United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION AND ORDER
R. Zwart United States Magistrate Judge
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.
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
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.
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.
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.
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.
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).
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.
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.
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 ...