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.
21). 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 No.
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.
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.
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.
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).
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).
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).
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).
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).
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).
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.
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, ...