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United States v. Garcia-Cuevas

United States District Court, D. Nevada

October 23, 2019

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

          ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE NANCY J. KOPPE

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Defendant Julio Cesar Garcia-Cuevas has moved to dismiss the indictment charging him with one count of deported alien found unlawfully in the United States in violation of 8 U.S.C. § 1326 (“Motion”). (ECF No. 1.) Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge Nancy J. Koppe recommending that Defendant's Motion be denied. (ECF No. 33.) Judge Koppe found that Defendant fails to successfully collaterally attack the validity of his underlying removal order on jurisdictional grounds. Defendant filed an objection (“Objection”) (ECF No. 36) and the government responded (ECF No. 38). The Court will overrule the Objection and adopt the R&R's ultimate recommendation. The Court therefore denies the Motion because Defendant has not successfully collaterally attacked the underlying removal.

         II. BACKGROUND

         Defendant is a native of Mexico. He was served on November 13, 2015 with an initial notice to appear (“NTA”)[1] which did not specify the time and date of his underlying removal proceedings. (ECF No. 26-1.) The NTA also did not include the address of the place for Defendant's removal hearing. (Id.) Five days later, on November 18, 2015, Defendant was provided a notice of hearing in removal proceedings (“NOH”), which provided the time, date, and address of Defendant's immigration proceedings-December 1, 2015, at 8:00 A.M., in Adelanto, California. (ECF No. 38-1.) However, the NOH listed a slightly different address for the immigration court than where it specifically indicated Defendant's hearing would be-namely Defendant's particular in-custody residence. (Id.) The NOH provided the immigration court as located at 10250 Rancho Road, Suite 201A, Adelanto, California 92301. (Id.) It then also indicated that Defendant was to appear before that court at 10400 Rancho Road, Adelanto, California 92301-not “10250”. (Id.) The government indicates that Defendant's in-custody residence and the immigration court are in the same facility. (ECF No. 38 at 2; ECF No. 38-2.)

         III. LEGAL STANDARD

         A. Review of Magistrate Judge's Recommendation

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Defendant's Objection, the Court engages in a de novo review to determine whether to adopt Magistrate Judge Koppe's R&R.

         B. Collateral Challenge Framework

         To obtain a conviction for unlawful reentry pursuant to 8 U.S.C. § 1326(a), the government must establish that the defendant was previously validly removed from the United States before the alleged reentry. See United States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015). A defendant charged with unlawful reentry under § 1326(a) “has a Fifth Amendment right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). A defendant may successfully challenge a predicate removal order by showing: (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings where the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the removal order is fundamentally unfair. See 8 U.S.C. § 1326(d); see also Ubaldo-Figueroa, 364 F.3d at 1047 (noting that “the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation” in a § 1326 prosecution). The entry of a removal order is fundamentally unfair if the deportation proceedings violated the defendant's due process rights and that violation prejudices the defendant. United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004).[2]

         IV. DISCUSSION

         Defendant's collateral challenge is based on two arguments. First, relying on Lopez v. Barr, 925 F.3d 396, 404 (9th Cir. 2019), Defendant contends that the NTA is invalid because it did not include the date, time or place of the removal hearing. (ECF No. 36.) Defendant additionally argues that the NTA was invalid based on a decision from the Eastern District of Washington-United States v. Muniz-Sanchez, 388 F.Supp.3d 1284 (E.D. Wash. 2019). (Id.)[3]

         Defendant's reliance on Lopez is futile. Lopez involves the same stop-time rule at issue in Pereira v. Sessions, 138 S.Ct. 2105 (2018). In Karingithi v. Whitaker, a Ninth Circuit panel found that the immigration court's jurisdiction does not hinge on § 1229(a)- unlike the stop-time rule in Pereira, but instead on regulations promulgated by the Attorney General. 919 F.3d 1158, 1160 (9th Cir. 2019). For these reasons, this Court agrees with Judge Koppe that, as with Pereira, Karingithi renders Lopez inapplicable to this case (see ECF No. 33 at 7).

         Based on applicable regulations, including 8 C.F.R. §§ 1003.13, 1003.14(a) 1003.15(b) and 1003.18(b), the Ninth Circuit found in Karingithi that a notice to appear not specifying the time and date of an alien's initial removal hearing vests the immigration court with jurisdiction over the removal proceedings “so long as a notice of hearing specifying this information is later sent to the alien.” Id. at 1161 (quoting and relying on In re Bermudez-Cota, 277 I. & N. Dec. 441, 447 (BIA 2018)).[4] The government also cites a later non-precedential decision, Deocampo v. Barr, where the court of appeals suggests that jurisdiction exists where a later notice of hearing specifies the otherwise omitted place for the removal hearing (ECF No. 38 at 9). 766 F. App'x. 555, 557 & n.3 (9th Cir. 2019) (“Although Karingithi did not consider ‘place,' 8 C.F.R. § 1003.18 lists ‘place' alongside ‘time' and ‘date' as information that can be included ‘where practicable.'”). The Court finds Deocampo's ...


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