Usa v. Arteaga-Centeno
| Decision Date | 04 February 2019 |
| Docket Number | Case No. 18-cr-00332-CRB-1 |
| Citation | 365 F.Supp.3d 1023 |
| Court | U.S. District Court — Northern District of California |
| Parties | USA, Plaintiff, v. ARTEAGA-CENTENO, Defendant. |
Ann C. Lucas, Laura Elizabeth Vartain Horn, United States Attorney's Office, Briggs James Matheson, United States Attorney's Office Northern District of California, San Francisco, CA, for Plaintiff.
At a hearing on February 1, 2019, the Government orally moved for reconsideration of this Court's Order Granting Defendant's Motion to Dismiss. Dkt. 47; see Order (Dkt. 35). However, the Government agreed with the Defendant that because the Government had already filed a Notice of Appeal as to that Order, see Notice of Appeal (Dkt. 40), this Court lacks jurisdiction over such a motion. Def. Res. (Dkt. 46). The Government thus also seeks an order under Federal Rule of Criminal Procedure 37(a). See Dkt. 47.
Under the Ninth Circuit's recent opinion in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), a Notice to Appear ("NTA") vests an Immigration Judge ("IJ") with jurisdiction over a noncitizen's removal proceeding when that Notice satisfies the regulatory requirements—which do not require that the Notice include the time and date of the noncitizen's removal proceedings. Id. at 1159 (citing 8 C.F.R. § 1003.15(b) ). This Court's previous Order Granted Defendant's Motion to Dismiss the Indictment because his underlying NTA lacked time and date information, and thus this Court concluded that jurisdiction had not vested with the IJ. Order at 2-9. Under Karingithi, that ruling is incorrect.
Because Defendant's only other argument for dismissal of his indictment for unlawful reentry under 8 U.S.C. § 1326 is a "collateral attack on [his] underlying deportation order," id. § 1326(d) ; see also Mot. to Dismiss (Dkt. 8), which this Court did not reach, Order at 6-7, the Court finds that the Government's Rule 37 Motion "raises a substantial issue," Fed. R. Crim. P. 37(a)(3) ; Dkt. 47.
Defendant Jose-Luis Arteaga-Centeno ("Arteaga") moved to dismiss his indictment for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Mot. to Dismiss (Dkt. 8). On January 8, 2019, this Court granted that motion on the ground that the NTA in Arteaga's underlying removal proceedings was jurisdictionally invalid under Pereira v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). Order. This Court reasoned that because the IJ lacked jurisdiction in that underlying proceeding, there had "thus not been a previous ‘removal’ for the purposes of § 1326(a)." Order at 1. The Court thus dismissed Arteaga's one-count indictment. Id.; see also Indictment (Dkt. 1). The Government has since appealed this decision. Notice of Appeal.
Since this Court issued dismissed Arteaga's indictment, the Ninth Circuit has addressed the impact of Pereira on the question of an IJ's jurisdiction. Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019). On the basis of this newly-decided case, the Government now seeks leave to file a Motion for Reconsideration of this Court's Order Granting Motion to Dismiss the Indictment. Dkts. 45, 47. The Court granted leave. Id. However, as Defendant argues, and the Government does not dispute, because the Government has filed a Notice of Appeal, Dkt. 40, this Court lacks jurisdiction over that motion. See Def. Resp. to Gov. Opp. at 2-3 (Dkt. 46). The Government thus seeks an Order under Rule 37(a) as to what this Court would do should the Government file a Motion for Reconsideration. See Dkt. 47.
Federal Rule of Criminal Procedure 37(a) states that "[i]f a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." Fed. R. Crim. P. 37(a).
Although the Federal Rules of Criminal Procedure do not explicitly contemplate motions for reconsideration, "numerous circuit courts have held that motions for reconsideration may be filed in criminal cases." United States v. Mendez, 2008 WL 2561962, at *1 (C.D. Cal. June 25, 2008) (quoting United States v. Hector, 368 F.Supp.2d 1060, 1063 (C.D. Cal. 2005), rev'd on other grounds, 474 F.3d 1150 (9th Cir. 2007) ); United States v. Martin, 226 F.3d 1042, 1047 (9th Cir. 2000). Such motions "are governed by the rules that govern equivalent motions in civil proceedings." Mendez, 2008 WL 2561962, at *2 (citing Hector, 368 F.Supp.2d at 1063 ). The Government's Motion must thus be evaluated under Federal Rule of Civil Procedure 60. See Phelps v. Alameida, 569 F.3d 1120, 1133 (9th Cir. 2009) ().
