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United States v. Martinez

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

May 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ARTURO ALVARADO MARTINEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE

         Defendant 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).

         On December 16, 1997, defendant was served with a Notice to Appear ("NTA") before an immigration judge for a removal hearing.

         The NTA stated that the hearing would be held on a date "To Be Set" at a time "To Be Set."[1] Also, on December 16, 1997, defendant signed a Request for Prompt Hearing, stating:

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.[2]

         At a hearing held on December 18, 1997, the defendant admitted to the allegations and was ordered removed from the United States.[3] On December 19, 1997, the defendant was deported to Mexico.[4]

         Subsequently, the defendant reentered the United States. On each occasion he was arrested and removed after the 19 97 removal order was reinstated.

         Defendant 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) .

         There 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 Defendant's Motion.

         As 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 1326(d).

         Memorandum and Order in 5:18-00691, Docket Entry No. 27, p. 17.

         8 U.S.C. § 2326(d) provides:

(d) Limitation on collateral attack on underlying ...

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