United States District Court, D. Nevada
REPORT AND RECOMMENDATION
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE
before the court is defendant Eric Moreno-Ochoa's motion
to dismiss (ECF No. 32), filed on January 31, 2019. The
government filed a response (ECF No. 33) on February 14,
2019. Defendant did not file a reply.
is charged with a single count of violating 8 U.S.C. §
1326 - Deported Alien Found Unlawfully in the United States.
(Indictment (ECF No. 11).) The indictment cites multiple
prior deportations/removals from the United States, including
December 23, 2005, January 30, 2006, and June 16, 2010.
moves to dismiss the indictment. He argues that his prior
removal proceedings were defective because the Immigration
Judge (IJ) lacked jurisdiction to enter an order of
deportation due to a defective notice to appear that was
issued in violation of 8 U.S.C. § 1229(a)(1)(G)(i).
Specifically, Moreno-Ochoa argues that he was issued a notice
to appear for removal proceedings on December 14, 2005, but
the notice to appear did not set a place, date, or time for
his removal hearing. On December 23, 2005, an IJ ordered
Moreno-Ochoa removed from the United States. He argues that
the IJ does not have jurisdiction to enter an order of
removal when the notice to appear fails to state the time and
place of the removal hearing.
government responds that Moreno-Ochoa received, and signed
for, a notice of the removal proceedings on December 15,
2005, which set the place and time of the hearing for
December 21, 2005. (See Resp. (ECF No. 33-1) Attach.
1.) The government indicates that on that day, Moreno-Ochoa
was present and the IJ ordered him removed from the United
States. Accordingly, the government argues that the prior
deportation was proper.
Rule 12(b)(1) of the Federal Rules of Criminal Procedure,
“[a] party may raise by pretrial motion any defense,
objection, or request that the court can determine without a
trial on the merits.” Fed. R. Crim. P. 12(b)(1). A
motion to dismiss is generally capable of determination
before trial “if it involves questions of law rather
than fact.” United States v. Yip, 248
F.Supp.2d 970, 972 (D. Haw. 2003) (citing United States
v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th
Cir. 1986), cert. denied, 478 U.S. 1007 (1986)).
Immigration and Nationality Act (“the Act”), as
amended, provides that “[a]n immigration judge shall
conduct proceedings for deciding the inadmissibility or
deportability of an alien.” 8 U.S.C. §
1229a(a)(1). The Attorney General has authority to prescribe
rules for the conduct of removal proceedings. See 8
U.S.C. § 1103(g). Exercising that authority, the
Executive Office for Immigration Review promulgated rules of
procedure for immigration courts, including that
“[j]urisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document is filed
with the Immigration Court . . . .” 8 C.F.R. §
1003.14(a). One “charging document” is “a
Notice to Appear.” See 8 C.F.R. §
1003.13. The Act provides that in removal proceedings, the
Immigration and Naturalization Service must serve personally
a notice to appear on the alien that specifies, among other
things, “[t]he time and place at which the proceedings
will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). But
under the Executive Office rules, the “notice to
appear” filed as a charging document in the immigration
court need not contain the time and place of the proceedings.
See 8 C.F.R. § 1003.15(b)-(c). Instead, the
rules require the Service to include time-and-place
information “where practicable, ” and if it is
not included, “the Immigration Court shall be
responsible for scheduling the initial removal hearing and
providing notice . . . of the time, place, and date of
hearing.” 8 C.F.R. § 1003.18(b).
although the first notice did not establish a time and date
for a hearing, on December 15, 2005, it appears that
Moreno-Ochoa was provided notice of the actual hearing to be
conducted on December 21, 2005. If the government is able to
prove that Moreno-Ochoa received the notice, it is sufficient
to support the IJ's jurisdiction over the removal
proceeding. Karingithi v. Whitaker, No. 16-70885
(9th Cir. 2019) (holding that the hearing notice was a
charging document which satisfied the regulatory requirements
CONCLUSION AND RECOMMENDATION
THEREFORE RECOMMENDED that defendant Moreno-Ochoa's
motion to dismiss (ECF No. 32) be DENIED.
report and recommendation is submitted to the United States
district judge assigned to this case under 28 U.S.C. §
636(b)(1). A party who objects to this report and
recommendation may file a written objection supported by
points and authorities within fourteen days of being served
with this report and recommendation. Local Rule IB 3-2(a).
Failure to file a timely objection may ...