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United States v. Gutierrez-Ramirez

United States District Court, N.D. California, San Jose Division

July 25, 2019




         Before 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.

         I. BACKGROUND

         On 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”).[1] 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.

         On 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.

         Defendant's 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.

         Defendant 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.


         The 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).

         “For 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).

         To 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”).


         The 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.

         A. Statutory and Regulatory Framework, Pereira, and Karingithi

         The 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.

         Elsewhere, 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[2], 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.

         The INA 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. § 1229(a)(1)(G)(i).

         The 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). ...

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