United States v. Tzul

• Decision Date: 04 December 2018
• Docket Number: CRIMINAL ACTION NO. 4:18-CR-0521
• Citation: 345 F.Supp.3d 785
• Parties: UNITED STATES of America v. German Eliseo Santiago TZUL; aka Santiagi-Canastuj; aka Santiago
• Court: U.S. District Court — Southern District of Texas

345 F.Supp.3d 785

UNITED STATES of America

v.German Eliseo Santiago TZUL; aka Santiagi-Canastuj; aka Santiago

CRIMINAL ACTION NO. 4:18-CR-0521

United States District Court, S.D. Texas, Houston Division.

Signed December 4, 2018

John Michael Lewis, Financial Litigation, United States Attorney's Office, Houston, TX, for Plaintiff.

MEMORANDUM OPINION AND ORDER

HON. KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE

Mr. Santiago Tzul, a citizen of Guatemala,¹ was first placed in removal proceedings on May 26, 2009, following his arrest on a DWI charge. (Doc. No. 21-2 at 12.) On June 6, 2009, he was released from the Harris County Jail into ICE custody. (Doc. No. 21-2 at 12.) On the same day, he was served with a notice to appear, ordering him to appear before an immigration judge at "5520 Greens Road Houston, TEXAS 77032," on "a date to be set" at "a time to be set." (Doc. No. 21-2 at 14.) Mr. Santiago Tzul appeared at his hearing² and was ordered deported on June 16, 2009. (Doc. No. 21-2 at 16.) The record indicates that he was removed to Guatemala on August 12, 2009. (Doc. No. 21-2 at 19.) This removal order was reinstated twice, first on April 4, 2012, and again on April 1, 2013. (Doc. No. 21-2 at 19, 22.)

When Mr. Santiago Tzul was arrested in Houston on August 19, 2016, the Government again attempted to reinstate the removal order against him. (Doc. No. 21-2 at 25.) Mr. Santiago Tzul was convicted on a DWI charge and sentenced to three-years' incarceration. (Doc. No. 21-2 at 33.) At the end of his sentence, the Government filed an indictment against him for illegal reentry, which is the subject of this case. (Doc. No. 1.)

Pending before the Court is Defendant Santiago Tzul's motion to dismiss the indictment against him. (Doc. No. 13.) The Court understands Mr. Santiago Tzul's argument as follows: As a threshold matter, the statutory bar on collateral challenges to removal orders does not apply to jurisdictional arguments. Under Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), a putative "notice to appear" that does not include the date and time of the hearing is not considered a "notice to appear" at all. As a valid notice to appear is required to vest jurisdiction in the immigration court, the 2009 removal order is void. In the absence of a removal order, the Government cannot prove an element of the offense of illegal reentry, and the indictment must be dismissed. (Doc. No. 13.) The Government opposes this motion. (Doc. No. 21.)

Similar motions to dismiss have been filed around the country following the Supreme Court's decision in Pereira v. Sessions earlier this year. A number of federal courts have considered similar arguments, and have reached different conclusions. The Court has reviewed these decisions in the process of considering the pending motion.

I. ANALYSIS

As defined by 8 U.S.C. § 1326(a), the crime of illegal reentry requires the Government to prove that the defendant "(1) was an alien at the time of the alleged offense; (2) had been previously deported; (3) attempted to enter the United States; and (4) had not received the express consent of the Attorney General or the Secretary of the Department of Homeland Security." United States v. Jara-Favela , 686 F.3d 289, 302 (5th Cir. 2012). Mr. Santiago Tzul contests the Government's ability to prove the second of these elements.

A. JURISDICTIONAL CHALLENGES ARE NOT BARRED BY § 1326(D)

Section 1326(d) limits the ability of defendants charged with illegal reentry to collaterally attack an underlying deportation order.

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates that--

(1) the alien 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 the alien of the opportunity for judicial review; and

