DocketNumber: No. 5:18-CR-463
Citation Numbers: 375 F. Supp. 3d 707
Judges: Reyna
Filed Date: 3/21/2019
Status: Precedential
Modified Date: 3/9/2023
Defendant Juan De la Cruz Bravo-Morante was indicted on charges of illegal reentry into the United States in violation of
I. BACKGROUND
Defendant, a citizen of Mexico, entered the United States without obtaining legal status. While illegally in the United States, Defendant engaged in criminal conduct that led to his arrest and custody with the United States Immigration and Customs Enforcement ("ICE") on charges of unauthorized entry into the United States. On January 4, 2011, Defendant was served with a notice to appear in immigration court for a removal proceeding before an immigration judge. It is undisputed that the notice to appear did not include a time, date, or place for the removal proceeding. (Dkt. No. 31-2). Defendant signed the notice to appear and requested an expedited hearing. (Dkt. No. 31-2). Moreover, in a notice of rights and request for disposition Defendant admitted that he was in the United States illegally, conceded that he does not believe he faces any harm upon return to his country, and waived his right to a hearing before the immigration court. (Dkt. No. 31-3). On January 24, 2011, Defendant attended a deportation hearing before an immigration judge and was ordered deported. He waived any appeal (Dkt. No. 31-4) and was deported to Mexico the following day.
On March 20, 2013, Defendant illegally re-entered the United States. Five years later, on June 1, 2018, immigration authorities found and detained Defendant near Laredo, Texas. On June 19, 2018, Defendant was indicted for illegal reentry into the United States, a felony, in violation of
II. DISCUSSION
Defendant pleaded guilty to an indictment charging him with illegal reentry, in violation of
Defendant argues that the 2011 deportation order is void because the immigration *713court that issued it lacked "subject-matter jurisdiction." Defendant relies on the Supreme Court's decision in Pereira , which held that a putative notice to appear is not a "notice to appear" under
As set out below, the court concludes that the Pereira decision does not address the precise issue in this case and is thus not dispositive given its limited relevance to this case. The court finds that the immigration court did not lack jurisdiction to conduct Defendant's deportation hearing or to issue the resulting deportation order. Moreover, the court is not persuaded that Defendant should be allowed to withdraw his plea of guilty to the illegal entry charge under § 1326(d) or the Carr factors.
A. Pereira
The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") provides that nonpermanent residents subject to removal (deportation) proceedings may be eligible for cancellation of those proceedings. 8 U.S.C. § 1229b. To be eligible for cancellation, the nonpermanent resident must have "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application" for cancellation of removal. Pereira ,
The statute provides that a notice to appear should include information about the time, place, and date for the removal proceeding.
Pereira, a citizen of Brazil, entered the United States in 2000 as a temporary non-immigrant visitor. Pereira ,
In 2013, Pereira was arrested for a traffic violation and detained by ICE. By this time, Pereira had been continuously physically present in the United States for a period of over 10 years. Once the immigration court reopened his removal proceeding, Pereira argued that he was entitled to relief in the form of cancellation of the removal proceeding under 8 U.S.C. § 1229b(b)(1).
On June 2018, the Supreme Court issued its opinion. The question before the Court was: "If the Government serves a noncitizen with a document that is labeled 'notice to appear,' but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule?"
Here, Defendant contends that the Pereira decision is dispositive in this case because, as in Pereira , his 2011 notice to appear did not include the time-and-place information. Defendant argues that because Pereira held that a putative notice lacking the time-and-place information is not a "notice to appear" under § 1229(a), this court must similarly conclude that a notice to appear lacking the time-and-place information is not a "charging document" for purposes of vesting the immigration court with "subject-matter jurisdiction." See
Defendant misapprehends the breadth of the Pereira decision. The Supreme Court took concrete and measured steps to ensure that its opinion would not be broadly interpreted or perceived as having general application. This court is bound by those admonitions. For example, the Court repeatedly expressed that it was addressing a "narrow question." Pereira ,
The Pereira decision is tied to the stop-time rule like a ship made fast to its mooring.
Specifically, the Supreme Court did not address the jurisdiction of the immigration court in Pereira . United States v. Perez-Arellano ,
B. Jurisdiction of the Immigration Court
Looking beyond Pereira , Defendant also misunderstands the source of the immigration court's jurisdiction. Defendant argues that subject-matter jurisdiction does not vest in the immigration court if the notice to appear lacks time-and-place information. (Dkt. No. 29 at 7-8) Defendant's argument implies that the jurisdiction of an immigration court over removal proceedings may be vested or withdrawn by the actions of the parties. This point mischaracterizes the substantive nature of subject-matter jurisdiction.
