United States v. Taveras

• Decision Date: 02 December 2020
• Docket Number: 20 Cr. 240 (PAE)
• Parties: UNITED STATES of America, v. Zoilo TAVERAS, Defendant.
• Court: U.S. District Court — Southern District of New York

504 F.Supp.3d 272

UNITED STATES of America,

v.Zoilo TAVERAS, Defendant.

20 Cr. 240 (PAE)

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

Signed December 2, 2020

Brandon Douglas Harper, DOJ-USAO, New York, NY, for United States of America.

Zawadi S. Baharanyi, Federal Defenders of New York Inc., New York, NY, for Defendant.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

This decision resolves a pretrial motion to dismiss an indictment. On March 26, 2020, defendant Zoilo Taveras was indicted on one count of illegal reentry after having been removed from the United States following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). Dkt. 5 ("Indictment"). The removal order on which the Indictment was based had been issued by an immigration court in 2000. Taveras now moves to dismiss the Indictment under Federal Rule of Criminal Procedure 12, on the grounds that the immigration court that ordered his removal lacked jurisdiction to do so. For the reasons that follow, the Court denies the motion to dismiss.

I. Background¹

A. Events Leading to Taveras's Removal

Taveras, a citizen of the Dominican Republic, first came to the United States in or about 1985. Def. Mem. at 2. In 1991, he became a lawful permanent resident. Id.

In 1996, Taveras was indicted in this District for conspiracy to possess with intent to distribute cocaine base (crack cocaine), in violation of 21 U.S.C. § 846, and for maintaining an establishment to store and distribute cocaine base, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2. Opp'n at 4–5. Taveras pled guilty to both counts. On January 19, 1999, he was sentenced principally to a term of 60 months’ imprisonment. Id. at 3–4; Dkt. 24-3, Ex. D ("Judgment").

In 2000, during Taveras's incarceration, United States immigration-enforcement officials interviewed him and found him a deportable non-citizen. Opp'n at 5. On July 18, 2000, an immigration-enforcement officer signed a Form I-862, captioned "Notice to Appear" ("NTA"). It stated that Taveras was removable from the United States under INA § 237(a)(2)(A)(iii), (B)(i), on the basis of his conviction for narcotics conspiracy. Def. Mem. at 3; Dkt. 24-3, Ex. B ("NTA").

Salient here in light of Taveras's motion to dismiss, the spaces on the NTA for the immigration court's address, and the hearing's date and time were not filled in. Id. Instead, the NTA completed these spaces with capitalized letters, so as to state that Taveras was ordered "to appear before an Immigration Judge of the United States Department of Justice at: TO BE CALENDARED AT A LATER DATE ... to show why you should not be removed from the United States." NTA. A certificate of service attached to the NTA states that, on July 20, 2000, the NTA was served on Taveras in person, and that Taveras acknowledged its receipt. Id.

In October 2000, ICE took custody of Taveras and served him with a Notice of Custody Determination. It stated that ICE would detain Taveras during the pendency of his removal proceedings. Def. Mem. at 3. Taveras was then transferred to the Federal Detention Center in Oakdale, Louisiana ("FDC Oakdale"). Id.

On October 27, 2000, ICE provided a notice to the Executive Office for Immigration Review stating that Taveras was in custody at FDC Oakdale, that the "[c]harging document will be filed with the OIJ's office in Oakdale, LA," and that Taveras had been given a copy of the notice "for notification of jurisdiction/commencement of proceedings as required per CFR 3.14." Dkt. 24-3, Ex. G (the "October Notice"); Def. Mem. at 4. The record does not establish whether Taveras received the October Notice, which does not contain a certification of service substantiating its service upon Taveras.

On November 9, 2000, the Executive Office of Immigration Review issued a "Notice of Hearing in Removal Proceedings." Dkt. 24-3, Ex. H (the "November Hearing Notice"). It stated that Taveras's removal hearing in immigration court would take place at 1:00 p.m. on November 20, 2000, at 1900 E. Whatley Road, Oakdale, LA 71463. Id. The November Hearing Notice was mailed to Taveras and to counsel for ICE. Id. ; Def. Mem. at 4. On November 13, 2000, the November Hearing Notice was stamped as received at FDC Oakdale. November Hearing Notice. At the bottom of the notice is a certificate of service stating that the November Hearing Notice had been served on the alien (Taveras) by mail on November 9, 2000. Id.

