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United States v. Garcia-Cuevas

United States District Court, D. Nevada

September 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JULIO CESAR GARCIA-CUEVAS, Defendant.

          REPORT AND RECOMMENDATION (26)

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to the undersigned Magistrate Judge on Defendant Julio Cesar Garcia-Cuevas' motion to dismiss indictment. Docket No. 26. The Court has considered Defendant's motion, the United States' response, and Defendant's reply. Docket Nos. 26, 31, 32.

         I. BACKGROUND

         On January 22, 2019, a federal grand jury sitting in Las Vegas, Nevada issued an indictment charging Defendant with one count of deported alien found unlawfully in the United States, in violation of Title 8, United States Code, Section 1326. Docket No. 1. The charge alleges that Defendant reentered and remained in the United States “after having been deported and removed therefrom on or about December 2, 2015, April 3, 2016, and July 26, 2017...” Id. at 1.

         Defendant submits that his November 13, 2015, Notice to Appear (“NTA”), which led to his removal, was insufficient because it did not set a date, place, or time for his removal hearing. Id. at 2; Docket No. 26-1 at 2. Defendant submits that, if the original NTA does not include the presiding Immigration Court's address, the Court does not have jurisdiction and a subsequent notice cannot cure this omission. Docket No. 26 at 6-7. As a result, Defendant submits, the Immigration Judge who removed him lacked jurisdiction to do so. Id. at 2, 4-5, 9. Defendant further submits that he need not have exhausted his administrative remedies in the underlying deportation in order to collaterally attack it, as the deportation proceeding was void for lack of jurisdiction. Id. at 11. Since the NTA lacked the Immigration Court's address and the date and time of Defendant's initial removal hearing and the documents provided in discovery demonstrated that immigration officials never served him with a curative Notice of Hearing, Defendant asks the Court to dismiss the indictment against him with prejudice. Id. at 13.

         In response, the United States submits that, on November 13, 2015, immigration officials issued Defendant an NTA after he was convicted of a felony robbery charge in California state court. Docket No. 31 at 2. The United States submits that, on the same date, Defendant signed for receipt of the NTA, which charged him as an alien illegally in the United States and an alien who has been convicted of committing acts which constitute the essential elements of a crime involving moral turpitude, and stated that the date and time of the hearing were to be set later. Id. Additionally, the United States submits that, on November 18, 2015, a custodial officer served Defendant with a Notice of Hearing in Removal Proceedings. Id.; Docket No. 31-1.[1] The Notice of Hearing in Removal Proceedings, which the United States attached to its response, is dated November 18, 2015, and states that Defendant's case has been scheduled for a hearing before the Immigration Court on December 1, 2015 at 8:00 a.m., at 10400 Rancho Road, Adelanto, California. Docket No. 31-1 at 2. The United States submits that, on December 1, 2015, Defendant appeared before an Immigration Judge, who ordered him removed from the United States to Mexico. Docket No. 31 at 2. The United States further submits that Defendant waived his right to appeal. Id. Additionally, the United States submits that the NTA “filed as a charging document in the immigration court need not contain the time or place of the proceedings.” Id. at 3. Rather, the United States submits, the rules require immigration officials to include the time, place, and date of the initial removal proceeding “where practicable” and, when this information is not in the initial notice, “the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice…of the time, place, and date of hearing.” Id. (quoting 8 C.F.R. § 1003.18(b)). The United States submits that the Immigration Judge had jurisdiction over Defendant during his removal proceedings. Id. at 5-8. The United States further submits that Defendant's challenge to the validity of the Immigration Judge's removal order does not excuse him from exhausting his administrative remedies and that he has failed to do so. Id. at 8-9. Therefore, the United States submits that the initial NTA vested jurisdiction in the Immigration Court, the subsequent Notice of Hearing cured the defects regarding the date, time, and place in the NTA, a valid immigration proceeding occurred, Defendant was lawfully removed to Mexico, and Defendant has failed to demonstrate that he exhausted his administrative remedies. Id. at 9. Accordingly, the United States asks the Court to deny Defendant's motion. Id. at 10.

