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United States v. Torres-Vega

United States District Court, W.D. Oklahoma

May 22, 2019




         Before 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.

         The 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.[1] 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).

         Defendant 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 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.

         Defendant 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 jurisdiction.

         Defendant 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 § 1326(d):

[F[]utility 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).[2] Accordingly, the Court finds that Defendant cannot rely on ยง 1326(d) as a basis for ...

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