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 Antonio Cruz-Ramos's
("Mr. Cruz-Ramos") "Motion to Dismiss
Indictment" ("Motion"), filed in the
above-captioned case on June 7, 2019. On June 12, 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.
Cruz-Ramos's Motion should be granted.
22, 2019, a Grand Jury sitting in the Western District of
Texas returned a single count Indictment
("Indictment"), which charges Mr. Cruz-Ramos with
an alleged illegal reentry into the United States in
violation of 8 U.S.C. § 1326(a). Indictment, ECF No. 10.
Specifically, the Indictment alleges that on or about April
25, 2019, Mr. Cruz-Ramos, an undocumented immigrant who had
previously been deported from the United States on or about
July 24, 2008, was found in the United States again.
September 17, 1999, the Department of Homeland Security
("DHS") issued Mr. Cruz-Ramos a Notice to Appear at
an immigration hearing. Resp. Ex. A, ECF No. 19. 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. Cruz- Ramos 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.
Resp. 2, ECF No. 19. The immigration court served Mr.
Cruz-Ramos with a Notice of Hearing that contained the date,
time, and place of the initial hearing. Resp. 2 Ex. B, ECF
October 18, 1999, the initial immigration hearing took place,
at which Mr. Cruz-Ramos was present, and the immigration
judge ordered him removed from the United States. Resp. Ex C,
ECF No. 19. This removal order is the underlying removal
order of the instant Indictment. See Resp. 2-3, ECF
No. 19. Mr. Cruz-Ramos's Motion seeks to dismiss this
Cruz-Ramos 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. 1-3, ECF No. 18. 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's Response takes issue with 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 date and time to be in a Notice to
Appear. Resp. 4, ECF No. 19. Second, the Government argues
that Mr. Cruz-Ramos cannot meet any of the three §
1326(d) factors that a Defendant must satisfy to collaterally
attack the validity of a prior removal. Id. at 1.
Third, the Government argues that the "lawfulness or
validity of a prior removal order is not an element of a
§ 1326 offense." Id. at 4. 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. Cruz-Ramos's underlying removal was void.
The Indictment for illegal re-entry should be dismissed.
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 date and 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. 9,
ECF No. 19 (citing Hernandez-Perez v. Whitaker, 911
F.3d 305, 313 (6th Cir. 2018) and Karingithi v.
Whitaker, 913 F.3d 1158 (9th Cir. 2019)).
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. 2018); Order granting Mot. to Dismiss 10, United
States v. Valladares, No. 17-CR-00156, (W.D. Tex. 2018),
ECF No. 44. 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, 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, 2018 U.S. Dist. LEXIS 187870 at
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, 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, 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 "[j]urisdiction 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. §
1003.13 (2013); see also Martinez-Garcia v.
Ashcroft, 366 F.3d 732, 735 (9th Cir. 2004) ("The
only charging document available after April 1, 1997, is the
Notice to Appear.") (citing 8 C.F.R. §
Notice to Appear must include the time and date of the
hearing as 8 U.S.C. § 1229(a) requires:
In removal proceedings under section 1229(a) of this title,
written notice (in this section referred to as a "notice
to appear") shall be given in person to the alien (or,
if personal service is not practicable, through service by
mail to the alien or to the alien's ...