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United States v. Flores-Lorenzo

United States District Court, S.D. Texas, Houston Division

April 30, 2019



          Lee H. Rosenthal, Chief United States District Judge.

         Luis Eduardo Flores-Lorenzo has moved to dismiss the indictment charging him with illegal reentry after a prior deportation, in violation of 8 U.S.C. § 1326. He argues that the indictment is based on a 2015 removal order from an immigration court that lacked subject-matter jurisdiction. (Docket Entry No. 18). Flores-Lorenzo was removed based on the 2015 order, was later found, and was charged under 8 U.S.C. § 1326 with illegal reentry. Flores-Lorenzo argues that because the immigration court ordered him removed without jurisdiction to do so, that removal order was invalid. (Id. at 2). Alternatively, he argues that the 2015 removal order violated his due-process rights and 8 U.S.C. § 1326(d), and that the government cannot prove illegal reentry without an original valid removal order. (Id.).

         Flores-Lorenzo is one of many defendants making these arguments following the Supreme Court's decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), based on the Notices to Appear used to set their hearings on removal. The issue is a Notice to Appear that does not state the date and time of the hearing. Three circuit courts have addressed the issue and found no jurisdictional defect or due process violation when such a Notice to Appear leads to removal. See Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018); Santos- Santos v. Barr, No. 18-3515, 2019 WL 961560 (6th Cir. Feb. 28, 2019); Leonard v. Whitaker, 746 Fed.Appx. 269 (4th Cir. 2018) (per curiam). District courts have reached conflicting results.[1]

         I. Procedural History

         The government alleges that Flores-Lorenzo illegally entered the United States sometime before June 25, 2015, when he was arrested in Texas for possession of marijuana. (Docket Entry No. 25-1). His sentence was suspended, and he was given supervised release. (Docket Entry No. 25-1). In 2015, the government began removal proceedings against him by issuing a Notice to Appear on September 12, 2015. (Docket Entry No. 18-2). The Notice did not specify when the court would hold his hearing. (See Id. (stating that Flores-Lorenzo was to appear “on a date to be set” and “at a time to be set”)). In November 2015, the Immigration Judge ordered Flores-Lorenzo deported, and he was removed that day. (See Docket Entry No. 18-1).

         In February 2018, immigration authorities found Flores-Lorenzo in the United States. In April 2018, Flores-Lorenzo was convicted of another offense of possession of marijuana and was sentenced to two years imprisonment. (Docket Entry No. 25-3). In May 2018, Flores-Lorenzo's supervised release for his first conviction was revoked, and the court sentenced him to two years in prison. (Docket Entry No. 25-2). While incarcerated, Flores-Lorenzo was taken into the custody of U.S. Immigration and Customs Enforcement. (Docket Entry No. 25-4).

         II. Flores-Lorenzo's Challenge to Subject-Matter Jurisdiction

         Flores-Lorenzo argues that the immigration court lacked subject-matter jurisdiction to issue the 2015 removal order, making the order invalid. Without a valid removal order, he argues, the government cannot prove a necessary element of its reentry charge against him. (Docket Entry No. 18 at 3). Flores-Lorenzo argues that because the 2015 Notice to Appear did not state a date or time for his removal hearing, it was not a valid charging document under federal law. (Id.).

         Under 8 U.S.C. § 1229a, Immigration Judges have the authority to “conduct proceedings for deciding the inadmissibility or deportability of an alien.” 8 U.S.C. § 1229a(a)(1). These proceedings are “the sole and exclusive” means of “determining whether an alien may be . . . removed from the United States.” § 1229a(a)(3). Immigration courts have limited jurisdiction. “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court.” 8 C.F.R. § 1003.14(a). Charging documents for proceedings after April 1, 1997, are to “include a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien.” 8 C.F.R. § 1003.13.

