United States District Court, W.D. Texas, Austin Division
MEMORANDUM OPINION AND ORDER
YEAKEL UNITED STATES DISTRICT JUDGE.
the court in the above-styled and numbered cause are
Defendant's Motion to Dismiss filed April 24, 2019 (Dkt.
No. 27) and Government's Response in Opposition to
Defendant's Motion to Dismiss the Indictment filed May 1,
2019 (Dkt. No. 28). Having considered the motion, response,
attached exhibits, and applicable law, the court will deny
the motion for the reasons to follow.
November 20, 2018, Bernal-Dominguez was indicted on one count
of illegal reentry into the United States. See 8
U.S.C. § 1326(a). Bernal-Dominguez is a citizen of
Mexico. The record does not reflect when Bernal-Dominguez was
initially apprehended by federal law enforcement. While in
custody, on October 22, 2009, Bernal-Dominguez was served in
person with a United States Department of Homeland Security
form titled "Notice to Appear." The form notice
states that Bernal-Dominguez is subject to removal because he
is "an alien present in the United States who has not
been admitted or paroled." The notice informed
YOU ARE ORDERED to appear before an immigration judge of the
United States Department of Justice at: 800 Dolorosa
Street-Suite 300 San Antonio TEXAS U.S. 78207, on (Date) to
be set, at (Time) to be set, to show why you should not be
removed from the United States based on the charge set forth
certificate-of-service portion of the notice indicates that
Bernal-Dominguez was provided with "oral notice in the
Spanish language of the time and place of his  hearing and
of the consequences of failure to appear." Immediately
above the certificate of service, Bernal-Dominguez signed a
request for an expedited removal hearing and waived his right
to a 10-day waiting period before appearing before an
immigration judge. The record does not include evidence that
Bernal-Dominguez was ever personally served with a written
notice of hearing containing the time and place of the
proceedings occurred in San Antonio, Texas on October 4,
2011. The immigration judge rendered an "order of the
immigration judge." The order indicates that the
immigration judge "determined that [Bernal-Dominguez] is
subject to removal on the charge(s) in the Notice to
Appear" and that Bernal-Dominguez "has made
application solely for voluntary departure in lieu of
removal." The immigration judge "GRANTED voluntary
departure in lieu of removal" and ordered
Bernal-Dominguez removed on or before February 1, 2012. The
order of removal, signed October 4, 2011, indicates that
Bernal-Dominguez's counsel was personally served with a
copy of the order the same day. The record does not indicate
whether Bernal-Dominguez waived an appeal. Bernal-Dominguez
failed to depart and was removed from the United States on
March 21, 2013. The charge at issue followed when a grand
jury returned an indictment on November 20, 2018, for illegal
reentry. See 8 U.S.C. § 1326(a). The October 4,
2011 removal order is the basis for the instant indictment.
order to prove illegal reentry, the Government must prove
that Bernal-Dominguez "has been denied admission,
excluded, deported, or removed or has departed the United
States while an order of exclusion, deportation, or removal
is outstanding." Id. The lawfulness or validity
of a prior removal order is not an element of an
illegal-reentry offense, and the Government need only prove
the fact of a prior removal. United States v.
Mendoza-Lopez, 481 U.S. 828, 834-35 & n.9 (1987).
The only statutory defense available to a defendant charged
with illegal reentry into the United States is a collateral
attack on the defendant's prior removal order.
See 8 U.S.C. § 1326(d) ("1326(d)");
see also United States v. Parrales-Guzman, No.
16-20700, 2019 WL 1948783, at *2 (5th Cir. May 2, 2019)
(rejecting argument that Section 1326(d) does not apply where
a removal order is void ab initio).
criminal defendant may allege a defect in an indictment in a
pretrial motion. See Fed. R. Crim. P. 12(b)(3)(B).
An indictment must contain a "plain, concise and
definite written statement of the essential facts
constituting the offense charged." Fed. R. Crim. P.
7(c)(1). "[A] motion to dismiss an indictment for
failure to state an offense is a challenge to the sufficiency
of the indictment." United States v. Kay, 359
F.3d 738, 742 (5th Cir. 2004). When the court decides such a
motion, it is required to "take the allegations of the
indictment as true and to determine whether an offense has
been stated." United States v. Hogue, 132 F.3d
1087, 1089 (5th Cir. 1998).
The propriety of granting a motion to dismiss an
indictment... by pretrial motion is by-and-large contingent
upon whether the infirmity in the prosecution is essentially
one of law or involves determinations of fact .... If a
question of law is involved, then consideration of the motion
is generally proper.
United States v. Fontenot, 665 F.3d 640, 644 (5th
Cir. 2011) (internal citation omitted).
Did the immigration court lack jurisdiction to render removal
first argues that the immigration court was without
jurisdiction to enter the 2011 removal order, thus, as a
matter of law, the current indictment lacks a sound basis,
and this prosecution cannot continue.
the Constitution and governing statutes lack any reference to
the jurisdiction of an immigration court, Bernal-Dominguez
contends that, primarily based upon language in Pereira
v. Sessions, the immigration court lacked jurisdiction
to enter the October 4, 2011 removal order, because the
notice to appear given to Bernal-Dominguez on October 22,
2009, was statutorily deficient-the notice failed to include
a time at which the removal proceedings would be
held. U.S., 138 S.Ct. 2105 (2018) (considering
Section 1229(a) requirements for notice to appear in context
of Section 1229b, request to cancel removal proceedings, and
stop-time rule); 8 U.S.C. § 1229(a)(1)(G)(i) (notice
to appear given to alien shall include "time and place
at which the proceedings will be held").
