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