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United States v. Perez-Gavaldon

United States District Court, W.D. Texas, El Paso Division

July 11, 2019

UNITED STATES OF AMERICA
v.
ARMANDO PEREZ-GAVALDON

          MEMORANDUM OPINION AND ORDER

          HON. DAVID BRIONES, SENIOR UNITED STATES DISTRICT JUDGE

         On this day, the Court considered Defendant Armando Perez-Gavaldon's ("Mr. Perez-Gavaldon") "Motion to Dismiss Indictment" ("Motion"), filed in the above-captioned case on June 17, 2019. On June 26, 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. Perez-Gavaldon's Motion should be granted.

         BACKGROUND

         On June 5, 2019, a Grand Jury sitting in the Western District of Texas returned a single count Indictment ("Indictment"), which charges Mr. Perez-Gavaldon with an alleged illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). Indictment, ECF No. 11. Specifically, the Indictment alleges that on or about May 7, 2019, Mr. Perez-Gavaldon, an undocumented immigrant who had previously been deported from the United States on or about March 21, 2018, .was found in the United States again. Id.

         On June 9, 2000, the Department of Homeland Security ("DHS") issued Mr. Perez-Gavaldon 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. Perez- Gavaldon 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. Perez-Gavaldon with a Notice of Hearing that contained the date, time, and place of the initial hearing. Resp. 2 Ex. B, ECF No. 19.

         On July 25, 2000, the initial immigration hearing took place, at which Mr. Perez-Gavaldon 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. Perez-Gavaldon's Motion seeks to dismiss this Indictment.

         ANALYSIS

         Mr. Perez-Gavaldon petitions the Court to dismiss the Indictment because the immigration court lacked subject matter jurisdiction to issue the original removal order after his Notice to Appear 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.

         First, 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. Perez-Gavaldon 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.

         1. A Valid Notice to Appear Must Include the Date and Time to Vest Jurisdiction in the Immigration Court.

         According 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. Perez-Gavaldon's underlying removal was void. The Indictment for illegal re-entry should be dismissed.

         a. The Statutory Definition Controls Over the Regulatory Definition Upon Which the Government Relies.

         The 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)).

         A 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.[1] Cruz-Jimenez, No. 17-CR-00063, 2018 U.S. Dist. LEXIS 187870 at *15.[2]

         Moreover, 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.

         b. 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.

         The 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][3] 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. § 1003.13).[4]

         A 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 ...

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