United States District Court, D. Nevada
ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE NANCY J. KOPPE
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.
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
is a native of Mexico. He was served on November 13, 2015
with an initial notice to appear
(“NTA”) 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.)
Review of Magistrate Judge's Recommendation
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.
Collateral Challenge Framework
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).
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).
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).
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)). 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