United States v. Quijada-Gomez

• Decision Date: 20 December 2018
• Docket Number: No. 2:18-cr-00110-SAB,2:18-cr-00110-SAB
• Citation: 360 F.Supp.3d 1084
• Parties: UNITED STATES of America, Plaintiff, v. Josue QUIJADA-GOMEZ, Defendant.
• Court: U.S. District Court — District of Washington

360 F.Supp.3d 1084

UNITED STATES of America, Plaintiff,

v.Josue QUIJADA-GOMEZ, Defendant.

No. 2:18-cr-00110-SAB

United States District Court, E.D. Washington.

Signed December 20, 2018

Matthew F. Duggan, U.S. Attorney's Office, Spokane, WA, for Plaintiff.

Federal Public Defender, David Fletcher, William Miles Pope, Federal Defenders, Spokane Office, Spokane, WA, for Defendant.

ORDER DISMISSING INDICTMENT

Stanley A. Bastian, United States District Judge

Before the Court is Defendant's Motion to Dismiss, ECF No. 37. Defendant requests the Court dismiss the Indictment filed on July 3, 2018, charging Defendant with illegal reentry, in violation of 8 U.S.C. 1326(a). ECF No. 21. The Court held a hearing on October 31, 2018. William Miles Pope appeared on behalf of Defendant, who was present in the courtroom, and Matthew Duggan appeared on behalf of the Government. The Court took the motion under advisement.

After careful consideration of the parties' briefing and oral argument, the Court grants Defendant's motion.

BACKGROUND

Josue Quijada-Gomez was brought to the United States when he was five years old. He was raised in this country, he went to school in this country, and he works in this country.

On June 8, 2010, the Department of Homeland Security ("DHS") served Mr. Quijada-Gomez with a document labeled "Notice to Appear," informing Mr. Quijada-Gomez that the Government was initiating removal proceedings against him. The document ordered Mr. Quijada-Gomez to appear before an Immigration Judge ("IJ") in Tacoma, Washington, on "a date to be set" and at "a time to be set." On June 17, 2010, Mr. Quijada-Gomez filed a notice¹ to the immigration court requesting an opportunity for voluntary departure or, alternatively, an expedited removal order.

On August 16, 2010, Mr. Quijada-Gomez appeared before an IJ at the Northwest Detention Center in Tacoma, Washington, for his removal proceedings. At the hearing, the IJ informed Mr. Quijada-Gomez that she could not grant him voluntary departure because he had received it once before in 2008. The IJ found Mr. Quijada-Gomez had no other relief available to him and ordered that he be removed from the United States to Mexico. ECF No. 37-5.

On or about June 20, 2018, Mr. Quijada-Gomez returned to the United States. On July 3, 2018, the Grand Jury returned an Indictment charging Mr. Quijada-Gomez with illegal reentry, in violation of 8 U.S.C. § 1326.

ANALYSIS

(1) The Immigration Court Lacked Subject-Matter Jurisdiction

The Attorney General has the authority to define, by regulation, the jurisdiction of immigration courts. 8 U.S.C. § 1103(g)(2). The Parties agree that the relevant regulation governing the jurisdiction of immigration courts for removal proceedings is 8 C.F.R. 1003.14. That regulation requires a "charging document" to be "filed with the Immigration Court" by the "Service" (the Immigration and Naturalization Service, now Immigration and Customs Enforcement, ICE.) 8 C.F.R. 1003.14(a).

A "charging document" is defined by regulation to mean a "Notice to Appear, a Notice of Referral to Immigration Judge, [or] a Notice of Intention to Rescind and Request for Hearing by Alien." 8 C.F.R. § 1003.13. Section 1229 of the Immigration and Nationality Act, titled "Initiation of Removal Proceedings," provides the statutory framework for the initiation of Mr. Quijada-Gomez's 2010 removal proceedings. 8 U.S.C. § 1229. The Supreme Court interpreted this statute and found that Section 1229(a) contains "quintessential definitional language" regarding what constitutes a "notice to appear." Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 2116, 201 L.Ed.2d 433 (2018).

Among the definitional requirements listed in § 1229(a) is the requirement that a Notice to Appear must provide the time and place of the relevant hearing. 8 U.S.C § 1229(a)(1)(g)(i). The Supreme Court in Pereira held that based on the clear language of that statute, "when the term ‘notice to appear’ is used elsewhere in the statutory section, including as the trigger for the stop-time rule, it carries with it the substantive time-and-place criteria required by § 1229(a)." Pereira , ––– U.S. ––––, 138 S.Ct. at 2116.

In Pereira , the non-citizen sought an adjustment of status based upon the accrual of ten years of continuous presence in the United States. Id. , at 2110. Because the petitioner had been served with a putative notice to appear, the Government argued that his term of continuous presence ended, under 8 U.S.C. § 1229(b)(1)'s "stop-time rule." Id. In an 8-1 opinion, the Supreme Court held that "[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a),’ " and thus, the stop-time rule was not triggered. Id.

