Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Vega

United States District Court, N.D. Texas, Dallas Division

April 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ELISEO VEGA, Defendant.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge

         Before the court is Defendant Eliseo Vega's (“Defendant” or “Vega”) Motion to Dismiss the Indictment (Doc. 16), filed November 30, 2018; the Government's Response to Defendant's Motion to Dismiss the Indictment (Doc. 17), filed December 14, 2018; Defendant's Reply to Government's Response to Defendant's Motion to Dismiss (Doc. 23), filed January 14, 2019; and Government's Amended Sur-Reply to Defendant's Motion to Dismiss Indictment (Doc. 27), filed February 13, 2019. After careful consideration of the motion, record, and applicable law, the court denies Defendant's Motion to Dismiss the Indictment (Doc. 16).

         I. Background

         On September 11, 2018, Vega was named in a one-count indictment charging him with Illegal Reentry After Removal from the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). Vega was first removed to Mexico on January 13, 2009, based on a removal order issued in absentia by an immigration judge at a hearing held July 2, 2008. Vega did not appeal the removal order, and it has been reinstated four times. On July 29, 2018, Vega was detained by immigration authorities in Dallas, Texas and subsequently charged with the offense.

         Vega moves to dismiss the indictment on the basis that it fails to establish an essential element of the offense: that Defendant has been “denied admission, excluded, deported, or removed” as set forth in 8 U.S.C. § 1326(a)(1). Vega argues that he has never been “deported or removed” as a matter of law because the underlying removal order was issued by an immigration court lacking subject matter jurisdiction and, thus, void. Alternatively, Vega makes a collateral attack on the removal order pursuant to 8 U.S.C. § 1326(d), which allows aliens to challenge the validity of an underlying deportation order if they meet certain requirements.

         The Government responds that the immigration court was properly vested with jurisdiction to issue the removal order and disagrees with Vega's interpretation of relevant authority on this issue. The Government argues that the only procedural manner in which Vega may attack the removal order is meeting the criteria set forth in 8 U.S.C. § 1326(d), which it argues that Vega has failed to do.

         II. Analysis

         A. Immigration Court's Jurisdiction to Issue Removal Order

         As a threshold matter, the parties dispute whether Vega may make a jurisdictional challenge to the validity of the removal without first satisfying each of the statutory requirements for making a collateral attack to an underlying deportation order pursuant to 8 U.S.C. § 1326. Vega argues that any judgment may be collaterally attacked if it is void for lack of jurisdiction and that a challenge on these grounds may not be waived. The Government contends that Vega must first meet the requirements of section 1326(d)-particularly its requirement that an alien exhaust administrative remedies before challenging a removal order in federal court-before this court may exercise jurisdiction over his collateral jurisdictional challenge.

         District courts are split on whether a defendant must first satisfy the section 1326(d) statutory requirements before a court may consider the merits of a jurisdictional argument similar to the one advanced by Vega. Compare, e.g., United States v. Hernandez-Lopez, No. 5:18-CR-625(1)-DAE, 2018 WL 6313292, at *3 (W.D. Tex. Dec. 3, 2018) (holding that a defendant challenging a removal order as jurisdictionally defective must still satisfy the requirements of section 1326(d) and challenges to subject-matter jurisdiction may be waived for the purposes of a subsequent collateral attack, subject to a narrow exception), and United States v. Zapata-Cortinas, 351 F.Supp.3d 1006, 1019 (W.D. Tex. 2018) (holding that a defendant must satisfy the requirements of section 1326(d) to collaterally attack the underlying removal order because section 1326(d) “necessarily contemplates that flawed or invalid removal proceedings may still serve as the basis of a ‘prior removal' in a section 1326(a) prosecution if the requirements are not met”), with United States v. Virgen-Ponce, 320 F.Supp.3d 1164, 1166 (E.D. Wash. 2018) (holding that upon showing that an immigration court lacked jurisdiction and the administrative proceedings were void, a section 1326 defendant need not meet the statutory exhaustion requirement to challenge the sufficiency of the indictment), and United States v. Alfredo Valladares, No. A-17-CR-00156-SS, 2018 WL 6629653, at *2 (W.D. Tex. Jan. 29, 2019) (holding that a defendant may “collaterally attack the judgment as being void for lack of jurisdiction notwithstanding the fact that such grounds are absent from section 1326(d)” and quoting Jacuzzi v. Pimienta, 762 F.3d 419, 420 (5th Cir. 2014) for its holding that “any judgment may be collaterally attacked if it is void for lack of jurisdiction” and citing Matter of Reitnauer, 152 F.3d 341, 344 n.12 (5th Cir. 1998) for its holding that, “It is true that (1) jurisdictional defects render a judgment void, and (2) void judgments are subject to collateral attack.”).

         The court declines to take a position on this threshold issue because, for the reasons that follow, it finds that Vega's jurisdictional argument is neither consistent with the Fifth Circuit's guidance on this issue nor supported by established law in this Circuit. As Vega presents no viable argument in support of his position, the court determines he is required to satisfy the statutory requirements set forth in section 1326(d) before the court may consider the merits of his challenge to the removal order's validity.

         Vega argues that an immigration court's jurisdiction vests only when a Notice to Appear (“NTA”) is filed with the court that contains certain details regarding an alien's removal proceedings, including the place, date, and time of the hearing. The NTA mailed to Vega, and filed with the immigration court, did not contain the place, date, and time of the hearing. It advised him that he was subject to removal proceedings under the Immigration and Nationality Act (“INA”) and stated that he was ordered to appear before an immigration judge of the United States Department of Justice “on [a date] to be scheduled.” Gov.'s App., Ex. 5, Doc. 28-1 at 2. There is no specified address for the immigration court at which his hearing would be held. The NTA was delivered by certified mail through the U.S. Postal Service to the mailing address on file with Immigration Services sometime in January 2007. According to the Government, a Notice of Hearing (“NOH”) was subsequently mailed to the same address, which contained the date, time and location of the hearing, but it was sent back to Immigration Services with a “Returned to Sender” stamp. Vega's hearing was held July 2, 2008, and he was not present. The immigration court found that Vega's failure to appear was willful because he had been provided with written notification of the time, date, and location of the removal hearing. Gov. Resp., Doc. 17 at 7. After determining Vega was removable, the court issued the removal order.

         Vega's legal proposition-that filing an NTA with complete time, date, and location information is required to vest jurisdiction in an immigration court-is not an established statement of the law by either this Circuit or the Supreme Court. Vega's argument, rather, relies on a broad interpretation of a recent Supreme Court case, Pereira v. Sessions, 138 S.Ct. 2105 (2018), decided on June 21, 2018. Pereira concerned the “stop-time rule, ” which involves a form of relief from immigration proceedings called a “cancellation of removal” and applies to aliens who have been physically present in the United States for a continuous period. Vega's argument relies on the central holding in Pereira that a “putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a notice to appear under section 1229(a).” Id. at 2113-14.

         Section 1229(a) of the INA sets forth the statutory requirements for giving aliens notice that they are subject to a removal proceeding. Pursuant to this section, an alien must be provided with an NTA that specifies certain information, including, inter alia, “the nature of the proceedings against the alien, ” “the acts or conduct alleged to be in violation of law, ” and, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.