United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS THE INDICTMENT [RE:
LAB SON FREEMAN, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Omar Gutierrez-Ramirez's motion to
dismiss the indictment for illegal reentry after deportation
in violation of 8 U.S.C. § 1326. Mot., ECF 25. Defendant
contends that the immigration judge who issued his underlying
removal order did not have jurisdiction to issue such an
order because the Notice to Appear for his removal
proceedings was invalid. See generally Mot; Reply,
ECF 32. For the following reasons, the Court holds that the
immigration court did not have jurisdiction to issue the
original removal order, and thus Defendant's motion to
dismiss is GRANTED.
January 22, 2002, the Immigration and Naturalization Service
(“INS”) served on Defendant a “Notice to
Appear” for his removal proceedings under 8 U.S.C.
§ 1229. Decl. of Courtney Norris ISO Opp., Ex. A
(“NOA”). Defendant was in INS custody in Solano,
California when he was personally served with the Notice to
Appear. See Id. at 2. The Notice to Appear listed
the date and time of the proceedings as “a date to be
set” and “a time to be set, ” respectively.
Id. at 1. In the space for the “complete
address of the immigration court, including room number, if
any, ” the Notice states that the proceedings were
“to be calendared and notice provided by the Executive
Office of Immigration Review.” Id.
(capitalization altered). The Notice did not include the
address of the Immigration Court where INS planned to file
the Notice. On the Notice, Defendant signed a section
entitled “Request for Prompt Hearing, ” which
stated that “[t]o expedite a determination in my case,
I request an immediate hearing. I waive my right to have a
10-day period prior to appearing before an immigration
judge.” Id. at 2. The Notice states that
Defendant was given “[a] list of providers of free
legal services” and “was provided oral notice in
the Espanol/English language of the time and place of his or
her hearing and of the consequences of failure to appear as
provided in section 240(b)(7) of the Act.” Id.
January 23, 2002, Defendant was transferred to the INS
detention facility in Eloy, Arizona, which meant that his
hearing “would be heard under the Phoenix Executive
Office of Immigration Review jurisdiction.” Norris
Decl. at 2. On January 24, 2002, the Immigration Court
prepared a “Notice of Hearing in Removal Proceedings,
” which stated that the “master hearing” in
Defendant's case would be held on January 29, 2002,
listed the address for the hearing, and listed the address
for the Immigration Court. Mot., Ex. B (“NOH”),
ECF 25-2; Norris Decl. at 2. The Notice of Hearing stated
that the document was served by personal service to
“alien c/o Custodian Officer.” Id.
final hearing was held on February 20, 2002. Norris Decl. at
3. Defendant was unrepresented at the hearing. Norris Decl.
at 2. At the hearing, the Immigration Judge denied
Defendant's request for voluntary departure and ordered
Defendant removed to Mexico. Mot., Ex. D, ECF 25-4;
see Mot., Ex. C, Tape 3 at 13:20-37, ECF 25-3. The
Immigration Judge told Defendant “[t]here is no appeal
from this decision.” Mot., Ex. C, Tape 3 at 13:33-37.
The final order of the immigration indicated that the appeal
was “waived.” Mot., Ex. D.
was subsequently deported from the United States.
See Indict., ECF 15. The removal was reinstated in
July 2018. See Mot., Ex. H, ECF 25-8. The Indictment
in this case was filed on September 6, 2018, charging
Defendant with one count of violation of 8 U.S.C. § 1326
for illegal reentry of a removed alien. See Indict.
Defendant filed the instant motion to dismiss the Indictment
on March 26, 2019, and the Court held a hearing on July 16,
2019. ECF 38.
Federal Rules of Criminal Procedure state that “[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). Rule 12(b)(3)
pertains to alleged defects in the indictment and permits a
motion to dismiss for “failure to state an
offense.” See Fed. R. Crim. P. 12(b)(3)(v).
a defendant to be convicted of illegal reentry under 8 U.S.C.
§ 1326, the Government 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 under § 1326 has a due process right
to collaterally attack his removal order because the removal
order serves as a predicate element of his conviction.”
Id. (internal quotation marks and citation omitted).