In granting the Motion to Dismiss the Indictment, this Court determined that the IJ lacked jurisdiction over Arteaga's immigration proceedings, and thus there was no jurisdictionally-valid removal order that could sustain his indictment under 8 U.S.C. § 1326. The Government contends that, in light of Karingithi, this determination was incorrect; the IJ did have jurisdiction over Arteaga's immigration proceedings. Gov. Resp. to Mot. (Dkt. 45) at 2-3. The Court agrees.
In the immigration context, "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." 8 C.F.R. § 1003.14(a). A "[c]harging document means the written instrument which initiates a proceeding before an Immigration Judge" and must "include a Notice to Appear." Id. § 1003.13.
In granting the Motion to Dismiss the Indictment, this Court relied on Pereira v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). In Pereira, the Supreme Court held that in the context of the "stop-time" rule,1 an NTA must include time and date information, because the statutory provision that establishes the "stop-time" rule defines the scope of a "period of continuous physical presence" such that it is "deemed to end ... when the alien is served a notice to appear under section 1229(a)." 8 U.S.C. § 1229b(d)(1)(A) ; see also Pereira, 138 S.Ct. at 2109. "Section 1229(a), in turn, provides that the Government shall serve noncitizens in removal proceedings with ‘written notice (in this section referred to as a ‘notice to appear’) ... specifying’ several required pieces of information, including ‘[t]he time and place at which the [removal] proceedings will be held.’ " Id. at 2109-2110 (quoting § 1229(a)(1)(G)(i) (alterations in original) ).
Applying the holding of Pereira to this case, this Court reasoned that Pereira's holding applied to the NTA Arteaga had received, because, like the Petitioner in Pereira, Arteaga's NTA did not include time and date information. Dkt. 35 at 3-6. So, Arteaga's NTA did not meet the statutory requirements of § 1229(a), and thus was invalid. Id. The Court reasoned that, in consequence, there was never an NTA that would have vested jurisdiction with the IJ in Arteaga's case, and thus there was no valid underlying removal over on which a § 1326 prosecution could proceed. Id. at 4-10.
The Government now contends that Karingithi renders this reasoning incorrect. See Gov. Res. (Dkt. 45). In Karingithi, the Ninth Circuit addressed an appeal by a Kenyan citizen who had overstayed her tourist visa. 913 F.3d at 1159-60. She entered removal proceedings and received an NTA that did not include time and date information. Id. She was provided that missing information later that day. Id. The IJ ordered her removed and the BIA affirmed. Id. She then appealed to the Ninth Circuit, arguing, as Arteaga has here, that "if a notice to appear does not state the time for her initial removal hearing, it is not only defective under § 1229(a)" in light of Pereira, "but also does not vest jurisdiction with the IJ." Id. at 1160-1161 ; see also Pereira, 138 S.Ct. 2105.
The Ninth Circuit rejected that argument. Karingithi, 913 F.3d at 1160-1162. The definition of NTA that appears in § 1229(a), the Ninth Circuit reasoned, "is silent as to the jurisdiction of the Immigration Court." Id. at 1160-61. An IJ's jurisdiction is defined solely by regulation. Id. at 1159-1161. And that regulation does not require that an NTA include time and date information, but, "rather, the regulation compels inclusion of such information ‘where practicable.’ " Id. at 1160 (quoting 8 C.F.R. § 1003.18(b) ). In addition, that regulation provides that "[i]f that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing." 8 C.F.R. § 1003.18(b).
Given the differences in the NTA requirements between § 1229(a) and the regulations, and § 1229(a)'s silence as to jurisdiction, the Ninth Circuit concluded that the general presumption that the same word should be given the same meaning throughout a statute is "inapplicable here" because the jurisdictional regulations not only do "not include the time of the hearing, reading such a requirement into the regulations would render meaningless their command that such information need only be included ‘where practicable.’ " Karingithi, 913 F.3d at 1160-61 (quoting 8 C.F.R. § 1003.18(b) ). The Court then held that Id.
After reaching that decision, id., the...
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