B. Taveras's Removal Hearing

On November 20, 2000, Immigration Judge John Duck, Jr. conducted the removal hearing, at the time and place identified in the November Hearing Notice. Taveras appeared pro se. He conceded his removability as charged, based on his narcotics-conspiracy conviction. Def. Mem. at 4. Taveras was notified of his "right to appeal [the removal] decision to a Superior Court in Washington D.C. or in the Federal Courts." Hearing Tr. at 5. Asked at the hearing's end whether he wished to appeal, Taveras stated: "No, I do not wish to appeal." Id. at 8.

The same day, Judge Duck issued an order of removal. It stated that an appeal had been waived. Dkt. 24-3, Ex. I; Def. Mem. at 4. Taveras was then deported. Def. Mem. at 4.

C. Taveras's Reentry and Apprehension

At some later point, Taveras returned to the United States. Opp'n at 8. In February 2020, the New York Joint Criminal Alien Removal Task Force encountered Taveras at his residence in the Bronx, New York. Indictment. On February 28, 2020, Taveras was arrested on a complaint charging him with illegal reentry.

D. Procedural History

On March 26, 2020, the Indictment charging Taveras with illegal reentry in violation of 8 U.S.C. § 1326 was returned.

On September 11, 2020, Taveras moved to dismiss the Indictment, arguing that the immigration court that ordered his removal in November 2000 had lacked jurisdiction to do so. Specifically, Taveras argued, the initial NTA had been deficient because it had not specified the time, place, and date of his immigration hearing. This, Taveras argued, had left the immigration court without jurisdiction to order his removal, making the resulting order of removal a legal nullity. Accordingly, Taveras argued, the Government's evidence could not establish, as required for conviction under § 1326, that he had been "removed." Def. Mem. at 1.

On October 9, 2002, the Government filed an opposition. It argued that the absence of the time, date, and place information in the initial NTA did not mean that jurisdiction was lacking for the removal hearing because the later notice served on Taveras—the November Hearing Notice—supplied that information in advance of the hearing. Opp'n at 3. Thus, while the NTA had been inadequate to supply jurisdiction, the November Hearing Notice cured the deficiency. Id. Separately, the Government argued, Taveras's motion was procedurally defective because Taveras had failed to show that he had exhausted his administrative remedies or that he had been deprived of the opportunity for judicial review, as required under 8 U.S.C. § 1326(d) to challenge a deportation order in a prosecution under 8 U.S.C. § 1326(a). Id. at 4.

II. Applicable Legal Standards

"A defendant faces a high standard in seeking to dismiss an indictment, because an indictment need provide the defendant only a plain, concise, and definite written statement of the essential facts constituting the offense charged." United States v. Smith , 985 F. Supp. 2d 547, 561 (S.D.N.Y. 2014) (quotations omitted). However, insofar as Rule 12(b)(3)(B) permits dismissal of indictments for discrete reasons including failure to state an offense, "[a] charge in an indictment is insufficient and must be dismissed when it does not describe conduct that is a violation of the criminal statute charged." Id. (citations omitted).

An element of the offense of illegal reentry after deportation or removal in violation of 8 U.S.C. § 1326 is that the defendant was previously deported in such a manner that complied with due process. See United States v. Paredes-Batista , 140 F.3d 367, 376 (2d Cir. 1998) (citing United States v. Mendoza-Lopez , 481 U.S. 828, 834–35 & n.9, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ). Therefore, "[a]n alien can defend against such a charge by challenging the validity of the deportation order upon which the charge is predicated." United States v. Copeland , 376 F.3d 61, 66 (2d Cir. 2004) ; see Mendoza-Lopez , 481 U.S. at 837, 107 S.Ct. 2148 ("If the [re-entry] statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process.").

III. Discussion

The Court first considers Taveras's claim that the immigration court that ordered his removal in 2000 lacked jurisdiction to do so, on account of a defective NTA. The Court then considers the Government's argument that, regardless, Taveras has not met the requirements that 8 U.S.C. § 1326(d) sets for collaterally challenging, in a prosecution under 8 U.S.C. § 1326(a), a removal order.

A. Did the Immigration Court Have Jurisdiction Over Taveras's Removal?

Taveras argues that the missing time, place, and date information on the initial NTA deprived the immigration court that ordered his removal of jurisdiction.

The Court first briefly summarizes the statutes and regulations bearing on the interplay between an NTA and existence of jurisdiction.

Section 1229a(a)(1) of Title 8 provides that "[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien." Such removal proceedings are commenced by the filing of an NTA. Tablie v. Gonzales , 471 F.3d 60, 62 (2d Cir. 2006). Section 1229(a), entitled "[i]nitiation of removal proceedings," describes the written notice that must be given to an alien. It requires the NTA to contain, among other information, "[t]he time and place at which the proceedings will be held." 8...