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United States v. Pina

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

May 14, 2019



          Lee H. Rosenthal, Chief United States District Judge.

         I. Background

         Luis Leon Pina is one of many defendants moving to dismiss an indictment charging him with violating 8 U.S.C. § 1326, 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 removal hearings.

         In October 2013, a Notice to Appear was issued to Pina ordering him to attend a removal hearing before an Immigration Judge. (Docket Entry No. 19-2). The Notice did not specify the date and time for the hearing but ordered Pina to appear on “a date to be set.” (Id.). An Immigration Judge held a hearing, which Pina attended, and ordered Pina deported on October 29, 2013. Pina was removed on October 30, 2013. (Docket Entry Nos. 19 at 2; 19-3; 20 at 17-18). On January 6, 2019, immigration authorities found Pina in Conroe, Texas and charged him with illegal reentry, in violation of 8 U.S.C. § 1326. (Docket Entry No. 19-3). This case is set for a jury trial on June 3, 2019.

         Pina has moved to dismiss the indictment, arguing that the 2013 removal order was invalid because the Immigration Court lacked subject-matter jurisdiction. (Id. at 1). Pina also argues that the 2013 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. (Id. at 1).

         II. Pina's Challenge to Subject-Matter Jurisdiction

         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.” 8 U.S.C. § 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.

         Pina argues that because the 2013 Notice to Appear did not state a date or time for his removal hearing, but ordered him to appear on a date “to be set, ” it was not a valid charging document under federal law.[1] (Docket Entry No. 19 at 3). Without a valid charging document, Pina contends that the Immigration Court lacked subject-matter jurisdiction to issue the 2013 removal order, making the order invalid and preventing his removal proceedings from “commencing” under 8 C.F.R. § 1003.14(a). According to Pina, the government cannot prove a necessary element of the illegal-reentry charge against him and the indictment must be dismissed. (Id.).

         Pina's 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. It permits a nonpermanent resident to 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 nonpermanent resident's time to seek cancellation of removal. § 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. Pereira, 138 S.Ct. 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.” 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. Id. The Court noted that § 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” of the new time or location of the hearing.” Id. at 2114. The Court understood this language to mean that “the Government has already served a ‘notice to appear under section 1229(a)' that specified a time and place.” Id. 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)).

         After Pereira, many defendants, including Pina, have moved to dismiss illegal-reentry indictments under 8 U.S.C. § 1326, arguing that they did not receive a Notice to Appear specifying the date and time for a removal hearing before the Immigration Court. Circuit courts that have addressed this issue consistently found no jurisdictional defect or due-process violation, even if the Notice to Appear leading to removal did not provide a specific date or time for the Immigration Court hearing. See Banegas Gomez v. Barr, No. 15-3269, 2019 WL 1768914, at * 6 (2d Cir. Apr. 23, 2019); Soriano-Mendosa v. Barr, No. 18-9535, 2019 WL 1531499, at *4 (10th Cir. Apr. 9, 2019) (per curiam); Santos-Santos v. Barr, 917 F.3d 486, 490-91 (6th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019); Leonard v. Whitaker, 746 Fed.Appx. 269 (4th Cir. 2018) (per curiam).

         These courts reasoned that Pereira was “not in any way concerned with the Immigration Court's jurisdiction, ” but instead only “considered what information a notice to appear must contain to trigger the stop-time rule.” Karingithi, 913 F.3d at 1160-61. In Karingithi, the Ninth Circuit explained:

Pereira's analysis hinges on “the intersection” of two statutory provisions: § 1229b(d)(1)'s stop-time rule and § 1229(a)'s definition of a notice to appear. Pereira, 138 S.Ct. at 2110. The stop-time rule is not triggered by any “notice to appear”-it requires a “notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1) (emphasis added). Pereira treats this statutory cross-reference as crucial: “the word ‘under' provides the glue that bonds the stop-time rule to the substantive time-and-place requirements mandated by § 1229(a).” Pereira, 138 S.Ct. at 2117. There is no “glue” to bind § 1229(a) and the jurisdictional regulations: the regulations do not reference § 1229(a), which itself makes no mention of the [Immigration Judge]'s jurisdiction. Pereira's definition of a “notice to appear under section 1229(a)” does not govern the meaning of “notice to appeal” under an unrelated regulatory provision.

Id. at 1161 (emphasis in original). As the Supreme Court emphasized many times in Pereira, that opinion only decided a single, “narrow question.” Pereira, ...

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