Generally, subject-matter jurisdiction is "the courts' statutory or constitutional power to adjudicate the case." Verizon Md., Inc. v. Pub. Serv. Comm'n of Md. ,
Through passage of the Immigration and Nationality Act ("INA"),
1. Statutory Framework
In the context of removal or deportation proceedings, two statutory provisions are relevant: 8 U.S.C. §§ 1229a and 1229.
*717Section 1229a, entitled "Removal proceedings," conveys power, or authority, to immigration judges to preside over removal proceedings. It specifically provides that "immigration judge[s] shall conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1). Deportation proceedings are "the sole and exclusive procedure" for determining whether an alien may be admitted or removed from the United States.
To fully exercise that authority, immigration judges are entrusted by statute with a broad range of conduct for removal hearings, such as administering oaths, taking testimony and evidence, ruling on motions or objections, and making credibility determinations based on the totality of the circumstances and all relevant factors.
Section 1229 is entitled "Initiation of Removal Proceedings." Despite its title, § 1229 is silent about how removal proceedings are to be initiated. Instead, it focuses on information that must be provided to persons facing removal proceedings. Section 1229(a)(1) provides that an individual facing removal proceedings must be served with a written notice to appear. In general, the notice must include the following: (A) nature of the proceedings; (B) legal authority for the proceedings; (C) the alleged unlawful acts or conduct; (D) the charges and statutory provisions allegedly violated; (E) the alien's right to representation; (F) an explanation of the requirement that the alien provide an address and telephone number and any changes to same, along with the consequences of failing to appear at the hearing; and (G) the time and place of the proceedings.
2. Regulatory Framework
Congress conferred on the Attorney General broad authority over immigration and naturalization matters, including authority to establish regulations necessary to carry out various responsibilities under the INA. See
Regulation
Regulation
Regulation
(1) The nature of the proceedings against the alien;
(2) The legal authority under which the proceedings are conducted;
(3) The acts or conduct alleged to be in violation of law;
(4) The charges against the alien and the statutory provisions alleged to have been violated;
(5) Notice that the alien may be represented, at no cost to the government, by counsel or other representative authorized to appear pursuant to 8 C.F.R. 1292.1 ;
(6) The address of the Immigration Court where the Service will file the Order to Show Cause and Notice to Appear; and
(7) A statement that the alien must advise the Immigration Court having administrative control over the Record of Proceeding of his or her current address and telephone number and a statement that failure to provide such information may result in an in absentia hearing in accordance with § 1003.26.
(1) the alien's names and any known aliases;
(2) the alien's address;
(3) the alien's registration number, with any lead alien registration number with which the alien is associated;
(4) the alien's alleged nationality and citizenship; and
(5) the language that the alien understands.
Regulation
3. Jurisdictional Analysis
The government correctly argues that subject-matter jurisdiction of the immigration court derives from a Congressional grant of power, not a regulatory gesture. The government also accurately points out that by enacting § 1229a, Congress, in clear and plain terms, conveyed to immigration judges authority over deportation proceedings. Section 1229a provides that "immigration judge[s] shall conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1) (emphasis added). In addition, the Congressional grant of authority is over a specific class of cases. The words "immigration judge[s] shall conduct" conveys an imperative that both demands and limits who can conduct removal proceedings. See United States v. Kalb ,
That the word "jurisdiction" is not found in § 1229a is irrelevant. The Supreme Court has held that jurisdictional statutes do not require the use of the word "jurisdiction." Patchak v. Zinke , --- U.S. ----,
*720Here, jurisdictional context is provided in § 1229a(a)(3) and other related subsections.
Section 1229a(a)(3) provides that "[u]nless otherwise specified in this chapter, a [removal] 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 admitted, removed from the United States." 8 U.S.C. § 1229a(a)(3). Section 1229a(b)(1), in turn, speaks of the immigration judge's "authority" to administer oaths, receive evidence, or interrogate the alien and witnesses, among other aspects essential to the fact-finding powers embedded within the exercise of jurisdiction.
