United States v. Zapata-Cortinas

• Citation: 351 F.Supp.3d 1006
• Decision Date: 20 November 2018
• Docket Number: Criminal No. SA-18-CR-00343-OLG
• Parties: UNITED STATES of America v. Margarito ZAPATA-CORTINAS
• Court: U.S. District Court — Western District of Texas

351 F.Supp.3d 1006

UNITED STATES of America

v.Margarito ZAPATA-CORTINAS

Criminal No. SA-18-CR-00343-OLG

United States District Court, W.D. Texas, San Antonio Division.

Signed November 20, 2018

Matthew Lathrop, United States Attorney's Office, San Antonio, TX, for United State of America.

Marisa C. Balderas, George E. Shaffer, Attorney at Law, San Antonio, TX, for Margarito Zapata-Cortinas.

MEMORANDUM OPINION AND ORDER

ORLANDO L. GARCIA, Chief United States District Judge

On this day, the Court considered Defendant's Motion to Dismiss Indictment (docket no. 23) (the "Motion to Dismiss") and the Government's Motion to Reconsider the Court's Order Dismissing the Indictment (docket no. 31) (the "Motion to Reconsider"). After reviewing the motions and each party's original and supplemental briefing, the Court finds that the Government's Motion to Reconsider should be granted and Defendant's Motion to Dismiss should be denied.

BACKGROUND

Defendant Margarito Zapata-Cortinas ("Defendant") has been indicted on a single count of alleged illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). See docket no. 13 (the "Indictment"). Specifically, the Indictment alleges that Defendant—an undocumented immigrant who had "previously been denied admission, excluded, deported, and removed from the United States" — "attempted to enter, entered, and was found in the United States." Id. The Indictment further charges that Defendant had not received consent to reapply for admission to the United States. Id.

Defendant's recent Indictment is premised on Defendant's prior removal from the United States to Mexico in February 2010. In relation to that removal, Defendant was served with a Notice to Appear ("NTA") on January 7, 2010. See docket no. 23-1. Defendant's NTA alleged that he was subject to removal from the United States because (i) he was not a citizen or national of the United States, and (ii) he was present in the United States without being admitted or paroled. Id. Defendant's NTA stated that he was to appear before an immigration judge in San Antonio, Texas "on a date to be set at a time to be set." Id.

The record indicates that following service of the NTA, Defendant was held in detention. See docket no. 26 p. 2. On January 27, 2010, Defendant received a Notice of Hearing stating that his removal hearing had been scheduled for February 1, 2010. See docket no. 31-2. Defendant remained in detention until his February 1, 2010 removal hearing, and Defendant "attended" his San Antonio removal proceedings via video conference from the Pearsall Detention Facility. See docket nos. 26 pp. 1-2 & 26-1. Following the hearing, Immigration Judge Margaret Burkhart found that Defendant was "subject to removal on the charge(s) in the Notice to Appear." Docket no. 26-1 (the "Removal Order"). As a result, Judge Burkhart ordered that Defendant be removed, and Judge Burkhart's Removal Order indicates that Defendant "waived" his right to appeal. Id. The record indicates that Defendant was removed to Mexico on February 5, 2010. See docket no. 26 pp. 1-2.

The record indicates that on May 3, 2018, Defendant was arrested by officers of Immigration and Customs Enforcement in San Antonio, Texas. See docket no. 1. On May 16, 2018, a Grand Jury returned the pending Indictment charging Defendant with a violation of 8 U.S.C. § 1326(a). See docket no. 13. On August 27, 2018, Defendant filed a Motion to Dismiss his Indictment, relying primarily on the Supreme Court's recent holding in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). See docket no. 23. Defendant's Motion to Dismiss argues that—in light of Pereira —his prior Removal Order is subject to collateral attack, because the NTA issued as part of his removal proceedings did not comply with the applicable statutory requirements. See id. On September 18, 2018, the Government filed a response in opposition to Defendant's motion (docket no. 26), and on September 25, 2018, Defendant filed a reply brief in support of his motion (docket no. 27).

