United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY, SENIOR U.S. DISTRICT JUDGE
Camargo-Olarte (“Defendant”) stands charged with
illegal reentry in violation of 8 U.S.C. § 1326. Pending
before the Court is Defendant's Motion to Dismiss (D.E.
12), to which the United States of America (the
“Government”) has responded (D.E. 15).
a citizen of Columbia, was convicted of federal conspiracy to
traffic heroin and cocaine in 1994 and sentenced to 90
months' imprisonment. In February 1999, he was released
into the custody of Immigration and Customs Enforcement (ICE)
officials. He was first placed in removal proceedings on
February 10, 1999, and issued a Notice to Appear (NTA) that
alleged he was subject to removal for being convicted of a
federal drug crime. D.E. 13. The NTA stated that his removal
hearing would be held before an immigration judge on “a
date to be set at a time to be set.” Id.
March 1, 1999, Defendant was issued a Notice of Hearing (NOH)
setting his hearing for March 8, 1999. On March 5, 1999, the
hearing was re-set to March 22, and Defendant was issued a
new NOH stating the same. On March 19, 1999, the Newsom Law
Office filed a notice of appearance as attorney and a motion
to continue the removal hearing. A new NOH was issued to
Defendant and his attorney on April 7, 1999, and the hearing
was held on April 20, 1999. Defendant attended the hearing
with his attorney, and the immigration judge issued an order
of deportation on May 23, 1999. Defendant was removed from
the U.S. on June 24, 1999. He re-entered the U.S. at least
twice after that, and on each occasion, the 1999 removal
order was reinstated, and he was deported.
November 14, 2018, Defendant was charged with illegal reentry
after immigration authorities found him near Falfurrias,
Texas. He now moves to dismiss the indictment because the
1999 NTA he received did not include the time or date of his
Pereira v. Sessions
removal proceeding begins with the filing of a notice to
appear (NTA) in immigration court. Garcia-Perez v.
Holder, 558 Fed.Appx. 343, 346 (5th Cir. 2013). Section
1229(a) of the Immigration and Nationality Act (INA) provides
that an NTA must contain, among other information, the
“time and place at which the [removal] proceedings will
be held.” 8 U.S.C. § 1229(a)(1)(G)(i). However, a
separate Department of Justice regulation requires NTAs to
contain time and place information only “where
practicable.” 8 C.F.R. § 1003.18(b). “If
that information is not contained in the Notice to Appear,
the Immigration Court shall be responsible for scheduling the
initial removal hearing and providing notice to the
government and the alien of the time, place, and date of
hearing.” Id. Judging it impracticable to
schedule a hearing at the outset of each removal proceeding,
the Department of Homeland Security (DHS) “almost
always serves noncitizens with notices that fail to specify
the time, place, or date of initial removal hearings.”
Pereira v. Sessions, 138 S.Ct. 2105, 2111 (2018).
Instead, a typical NTA compels the noncitizen's
appearance at “a place to be set, ” “a date
to be set, ” and “a time to be set.”
Supreme Court recently addressed removal NTAs in Pereira
v. Sessions, which originated not with an
illegal-reentry indictment, but with an application for
cancellation of removal. 138 S.Ct. at 2112. Cancellation of
removal is a form of discretionary relief available to
unauthorized aliens who have been continuously physically
present in the United States for at least ten years.
See 8 U.S.C. § 1229b(b)(1)(A). Under the
so-called “stop-time rule, ” an alien's
period of continuous residence is “deemed to end . . .
when the alien is served a notice to appear under Section
1229(a).” See 8 U.S.C. § 1229b(d)(1).
Pereira, a native and citizen of Brazil, had been physically
present in the United States since 2000. Pereira,
138 S.Ct. at 2112. In 2006, he received an NTA that did not
set a date or location for his removal hearing. Id.
DHS mailed the subsequent time-and-place notice to the wrong
address, and Pereira, who remained unaware of the hearing,
was ordered removed in absentia in 2007. Id. In
2013, DHS reopened his earlier removal proceedings, and
Pereira applied for cancellation of removal. Id. The
immigration court held that Pereira was ineligible for
cancellation because the 2006 NTA had triggered the stop-time
rule, leaving Pereira with only six years of legally
cognizable continuous residence. Id. Pereira argued
that his 2006 NTA was invalid because it did not contain the
time and place information required by the INA. Id.
The Board of Immigration Appeals (BIA) and First Circuit
sided with the Government. Id.
question that eventually reached the Supreme Court was:
“Does a notice to appear that does not specify the time
and place at which the proceedings will be held, as required
by § 1229(a)(1)(G)(i), trigger the stop-time
rule?” Id. at 2113 (internal quotation marks
omitted). In other words, must an NTA contain time and place
information in order to end an alien's period of
continuous residency? The Supreme Court said yes, holding 8-1
that any NTA “that does not inform a noncitizen when
and where to appear for removal proceedings is not a notice
to appear under section 1229(a) and therefore does not
trigger the stop-time rule.” Id. at 2110
(internal quotation marks omitted).
Motion to Dismiss
moves the Court to dismiss his indictment under
Pereira, claiming the immigration court lacked
subject matter jurisdiction to issue his original removal
order in 1999 after the NTA he received failed to include a
date and time for his immigration hearing. As such, Defendant
argues that his 1999 removal, and all subsequent removals
arising therefrom, were void and cannot form the basis for an
indictment for illegal reentry, as he was never
“removed” as a matter of law. Defendant further
argues that his removal violated due process and that he need
not satisfy the factors set forth in 8 U.S.C. § 1326(d)
to collaterally attack his removal.
Government urges the Court to read Pereira narrowly
and apply the definition of NTA in 8 C.F.R. § 1003.15,
which does not require an NTA to include a date and time, as
opposed to 8 U.S.C. § 1229(a)(1). The Government further
argues that Defendant may not collaterally attack his prior
removal without satisfying § 1326(d). Finally, the
Government states that the validity of a prior removal order
is not an element of an illegal reentry offense.
motion to dismiss involves two interrelated questions: (1)
Does Pereira extend beyond the stop-time rule to
illegal reentry prosecutions? (2) If it does, may Defendant
collaterally attack his prior removal order without
satisfying the factors set forth in § 1326(d)?
Does Pereira extend beyond the stop-time rule to ...