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United States v. Lupian

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

June 24, 2019




         Before the Court in this illegal re-entry prosecution is Defendant Julian Bocanegra-Lupian's Motion to Dismiss Indictment (“Motion”) [Doc. # 32]. The Government responded, [1] and Bocanegra-Lupian replied.[2] The Motion is ripe for decision. Based on the parties' briefing, pertinent matters of record, and relevant legal authority, the Court denies Bocanegra-Lupian's Motion.

         I. BACKGROUND

         On November 13, 1980, Defendant Julian Bocanegra-Lupian, a citizen of Mexico, was admitted to the United States as a permanent resident at the age of eight.[3] On June 28, 1993, Bocanegra-Lupian pleaded guilty to two counts of first-degree murder and was sentenced to life in prison in the 248th District Court of Harris County, Texas.[4]

         On July 22, 1998, while serving his life sentence at a Texas Department of Criminal Justice (“TDCJ”) prison in Huntsville, Texas, Bocanegra-Lupian was served by mail with a Notice to Appear (“NTA”) regarding deportation proceedings.[5] The NTA did not contain a date, time, or location for the hearing.[6]

         On August 22, 1999, Bocanegra-Lupian received personal service of a Notice of Hearing in Removal Proceedings (“NOH”) with notice that a hearing would be held in his case on September 21, 1999, at 1:30 p.m. at the TDCJ prison where he was being held.[7] Bocanegra-Lupian appeared for his removal proceedings before the Immigration Court. Bocanegra-Lupian did not apply for any relief, and the Immigration Judge (“IJ”) ordered him removed from the United States.[8] Bocanegra-Lupian waived appeal and never sought to challenge his removal order at the administrative level.[9] Bocanegra-Lupian reportedly was removed from the United States on August 10, 2012.[10]

         On April 12, 2018, Bocanegra-Lupian was discovered by police in Baytown, Texas. On May 2, 2018, Bocanegra-Lupian was indicted for illegal reentry in violation of 8 U.S.C. § 1326.[11]

         Bocanegra-Lupian moves to dismiss the indictment on several grounds. Bocanegra-Lupian contends the removal order was entered without subject matter jurisdiction because the relevant NTA failed to specify a date, time, and place for the removal proceedings. Bocanegra-Lupian submits that under federal statute, regulations, and the Supreme Court's recent decision in Pereira v. Sessions, NTAs must provide notice of the date and time of the removal proceedings to vest jurisdiction in the immigration court so that any ruling the IJ issues is valid. See Pereira v. Sessions, 138 S.Ct. 2105, 2110-14 (2018). Bocanegra-Lupian further contends that the removal proceedings were fundamentally unfair and failed to comport with due process because the IJ during those proceedings failed to advise him of his right to seek protection under the Convention Against Torture (“CAT”) and because his guilty plea to the state crime which ultimately was the basis for his removal was predicated on erroneous legal advice that he would not lose his permanent resident status.


         In order to prove illegal reentry, the Government must prove Bocanegra-Lupian “has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding.” 8 U.S.C. § 1326(a). Under 8 U.S.C. § 1326(d), a defendant may not collaterally attack the validity of his underlying removal order unless he demonstrates three separate factors: (1) he has exhausted any administrative remedies that may have been available to seek relief against the order; (2) the removal proceedings resulting in the order deprived the defendant of the opportunity for judicial review; and (3) the entry of the underlying order was fundamentally unfair. 8 U.S.C. § 1326(d); United States v. Garrido, 519 Fed.Appx. 241, 242 (5th Cir. 2013) (per curiam); United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002). The defendant must establish all three prongs to prevail; the failure to prove one is fatal to his challenge. See United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003) (setting forth the same three factors as § 1326(d); United States v. Cordova-Soto, 804 F.3d 714, 718 (5th Cir. 2015).


         The Court concludes that Bocanegra-Lupian's three collateral attacks on the 1999 removal order are meritless, barred by § 1326(d), or both.

         A. Bocanegra-Lupian's Pereira Challenge Lacks Merit and Is Barred By § 1326(d)

         Bocanegra-Lupian argues that his 1999 order of removal is void and thus cannot support an illegal reentry conviction. Bocanegra-Lupian's fundamental argument is that the IJ lacked subject matter jurisdiction to issue the removal order because the NTA failed to specify a date, time, and location for the removal proceedings. Bocanegra-Lupian submits that under federal statute, regulations, and the Supreme Court's recent decision in Pereira, NTAs must provide notice of the date, time, and location of the removal proceedings to be valid and to vest jurisdiction in the immigration court. District courts across the country have grappled with similar challenges and reached different conclusions. Bocanegra-Lupian's contentions are not persuasive.

