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United States v. Pedroza-Rocha

United States Court of Appeals, Fifth Circuit

August 8, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellant
CARLOS PEDROZA-ROCHA, Defendant-Appellee

          Appeal from the United States District Court for the Western District of Texas

          Before KING, ELROD, and ENGELHARDT, Circuit Judges.

          PER CURIAM

         The district court dismissed Carlos Pedroza-Rocha's indictment for illegal reentry following removal under 8 U.S.C. § 1326, finding that the immigration judge in the underlying removal proceeding lacked jurisdiction. While this appeal was pending, this court issued an opinion in an analogous immigration appeal that forecloses the arguments advanced by Pedroza-Rocha that were adopted by the district court below. For that reason, we REVERSE and REMAND.


         Defendant-appellee Carlos Pedroza-Rocha, a citizen of Mexico without lawful status in the United States, entered the country on or about March 12, 2003. He was not admitted or paroled by an immigration officer. Shortly thereafter, Pedroza-Rocha pleaded guilty in Texas state court to the crime of burglary of a habitation and was sentenced to ten years of community supervision. Around the same time, the Government issued Pedroza-Rocha a notice to appear ("NTA") for removal proceedings before an immigration judge ("IJ"). The NTA informed Pedroza-Rocha that he was present in the United States without lawful status and was therefore removable. It also specified the place where Pedroza-Rocha was to appear, but not the date and time, instead stating only that the date and time were "to be set." Around two months later, the immigration court issued a notice of hearing to Pedroza-Rocha, which specified the date and time for Pedroza-Rocha's hearing. At the hearing, the IJ ordered Pedroza-Rocha removed from the United States, and the resulting removal order (the "2003 Removal Order") was entered on May 27, 2003.

         In 2009, Pedroza-Rocha was again discovered in the United States when he was arrested for drunk driving in El Paso, Texas. Shortly thereafter, Pedroza-Rocha pleaded guilty in federal court to illegally reentering the United States after removal in violation of 8 U.S.C. § 1326. He was sentenced to 10 months in prison. Additionally, the state court revoked his term of community supervision for the 2003 burglary conviction, and it sentenced him to two years in prison on that charge. Following his release from state custody, the Government reinstated the 2003 Removal Order and removed Pedroza-Rocha to Mexico. In 2011 and again in 2015, Pedroza-Rocha unlawfully reentered the United States and was removed, again through reinstatement of the 2003 Removal Order.

         In May of 2017, after having been removed four times pursuant to the 2003 Removal Order, Pedroza-Rocha was arrested for assault in El Paso. A federal grand jury thereafter indicted Pedroza-Rocha for illegal reentry under § 1326. This case concerns that indictment.

         Pedroza-Rocha moved to dismiss the indictment, arguing that the 2003 Removal Order could not support a conviction. Pointing to the recent Supreme Court decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), Pedroza-Rocha argued that the NTA he received in 2003 (which resulted in the 2003 Removal Order) was invalid because it did not include a date and time for his hearing. Immigration regulations provide that jurisdiction vests upon the filing of a "charging document," which includes an NTA. 8 C.F.R. §§ 1003.13-14.[1] Thus, Pedroza-Rocha reasoned, the IJ in the 2003 proceeding lacked subject-matter jurisdiction, and the 2003 Removal Order was a nullity.

         The district court agreed with Pedroza-Rocha and dismissed the indictment. Citing Pereira, the district court held that the defect in the 2003 NTA (the absence of a date and time for the removal hearing) divested the IJ of jurisdiction to enter the 2003 Removal Order. Because the IJ had no jurisdiction, the district court reasoned, each subsequent removal (each predicated on reinstatement of the 2003 Removal Order) was also invalid. The district court then concluded that, because the 2003 Removal Order was invalid, each time that Pedroza-Rocha was removed pursuant to the 2003 Removal Order, he was not "removed" for purposes of § 1326, and therefore could not be convicted under that statute. The district court held, in the alternative, that Pedroza-Rocha was permitted to collaterally attack under § 1326(d) the 2003 Removal Order and each subsequent removal based on that order. The district court therefore dismissed the indictment. The Government now appeals. During the pendency of this appeal, the Department of Homeland Security removed Pedroza-Rocha to Mexico.



         Pedroza-Rocha first argues that his deportation during the pendency of this appeal moots this case. This court has a continuing obligation to assure itself of its own jurisdiction, sua sponte if necessary. Bass v. Denney (In re Bass), 171 F.3d 1016, 1021 (5th Cir. 1999). Article III's grant of federal jurisdiction requires a live controversy at all stages of a case. Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669 (2016). If the controversy between the parties is extinguished while a case is pending on appeal, this court must dismiss it as moot. Id. "A case becomes moot, however, 'only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.'" Id. (quoting Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307 (2012)).

         This court has once before considered the question of whether a defendant's removal moots the Government's appeal from a district court's dismissal of an indictment. In United States v. Sarmiento-Rozo, 592 F.2d 1318 (5th Cir. 1979), the defendants-Colombian nationals arrested on the high seas-had been indicted for attempting to import marijuana. Id. at 1319. The district court dismissed the indictment on the grounds that it lacked subject-matter jurisdiction. Id. Shortly after the district court's dismissal of the indictment, the defendants were removed to Colombia. Id. One question on appeal was whether the defendants' removal mooted the case. The court held that it did. The court reasoned that if it were to conclude that the indictment was wrongly dismissed, it could not afford the Government any relief because "[t]he defendants cannot be tried in absentia" because they "have a constitutional right to be present at their trial, to testify on their own behalf, and to confront the witnesses against them." Id. at 1320. The court was unpersuaded by the Government's contention that it would suffer collateral legal consequences (e.g., the district court decision being used as the law of the case in a parallel civil suit against the defendants) if the court failed to intervene, writing that "courts have been sensitive to the mere possibility of collateral consequences only in criminal cases following imposition of a criminal ...

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