On October 2, 2018, this Court entered an Order dismissing Defendant's Indictment. See docket no. 28 (the "Prior Order"). Following entry of the Court's Prior Order, the Government filed its Motion to Reconsider the Court's dismissal of the Indictment. See docket no. 31. On October 15, 2018, Defendant filed a response to the Government's motion. See docket no. 35. In light of the split of authority that was developing among district courts as to Pereira's application in the context of § 1326(a) prosecutions, the Court vacated the Prior Order and requested supplemental briefing from each party on certain specific issues.¹ See docket no. 36. Pursuant to the Court's request, Defendant and the Government have each submitted supplemental briefing on the relevant issues. See docket nos. 40 & 42.

DISCUSSION

Defendant seeks dismissal of his Indictment under § 1326(a). Defendant argues that the immigration court was never vested with jurisdiction because the Notice to Appear he received was deficient under the applicable statutes and regulations. See docket nos. 23, 27 & 42. Accordingly, Defendant asserts that he has a due process right to challenge the prior Removal Order. See docket no. 23.

After reviewing Defendant's Motion to Dismiss, the Government's Motion to Reconsider, and the parties' original and supplemental briefing, this Court finds that Defendant's Indictment should not be dismissed. Although the Court concludes that Defendant's NTA was deficient, the Court also concludes that Defendant must satisfy the requirements of § 1326(d) to collaterally attack his underlying Removal Order. In this case, Defendant has not done so.

I. A Notice to Appear for Removal Proceedings Must Contain the Date and Time of the Removal Hearing

Title 8 U.S.C. § 1229a directs immigration judges to conduct proceedings for deciding the inadmissibility or deportability of an alien in the United States. See 8 U.S.C. § 1229a(a)(1)-(3) (directing that "immigration judge[s] shall conduct proceedings for deciding the inadmissibility or deportability of an alien" and stating that unless otherwise specified "a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States"). The requirements for jurisdiction in the immigration court are set forth in regulations promulgated by the Attorney General pursuant to authority delegated to him by statute. See 8 U.S.C. § 1103(g)(2) (providing that the Attorney General "shall establish such regulations ... as the Attorney General determines to be necessary for carrying out this section"). Under the regulations that have been promulgated, jurisdiction 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). The phrase "charging document" refers to a "written instrument which initiates a proceeding before an Immigration Judge ... includ[ing] a Notice to Appear." 8 C.F.R. § 1003.13.

Title 8 U.S.C. § 1229(a)(1) sets out the requirements for any "Notice to Appear" for proceedings held pursuant to § 1229a, and in relevant part, it states as follows:

In removal proceedings under section 1229a of this title, written notice (in this section referred to as a "notice to appear") shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) specifying the following:

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted.

(C) The acts or conduct alleged to be in violation of law.

(D) The charges against the alien and the statutory provisions alleged to have been violated.

(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) of this section and (ii) a current list of counsel prepared under subsection (b)(2) of this section.

(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title.

(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's address or telephone number.

(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.

(G)(i) The time and place at which the proceedings will be held.

(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.

8 U.S.C. § 1229(a)(1) (boldface added).

Because removal proceedings in the immigration court fall under the purview of § 1229a, the plain language of the statute appears to require that NTAs issued for those proceedings contain the time and place of the removal hearing. In Pereira v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 2113-14, 201 L.Ed.2d 433 (2018), the Supreme Court recently examined § 1229(a) and its NTA requirements in the context of an immigration mechanism known as the "stop-time rule."² Specifically, after conducting an analysis of the relevant statutes and regulations, the Pereira 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)." Id.

As a result, the plain reading of § 1229(a) and Pereira clearly demonstrate that an NTA that fails to include the time or place of the removal hearing is deficient under the statute, and this Court agrees with the other courts that have arrived at that conclusion in light of Pereira . See, e.g., United States v. Virgen-Ponce ...