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

8 U.S.C. § 1326(d) (2018).

However, these bases for challenging an underlying removal order are not the only means available to criminal defendants. Jurisdiction must be established as a threshold matter before a court considers the merits of a case. See Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 94-96, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Great Southern Fire Proof Hotel Co. v. Jones , 177 U.S. 449, 450-451, 20 S.Ct. 690, 44 L.Ed. 842 (1900) ). Courts have this duty sua sponte to assure themselves of their own jurisdiction because an order entered without jurisdiction is a nullity without legal effect. See Burnham v. Superior Court of California , 495 U.S. 604, 608-09, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990). Therefore, "any judgment may be collaterally attacked if it is void for lack of jurisdiction." Jacuzzi v. Pimienta , 762 F.3d 419, 420 (5th Cir. 2014) ; see also Matter of Reitnauer , 152 F.3d 341, 344 n.12 (5th Cir. 1998) ("It is true that (1) jurisdictional defects render a judgment void, and (2) void judgments are subject to collateral attack.").³ Mr. Santiago Tzul's collateral attack on his removal order asserts that the order was void for lack of jurisdiction, and is not barred by § 1326(d). See United States v. Cruz-Jimenez , No. A-17-CR-00063, 2018 WL 5779491 at *2 (W.D. Tex. Nov. 2, 2018) ; see also United States v. Pedroza-Rocha , 3:18-CR-1286-DB, Doc. No. 53, 2018 WL 5646127 (W.D. Tex. Sept. 21, 2018) ; United States v. Virgen-Ponce , 320 F.Supp.3d 1164, 1166 (E.D. Wash. 2018).

B. JURISDICTION VESTS IN AN IMMIGRATION COURT UPON THE FILING OF A NOTICE TO APPEAR

The crux of Mr. Santiago Tzul's motion is that the failure to include the date and time of his hearing on his notice to appear deprived the immigration court of jurisdiction, making the 2009 removal order void. This argument relies on a regulation providing that "[j]urisdiction vests and proceedings commence before an immigration court when a charging document is filed with the immigration court." 8 C.F.R. § 1003.14(a) (2018). A charging document is defined as a "written instrument which initiates a proceeding before an Immigration Judge ... includ[ing] a Notice to Appear ...." 8 C.F.R. § 1003.13 (2018).

In contrast, the Government argues that § 1003.14(a) is merely a procedural rule. According to the Government, the immigration court's source of jurisdiction is actually the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1229(a)(1) ("An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.").

The text of both the regulation and the statute support Mr. Santiago Tzul's argument that § 1003.14(a) is exactly what it appears to be—a necessary trigger for the jurisdiction of an immigration court. The plain text of the statute is ordinarily the best evidence of congressional intent. W. Va. Univ. Hosps., Inc. v. Casey , 499 U.S. 83, 102, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991), superceded by statute as recognized in Landgraf v. USI Film Prods. , 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The INA indicated the purpose for which immigration judges were authorized, but did not define the contours of their jurisdiction. See 8 U.S.C. § 1229(a)(1) ("An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien."). Instead, Congress delegated that power to the U.S. Attorney General. See 8 U.S.C. § 1003(g)(2) (assigning to the Attorney General the duty to "establish such regulations ... as the Attorney General determines to be necessary for carrying out this section"). Pursuant to this delegation, the Attorney General promulgated a regulation establishing the necessary condition upon which "jurisdiction" will "vest" in the immigration courts: the filing of a notice to appear. 8 C.F.R. § 1003.14(a) (2018). The Government does not persuade the Court to ignore the plain language of the statute and regulations and instead read § 1003.14(a) as a procedural rule. Thus, the Court "see[s] no reason to depart from the plain text of the regulations." See United States v. Cruz-Jimenez , No. A-17-CR-00063, 2018 WL 5779491 at *7 (W.D. Tex. Nov. 2, 2018).

C. PEREIRA IS NOT LIMITED TO THE STOP-TIME RULE

The parties urge the Court to adopt contrary definitions of a notice to appear. Mr. Santiago Tzul argues that Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), established that, at minimum, a document must provide the time and place of a hearing to qualify as a notice to appear, as required by 8 U.S.C. § 1229(a)(1)(G)(i). The Government responds that the holding of Pereira was narrow and applied only to the circumstances before the Court in that case: "whether a notice to appear that lacks a specific date and time for removal proceedings triggers the stop-time rule under 8 U.S.C. § 1229b(d)(1)(A)." (Doc. No. 21 at 7.) According to the Government, Pereira is inapplicable here, because the regulation vesting jurisdiction upon filing of a proper charging document⁴ is governed by the regulatory definition of a notice to appear, which does not require inclusion of the time and place of the hearing. See 8 C.F.R. § 1003.15 (2018). As evidence, the Government points out that the statute at issue in Pereira specifically cross-referenced § 1229(a), unlike the regulation at issue in this case.

Mr. Santiago Tzul has the better argument on this point. The Court reads Pereira as first holding that a document is only a notice to appear if it includes the time and place of the hearing, and then applying that holding to the stop-time rule. See United States v. Cruz-Jimenez , No. A-17-CR-00063, 2018 WL 5779491, at *6 (W.D. Tex. Nov. 2, 2018) (" Pereira does not say that a putative notice to appear that omits the time and place of a removal hearing fails to trigger the stop-time rule—it says that such a document is not a notice to appear at...