Mr. Quijada-Gomez argues that under Pereira , no "charging document" was filed because the purported Notice to Appear filed with the immigration court did not include date and time information. Thus, he argues, the immigration court was never vested with jurisdiction. The Government argues that Pereira does not apply.

(A) Pereira's Interpretation Applies Outside of the Stop-Time Rule Context

The Government argues that Pereira 's holding should be limited to the stop-time rule context, alleging first that the Supreme Court expressly narrowed its holding to the stop-time context, and second that the remedy granted impliedly shows that the Supreme Court could not have intended to create the rule that a defective notice to appear deprives an immigration court of jurisdiction. This Court disagrees, and holds it is bound by Pereira.

The Supreme Court in Pereira took care to describe the contours of its holding. It noted that the question presented by the petitioner swept in all the requirements listed in 8 U.S.C. § 1229(a)(1), but that the notice to appear included all of the information required except for the time requirement of 8 U.S.C. § 1229(a)(1)(G)(i). Pereira , ––– U.S. ––––, 138 S.Ct. at 2113. Accordingly, the Supreme Court expressly reserved for another day the determination of whether a putative Notice to Appear that omits other information listed in 18 U.S.C. § 1229(a)(1) may nonetheless satisfy the statutory requirements. Id. , n.5. Having thus narrowed the scope of the question presented to only the time and place requirement, the Court held that a "document that fails to include such information is not a ‘notice to appear under section 1229(a) ’, and thus does not trigger the stop-time rule." Id. , at 2118.

Thus, while Pereira 's holding is narrow in that it only addresses date and time information, it operates as a firm and clear syllogism. The first clause ("A putative ... 1229(a)’ ") interprets § 1229(a), and the second clause ("and thus ... stop-time rule") constructs § 1229(b)(d)(1). While the construction of the stop-time rule does not apply to this case, the interpretation of the definiton of a Notice to Appear does, and is binding on this Court. See MK Hillside Partners v. Comm'r of Internal Revenue , 826 F.3d 1200, 1206 (9th Cir. 2016) ("[W]e are ‘bound not only by the holdings of [the Supreme Court's] decisions but also by their mode of analysis.") (quoting United States v. Van Alstyne , 584 F.3d 803, 813 (9th Cir. 2009) ); also see Antonin Scalia, The Rule of Law As A Law of Rules , 56 U. CHI. L. REV. 1175, 1176 (1989) ("[W]hen the Supreme Court of the federal system, or of one of the state systems, decides a case, not merely the outcome of that decision, but the mode of analysis that it applies will thereafter be followed by the lower courts within that system.")

The Government's second argument for limiting Pereira 's holding is based on the remedy granted: a remand to the immigration court. The Government argues that the Supreme Court would not have remanded the matter to the immigration court unless it impliedly held that the immigration court had jurisdiction. The Supreme Court did not reach the issue of jurisdiction because neither party raised it. Generally, a question not raised by counsel or discussed in the opinion of the court is not considered decided merely because it might have been raised and considered. United States v. Mitchell , 271 U.S. 9, 14, 46 S.Ct. 418, 420, 70 L.Ed. 799 (1926) More specifically, a "sub silentio assumption of jurisdiction in a case", even when decided by the United States Supreme Court, " ‘does not constitute binding authority on the jurisdictional question.’ " Thompson v. Frank , 599 F.3d 1088, 1090 n.1 (9th Cir. 2010) (quoting Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank , 136 F.3d 1360, 1363 (9th Cir. 1998) ). The Supreme Court had no reason to consider the jurisdiction of the immigration court, and this Court declines to read the remand disposition as providing any indication on the matter.

A coordinate court from this district has ruled on a similar motion and found Pereira applicable. See United States v. Virgen-Ponce , 320 F.Supp.3d 1164, 1166 (2018). This Court notes that the decisions of other district judges in this district are not binding on this Court, see Camreta v. Greene , 563 U.S. 692, 710, 131 S.Ct. 2020, 2033 n. 7, 179 L.Ed.2d 1118 (2011), but finds the reasoning of Virgen-Ponce persuasive. Thus, this Court finds Pereira 's interpretation of 8 U.S.C. § 1229(a) applicable outside of the stop-time rule context. However, the direct provision at issue is not 8 U.S.C. § 1229. Rather, it is the regulation which governs the vesting of jurisdiction with the immigration court in removal proceedings; 8 C.F.R. § 1003.13.

(B) The Statutory Definition of Notice to Appear Applies to 8 C.F.R. § 1003.13.

8 C.F.R. § 1003.13 states that jurisdiction vests when a "charging document" is filed with the immigration court by the service. A "charging document" is defined as "the written instrument which initiates a proceeding before an Immigration Judge," and for proceedings initiated after April 1, 1997, that includes a "Notice to Appear, a Notice of Referral to Immigration Judge,...