Bernal-Dominguez contends that the removal order resulting
from the October 4, 2011 immigration removal proceeding was
void and cannot now be used as a basis for of his
contention is not novel. Illegal-reentry defendants around
the country, relying on language in Pereira v.
Sessions, have filed similar motions to dismiss the
Government's charges against them. The motions usually
raise the same two contentions and similarly argue that based
on a statutorily-deficient notice to appear, which fails to
inform the defendant in writing of the scheduled time for the
removal proceedings, the immigration court entering the
initial removal order lacked jurisdiction to issue such an
order. Thus, the initial removal order is void, and the
subsequent indictment for illegal reentry must be dismissed.
Courts presented with this issue have not spoken with one
voice. This court has made an effort to review
all decisions issued as of the date of this order in
considering the motion.
Pereira Court considered a similar
statutorily-deficient notice to appear, but not in the
context of an attack on an initial removal order in an
illegal-reentry prosecution. The Pereira Court was
presented with a direct appeal from a Board of Immigration
ruling and the Court of Appeals for the First Circuit
regarding a noncitizen's request for cancellation of
subject to removal proceedings may be eligible for
cancellation of removal proceedings if they have been
physically present in the United States for a continuous
period of 10 years immediately preceding the date of the
Government's request for removal. 8 U.S.C. §
1229b(b)(1)(A). Under this "stop-time rule,
" the period of continuous presence ends
when the Government serves the noncitizen with a notice to
appear under section 1229(a). 8 U.S.C. § 1229b(d)(1)
(special rules relating to continuous residence or physical
presence: "[f]or purposes of this section, any period of
continuous residence or continuous physical presence in the
United States shall be deemed to end . . . when the alien is
served a notice to appear under section 1229(a) of this
title"). The date the Government serves the noncitizen
with a Section 1229(a) notice to appear at a removal
proceeding stops the noncitizen's continuous presence in
the United States.
a citizen of Brazil who had been present in the United States
for several years, was served with a notice to appear stating
that his removal proceeding would occur on a date and time
"to be set." Pereira, 138 S.Ct. at 2112.
Ahead of the removal hearing, the immigration court sent
Pereira a notice of hearing with the date and time for the
hearing, but the notice was mailed to the wrong address.
Id. Without information about when the hearing would
occur, Pereira failed to appear at the removal proceedings.
The immigration court proceeded with the hearing and ordered
Pereira removed in abstentia. Id.
years later, Pereira was arrested and his removal proceedings
reopened. Id. At that time, Pereira applied for a
cancellation of the removal proceeding under Section 1229b,
which the immigration court denied. Id. Periera
timely appealed the decision to the Board of Immigration
Appeals and then filed an appeal to the First Circuit; both
appeals were denied. Id. at 2113-14. On direct
appeal from the First Circuit, the Supreme Court considered
whether Pereira's notice to appear, which lacked the time
and place of removal proceedings, was an adequate notice to
appear under Section 1229(a) that would trigger the statutory
stop-time rule provided in Section 1229b(d). Id. at
Court held that "[a] putative notice to appear that
fails to designate the specific time or place of the
noncitizen's removal proceedings is not a 'notice to
appear under [Section] 1229(a),' and so does not trigger
the stop-time rule." Id. at 2113-14. The Court
reasoned that the time-and-place requirement is
"definitional" for a document that purports to be a
notice to appear and that "the omission of
time-and-place information is not, as the dissent asserts,
some trivial, ministerial defect, akin to an unsigned notice
of appeal. . . . Failing to specify integral information like
the time and place of removal proceedings unquestionably
would 'deprive [the notice to appear] of its essential
character.'" Id. at 2116-17. "The
plain text, the statutory context, and common sense all lead
inescapably and unambiguously to that conclusion."
Id. at 2110.
parties now dispute how language in Pereira
regarding a notice to appear applies in a context other than
a direct appeal from an immigration-court ruling in
cancellation-of-removal proceedings and the application of
the stop-time rule. Issue is joined as to what effect, if
any, Pereira's language regarding notices to
appear applies in illegal-reentry prosecutions where, as
here, the underlying notice to appear provided to the
noncitizen and filed with the immigration court fails to
specify the time and date of the removal proceedings.
primary argument that Bernal-Dominguez advances is that the
immigration judge lacked jurisdiction to enter the underlying
October 4, 2011 removal order, because the statutorily
deficient notice to appear prevented jurisdiction
from ever vesting in the immigration court. Bernal-Dominguez
contends that "removal proceedings commence," and
jurisdiction vests, in the immigration court only
upon the filing of a notice to appear that complies with
Section 1229(a) and Pereira-that is, a notice to
appear that includes time-and-place information for removal
court recognizes the Supreme Court's holding in
Pereira-in the context of the stop-time rule-that a
"notice to appear that fails to designate the specific
time or place of the noncitizen's removal proceedings is
not a 'notice to appear under [Section] 1229(a),' and
so does not trigger the stop-time rule." 138 S.Ct. at
2113-14. Nonetheless, this court observes and finds
significant that neither Section 1229, which, inter
alia, details the contents of a notice to appear, nor
Pereira makes any reference to an immigration
court's jurisdiction. The court finds nothing in the
applicable statutory provisions or in Pereira
expressly providing that a defective notice to appear leaves
an immigration court without jurisdiction to conduct removal
proceedings. Nor is there an ...