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United States v. Fernandez-Garcia

United States District Court, S.D. Texas, Corpus Christi Division

April 2, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GONZALO FERNANDEZ-GARCIA a/k/a GONZALO AZCUE-ROSAS, Defendant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE.

         Gonzalo Fernandez-Garcia (“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. 11), to which the United States of America (the “Government”) has responded (D.E. 13).

         I. Background

         Defendant, a Mexican citizen, was first placed in removal proceedings on May 30, 2001, and issued a Notice to Appear (NTA) before an immigration judge on a date “to be set” at a time “to be set.” D.E. 11-1. He thereafter waived his personal appearance before the immigration judge and admitted the allegations in the NTA that he was subject to being a non-citizen present in the U.S. without being admitted or paroled. D.E. 13-1. He was ordered deported to Mexico on July 2, 2001, and removed on July 13, 2001. Defendant returned to the U.S. in 2006 and was apprehended in the El Paso Division of the Western District of Texas. He pled guilty to illegal reentry in No. 3:06-CR-1775 and was sentenced to four months' imprisonment on January 3, 2007.[1]

         On November 28, 2018, Defendant was charged with illegal reentry after immigration authorities found him near Falfurrias, Texas. He now moves to dismiss the indictment because the 2001 NTA he received did not include the time, date, or location of his immigration hearing.

         II. Pereira v. Sessions [2]

         A 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.” The 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.

         The 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).

         III. Motion to Dismiss

         Defendant moves the Court to dismiss his indictment under Pereira, claiming the immigration court lacked subject matter jurisdiction to issue his original removal order in 2001 after the NTA he received failed to include a date and time for his immigration hearing. As such, Defendant argues that his 2001 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.

         The 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.

         IV. Analysis

         Defendant's 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)?

         A. Does Pereira extend beyond the stop-time rule to illegal reentry prosecutions?

         As a sister court in the Southern District of Texas recently recognized, courts are split regarding whether Pereira controls an illegal-reentry prosecution when the defendant's prior removal order was based on an incomplete NTA. United States v. Lozano, 2019 WL 224178, at *2, *10-*12 (S.D. Tex. Jan. 15, 2019) (collecting cases).

         While the Fifth Circuit hasn't directly addressed this issue, its decision in Mauricio-Benitez suggests that Periera is limited to the stop-time rule. On June 13, 2004, Mauricio-Benitez entered the United States illegally. Mauricio-Benitez v. Sessions, 908 F.3d 144, 146 (5th Cir. 2018). The same day, DHS personally served him with an NTA charging him with being removable under 8 U.S.C. § 1182(a)(6)(A)(i). Id. The NTA ordered Mauricio-Benitez to appear at a removal hearing before an immigration judge at a date and time to be set. Id. The following month, DHS sent a Notice of Hearing (NOH) to Mauricio-Benitez at the address he had provided via regular mail, informing him that his removal hearing had been scheduled for ...


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