United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
R. MARTINEZ UNITED STATES DISTRICT JUDGE.
day, the Court considered Defendant Arturo Lopez-Mendez's
[hereinafter "Defendant"] "Motion to Dismiss
Indictment" (ECF No. 19) [hereinafter
"Motion"], filed on June 11, 2019; the
Government's "Response in Opposition to
Defendant's Motion to Dismiss the Indictment" (ECF
No. 22) [hereinafter "Response"], filed on June 18,
2019; the Government's "Supplemental Response in
Opposition to Defendant's Motion to Dismiss the
Indictment" (ECF No. 23) [hereinafter "Supplemental
Response"], filed on July 25, 2019; and Defendant's
"Reply to Government's Response and Supplemental
Response in Opposition to Defendant's Motion to Dismiss
Indictment" (ECF No. 24) [hereinafter
"Reply"], filed on August 7, 2019, in the
above-captioned cause. After due consideration, the Court is
of the opinion that the Motion should be denied for the
reasons that follow.
FACTUAL AND PROCEDURAL BACKGROUND
November 13, 2008, the Department of Homeland Security
("DHS") personally served a notice to appear on
Defendant. Resp. Ex. A (Notice to Appear). In the notice to
appear, DHS alleged that Defendant was a native and citizen
of Mexico who had entered the United States without being
admitted or paroled after inspection by an Immigration
Officer. Id. at 1. Additionally, the notice to
appear alleged that Defendant was previously "convicted
in the Circuit Court at Jefferson County, Alabama for the
offenses of Robbery 1st Degree, and two* counts of Assault
2nd degree, in violation of Alabama Codes 13A-008-041 and
13A-006-021." Id. Based on these allegations,
DHS charged Defendant as subject to removal pursuant to (1)
section 212(a)(6)(A)(i) of the Immigration and Nationality
Act, as an alien present in the United States without being
admitted or paroled, or who arrived in the United States at
any time or place other than as designated by the Attorney
General; and (2) section 2l2(a)(2)(A)(1)(I) of the Act, as an
alien who had been convicted of, or admitted having
committed, a crime involving moral turpitude. Id. at
addition, the notice to appear ordered that Defendant appear
before an Immigration Judge ("IJ") to show why he
should not be removed from the United States. Id. at
1. However, the notice to appear failed to specify the time
and date of the removal proceeding. Id.
Additionally, the notice to appear ordered Defendant to
appear at the Executive Office for Immigration Review, P.O.
Box 750, Oakdale, Louisiana 71463. Id. The
Government represents that, .subsequent to service of the
initial notice to appear, "[i]t is the usual practice
for DHS to serve a Notice of Hearing containing the date,
time and place of the initial hearing and serve it on the
defendant." Resp. 2. Defendant does not allege that
Defendant never received a Notice of Hearing with the date,
time, and place of the removal hearing. See Mot.
January 7, 2009, at an immigration hearing in which Defendant
personally appeared, an IJ ordered Defendant removed from the
United States to Mexico. See Resp. Ex. B (Order of
the Immigration Judge). On January 22, 2009, Defendant was
removed from the United States. Resp. Ex. C.
Government alleges that on or about April 13, 2019, Defendant
reentered the United States. Indictment, May 8, 2019, ECF No.
10. On May 8, 2019, Defendant was charged in the instant
Indictment with illegally reentering the United States after
having previously been removed in violation of 8 U.S.C.
§ 1326(a). Id. In the instant Motion, filed on
June 11, 2019, Defendant seeks to dismiss the indictment,
arguing that the January 2009 removal order is void because
the notice to appear failed to state the time and location of
the removal hearing.
Motion, Defendant moves for dismissal of the instant
Indictment. Mot. 1. Specifically, Defendant argues that the
immigration court lacked authority, or jurisdiction, to
remove Defendant because the notice to appear did not contain
a hearing time or location. Id. at 1-2. According to
Defendant, the Supreme Court's holding in
Pereira that a notice to appear must include the
time and date of the removal hearing in the stop-time rule
context is controlling in the context of initiating removal
proceedings in the immigration court and vesting the
immigration court with jurisdiction, or authority, over the
proceedings. Id. at 3-6 (citing Pereira v.
Sessions, 138 S.Ct. 2105 (2018)). Accordingly, Defendant
argues, "removal proceedings never commenced and the
putative removal order is void and violated due
process." Id. at 1. Therefore, Defendant
contends that the indictment must be dismissed pursuant to 8
U.S.C. § 1326(d) and because the Government cannot
prove, as a matter of law, that Defendant was
"removed." See Mot. 6, 11.
25, 2019, the Government filed its Supplemental Response,
arguing that a recent Fifth Circuit decision, Pierre-Paul
v. Barr, 930 F.3d 684, 686 (5th Cir. 2019), squarely
controls this case and requires that the Court deny
Defendant's Motion. Suppl. Resp. 2. On August 7, 2019,
Defendant filed his Reply. Therein, Defendant maintains that
his reasoning pursuant to Pereira remains sound and
applicable. Reply 1. Furthermore, Defendant states that
"[w]hile the district court is bound by
Pierre-Paul, [Defendant] disagrees with that
decision and furthers his original arguments for purposes of
appeal." Reply 1-2.
Pierre-Paul, in the context of a review of a Board
of Immigration Appeals order, the Fifth Circuit rejected the
petitioner's argument that the immigration court lacked
jurisdiction because his notice to appear did not include the
time and date of his hearing. Pierre-Paul, 930 F.3d
at 689. The court provided three independent reasons for its
First, Pierre-Paul's notice to appear was not defective.
Second, assuming arguendo that the notice to appear
were defective, the immigration court cured the defect by
subsequently sending a notice of hearing that included the
time and date of the hearing. Third, assuming
arguendo that the notice to appear were defective
and the defect could not be cured, 8 C.F.R. § 1003.14 is
not jurisdictional. Rather, it is a claim-processing rule,
and Pierre-Paul failed to raise the issue in a timely manner.
Id. In particular, the court rejected the
petitioner's attempt to extend Pereirds
"narrow holding" beyond the context of the
stop-time rule and, in doing so, "join[ed] the
overwhelming chorus of [its] sister circuits that ha[d]
already rejected similar Pemra-based challenges."
August 8, 2019, the Fifth Circuit held that each of
Pierre-Paul's three alternative holdings are
applicable in the context of the issue in this
case-specifically, a motion to dismiss a § 1326
indictment based on the theory that, in the underlying
removal proceeding, the IJ lacked jurisdiction due to the
lack of required information in the notice to appear.
United States v. Pedroza-Rocha, No. 18-50828, 2019
WL 3727828, at *5 (5th Cir. Aug. 8, 2019). In short, the
court concluded that "the IJ in [the defendant's
[underlying] removal proceeding did not lack jurisdiction as
a result of the Government's failure to include a date
and time on [the ...