That right is codified at 8 U.S.C. § 1326(d). See
United States v. Cisneros-Rodriguez, 813 F.3d 748, 755
(9th Cir. 2015).
mount a successful challenge to an indictment under Section
1326, a defendant must satisfy 8 U.S.C. § 1326(d), which
sets forth three requirements for collaterally attacking the
underlying deportation order in a Section 1326 case. Under
this section, the defendant must show that (1) he has
exhausted administrative remedies to appeal his removal
order; (2) he was deprived of the opportunity for judicial
review; and (3) the entry of the removal order was
fundamentally unfair. See Raya-Vaca, 771 F.3d at
1201 (citing 8 U.S.C. § 1326(d)). To show fundamental
unfairness, a defendant must establish both that the
deportation proceeding violated his due process rights and
that the violation was prejudicial. Id. If the
defendant satisfies the fundamental fairness requirement
under § 1326(d), then he satisfies the other two
requirements as well. See Cisneros-Rodriguez, 813
F.3d at 756; see also United States v. Gomez, 757
F.3d 885, 892 (9th Cir. 2014) (noting that “[a]
defendant can establish the first two prongs of §
1326(d) by showing that he was denied judicial review of his
removal proceeding in violation of due process”).
Court first describes the relevant statutory and regulatory
framework governing removal proceedings, the immigration
court's jurisdiction, and notices to appear, as well as
the Supreme Court's decision in Pereira v.
Sessions, 138 S.Ct. 2105 (2018) and the Ninth
Circuit's recent decision in Karingithi v.
Whitaker, 913 F.3d 1158 (2019). The Court then turns to
Defendant's arguments here.
Statutory and Regulatory Framework, Pereira, and
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101, et seq., provides the statutory
framework for the initiation of removal proceedings. The INA
confers upon the Attorney General the authority to define, by
regulation, the jurisdiction of the immigration courts.
Id. § 1103(g)(2) (“The Attorney General
shall establish such regulations . . . as the Attorney
General determines to be necessary for carrying out this
section.”). Pursuant to this authority, the Attorney
General promulgated regulations governing the
“jurisdiction and commencement of proceedings” in
the immigration court. 8 C.F.R. § 1003.14. Under those
regulations, “[j]urisdiction vests, and proceedings
before an Immigration Judge commence, when a charging
document is filed with the Immigration Court by the
Service.” Id. A “charging
document” includes “a Notice to Appear” as
well as “a Notice of Referral to Immigration Judge
and a Notice of Intention to Rescind and Request for Hearing
by Alien.” Id. § 1003.13.
the regulations enumerate the necessary contents of the
Notice to Appear for removal proceedings. Id. §
1003.15(b)-(c). Under Section 1003.15(b), the “Notice
to Appear must . . . include” certain information about
the removal proceedings, including, among other things,
“[t]he address of the Immigration Court where the
Service will file the . . . Notice to Appear.” Under
Section 1003.15(c), the Notice to Appear must include certain
information about the noncitizen, such as the
noncitizen's name and address, and states that
“[f]ailure to provide any of these items shall not be
construed as affording the alien any substantive or
procedural rights.” Importantly, neither section
enumerating the requirements of the Notice to Appear includes
the time and place of the initial removal hearing. Though, in
another section, the regulations state that “the
Service shall provide in the Notice to Appear, the time,
place and date of the initial removal hearing, where
practicable.” Id. § 1003.18.
itself also defines a Notice to Appear. Section 1229(a) of
the INA provides that “[i]n removal proceedings under
Section 1229a of this title, written notice (in this section
referred to as a ‘notice to appear') shall be given
in person to the alien . . . .” 8 U.S.C. §
1229(a). Like the regulations, the statute enumerates certain
information that must be included in a Notice to Appear.
Unlike the regulatory definition, the statutory Notice to
Appear must include “the time and place at which the
proceedings will be held.” Id. §
Supreme Court recently considered and interpreted Section
1229(a)'s requirements for a Notice to Appear in
Pereira, 138 S.Ct. 2105. In Pereira, the
Government had served the noncitizen with a notice to appear
that did not specify the time and place of the removal
proceedings, as required by Section 1229(a). Id. at
2109. The question before the Court was whether the notice to
appear triggered what is known as the “stop-time
rule.” Under the INA, nonpermanent residents who have
been in the United States continuously for 10 years may
receive discretionary relief in removal proceedings. 8 U.S.C.
§ 1229(b)(1). However, the stop-time rule mandates that
any 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). ...