United States v. Virgen-Ponce
Decision Date | 26 July 2018 |
Docket Number | No. 2:18-CR-0092-WFN-1,2:18-CR-0092-WFN-1 |
Citation | 320 F.Supp.3d 1164 |
Court | U.S. District Court — District of Washington |
Parties | UNITED STATES of America, Plaintiff, v. Jorge VIRGEN-PONCE, Defendant. |
Matthew F. Duggan, Assistant U.S. Attorney, U.S. Attorney's Office, Spokane, WA, for Plaintiff.
William Miles Pope, Public Defender or Community Defender Appointment, Federal Defenders, Federal Public Defender, Public Defender or Community Defender Appointment, Spokane Office, Spokane, WA, for Defendant.
A pretrial conference and motion hearing was held July 24, 2018. The Defendant, who is in custody, was present and representedby Miles Pope and assisted by Court-appointed interpreter Bea Rump; Assistant United States Attorney Matthew Duggan represented the Government.
The Court addressed Defendant's Motion to Dismiss. ECF No. 27. The Defendant challenges the validity of the prior deportation because the notice to appear failed to include the time and date of the hearing as required by 8 U.S.C. § 1229(a) :
8 U.S.C. § 1229 (West). The Supreme Court recently examined this statute in the context of an immigration mechanism known as the "stop time rule." The Supreme Court concluded 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).’ " Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 2113-14, ––– L.Ed.2d –––– (2018). Id. at 2115, ––– L.Ed.2d ––––. In support of this plain reading of the statute, the Supreme Court notes that the same section addresses an alien's right to an attorney. If the alien does not know the date and time of the hearing they are effectively denied their right to counsel for the hearing.
The Government argues that because the context for the plaintiff in the Pereira case differs from the Defendant's, that the Court need not apply the clear language of the statute and the Supreme Court's interpretation thereof. Further, the Government argues that despite the lack of compliance with the statute as a Notice to Appear, the document served upon the Defendant still met the 8 C.F.R. § 1003.14 definition of a charging document sufficient to confer jurisdiction on the immigration court.
The Court concurs from a practical standpoint Defendant clearly became aware of the time and date set for the immigration hearing because he was in custody at the time and was transported to the hearing. However, the Court must rely upon the plain language of the statute as well as the precedent set by the Supreme Court. The statute plainly states that the Notice of Hearing must contain the date and time of the hearing. Lack of such information deprives the alien of proper notice as required by § 1229(a). Since the Notice of Appearance in this case omits information required by the statute, the Notice is deficient.
The immigration judge lacked jurisdiction over Defendant's case because of the deficient Notice. "Jurisdiction vests, and proceedings before an...
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