United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY, SENIOR U.S. DISTRICT JUDGE
Arrazola-Raudales (“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. 13), to which the United States of America (the
“Government”) has responded (D.E. 14).
a citizen of Honduras, was first placed in removal
proceedings on February 15, 2005, 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. 13, Ex.
That same day, Defendant executed a Notice of Rights and
Request for Disposition wherein he gave up his right to a
hearing before the immigration judge, admitted to being in
the U.S. illegally, and requested to return to Honduras as
soon as possible. D.E. 14, Ex. 1-A. On February 25, 2005, the
immigration judge ordered Defendant removed. He did not
appeal. He was removed from the U.S. on March 30, 2005, and
has subsequent removals that all arose from the same 2005
order of removal. He was most recently deported on March 16,
2018, and was apprehended unlawfully within the U.S. on July
18, 2018, giving rise to the instant offense. He now moves to
dismiss his current illegal reentry charge because the 2006
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 2005 after the NTA he received failed to include a
date and time for his immigration hearing. As such, Defendant
argues that his 2005 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 illegal
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
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 September 21, 2004, and again warning him of
the consequences of failing to appear. Id. After he
failed to attend the hearing, the immigration judge entered
an in absentia order for his removal. Id.
Almost 13 years later, Mauricio-Benitez filed a motion to
reopen his removal proceedings and rescind the in
absentia removal order, alleging that he had never
received notice of his removal hearing because the
immigration officer had misspelled his ...