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United States v. Escobar

United States District Court, D. Nebraska

November 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO AGUILAR ESCOBAR, Defendant.

          FINDINGS, RECOMMENDATION AND ORDER

          Cheryl R. Zwart United States Magistrate Judge

         This matter is before the court on Defendant's Motion to Dismiss his Indictment for illegal reentry in violation of 8 U.S.C. § 1326(a) & § 1326(b)(2). (Filing No. 17). For the following reasons Defendant's Motion to Dismiss should be denied.

         I. Background

         The indictment charges that on July 25, 2018, Defendant, a non-citizen who was previously excluded, deported, and removed from the United States to Mexico, was found in the United States after having reentered without the permission of the United States government in violation of 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2). (Filing No. 1).

         On October 3, 2018, Defendant filed a Motion to Dismiss the indictment, arguing that under the Supreme Court's ruling in Pereira v. Sessions, 138 S.Ct. 2105 (2018), the “Order to Show Cause” and “Notice of Hearing” (“OSC”) that prompted his 1996 removal were defective because they failed to indicate the date and time of the 1996 removal proceeding. Defendant asserts that due to this failure, the removal order entered by the Immigration Judge is void for lack of jurisdiction, and for denial of due process. Defendant argues that since the prior removal is void, Defendant cannot be charged with illegal reentry following a prior removal, and the indictment under 8 U.S.C. § 1326 must be dismissed.

         The government argues that the issue of jurisdiction is prescribed by regulation and not by statute; that only regulations promulgated to implement the Immigration and Nationality Act (“INA”) (8 U.S.C. § 1101 et seq. (1996)), define when or how jurisdiction vests with the Immigration Court. (Filing No. 21, at CM/ECF p. 4). Applying these regulations, the government contends jurisdiction was properly exercised by the Immigration Court at each stage throughout the adjudication of Defendant's prior removal. See, 8 C.F.R. § § 3.14(a), 8 C.F.R. § 3.15(b). The government argues that the Supreme Court's narrow Pereira holding is inapplicable to Escobar's claim, and any defect in the OSC was non-prejudicial and irrelevant to the validity of Defendant's 1996 removal.

         II. Facts

         On October 31, 2018, an evidentiary hearing was held on Defendant's Motion to Dismiss. Both parties offered exhibits in support of their briefs, the authenticity of which neither party contests. The court accepts the facts within the parties' exhibits as undisputed for the purposes of the pending motion.

         On January 9, 1996, Escobar was serving a 54-month prison sentence on an April 1994 armed carjacking conviction entered by the Superior Court of California. While Escobar was incarcerated at Calipatria State Prison in Calipatria, California, Immigration and Customs Enforcement (“ICE”) served him with an OSC. (Filing No. 19-2). The OSC was written in both English and Spanish and notified Escobar that he was to appear for a hearing before an Immigration Judge, the date and time of which was “to be calendared and notice provided by the Executive Office for Immigration Review . . . .” (Filing No. 19-2, at CM/ECF p. 1). The document further provided that the “hearing before an Immigration Judge” would be “scheduled no sooner than 14 days” after he was served the OSC, unless Escobar expressly requested an earlier hearing date. (Filing No. 19-2, at CM/ECF p. 2).

         By signature, Escobar acknowledged receipt of the form. (Filing No. 19-2, at CM/ECF p. 5). Defendant requested an expedited determination of his case by immediate hearing, explicitly waiving his right to the customary 14-day notice of hearing. (Filing No. 19-2, at CM/ECF p. 5). On January 11, 1996, two days after Escobar requested an immediate hearing, an Immigration Judge sitting for the Calipatria State Prison Docket ordered Escobar deported to Mexico based on Defendant's admissions. (Filing No. 19-1). Defendant waived his right to appeal the Immigration Judge's order, and he was removed to Mexico on February 11, 1996. (Filing No. 19-1; Filing No. 20-2).

         Escobar was then contacted in Lincoln, Nebraska on June 27, 2018, after being charged with making a false statement to an officer. (Filing No. 20-3). On August 22, 2018, Escobar was indicted on a charge of illegal reentry of a removed alien following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) & § 1326(b)(2). (Filing No. 1). On October 3, 2018, Defendant filed this Motion to Dismiss the indictment. (Filing No. 17).

         III. Analysis

         To convict a non-citizen defendant of illegal reentry, the government must prove the defendant: (1) is not a citizen of the United States; (2) was previously ordered removed, and was removed from the United States; and following that removal, (3) entered, attempted to enter, or was found back in the United States without the consent of the United States government. 8 U.S.C. § 1326(a). In his motion to dismiss, Defendant collaterally attacks the prior deportation order, thereby arguing the government cannot prove an essential element of the current indictment.

         A. Jurisdiction

         Escobar argues the 1996 Immigration Court lacked subject matter jurisdiction to order Defendant's removal, and its removal order was void ab initio. Relying on the recent decision in United States v. Virgen-Ponce, 320 F.Supp.3d 1164 (E.D. Wash. 2018), Defendant argues that, “[l]ike the defective removal order in Virgen Ponce, the removal order issued against Escobar in 1996 was done so without jurisdiction because of the failure to give him proper notice as required by 8 U.S.C. § 1229(a).” (Filing No. 18, at CM/ECF p. 6). Therefore, Escobar asserts that his “[i]ndictment must be dismissed because of the same reasoning used by Judge Nielsen in Virgen-Ponce.” (Filing No. 18, at CM/ECF p. 6). The Virgen-Ponce court found that under the Supreme Court's recent decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), if the charging document filed in the ...


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