United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITIP STATES DISTRICT JUDGE.
the Court is Defendant Eduardo Hernandez Castellanos's
Motion to Dismiss Indictment (“Motion to Dismiss”
or “Motion”) [Doc. # 19]. The Government filed a
response,  and Hernandez replied. The Motion is now
ripe for decision. Based on the parties' briefing,
relevant matters of record, and pertinent legal authority,
the Court denies the Motion.
Eduardo Hernandez Castellanos, a citizen of Mexico, is
charged by indictment with illegal re-entry into the United
States in violation of 8 U.S.C. § 1326. Indictment [Doc.
# 1]. Castellanos was admitted into the country in 1972 as a
Legal Permanent Resident. On September 4, 2007, Castellanos
pleaded guilty and was sentenced to 9 months in Texas state
prison for possession one gram of heroin. See Doc. #
February 26, 2008, Castellanos was released from Texas-state
prison into custody of Immigration and Custom Enforcement
(“ICE”) officials. On February 29, 2008,
Castellanos received form I-862, tiled Notice of Appear
(“NTA”), notifying him of his immigration hearing
before an Immigration Judge (“IJ”). Notice to
Appear dated February 29, 2008 [Doc. # 21-4]. The NTA stated
that Castellanos's immigration hearing would be held at a
time and date “to be set.” Castellanos signed the
NTA and requested an expedited hearing, waiving his right to
the 10-day waiting period. Without leaving ICE custody,
Castellanos attended his deportation hearing, which was held
on March 14, 2018. After the hearing, the IJ ordered
Castellanos deported to Mexico, and Castellanos left the
United States on March 18, 2008.
2008 removal order has been reinstated three times-once in
2012, 2013, and 2018. Most recently, on November 19, 2017,
Castellanos was discovered in Hidalgo County Texas, and
indictment was filed against him charging him with illegal
reentry. Castellanos moves to dismiss this indictment.
argues that the 2008 order of removal is void and thus cannot
support a § 1326 conviction. Castellanos's
fundamental argument is that the IJ lacked subject matter
jurisdiction to issue the 2008 removal order because the NTA
failed to specify a date and time for the removal
proceedings. Castellanos submits that under federal statute,
regulation, and the Supreme Court's recent decision in
Pereira v. Sessions, NTAs must provide
notice of the date and time of the removal proceedings to be
valid and to vest jurisdiction in the immigration court.
See Pereira v. Sessions, 138 S.Ct. 2105, 2110-14
(2018). District courts across the country have grappled with
similar challenges and reached different conclusions.
Court concludes that Castellanos's challenge does not
warrant dismissal of the indictment because Castellanos's
collateral attack on the 2008 removal order is barred by 8
U.S.C. § 1326(d). Consequently, the Court
denies Castellanos's Motion.
Section 1326(d) Bars Castellanos's Collateral
1326(d) limits the ability of defendants charged with illegal
reentry to collaterally attack an underlying deportation
order. A defendant may not challenge the validity of the
underlying removal order unless he demonstrates three
separate things: (1) he has exhausted any administrative
remedies that may have been available to seek relief against
the order; (2) the removal proceedings resulting in the order
deprived the defendant of the opportunity for judicial
review; and (3) the entry of the underlying order was
fundamentally unfair. 8 U.S.C. § 1326(d); United
States v. Garrido, 519 Fed.Appx. 241, 242 (5th Cir.
2013) (per curiam); United States v. Lopez-Ortiz,
313 F.3d 225, 229 (5th Cir. 2002). The defendant must
establish all three prongs to prevail; the failure to prove
one is fatal to his challenge. See United States v.
Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003) (setting
forth the same three factors as § 1326(d); United
States v. Cordova-Soto, 804 F.3d 714, 718 (5th Cir.
2015). Castellanos fails to satisfy § 1326(d)'s
third prong-that the underlying proceedings were
demonstrate the underlying proceedings were
“fundamentally unfair, ” a defendant must show
“actual prejudice, ” meaning “there was a
reasonable likelihood that but for the errors complained of
the defendant would not have been deported.” See
Mendoza-Mata, 322 F.3d at 832 (quoting United States
v. Benitez-Villafuerte, 186 F.3d 651, 659 (5th Cir.
1999)); Garrido, 519 Fed.Appx. at 242 (“To
show actual prejudice, the alien must establish that, but for
the errors of which he complains, there is a reasonable
likelihood that he would not have been deported.”). The
“errors complained of” here were the NTA's
failure to specify the date and time of an immigration
hearing. However, Castellanos in fact appeared at the
hearing. See Mendoza-Mata, 322 F.3d at 832.
fails to demonstrate, or even argue, that had he received an
NTA with a hearing date and time, he would not have been
deported. Castellanos requested an expedited removal hearing
and was present at that hearing. There is no indication in
the record that had the NTA included the date and time for
the removal hearing, the outcome would have been different.
Castellanos does not demonstrate the entry of the removal
order was fundamentally unfair. He is therefore barred from
collaterally attacking his 2008 removal order. See
United States v. Lara-Martinez, CR H-18-647,
2018 WL 6590798, at *3 (S.D. Tex. Dec. 14, 2018) (denying
motion to dismiss indictment based on § 1326(d)'s
bar when the defendant requested an expedited hearing, which
was held with defendant present, and nothing in the record
indicated that, if the NTA had included the date and time,
the proceeding would not have resulted in the defendant's
Jurisdictional Attacks Are Not Exempt from §