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United States v. Bernal-Dominguez

United States District Court, W.D. Texas, Austin Division

May 17, 2019

UNITED STATES OF AMERICA
v.
DOROTEO BERNAL-DOMINGUEZ

          MEMORANDUM OPINION AND ORDER

          LEE YEAKEL UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Background

         On 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 Bernal-Dominguez,

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 above.

         The 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 hearing.

         Removal 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.

         In 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).

         II. Legal Standard

         A 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).

         III. Analysis

         a. Did the immigration court lack jurisdiction to render removal order?

         Bernal-Dominguez 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.

         Although 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.[1] 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[2]); 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 illegal-reentry offense.

         Bernal-Dominguez's 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.[3] This court has made an effort to review all decisions issued as of the date of this order in considering the motion.

         The 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 removal proceedings.

         Noncitizens 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, "[4] 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.

         Pereira, 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.

         Several 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 2110.

         The 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.

         The 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.

         The 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 proceedings.

         This 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 ...


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