Read in its entirety, § 1229a shows that the statute "explicitly vests" immigration judges with "the power to conduct removal proceedings." Sosa-Valenzuela v. Gonzales ,
Unlike the government, Defendant claims DHS regulatory framework as the source of jurisdiction of the immigration courts. Defendant points to
Defendant reads the regulations to mean that the immigration court lacks "subject-matter jurisdiction" until it is created by the filing of a charging document. This rests on the erroneous assumption that immigration courts derive subject-matter jurisdiction from DHS regulations. But, to be clear, the source of the immigration court's power to exercise legal authority over removal proceedings lies in the statute, § 1229a, and not in the regulation, § 1003.14. The statute and regulations demonstrate that the primary function of filing the notice to appear as a charging document is to commence a deportation proceeding. As a charging document, the notice to appear thus serves to provide information necessary to commence a deportation proceeding. The regulations do not indicate that a notice to appear that lacks time-and-place information cannot function as a charging document. Even if time-and-place information may not necessarily be available at the time of filing, once the time-and-place information becomes available, it is provided by the immigration court to both the government and the alien. This process comports with the statute and the regulations under Fifth Circuit precedent.
The Fifth Circuit has held that, under the statute, a notice to appear "need not include the specific time and date of a removal hearing." Gomez-Palacios v. Holder ,
The Board of Immigration Appeals ("BIA") also recently grappled with this issue in a post- Pereira context. In *722Bermudez-Cota , the BIA held that "a notice to appear that does not specify the time-and-place of an alien's initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Act, so long as a notice of hearing specifying this information is later sent to the alien."
In sum, this court is not persuaded that the immigration court lacks jurisdiction where the charging document lacks time-and-place information. Nor does the Pereira decision require a different interpretation.
In this case, Defendant received a notice to appear that lacked time-and-place information. He signed the notice, admitted that he was in the United States illegally, and waived his right to a 10-day waiting period by requesting an expedited hearing. Defendant later attended his hearing, and the immigration court ordered that he be deported. Defendant waived appeal and was subsequently deported. In view of the foregoing, this court holds that although the initial notice to appear that was served on Defendant did not include the time-and-date information, the immigration court did not lack jurisdiction over the deportation proceeding.
C. Collateral Attack under
In the alternative, the court notes that Defendant depends on
With limited exception, a defendant may not challenge the validity of a deportation order involving an illegal reentry.
As to the first and second requirements, Defendant does not contend a failure to exhaust administrative remedies, or that he was deprived of proper judicial review. Rather, Defendant focuses on the third requirement, arguing that the deportation hearing was fundamentally unfair because he did not, at the time of the hearing, have the benefit of the Pereira decision. This argument is not persuasive. Defendant did not raise any jurisdictional arguments during his deportation hearing. As Defendant failed to "contest his removability to the immigration judge, he cannot argue now that the judge lacked jurisdiction to find him removable." Ali v. Gonzales ,
In any event, "[u]nlawful removal orders can...still serve as the predicate for § 1326 prosecutions so long as the defendant has an opportunity for administrative and judicial review of any errors." United States v. Hernandez-Lopez ,
For the foregoing reasons, on the basis of the record in this case, the court denies Defendant's attempt to collaterally challenge his prior deportation order under
D. Carr Factors
In the alternative, the court further notes that Defendant's challenge also depends on this court granting leave to withdraw his guilty plea under Fed. R. Crim. P. 11(d)(2)(B), which in turn requires evaluation of the so-called Carr factors. The Fifth Circuit has established seven factors that this court must consider in determining whether to permit the defendant to withdraw a guilty plea:
(1) whether or not the defendant has asserted his innocence;
(2) whether or not the government would suffer prejudice if the withdrawal motion were granted;
(3) whether or not the defendant has delayed in filing his withdrawal motion;
(4) whether or not the withdrawal would substantially inconvenience the court;
(5) whether or not close assistance of counsel was available;
(6) whether or not the original plea was knowing and voluntary; and *724(7) whether or not the withdrawal would waste judicial resources; and, as applicable, the reason why defenses advanced later were not proffered at the time of the original pleading, or the reasons why a defendant delayed in making his withdrawal motion.
United States v. Carr ,
First, Defendant asserts actual innocence, but the facts in this case belie that argument. Nothing in the record suggests that Defendant had any viable defense to the deportation proceedings. And the court also notes that Defendant entered into a stipulation for removal, which constitutes "a conclusive determination of the alien's removability from the United States." 8 U.S.C. § 1229a(d). This factor weighs against Defendant.
