United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
Arturo Alvarado Martinez has filed a Motion to Dismiss the
Indictment ("Defendant's Motion") (Docket
Entry-No. 15), to which the United States has filed its
Response to Defendant's Motion to Dismiss Indictment
(Docket Entry No. 16).
December 16, 1997, defendant was served with a Notice to
Appear ("NTA") before an immigration judge for a
stated that the hearing would be held on a date "To Be
Set" at a time "To Be Set." Also, on December
16, 1997, defendant signed a Request for Prompt Hearing,
To expedite a determination in my case, I request an
immediate hearing. I waive my right to a 10-day period prior
to appearing before an immigration judge.
hearing held on December 18, 1997, the defendant admitted to
the allegations and was ordered removed from the United
States. On December 19, 1997, the defendant was
deported to Mexico.
the defendant reentered the United States. On each occasion
he was arrested and removed after the 19 97 removal order was
was indicted in this action for illegal reentry-after being
convicted of a felony in violation of 8 U.S.C. §§
1326(a) and (b)(1) (Docket Entry No. 1). In his Motion the
defendant argues that as a result of the United States
Supreme Court's recent decision in Pereira v.
Sessions, 138 S.Ct. 2105, 2110-14 (2018), the
immigration judge lacked subject matter jurisdiction,
rendering the 1997 removal order and all subsequent removals
based on that order void. Defendant also argues that the
underlying removal order "violated due process and
violated 8 U.S.C. § 13 2 6(d)" (Defendant's
Motion, Docket Entry No. 15, p. 2) .
is no authority by the United States Court of Appeals that
directly addresses the effect of Pereira on
indictments under 8 U.S.C. § 1326. District courts have
reached differing conclusions. Having carefully considered
these opinions the court concludes that the December 14,
2018, Memorandum and Order entered by Judge Diana Saldaha in
United States of America v. Guillermo
Malagamba-De Leon, Criminal Action No. 5:18-00691,
correctly analyzes and resolves these issues raised by
Judge Saldaha explained,
. . . even assuming without deciding that Defendant's
jurisdictional arguments are correct, he is still not
entitled to the relief he seeks. A jurisdictionally defective
removal order may still serve as the basis for a Section 1326
prosecution, and a Section 1326 defendant who seeks to
challenge his underlying removal order on jurisdictional
grounds must still satisfy all three requirements of Section
and Order in 5:18-00691, Docket Entry No. 27, p. 17.
U.S.C. § 2326(d) provides:
(d) Limitation on collateral attack on underlying ...