         1. An Incomplete NTA Does Not Deprive the Immigration Court of Jurisdiction

         As this Court has previously concluded, [12] the failure of an NTA to specify a date, time, and location of removal proceedings does not deprive an immigration court of subject matter jurisdiction. Subject matter jurisdiction refers to “the courts' statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 89 (1998). Immigration judges derive their power from the Immigration and Naturalization Act (“INA”), which provides that “[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.” See 8 U.S.C. § 1229a(a)(1). The INA otherwise does not provide how or when jurisdiction vests with the immigration court for a particular removal proceeding. Rather, it gives immigration judges broad authority and flexibility in conducting hearings. See Id. § 1229a(b)(1)-(2).

         Though the “vesting of jurisdiction” with the immigration court is not referred to in the relevant immigration statutes, § 1229 does impose several procedural safeguards for persons subject to removal hearings. In removal proceedings, “written notice (in this section referred to as a ‘notice to appear') shall be given in person to the alien.” Id. § 1229(a)(1). The NTA must specify, among other things, “[t]he time and place at which the proceedings will be held.” Id. § 1229(a)(1)(G)(i). Satisfaction of these procedural requirements, however, is not a jurisdictional prerequisite. The Supreme Court has “repeatedly held that procedural rules . . . cabin a court's power only if Congress has ‘clearly state[d]' as much.” United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1632 (2015) (alteration in original) (quoting Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 154 (2013)). “[A]bsent such a clear statement, . . . ‘courts should treat the restriction as nonjurisdictional.'” Auburn Reg'l, 568 U.S. at 153 (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). Section 1229(a)(1) does not “clearly state[]” that its NTA requirements are jurisdictional. See Kwai Fun Wong, 135 S.Ct. at 1632. In light of Congress's omission of a clear statement specifying § 1229(a)'s requirements are jurisdictional, the Court must conclude that they are nonjurisdictional.

         The Pereira decision does not compel a different result. Pereira did not address an illegal reentry charge under 8 U.S.C. § 1326, but instead involved the “narrow question” of application of the “stop-time rule” in connection with an application for cancellation of removal. See 138 S.Ct. at 2110. An individual subject to removal proceedings may be eligible for cancellation of removal if, among other things, he has been “physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [the] application” for cancellation. 8 U.S.C. § 1229(b)(1)(A). The “stop-time rule” provides that the period of continuous presence is deemed to end “when the alien is served a notice to appear under section 1229(a).” 8 U.S.C. § 1229(d)(1)(A). The Supreme Court in Pereira held that an NTA that does not include the date and time for the removal hearing does not constitute an NTA for purposes of the stop-time rule. See 138 S.Ct. at 2113-14. The Pereira case repeatedly stated it was addressing only the “narrow” question of the stop-time rule. See Id. at 2113. That rule is a non-jurisdictional doctrine whose application may defeat an individual's eligibility for cancellation of removal. The Court did not state that any jurisdictional issues were involved in its decision, and the opinion did not address the IJ's authority to act. “Simply put, Pereira did not address the question of an immigration judge's jurisdiction to rule on an alien's removability . . . .” See United States v. Perez-Arellano, 756 Fed.Appx. 291, 294 (4th Cir. 2018) (per curiam) (rejecting a Pereira-based challenge on plain error review).

         This Court's conclusion that Pereira does not impose a new jurisdictional rule on IJs is buttressed by subsequent Fifth Circuit decisions. Following Pereira, the Fifth Circuit stated in a footnote in a published opinion that the Supreme Court's Pereira decision applies to cancellation applications, not to other immigration proceedings. See Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018); see also Ramos-Portillo v. Barr, 919 F.3d 955, 960 (5th Cir. 2019) (“[Pereira] has no bearing on this appeal, because Pereira concerned the stop-time rule for cancellation of removal and this appeal concerns reopening.”). The Fifth Circuit in Mauricio-Benitez favorably cited district court cases holding that Pereira does not apply beyond the stop-time rule context. See id.[13]

         Bocanegra-Lupian next cites regulations to support his argument that defects in NTAs go to the IJ's jurisdiction. The Code of Federal Regulations governing noncitizens' removal proceedings provides that “[j]urisdiction 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). Bocanegra-Lupian contends that NTAs are just such charging documents, and thus, per the statutory definition of NTA ...

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