         Flores-Lorenzo argues that a valid Notice to Appear is a prerequisite to the commencement of a removal proceeding, making the lack of a valid Notice to Appear a bar to an immigration court's legally issuing a removal order. Flores-Lorenzo argues that the Notice to Appear issued in 2015, was deficient because it “lacked a date and time of the removal hearing.” (Docket Entry No. 18 at 7). The deficiency deprived the immigration court of jurisdiction and barred Flroes-Lorenzo's removal proceedings from “commencing” under 8 C.F.R. § 1003.14(a). (Id. at 6).

         These arguments are largely based on Pereira v. Sessions, 138 S.Ct. 2105 (2018), in which the Supreme Court held that a valid Notice to Appear under 8 U.S.C. § 1229(a) must include the time and place of a hearing for the “stop-time rule” to operate. Id. at 2118 (“[T]he statute makes clear that Congress fully intended to attach substantive significance to the requirement that noncitizens be given notice of at least the time and place of their removal proceedings. A document that fails to include such information is not a ‘notice to appear under section 1229(a)' and thus does not trigger the stop-time rule.”). The stop-time rule applies in a context different from the present case. Under § 1229b(b)(1)(A), a nonpermanent resident may seek cancellation of removal after 10 years of physical presence in the United States. Once a valid Notice to Appear is served on a nonpermanent resident, that period ends, and further presence in this country does not extend the nopermanent resident's time to seek cancellation of removal. 8 U.S.C. § 1229b(d)(1)(A).

         Pereira involved a nonpermanent resident who was served a § 1229(a) Notice that did not include the time and date of the hearing. When he later sought to cancel his removal under § 1229b, his request was denied because he had been served with the § 1229(a) notice. Id. at 2112. The Supreme Court held that the denial was improper because the Notice did not include the “time and place at which the [removal] proceedings will be held, ” § 1299(a)(1)(G)(I), and did not trigger the stop-time rule. The Court explained that “neighboring statutory provision[s]” suggested that the Notice to Appear must include the time and location of the removal proceedings to trigger the stop-time rule. The Court noted that the second paragraph of § 1229 states that “in the case of any change or postponement in the time and place of [removal] proceedings, ” the government must give the noncitizen “written notice” on the new time or location of the hearing, which the Court took to “presume[] that the Government has already served a ‘notice to appear under section 1229(a)' that specified a time and place.” Pereira, 138 S.Ct. at 2114. The Court also noted that “Section 1229(b)(1) gives a noncitizen ‘the opportunity to secure counsel before the first [removal] hearing date' by mandating that such ‘hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear.'” Id. Without the date and location, a “putative notice to appear . . . is not a ‘notice to appear under section 1229(a)(a).'” Id. at 2113-14 (quoting 8 U.S.C. § 1229b(d)(1)(A)).

         The government argues that the when “jurisdiction vests” language in 8 C.F.R. § 1003.14 does not change the statutory jurisdictional requirements for immigration courts, but instead “create[s] a non-jurisdictional procedural rule.” (Docket Entry No. 24 at 6). The government argues that a deficient Notice to Appear may impact the merits of a case, but it does not determine subject-matter jurisdiction. The government points to Supreme Court cases holding, in nonimmigration contexts, “that defects in a charging document do not deprive a court of subject[-]matter jurisdiction.” (Id. at 7 (citing United States v. Cotton, 535 U.S. 625, 630-31 (2002); United States v. Williams, 341 U.S. 58, 66 (1951); Lamar v. United States, 240 U.S. 60, 64-65 (1916))).

         The government also challenges Flores-Lorenzo's reading of Pereira. According to the government, the Court's narrow holding in Pereira did not alter the longstanding rule that a charging document does not determine jurisdiction. (Id. at 8). The government argues that the central issue in Pereira was how to read the stop-time rule, 8 U.S.C. § 1229b(d)(1)(A), in conjunction with § 1229(a), which establishes the requirements for Notices to Appear. (Id. at 8-9). “The Court's decision turned on the statute's explicit reference to the [Immigration and Nationality Act]'s definition of what ...

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