United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Dismiss (Doc. No. 20) filed by
Defendant Raul Torres-Vega. Therein Defendant seeks dismissal
of the indictment returned against him on April 2, 2019,
charging him with illegal reentry into the United States
after prior removal in violation of 8 U.S.C. § 1326(a).
Defendant premises his argument in support of dismissal on
Pereira v. Sessions, ___ U.S. ___, 138 S.Ct. 2105
(2018), arguing that deficiencies in his 2011 removal
proceedings rendered the order of removal void, and therefore
the instant prosecution cannot be maintained. The United
States responded in opposition to the motion. Upon
consideration of the parties' submissions, the Court
finds as follows.
Indictment herein alleges that on January 28, 2019,
Defendant, an alien who had been removed on or about July 18,
2011, was found in the United States, without the consent of
the Attorney General or the Department of Homeland Security
to reapply for admission into the United States. Defendant
challenges the current indictment by seeking to collaterally
challenge the 2011 removal proceedings, arguing that the
immigration judge lacked jurisdiction over the proceedings
because the Notice to Appear did not include a set date and
time for Mr. Torres-Vega to appear for his removal
hearing. In Pereira, the Supreme Court
addressed the “stop time rule, ” relevant for
persons seeking discretionary cancellation of removal if, for
example, the person has been continually present in the
United States for more than ten years. See 8 U.S.C.
§ 1229b(b)(1). The period of continuous presence 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). The Supreme Court concluded that a Notice to
Appear that does not specify the time and place at which
removal proceedings will be held as required by §
1229(a)(1)(G)(i) does not trigger the stop-time rule.
Id. at 2113. Defendant herein seeks expansion of the
decision in Pereira, attempting to collaterally
challenge the underlying order of removal, asserting that the
immigration judge lacked jurisdiction and therefore the
removal order was void. His argument is not unique, having
been raised by numerous criminal defendants in various
jurisdictions, with varying degrees of success, since the
Supreme Court's decision.
This jurisdictional argument generally goes as follows: under
the applicable regulations, “Jurisdiction vests, and
proceedings before an Immigration Judge commence, when a
charging document is filed with the Immigration
Court[.]” United States v. Virgen-Ponce, 320
F.Supp.3d 1164 (E.D. Wash. July 26, 2018)(quoting 8 C.F.R.
§ 1003.14(a)). For immigration proceedings initiated
after April 1, 1997, a charging document includes, among
other documents, an NTA. Id. (quoting 8 C.F.R.
§ 1003.13). Relying on Pereira's language
that says, “A document that fails to include [the time
and place of removal proceedings] is not a ‘notice to
appear under section 1229(a),' ” some district
courts have concluded that an NTA that omits the time and
place of removal proceedings is a defective charging document
that cannot confer jurisdiction over removal proceedings.
See id. at 1165-66 (quoting Pereira, 138
S.Ct. at 2113-14). If a defendant's prosecution for
illegal reentry rests on a removal order entered by an
immigration court that did not have jurisdiction (as
Defendant in this case asserts), then the indictment must be
dismissed. Id. at 1166.
United States v. Gonzalez, No. 8:18CR253, 2019 WL
1101284, at *3 (D. Neb. Feb. 11, 2019), report and
recommendation adopted, No. 8:18CR253, 2019 WL 1099717 (D.
Neb. Mar. 8, 2019) (footnotes omitted).
contends the collateral challenge to the original order of
removal is appropriate under 8 U.S.C. § 1326(d):
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
(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
(3) the entry of the order was fundamentally unfair.
contends that he was not required to exhaust, because the
initial order of removal was void for want of jurisdiction.
He contends the immigration proceedings were fundamentally
unfair because he could not have been lawfully deported
premised on the order of an immigration judge who lacked
seeks to avoid the exhaustion requirement by asserting that
exhaustion would have been futile in light of a Bureau of
Immigration Appeals decision issued in 2011 that held,
“regardless of whether the date and time of the hearing
have been included in [the notice to appear]” the
notice is effective to confer jurisdiction. (Doc. No. 20, p.
6). Defendant's argument ignores recent Tenth Circuit
authority addressing futility in the context of §
[Futility does not excuse a failure to exhaust when
administrative exhaustion is required by a statute. See
Booth v. Churner, 532 U.S. 731, 741 n.6, 121 S.Ct. 1819,
149 L.Ed.2d 958 (2001) (courts will “not read futility
or other exceptions into statutory exhaustion
requirements”). Because administrative exhaustion is
required by a statute (8 U.S.C. § 1326(d)(1)), no
futility exception exists. See United States v.
Copeland, 376 F.3d 61, 66- 67 (2d Cir. 2004) (holding
that no futility exception exists, with one exception not
relevant here, for the requirement of administrative
exhaustion under 8 U.S.C. § 1326(d)).
United States v. Contreras-Cabrera, No. 18-6189,
2019 WL 1422627, at *2 (10th Cir. Mar. 29,
2019). Accordingly, the Court finds that
Defendant cannot rely on § 1326(d) as a basis for