Second, the court finds that the government would be prejudiced if the motion to withdraw is granted. Significant government resources have already been expended in preparing this case for sentencing, and additional resources would be expended to re-litigate the underlying removal. The government is already under the heavy burden of prosecuting a large number of cases in this district, and requiring it to restart cases involving facts such as here would be prejudicial to the government. This factor weighs against Defendant.
Third, for the same reasons stated above for the second factor, the court finds that substantial delay would result by granting the motion to withdraw. This factor weighs against Defendant.
Fourth, the withdrawal of the guilty plea would result in substantial inconvenience to the court, particularly if a trial is necessary as judicial resources would need to be allocated to arrange for the trial. Fifth, Defendant concedes that he has been well-represented by counsel throughout his proceedings. Sixth, the facts and record demonstrate that the initial plea was entered knowingly and voluntarily. Seventh, allowing Defendant to withdraw his guilty plea would waste judicial resources as it would have made the plea colloquy inconsequential along with all the work undertaken in preparation for sentencing. Defendant has not offered valid justification for why he did not raise any jurisdictional argument until the day before sentencing. Nor has the court received information or credible argument that would reasonably lead it to believe that redoing this case would result in an outcome other than eventual deportation. All of the Carr factors, when considered under the totality of circumstances in this case, weigh against the Defendant. For this reason, Defendant's motion to withdraw his guilty plea is denied.
III. CONCLUSION
Based on the foregoing reasons, this court concludes that the Supreme Court decision in Pereira does not provide a route to the relief Defendant seeks. Accordingly, Defendant's Motion to Withdraw the Guilty Plea, Motion for Leave, and Motion to Dismiss the Indictment are DENIED .
It is so ORDERED .
In relevant part,
Section 1229b(b)(1)(A) provides:
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application....
Section 1229b(d)(1) provides:
For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.
Section 1229(a)(1), in relevant part, provides:
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:
....
(G)(i) The time and place at which the proceedings will be held.
Pereira v. Sessions , --- U.S. ----,
In addition to time-and-place information, § 1229(a)(1)(A)-(G) requires the following types of information: nature of the proceedings, legal authority for proceedings, conduct alleged to have violated the law, charges, list of available counsel, alien's duty to update contact information with the Attorney General, consequences for failure to update contact information, and consequences for failure to appear.
In Mauricio-Benitez v. Sessions ,
See Ricci v. Chicago Mercantile Exch. ,
The § 1229 notice to appear is the subject of the Pereira decision. As noted above, the Supreme Court held that a notice to appear that lacks time-and-place information fails to satisfy the requirements of § 1229 for purposes of the stop-time rule. The Pereira decision, however, does not address § 1229 in the context of the jurisdiction of the immigration court. Indeed, as explained above, by remanding for further proceedings, the Supreme Court implicitly acknowledged that a notice to appear that lacks time-and-place information does not affect the jurisdiction of the immigration court. Stated differently, the Supreme Court's Pereira decision has no adverse effect on the statutory framework that governs the jurisdiction of the immigration court over removal proceedings.
Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service. The charging document must include a certificate showing service on the opposing party pursuant to § 1003.32 which indicates the Immigration Court in which the charging document is filed. However, no charging document is required to be filed with the Immigration Court to commence bond proceedings pursuant to §§ 1003.19, 1236.1(d) and 1240.2(b) of this chapter.
(a) The Immigration Court shall be responsible for scheduling cases and providing notice to the government and the alien of the time, place, and date of hearings.
(b) In removal proceedings pursuant to section 240 of the Act, the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If 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. In the case of any change or postponement in the time and place of such proceeding, the Immigration Court shall provide written notice to the alien specifying the new time and place of the proceeding and the consequences under section 240(b)(5) of the Act of failing, except under exceptional circumstances as defined in section 240(e)(1) of the Act, to attend such proceeding. No such notice shall be required for an alien not in detention if the alien has failed to provide the address required in section 239(a)(1)(F) of the Act.
See also United States v. Kalb ,
Numerous courts have, on occasion, referred to the regulations as jurisdictional. See Detroit Free Press v. Ashcroft ,
This approach is also consistent with all court actions and administrative proceedings in that the actions and proceedings are commenced with the filing of a complaint or petition that contains information necessary to commence the proceeding, but is typically devoid of time-and-place information for future hearings.
See also Hernandez-Perez v. Whitaker ,
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.