United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
HONORABLE DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE.
day, the Court considered Defendant Jose Carlos
Guillermo-Saucedo's ("Mr. Guillermo-Saucedo")
"Motion to Dismiss the Indictment"
("Motion"), filed in the above-captioned case on
May 8, 2019. On May 17, 2019, the United States of America
("the Government") filed its "Response in
Opposition to Defendant's Motion to Dismiss the
Indictment" ("Response"). After due
consideration, the Court is of the opinion that Mr.
Guillermo-Saucedo's Motion should be granted.
April 24, 2019, a Grand Jury sitting in the Western District
of Texas returned a single count Indictment
("Indictment"), which charges Mr. Guillermo-Saucedo
with an alleged illegal reentry into the United States in
violation of 8 U.S.C. § 1326(a). Indictment, United
States of America v. Jose Carlos Guillermo-Saucedo,
(W.D. Tex., April 24, 2019), ECF No. 10. Specifically, the
Indictment alleges that on or about April 1, 2019, Mr.
Guillermo-Saucedo, an undocumented immigrant who had
previously been deported from the United States on or about
April 11, 2018, was found in the United States again.
December 2, 2000, the Department of Homeland Security
("DHS") issued Mr. Guillermo-Saucedo a Notice to
Appear at an immigration hearing. Resp., ECF No. 18, at Ex.
A. The Notice to Appear alleged he was subject to removal
from the United States for being a noncitizen present in the
United States without being admitted or paroled. Id.
It also stated that Mr. Guillermo-Saucedo was to appear
before a United States Department of Justice immigration
judge at a specified address. Id. But it did not
indicate the date and time of that hearing. Id.
Instead, the Notice to Appear indicated that the hearing
would be on a date "to be set" and a time "to
be set." Id. DHS filed the Notice to Appear
with the immigration court. Id. at 2.
Guillermo-Saucedo signed a Stipulated Request for Removal
Order and Waiver of Hearing ("Stipulated Request").
Id. at Ex. B. Mr. Guillermo-Saucedo also waived his
right to appeal this order. Id. On December 5, 2000,
the immigration judge ordered Mr. Guillermo-Saucedo removed
from the United States based on the Stipulated Request for
issuance of a final removal order. Id. at Ex. C. On
December 6, 2000, he was removed from the United States to
Mexico. Id. at Ex. C. This removal order is the
underlying removal order of the instant Indictment. See
Id. at 3. Mr. Guillermo-Saucedo's Motion seeks to
dismiss this Indictment.
Guillermo-Saucedo petitions the Court to dismiss the
Indictment because the immigration court lacked subject
matter jurisdiction to issue the original removal order after
the Notice to Appear he received failed to include a date and
time. Mot., ECF No. 17, at 1-3. Therefore, the removal was
void and cannot form the basis for the current indictment for
illegal reentry as he was never "removed" as a
matter of law. Id. at 1.
the Government argues that Mr. Guillermo-Saucedo, through his
Stipulated Request, waived any complaint about the
immigration court's jurisdiction. Resp., ECF No. 18, at
5. Second, the Government's Response takes issue with the
application of the definition of a Notice to Appear in U.S.C.
§ 1229(a)(1), as opposed to the regulatory definition in
8 C.F.R. § 1003.15, which does not require a time to be
in a Notice to Appear. Id. at 5. Third, the
Government argues that the "lawfulness or validity of a
prior removal order is not an element of a § 1326
offense." Id. at 6. The Court disagrees with
the Government for the following reasons.
A Valid Notice to Appear Must Include the Date and Time to
Vest Jurisdiction in the Immigration Court.
to a holistic analysis of the statutory and regulatory
definitions of a Notice to Appear, as well as the Supreme
Court's recent opinion in Pereira v. Sessions,
the incomplete Notice to Appear did not vest jurisdiction.