         In reply, Defendant submits that the initial NTA did not vest jurisdiction in the Immigration Court. Docket No. 32 at 1-2. Defendant further submits that the Notice of Hearing fails to cure the address deficiency because the NTA is a single document that must contain all necessary information; yet, the only address it contains is that of Defendant's residence. Id. at 2. Defendant submits that the regulation expressly requires the NTA to contain the address of the Immigration Court where it is filed and, since Defendant's does not, the Immigration Court had no jurisdiction to remove him. Id. at 3-4. Defendant further submits that the Notice of Hearing does not cure the defects of the NTA, and that it does not meet the regulatory requirements to be termed a subsequent NTA. Id. at 4-5. Additionally, Defendant submits that the lack of jurisdiction automatically invalidates the removal order; therefore, he asks the Court to dismiss his indictment. Id. at 5-6.

         II. ANALYSIS

         Federal Rule of Criminal Procedure 12(b)(3)(B)(v) allows a defendant to move to dismiss an indictment on the ground that the indictment “fail[s] to state an offense.” In considering a motion to dismiss an indictment, a court “must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged. The indictment either states an offense or it does not. There is no reason to conduct an evidentiary hearing.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). “In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment.” Id. A motion to dismiss an indictment can be determined before trial “if it involves questions of law rather than fact.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986); United States v. Jimenez, 191 F.Supp.3d 1038, 1040 (N.D.Ca. 2016). For this reason, “[g]enerally, Rule 12(b) motions are appropriate to consider ‘such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, [and] lack of jurisdiction.'” Shortt, 785 F.2d at 1452. A defendant moving to dismiss an indictment bears the burden of demonstrating a factual basis for the motion to dismiss. See United States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003); United States v. Lazarevich, 147 F.3d 1061, 1065 (9th Cir. 1998).

         In order to convict a defendant of illegal reentry under 8 U.S.C. § 1326, the United States must establish that the defendant “left the United States under order of exclusion, deportation, or removal, and then illegally reentered.” United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (internal quotation marks and citation omitted). “A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has the right to bring a collateral attack challenging the validity of his underlying removal order, because that order serves as a predicate element of his conviction.” United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017).

         To demonstrate that a prior deportation cannot serve as the basis of an indictment for illegal reentry, 8 U.S.C. § 1326(d) requires that a defendant “demonstrate that (1) he exhausted the administrative remedies available for seeking relief from the predicate removal order; (2) the deportation proceedings ‘improperly deprived [him] of the opportunity for judicial review;' and (3) the removal order was ‘fundamentally unfair.'” Raya-Vaca, 771 F.3d at 1201 (quoting 8 U.S.C. § 1326(d)). “To satisfy the third prong-that the order was fundamentally unfair-the defendant bears the burden of establishing both that the deportation proceeding violated his due process rights and that the violation caused prejudice.” Id. (internal quotation marks, citation, and brackets omitted). Defendant bears the burden of proving all the Section 1326(d) elements. Ochoa, 861 F.3d at 1019.

         In Pereira v. Sessions, 138 S.Ct. 2105, 2113-2114 (2018), the Supreme Court held that “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a ‘notice to appear under section 1229(a) [of the Immigration and Naturalization Act (“INA”) ],' and so does not trigger the stop-time rule.” The question at issue in Pereira was whether an NTA lacking this information triggered the “stop-time” rule under 8 U.S.C. § 1229b(d)(1).

         After Pereira was decided, the Board of Immigration Appeals entertained the issue raised in that case. It found that an NTA which fails to specify the time and place of removal proceedings does not divest the Immigration Judge of jurisdiction, so long as a Notice of Hearing specifying the information is later sent to the noncitizen. Matter of German Bermudez-Cota, 27 I. & N. Dec. 441, 441 (BIA Aug. 31, 2018).

         On December 14, 2018, the Sixth Circuit found, in Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018), that the decision in Pereira has no relevance to the jurisdiction question. Specifically, the Sixth Circuit noted that, notwithstanding its finding that the NTA was defective, the Pereira Court did not invalidate the petitioner's underlying removal proceedings. The Court found that “[i]f Pereira's holding applied to jurisdiction, there also would not have been jurisdiction in Pereira itself. ...


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