United States District Court, W.D. Texas, El Paso Division
C. GUADERRAMA UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Ramon Salcido-Vega's
"Motion to Dismiss Indictment" (ECF No. 29). For
the reasons that follow, the Court denies the motion.
about January 23, 2019, a grand jury sitting in the Western
District of Texas, El Paso Division, indicted Salcido with
one count of illegal reentry after removal in violation of 8
U.S.C. § 1326(a). See Indictment, ECF No. 10.
The indictment alleged that Salcido was previously removed on
November 5, 2009, see Id. at 1; that removal was
pursuant to a reinstatement of a 2000 removal order,
see Gov't Resp. in Opp'n to Mot. to Dismiss
[hereinafter, Gov't's Resp.], Ex. K, ECF No. 42,
which, in turn, was issued in absentia by an
Immigration Judge ("IJ"), id. Ex. F.
April 30, 2019, Salcido filed the instant motion. Therein,
relying on the Supreme Court's opinion in Pereira v.
Sessions, 138 S.Ct. 2105 (2018), he collaterally attacks
the validity of the 2000 removal order. See 8 U.S.C.
15, 2019, the Government filed a Superseding Indictment (ECF
No. 33), which alleges a prior removal date of August 5,
2002; that removal was based on an expedited order of removal
issued in an administrative proceeding pursuant to 8 U.S.C.
§ 1225(b)(1). Gov't's Resp., Ex. I. Salcido now
directs his motion and his arguments advanced therein to the
Superseding Indictment. See Def.'s Notice as to
Mot. to Dismiss, ECF No. 39.
initial matter, the parties' arguments raise the issue of
whether Salcido may attack the validity of the 2000 removal
order in this prosecution. Salcido avers that the 2002 expedited
removal order was predicated on the 2000 removal order and as
such, it is properly characterized as a "de
facto" reinstatement of the 2000 order. Mot. to
Dismiss at 2, ECF No. 29; Def.'s Suppl. Br. at 3, ECF No.
48. Therefore, Salcido contends, he may collaterally attack
the 2000 order. Mot. to Dismiss at 7; cf. United States
v. Vargas-Varela, 150 Fed.Appx. 305, 305 (5th Cir. 2005)
(addressing the merits of defendant's § 1326(d)
attack on a removal order issued by an IJ, where the
Indictment alleged removal based on a reinstatement of the
Government disputes that characterization. It contends that
the 2002 order was not a reinstatement of the 2000 order, but
was issued in an independent, administrative removal
proceeding, which was "wholly separate" from the
2000 removal proceeding. Gov't's Resp. at 7 n.2;
Gov't's Suppl. Br. at 1-5. Consequently, it
continues, any defects as to the 2000 removal proceedings are
not relevant in this prosecution and cannot be challenged
here because the Superseding Indictment alleges that Salcido
illegally reentered the United States following his 2002
expedited removal, not his 2000 removal. Gov't's
Resp. at 7 n.2; Gov't's Suppl. Br. at 2.
Court need not resolve this issue, however, because as
discussed infra, Salcido's collateral attack on
the 2000 removal order ultimately fails.
base, Salcido's collateral attack rests on the premise
that the notice to appear that led to the 2000 removal order
was defective because it omitted the date and time of the
initial removal hearing in direct contradiction of 8 U.S.C.
§ 1229(a)(1). Mot. to Dismiss at 3, 6. Section
1229(a)(1) provides that a "notice to appear" shall
specify 10 listed categories of information, including
"[t]he time and place at which the proceedings will be
held." 8 U.S.C. § 1229(a)(1); but see 8
C.F.R. § 1003.15 (requiring a "notice to
appear" to include all of the statutory categories of
information, except the time of hearing). He relies on
Pereira, where the Supreme Court held that "[a]
notice that does not inform a noncitizen when and where to
appear for removal proceedings is not a 'notice to appear
under section 1229(a)' and therefore does not trigger the
stop-time rule" set forth in 8 U.S.C. §
1229b(d)(1)(A). Pereira, 138 S.Ct. at 2110.
on that premise, Salcido advances a cascade of arguments.
First, he argues that the IJ lacked jurisdiction to conduct
the removal proceedings and therefore, the IJ's removal
order is "void," "void ab
initio” and "a legal nullity." Mot. to
Dismiss at 2-3, 6, 10, 13. He relies on the regulation, 8
C.F.R. § 1003.14(a), which provides in relevant part:
"Jurisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document is filed
with the Immigration Court by the Service." 8 C.F.R.
§ 1003.14(a); see also id § 1003.13
(Charging documents include a notice to appear.).
for purposes of 8 U.S.C. § 1326(d),  he contends that
he was "functionally" deprived of the opportunity
for judicial review of the removal order (because the IJ
lacked jurisdiction), id. at 10, he was excused from
exhausting administrative remedies (for the same reason),
id. and his removal to Mexico pursuant to the
allegedly void removal order was fundamentally unfair,
id. at 8. Finally, he argues, because the removal
order was void db initio (again because the IJ
lacked jurisdiction), it negates an element of the offense
charged against Salcido-that is, Salcido was
"removed"; this challenge, he says, can be raised
outside of § 1326(d) and therefore, he need not satisfy
1326(d)'s strict requirements. See Id. at 13-14
(citing 8 U.S.C. § 1326(a)).
recognizes that in the recent past, this Court denied similar
motions asserting similar arguments based on
Pereira. Mot. to Dismiss at 1 & n.l (citing
United States v. Arroyo,356 F.Supp.3d 619 (W.D.
Tex. Dec. 21, 2018) (Guaderrama, J.)). At the time, the Fifth
Circuit had not spoken on the issues presented in
Arroyo. Since Salcido filed the instant motion,
however, the Fifth Circuit has issued an opinion wherein, on
the key legal issues, the court reached the same conclusions
as did this Court in Arroyo. See Pierre-Paul v.
Barr, - F.3d -, 2019 WL 3229150 (5th Cir. July 18,
2019). Although Pierre-Paul involved judicial review
of a decision by the Board of Immigration Appeals, another
panel of the Fifth Circuit applied Pierre-Paul's
holdings to a criminal case under § 1326-the precise
context in which Arroyo was decided and the instant