Therefore, Mr. Guillermo-Saucedo's underlying removal was
void. The Indictment for illegal re-entry should be
The Statutory Definition Controls Over the Regulatory
Definition Upon Which the Government Relies.
necessary components of a Notice to Appear are provided in
two different places. Department of Justice regulation 8
C.F.R. § 1003.15(b) lists the information that must be
included in every Notice to Appear, which does not require
the Notice to Appear to specify the time of the
noncitizen's removal hearing. But in 8 U.S.C. §
1229, Congress listed the necessary components of a Notice to
Appear, including the "time and place at which the
[removal] proceedings will be held." 8 U.S.C. §
1229(a)(1)(G)(i). The Government argues that the regulatory
requirements for a Notice to Appear should control. Resp.,
ECF No. 18, at 11-12 (citing Hernandez-Perez v.
Whitaker, 911 F.3d 305, 313 (6th Cir. 2018) and
Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir.
regulation that would give effect to a Notice to Appear that
does not include the time and place of removal proceedings
would be contrary to the clear and unambiguous intent of
Congress. United States v. Cruz-Jimenez, No.
17-CR-00063-SS, 2018 U.S. Dist. LEXIS 187870, at *14 (W.D.
Tex. Nov. 2, 2018); Order, Valladares, No.
17-CR-00156, ECF No. 44, at 10. When reviewing an
agency's construction of the statute it administers, a
court is "confronted with two questions. First, always,
is the question of whether Congress has spoken directly to
the issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of
Congress." Cruz-Jimenez, No. 17-CR-00063-SS,
2018 U.S. Dist. LEXIS 187870 at *15 (quoting Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984)). Thus, if Congress clearly and
unambiguously intended for a Notice to Appear to always
include time-and-place information, the regulations may not
give effect to a Notice to Appear that fails to include this
information.Cruz-Jimenez, No. 17-CR-00063-SS,
2018 U.S. Dist. LEXIS 187870 at *15.
the Government's reading of 8 C.F.R. § 1003.15(b)
was expressly rejected by Pereira when the Supreme
Court held that Notices to Appear must include information
specifying the time and place of removal proceedings in all
circumstances, not merely where the inclusion of such
information was "practicable." Pereira v.
Sessions, 138 S.Ct. 2105, 2111-13 (2018); see
also Br. for Resp't, Pereira v. Sessions,
138 S.Ct. 2105, at 49 (relying on the "where
practicable" language to argue that Notices to Appear
did not need to include information about the time and place
of removal hearings to trigger the stop-time rule). Indeed,
the Supreme Court in Pereira acknowledged that the
BIA had previously ruled that the stop-time rule could be
triggered by a Notice to Appear that did not include the date
and time of the removal proceedings because the BIA reasoned
that the regulations required this information only
"where practicable." Pereira, 138 S.Ct. at
2111-12 (citing Matter of Camarillo, 25 I. & N.
Dec. 644 (2011)). But because this ruling found "little
support in the statute's text," id. at 2120
(Kennedy, J., concurring), the Supreme Court rejected it. The
Government's position is thus directly contradicted by
Pereira's holding that, regulatory language
notwithstanding, a Notice to Appear must always include the
time and place of removal proceedings.
Pereira Applies to a Notice to Appear Outside of the
Stop-Time Rule Context, Including a Notice to Appear that
Functions as a Charging Document.
Executive Office of Immigration Review, which encompasses
immigration courts, is part of the Department of Justice.
About the Office, Executive Office for Immigration
Review (Sept. 20, 2018, 10:37 AM),
https://www.justice.gov/eoir/about-office. As such, Congress
has said that the Executive Office of Immigration Review is
"subject to the direction and regulation of the Attorney
General," 6 U.S.C. § 521(a) (2018), including
regulations promulgated by the Attorney General. 8 U.S.C.
§ 1103(g)(2) (2018). Current Attorney General issued
regulations delimit the jurisdiction of immigration courts
providing that "jurisdiction vests... when a
charging document is filed with the Immigration
Court." 8 C.F.R. § 1003.14(a) (2018) (emphasis
added). A "charging document" is the "written
instrument which initiates a proceeding before an Immigration
Judge ... includ[ing] a Notice to Appear." 8 C.F.R. §