United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal, Chief United States District Judge.
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.
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
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).
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.
Flores-Lorenzo's Challenge to Subject-Matter
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.
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.
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).
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.
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)).
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,
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 ...