United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
HONORABLE DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE
day, the Court considered Defendant Jose Ivan
Eligio-Rodriguez's ("Mr. Eligio-Rodriguez")
"Motion to Dismiss the Indictment"
("Motion"), filed in the above-captioned case on
April 29, 2019. On May 6, 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.
Eligio-Rodriguez's Motion should be granted.
April 10, 2019, a Grand Jury sitting in the Western District
of Texas returned a single count Indictment
("Indictment"), which charges Mr. Eligio-Rodriguez
with an alleged illegal reentry into the United States in
violation of 8 U.S.C. § 1326(a). Indictment, United
States of America v. Jose Ivan Eligio-Rodriguez, (W.D.
Tex., April 10, 2019), ECF No. 10. Specifically, the
Indictment alleges that on or about March 12, 2019, Mr.
Eligio-Rodriguez, an undocumented immigrant who had
previously been deported from the United States on or about
September 5, 2018, was found in the United States again.
November 27, 2000, the Department of Homeland Security
("DHS") issued Mr. Eligio-Rodriguez a Notice to
Appear at an immigration hearing. Resp., ECF No. 21, at Ex.
A. 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. Eligio-Rodriguez 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. Id. at 2.
immigration court allegedly issued a Notice of Hearing
containing the date, time, and place of the initial hearing
and served it on Mr. Eligio-Rodriguez. Id. According
to the Government, the immigration officials have represented
to the U.S. Attorney's Office that this Notice of Hearing
was served. Id. at 2 n.2. Because he was detained,
however, a copy of the Notice of Hearing was maintained in
the Executive Office of Immigration Review record of
proceedings, as opposed to his A-File. Id. The
Government is in the process of obtaining a copy of this
notice and will provide it to defense counsel and the Court
upon receipt. Id. The Government argues that the
Court may presume that immigration officials discharged their
official duty to provide notice of the hearing. Id.
(citing United States v. Armstrong, 517 U.S. 456,
464 (1996)). However, this Court will not make this
presumption as the Government has made an identical argument
in the past only to later admit that no record of the Notice
of Hearing was ever found in a defendant's record of
proceedings. See this Court's opinion in
United States v. Miguel Yanez-Gutierrez,
April 19, 2001, the initial immigration hearing took place,
at which Mr. Eligio-Rodriguez was present, and the
immigration judge ordered him removed from the United States.
Id. at Ex. B. Mr. Eligio-Rodriguez waived his right
to appeal this order. Id. On April 24, 2001, he was
removed from the United States to Mexico. Id. at Ex.
C. This removal order is the underlying removal order of the
instant Indictment. See Id. at 3. Mr.
Eligio-Rodriguez's Motion seeks to dismiss this
Eligio-Rodriguez petitions the Court to dismiss the
Indictment because the immigration court lacked subject
matter jurisdiction to issue the original removal order after
the Notice to Appear he received failed to include a date and
time. Mot., ECF No. 18, at 1-3. 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.
the Government argues that Mr. Eligio-Rodriguez cannot meet
any of the three § 1326(d) factors that a Defendant must
satisfy to collaterally attack the validity of a prior
removal. Resp., ECF No. 21, at 1. Second, 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.
Id. at 5- 6. 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
A Valid Notice to Appear Must Include the Date and Time to
Vest Jurisdiction in the Immigration Court.
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. Eligio-Rodriguez's underlying removal was
void. The Indictment for illegal re-entry should be
The Statutory Definition Controls Over the Regulatory
Definition Upon Which the Government Relies.
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.,
ECF No. 21, at 9 (citing Hernandez-Perez v.
Whitaker, 911 F.3d 305, 313 (6th Cir. Dec. 14, 2018) and
Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. Jan.
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. Nov. 2, 2018); Order, Valladares, No.
17-CR-00156, ECF No. 44, at 10. 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-SS,
2018 U.S. Dist. LEXIS 187870 at *15 (quoting Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 842-3 (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.Cruz-Jimenez, No. 17-CR-00063-SS,
2018 U.S. Dist. LEXIS 187870 at *15.
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 v.
Sessions, 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.
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.
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] 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. §
Notice to Appear must include the time and date of the
hearing as ...