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United States v. Negrete-Rojas

United States District Court, D. Nebraska

December 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
HERIBERTO NEGRETE-ROJAS, 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. 21). 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 September 19, 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 October 1996 removal was defective because it failed to indicate the date and time of the removal proceeding. (Filing No. 21). 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. 27, at CM/ECF p. 3-4). 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), 3.15(b). The government argues that the Supreme Court's narrow Pereira holding is inapplicable to Negrete-Rojas'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. (See, Filing No. 30). Both parties offered exhibits in support of their briefs, the authenticity of which neither party contests. (See, Filing No. 23; Filing No. 26). The court accepts the facts within the parties' exhibits as undisputed for the purposes of the pending motion. On December 3, 2018, this court received additional evidence of a recording of Defendant's October 25, 1996 deportation hearing. It was marked and received as government's exhibit 20, but the recording is inaudible due to poor sound quality.

         On May 13, 1994, Defendant was convicted in the New Jersey Superior Court in Passaic County on a charge of unlawful possession of a .22 caliber handgun. On July 13, 1994, while serving his sentence on the gun charge, Defendant was personally served with an OSC and ordered to appear before the Immigration Court on “a date and time to be set.” (Filing No. 23-2, at CM/ECF p. 3).

         The OSC was written in both English and Spanish and notified Negrete-Rojas that he was to appear for a hearing before an Immigration Judge, to be “scheduled no sooner than 14 days” after he received the OSC, unless Negrete-Rojas expressly requested an earlier hearing date. (Filing No. 23-2, at CM/ECF p. 2). The OSC included a certificate of translation and oral notice that the OSC was read to Negrete-Rojas in both the Spanish and English languages. (Filing No. 23-2, at CM/ECF p. 2). By signature, Negrete-Rojas acknowledged receipt of the form. (Filing No. 23-2, at CM/ECF p. 5).

         On October 8, 1996, Negrete-Rojas signed a “Request for Prompt Deportation Hearing, ” wherein he chose “to be deported as soon as possible.” (“Quiero ser deportado lo mas antes possible.”) (Filing No. 26-3). Defendant further certified, “I have not been coerced, threatened or enticed in any way to sign this contract.” (Filing No. 26-3). A “Notice to EOIR: Alien Address” was also filed on October 8, 1996, alerting the office of the immigration judge that Negrete-Rojas had been detained by INS with a copy of the form provided to Defendant for “notification of jurisdiction/commencement of proceedings.” 8 C.F.R. 3.14. (Filing No. 26-4).

         On October 25, 1996, an Immigration Judge in Oakdale, Louisiana ordered Negrete-Rojas deported from the United States to Mexico, in part “upon the basis of respondent's admissions.” (Filing No. 23-1). The order indicates Defendant waived his right to appeal. (Filing No. 23-1). On November 4, 1996, Negrete-Rojas was deported to Mexico. (Filing No. 26-2).

         On January 8, 2014, Negrete-Rojas was again encountered by immigration officials at or near Omaha, Nebraska. (Filing No. 26-2, at CM/ECF p. 3). On April 4, 2014, Negrete was issued a Notice of Intent/Decision to Reinstate Prior Order and was convicted under 8 U.S.C. § 1326(a) & (b)(1) and sentenced to five months imprisonment. (Filing No. 26-2, at CM/ECF p. 3). On June 23, 2014, Defendant was removed to Mexico. (Filing No. 26-2, at CM/ECF p. 3).

         On September 13, 2014, Negrete-Rojas was intercepted a third time by immigration officials at or near McAllen, Texas. (Filing No. 26-2, at CM/ECF p. 3). Defendant was issued a Notice of Intent/Decision to Reinstate Prior Order. Subsequently, on September 15, 2014, Negrete-Rojas was convicted under 8 U.S.C. § 1325(a)(1) and sentenced to sixty-days confinement. Negrete-Rojas was removed to Mexico on November 13, 2014. (Filing No. 26-2, at CM/ECF p. 3).

         In 2018, Negrete-Rojas again came to the attention of immigration officials following his arrest for DUI in Lincoln, Nebraska. (Filing No. 26-2, at CM/ECF p. 2). On July 12, 2018, immigration officials contacted Negrete-Rojas at his place of employment. (Filing No. 26-2, at CM/ECF p. 2). Defendant was fingerprinted and his identity verified, and he was placed under arrest.

         Negrete-Rojas was issued a Notice of Intent/Decision to Reinstate Prior Order, and indicted on one count of illegal reentry of a removed alien after aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) & (b)(2). (Filing No. 1). On September 19, ...


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