Opinion
No.CR-18-0331-TUC-RM(LAB)
11-02-2018
United States of America, Plaintiff, v. Eder Said Erazo-Diaz, Defendant.
REPORT AND RECOMMENDATION
The District Court referred this case to the Magistrate Judge for a hearing on the defendant's motion to dismiss indictment pursuant to 8 U.S.C. § 1326(d). The defendant, Eder Said Erazo-Diaz, argues that the indictment in this case must be dismissed because the charge is based on reinstatement of an invalid prior deportation which was ordered in violation of his Fifth Amendment right to Due Process of the law. (Doc. 33). The government filed a response (Doc. 35) and the defendant filed a reply (Doc. 37). The government filed a supplemental response on 10/29/18, including exhibits 7- 22. (Doc. 46)
This issue has been decided contrary to this R& Rin CR-18-0365-TUC-RCC(JR) (Doc. 50) and CR-18-1291-TUC-JAS(DTF) (Doc. 39).
A hearing was held on 10/18/18. No witnesses testified. Government's Exhibits 1-6 and Defendant's Exhibits 11-13 were admitted and made part of the record, by stipulation of the parties. A second hearing was held on 10/30/18. Government's Exhibits 7-22 were admitted for purposes of this motion. Charge :
The defendant is charged by indictment with re-entry of a removed alien, in violation of 8 U.S.C. 1326(a), enhanced by subsection (b)(1). (Doc. 7) Motion to Dismiss :
Facts- The facts are not in dispute. The defendant is charged with illegally re-entering the United States after being removed from the country on about 9/13/17. The removal was based on an order reinstating a prior order of removal that was entered on 12/8/10. The 2010 removal order was initiated by a Notice to Appear (NTA), dated 8/1/08. (Ex. 13) The NTA before an immigration judge includes the place of the defendant's initial removal hearing but does not provide a date or time. Instead it states "a date to be set" at "a time to be set". The NTA is signed by the defendant, indicating that he requested a prompt hearing. Thereafter, the defendant was served with 11 Notices of Hearing (NOH), beginning on 8/18/08. After numerous continuances, the last notice was served on 11/23/10. (Exs. 8-10, 12-18, 20) The final NOH set a master hearing on 12/8/10. A review of Exhibit 6, an audio recording of the 12/8/10 hearing, confirms that the defendant attended the removal hearing and was represented by counsel. He was ordered removed and waived his right to appeal. (Ex. 21)
During the hearing a Spanish language interpreter interpreted for the defendant only when the judge addressed him directly. No interpretation was provided when the court and the attorneys spoke to each other about the case and the law. The judge chastised the defendant throughout the hearing. The defendant's attorney stated that she had not spoken to the defendant about certain issues. She stood by silently throughout the majority of the hearing, never communicating with the defendant or intervening on his behalf. She advised the court that she had researched all possible issues that might allow for cancellation of removal and she agreed with the court's assessment that there was no relief available. The defendant was advised of the consequences of returning to the United States without permission and acknowledged that he understood.
The Court finds that the NTA is deficient. The immigration court did not have subject matter jurisdiction. The removal order was invalid and could not be reinstated and relied on to remove the defendant from the United States.
Discussion- Due process allows a defendant charged pursuant to 8 U.S.C. § 1326, re-entry of a removed alien, to challenge the underlying removal order upon which the charge is predicated. U.S. v. Mendoza-Lopez, 481 U.S. 828 (1987). To prevail, Title 8 U.S.C. § 1326(d) requires a defendant to demonstrate that 1) he exhausted his administrative remedies; 2) the underlying removal proceedings improperly deprived him of judicial review; and 3) the removal order was fundamentally unfair. A removal order is "fundamentally unfair" if 1) a defendant's due process rights were violated by defects in the underlying proceeding, and 2) he suffered prejudice as a result. U.S. v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (additional citation omitted).
In the present case, the defendant argues that the deportation order that was reinstated and used to remove him from the United States was unlawful and void because the NTA that initiated the proceedings did not include the date and time he was to appear, in violation of 8 U.S.C. § 1229(a)(1)(G)(i). The defendant's position is that without a NTA that complies with the statute, subject matter jurisdiction did not vest with the immigration court and any order of removal without jurisdiction was invalid. Eight C.F.R. § 1003.14(a) explains that "Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." Title 8 U.S.C. § 1229 states that removal proceedings are initiated when a written notice to appear is given in person to the alien. It sets forth the information that must be provided, to include "the time and place at which the proceedings will be held", per subsection (G)(i).
The government responds that the Immigration and Nationality Act (INA) does not address when or how jurisdiction vests with the immigration court. It refers the Court to the "comprehensive framework" of regulations, including 8 C.F.R. §§ 1003.14 and 1003.15, for its position that the NTA in this case complies with the regulatory requirements that the agency is authorized to promulgate. Section 1003.15(c) sets forth the required contents for a NTA for removal proceedings. Five items are listed, but date and time of the hearing are not included. The government argues that the NTA was proper in conjunction with the NOH that followed and provided the date and time of the hearing. Its position is that the immigration court properly exercised jurisdiction over the defendant.
The defendant relies on Pereira v. Sessions, 138 S.Ct. 2105 (2018), 2018 WL 3058276, for the proposition that a NTA that does not specify the date and time that the proceedings will be held is not a NTA, pursuant to § 1229. Defendant's position is that Pereira has far-reaching implications and addresses some of the same issues present in the instant case.
