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.
I.
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.
II.
A.
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
...