United States v. Sandoval-Cordero, EP-18-CR-2370-KC

• Citation: 342 F.Supp.3d 722
• Decision Date: 29 November 2018
• Docket Number: EP-18-CR-2370-KC
• Parties: UNITED STATES of America v. Gerardo SANDOVAL-CORDERO
• Court: U.S. District Court — Western District of Texas

342 F.Supp.3d 722

UNITED STATES of America

v.Gerardo SANDOVAL-CORDERO

EP-18-CR-2370-KC

United States District Court, W.D. Texas, El Paso Division.

Signed November 29, 2018

Stephen G. Jurecky, U.S. Attorneys Office, El Paso, TX, for United States of America.

Sergio Garcia, Federal Public Defender, El Paso, TX, for Gerardo Sandoval-Cordero.

ORDER

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Defendant Gerardo Sandoval-Cordero's Motion to Dismiss the Indictment in the above-captioned case. ECF No. 39. Upon due consideration, the Court concludes that the Motion must be DENIED .

I. BACKGROUND

On August 15, 2018, the grand jury sitting in El Paso, Texas, returned a single-count Indictment charging Sandoval-Cordero with illegal reentry in violation of 8 U.S.C. § 1326. ECF No. 10. The government alleges that Sandoval-Cordero is a noncitizen who was found in this country without permission on July 17, 2018, and that he had previously been removed from the United States on or about February 22, 2017. Id.

Prior to Sandoval-Cordero's 2017 removal, an officer employed by the Department of Homeland Security personally served Sandoval-Cordero with a document entitled "Notice to Appear" ("NTA") on December 6, 2016. Mot. Ex. B. The NTA ordered Sandoval-Cordero 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 Sandoval-Cordero with a date and time for the removal hearing. Instead, it simply stated he was to appear "on a date to be set at a time to be set." Id.

From the time Sandoval-Cordero received the NTA, he remained detained at the Johnson County Jail in Cleburne, Texas. ECF No. 43, Ex. D. On January 11, 2017, the immigration court in Dallas mailed him a document entitled "Notice of Hearing in Removal Proceedings" ("Notice of Hearing"), which provided information missing from the NTA: the removal hearing would take place on February 8, 2017, at 1:00 p.m. Id. When the date arrived, Sandoval-Cordero appeared before the IJ via video conference. Id. The IJ denied Sandoval-Cordero's application for relief from removal and ordered him removed to Mexico. Mot. Ex. C. After Sandoval-Cordero waived his right to appeal the IJ's decision, he was removed from this country on February 22, 2017. Id. Sometime after this removal, Sandoval-Cordero returned to the United States, was detained by immigration authorities, and now faces the current prosecution. ECF Nos. 1, 10.

II. DISCUSSION

Sandoval-Cordero 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 in 2017. Mot. 2. Therefore, Sandoval-Cordero argues, his removal proceedings violated due process and the government cannot prove he was "removed" as a matter of law. Id. at 3–4. The government argues against dismissal, asserting that the IJ had jurisdiction to issue Sandoval-Cordero's removal and that, in any event, Sandoval-Cordero has not satisfied the requirements to collaterally attack his 2017 removal order. 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. 2148.¹

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).² 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.

Sandoval-Cordero's Motion to Dismiss relies primarily 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 provided to him lacked the date and time of his removal hearing, the IJ lacked jurisdiction to order him removed from the United States, rendering the removal order "invalid." Mot. 4. The Court agrees with Sandoval-Cordero that the IJ lacked jurisdiction to order him removed from this country. However, as explained below, Sandoval-Cordero has not met the requirements in 8 U.S.C. § 1326(d) to successfully challenge his 2017 removal order.

A. Sandoval-Cordero's NTA Was Defective and, as a Result, the Immigration Judge Lacked Jurisdiction to Issue the 2017 Removal Order

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 2110. The Court described § 1229(a)'s substantive requirements of an NTA as "definitional" and concluded "the omission of time-and-place information is not ... some trivial, ministerial defect .... Failing to specify integral information like the time and place of removal proceedings unquestionably would deprive [the NTA] of its essential character." Id. at 2116–17 (citations and quotation marks omitted).

Following the Supreme Court's holding in Pereira and the clear text of the statute, this Court concludes that because an NTA lacking a date or time is "not a ‘notice to appear under section 1229(a),’ " it is also not a "notice to appear" within the meaning of DOJ regulations setting the immigration court's jurisdiction. Id. Courts across the country have reached this same conclusion, including several in this district. See, e.g. , United States v. Virgen-Ponce , 320 F.Supp.3d 1164 (E.D. Wash. 2018) ; United States v. Lopez-Urgel , No. 1:18-CR-310-RP, 2018 WL 5984845 (W.D. Tex. Nov. 14, 2018) ; United States v. Aifredo-Valladares , No. 1:17-CR-156-SS, ECF No. 44 (W.D. Tex. Oct. 30, 2018); United States v. Pedroza-Rocha , No. EP-18-CR-1286-DB, ECF No. 53 (W.D. Tex. Sept. 21, 2018); United States v. Cruz-Jimenez , No. A-17-CR-00063, 2018 WL 5779491 (W.D. Tex. Nov. 2, 2018) ; United States v. Ortiz , No. 3:18-CR-00071-RWG, 347 F.Supp.3d 402, 2018 WL 6012390 (D.N.D. Nov. 7, 2018). Even some courts that have ultimately denied similar motions to dismiss have agreed Pereira requires NTAs to include date-and-time information to vest jurisdiction in the immigration court. See, e.g., United States v. Zapata-Cortinas , No. 18-CR-343-OLG, ECF No. 43, 2018 WL 6061076 (W.D. Tex. Nov. 20, 2018) ; United States v. Mendoza-Sanchez , No. 17-cr-189-JD, 2018 WL 5816346, at *2 (D.N.H. Nov. 5, 2018) ; United States v. Santos Larios-Ajualat , No. 18-10076-JWB, 2018 WL 5013522, at *4 (D. Kan. Oct. 15, 2018) ; United States v. Lira-Ramirez , No. 18-10102-JWB, 2018 WL 5013523, at *4 (D. Kan. Oct. 15, 2018).

The government argues against this conclusion, asserting that an NTA served on the noncitizen pursuant to 8 U.S.C. § 1229(a) and an NTA conferring jurisdiction on the immigration court under DOJ regulations are two different documents with separate substantive requirements. Resp. 5. The Court disagrees. Rather, there are several reasons to conclude that the NTA defined in § 1229 is the same NTA that vests jurisdiction. To begin, the regulations setting the jurisdiction of the immigration court cite 8 U.S.C. § 1229 as...