The government argues that the Court in Pereira stated several times that the holding was intended to be narrow and to address the intersection of the statutory provisions in 8 U.S.C. §§ 1229b(d)(1)(A) and 1229(a). The focus of the discussion was on the information a NTA must contain to trigger the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) "stop-time rule", which ends a noncitizen's period of continuous presence in the United States for purposes of an application for cancellation of removal. According to the government, the holding cannot be expanded to apply to anything other than the stop-time rule and the Court did not address jurisdiction. The government cites Popa v. Holder, 571 F.3d 890, 895-96 (9th Cir. 2009) for its holding that the NTA and NOH together provide the alien with the required notice to initiate proceedings. It points out that although Popa was decided prior to Periera, the Supreme Court did not specifically overrule the 9th Circuit's holding that the government is permitted to use the two-step process. The government is correct in stating that Periera did not explicitly overrule Popa. Nevertheless, this court concludes, based on the Supreme Court's reasoning in Periera, that Popa is no longer good law.
In Popa, the 9th Circuit held that an alien can be ordered removed in absentia, pursuant to 8 U.S.C. s 1229a(b)(5)(A), even if the original NTA fails to specify the time and date of the hearing as long as notice of the hearing's time and date is sent in a later communication. Popa v. Holder, 571 F.3d 890 (9th Cir. 2009). The court held that this "two-step" notice procedure is permissible. The court did not explicitly explain its reasoning, but it appears that court adopted the reasoning of the 8th Circuit, which in Haider approved of the "two-step" notice procedure. Haider v. Gonzales, 438 F.3d 902, 907 (8th Cir. 2006). The Haider court concluded as follows: "The INA simply requires that an alien be provided written notice of his hearing; it does not require that the NTA served on Haider satisfy all of § 1229(a)(1)'s notice requirements." Id. The Haider court held that as long as the alien received adequate "notice" the specific statutory requirements of § 1229(a)(1) were not mandatory. The 9th Circuit apparently approved of this reasoning because when quoting the relevant removal statute, the court elided any reference to the NTA statute. The court stated as follows:
Pursuant to 8 U.S.C. § 1229a(b)(5)(A), an "alien who, after written notice ... has been provided to the alien or the alien's counsel of record, does not attend a proceeding ... shall be ordered removed in absentia if the [government] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable."Popa, 571 F.3d at 894 (elisions in original). Without the elision, the statute reads as follows:
Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to the alien or the alien's counsel of record, does not attend a proceeding . . . shall be ordered removed in absentia if the [government] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable . . . .8 U.S.C.A. § 1229a(b)(5)(A) (emphasis added) The elided passage is not surplusage. As the Supreme Court explained in Periera, when the INA refers to the notice statute explicitly, the NTA must contain all statutory elements. The NTA in Popa failed to give the time and date of the hearing. It was therefore defective and could not trigger the removal procedure under § 1229a(b)(5)(A) contrary to the 9th Circuit's holding. This court concludes that Popa is no longer good law after Periera, and the government's reliance on Popa in the pending action is misplaced. See Pereira v. Sessions, 138 S. Ct. 2105, 2111 (2018) (quoting the removal-in-absentia statute and noting that it is triggered by "written notice required under paragraph (1) or (2) of section 1229(a)").
In order to be valid, the statute requires that a NTA state the date and time of a hearing. The NTA is the trigger that confers jurisdiction on the immigration court. Neither the defendant's appearance at the hearing, nor his failure to appeal, can constitute waiver of defects in the court's subject matter jurisdiction. Pursuant to 6 U.S.C. § 521(a)(2018), the Executive Office of Immigration Review is "subject to the direction and regulation of the Attorney General". According to regulations promulgated by the Attorney General, jurisdiction vests with the immigration courts, "when a charging document is filed with the Immigration Court." 8 C.F.R. 1003.14(a). The charging document includes a NTA. 8 C.F.R. § 1003.13. Title 8 U.S.C. § 1229(a) mandates that a NTA include the time and date of the hearing in removal proceedings.
In Periera the defendant was served with a NTA that lacked the hearing date and time, as was the defendant in the present case. The Supreme Court rejected the same argument the government makes in the instant case. The government explained that the NTA met the statutory requirements because it complied with immigration regulations, and later provided a NOH with the date and time. Congress has defined the NTA by statute. The Department of Justice has tried to circumvent the statutory requirement of date and time by promulgating a regulation that only requires date and time "where practicable." 8 C.F. R. § 1003.18(b). The government conceded in Periera that in the past three years nearly 100 percent of the NTAs omitted the time and date of the proceeding, Periera, 138 S.Ct. at 2111, allowing the exception to swallow the 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).'" It went on to say that "[if] the three words 'notice to appear' mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens 'notice' of the information, i.e. the 'time' and 'place' that would enable them 'to appear' at the removal hearing in the first place." Id. at 2115. "Conveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceedings." Id.
Conclusion- Pursuant to 8 U.S.C. § 1229(a), 8 C.F.R. § 1003.14(a), and Periera, a valid charging document was not filed in the defendant's removal case and jurisdiction did not vest in the immigration court. Lack of jurisdiction is a defect in the immigration proceedings that caused the hearing to be fundamentally unfair. It violated the defendant's due process rights, and the wrongful deportation prejudiced him. See Wilson v. Carr, 41 F.2d 704, 706 (9th Cir. 1930)([I]f the order is void on its face for want of jurisdiction, it is the duty of this and every other court to disregard it."). Since the present case relies on an invalid deportation order, the Court recommends that the indictment be dismissed. See U.S. v. Virgen-Ponce, No. 2:18-CR-0092-WFN-1, *6 (E.D. Wash. July 26, 2018); U.S. v. Carlos Pedroza-Rocha, No. EP-18-CR-1286-DB, *8-9. RECOMMENDATION :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court GRANT the motion to dismiss the indictment. (Doc. 33)
Government counsel may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.
Dated this 2nd day of November, 2018.
/s/_________
Honorable Leslie A. Bowman
United States Magistrate Judge