly removed, he returned illegally after deportation, and he was properly indicted—an indictment he is now challenging.

While the precedents are not completely compatible, they support rejection of his motion to dismiss in this particular case.

II. Chronology

A chronology of the relevant events is set out below.

June 4, 1996: Defendant is admitted to the United States as a lawful permanent resident. Def. Mem. at 3, ECF No. 20, Mar. 26, 2019.

June 24, 1997: Defendant pled guilty to unlawfully bringing non-U.S. citizens into the country. Id. at Ex. C. Sentenced to time-served and three years of supervised release. Id. at Ex. D.

June 24, 1997: An NTA charges the defendant with being subject to removal.

i. The NTA does not include the date and time of his initial removal hearing, instead listing both as "to be set."

ii. The NTA is served on the defendant in person.

iii. When the NTA is served on defendant, he is given oral notice in Polish (his native language) of the time and place of his hearing and the consequences of his failure to appear.

Id. at Ex. A.

August 15, 1997: A notice of hearing schedules the date and time of his initial removal hearing for February 24, 1998 at 9:00 a.m. The notice of hearing is served on defendant. Gov't Ltr. Ex. B, ECF No. 29, June 7, 2019.

February 24, 1998: An immigration judge grants defendant's request to have his removal proceedings transferred from Buffalo to New York City. Gov't. Mem. Ex. A, ECF No. 21, Apr. 9, 2019.

April 22, 1998: Defendant and his counsel appear for a removal proceeding. Hearing is adjourned. Defendant's counsel concedes that defendant was served with a charging document dated June 24, 1997. See Def. Mem. Ex. F.

May 6, 1998: Defendant and his counsel appear for a removal proceeding. The immigration judge requests briefing and the case is adjourned. Id. at Ex. G.

July 22, 1998: Defendant and his counsel appear for a removal proceeding. Immigration court orders him removed to Poland. Id. at Ex. H. A removal order is entered. Id. at Ex. I.

May 15, 2001: Defendant's appeal to the Bureau of Immigration Appeals ("BIA") is denied. BIA affirms immigration judge's decision. Id. at Ex. J.

January 14, 2005: Defendant is removed to Poland. Gov't. Mem. at 6.

August 14, 2018: Defendant is charged with illegal reentry under 8 U.S.C. § 1326. Id.

III. Motion to Dismiss

Defendant moves to dismiss his indictment on the ground that his underlying removal order was invalid because his NTA did not specify the date and time that the initial removal hearing would occur. He argues, relying on Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), that this defect "deprive[s] the notice to appear of its essential character" and thus the NTA failed to vest jurisdiction in the immigration court. Def. Mem. at 3 (quoting Pereira , 138 S. Ct. at 2116–17 ).

A defendant charged with illegal reentry in violation of 8 U.S.C. § 1326 has a right to challenge the removal order upon which the charge is predicated. See United States v. Mendoza-Lopez , 481 U.S. 828, 837–38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).

Pursuant to 8 U.S.C. § 1326(d), a defendant must satisfy the following three elements to prevail on a collateral attack of a removal order in a criminal proceeding:

(i) exhaustion of his administrative remedies, § 1326(d)(1) ;

(ii) denial of an opportunity for judicial review, § 1326(d)(2) ; and (iii) demonstration that the entry of the order of removal was fundamentally unfair, § 1326(d)(3).

Defendant makes the following two arguments: (1) he need not satisfy the § 1326(d) framework because his removal order was void and a legal nullity; and (2) even if his attack on the indictment must be analyzed within the § 1326(d) framework, he can satisfy each of the three elements of § 1326(d).

IV. Relevant Statutes and Regulations

Section 1229a of Title 8 directs immigration judges to "conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1).

Section 1229 of Title 8 provides that "[i]n removal proceedings under section 1229a of [Title 8], written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the alien ... specifying" certain information, including, inter alia , "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1). "The statutory text does not ... explain when or how jurisdiction vests with the immigration judge—or, more specifically, denote which of the several requirements for NTAs listed in § 1229(a)(1) are jurisdictional." Banegas Gomez v. Barr , 922 F.3d 101, 110 (2d Cir. 2019) (quoting Hernandez-Perez v. Whitaker , 911 F.3d 305, 313 (6th Cir. 2018) ).

Several regulations related to the jurisdiction of the immigration court have been promulgated. 8 C.F.R. § 1003.14 provides that "[j]urisdiction 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. § 1003.13 defines a "charging document" as "the written instrument which initiates a proceeding before an Immigration Judge ... includ[ing], a Notice to Appear."

8 C.F.R. § 1003.15(b), which lists information that an NTA must include, does not require that the NTA contain the date and time of the removal hearing. 8 C.F.R. § 1003.18(b) requires that the immigration court provide notice of the initial removal hearing with an NTA that contains the date and time of the hearing only "where practicable ." It reads:

In removal proceedings pursuant to section 240 of the Act, the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable . If that information is not contained 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.

8 C.F.R. § 1003.18(b) (emphasis added).

V. Pereira v. Sessions

The Supreme Court in Pereira v. Sessions held that a "putative notice to appear that fails to designate the specific time or place of a noncitizen's removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule." 138 S. Ct. at 2107.

The Court explained, by expressly referencing 8 U.S.C. § 1229(a), that the stop-time rule

specifies where to look to find out what "notice to appear" means. Section 1229(a), in turn, clarifies that the type of notice "referred to as a ‘notice to appear’ " throughout the statutory section is a "written notice ... specifying," as relevant here, "[t]he time and place at which the [removal] proceedings will be held." § 1229(a)(1)(G)(i). Thus, based on the plain text of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, "specif[ies]" the "time and place" of the removal proceedings.

Id. at 2108 ; see also Banegas Gomez , 922 F.3d at 111 ("The Pereira Court concluded that § 1229b(d)(1)'s reference to ‘under ’ [ Section 1229(a) ] was ‘the glue that bonds the stop-time rule to § 1229(a)'s substantive time-and-place requirements.’ But contrary to [petitioner's] claim, no such statutory glue bonds the Immigration Court's jurisdiction to § 1229(a)'s requirements." (quoting Pereira , 138 S. Ct. at 2117 ) (emphasis added)).

United States v. Larios-Ajualat provides a useful summary of Pereira and the 10 year "stop time rule":

The background of Pereira is as follows. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), aliens who are subject to removal proceedings may be eligible for cancellation of removal

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