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United States v. Gonzalez

United States District Court, D. Nebraska

February 11, 2019



          Michael D. Nelson United States Magistrate Judge.

         This matter is before the Court on Defendant's “Motion to Dismiss - Out of Time - and Request for Hearing” (Filing No. 19).[1] Defendant moves to dismiss the Indictment charging him with illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2), arguing that his 1990 removal was initiated by a defective charging document.

         The Court initially granted Defendant's request for an evidentiary hearing and scheduled it for January 8, 2019. However, after the government filed its brief in opposition (Filing No. 24) to the motion, on January 3, 2019, Defendant filed a reply and joint waiver of the evidentiary hearing. (Filing No. 26). The parties do not dispute the authenticity of Defendant's exhibits (Filing No. 20) filed in support of the motion, or the government's exhibits (Filing No. 24) filed in opposition, and the parties agree the Court can rule on the motion without a hearing.[2] Therefore, the Court canceled the evidentiary hearing and the matter is now deemed fully submitted. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be denied.


         Deportation proceedings were first commenced against Defendant on September 27, 1988, for entry without inspection. (Filing No. 20-1). On June 5, 1989, an immigration judge denied Defendant's application for asylum and ordered that Defendant be deported to Guatemala. Defendant's right to appeal was marked “reserved” in the order. (Filing No. 20-3). As of August 10, 1990, it appears Defendant's appeal of this removal proceeding was pending. (Filing No. 24-8). The record does not contain the result of the appeal, but a report from the U.S. Department of Homeland Security (“DHS”) indicates that on January 14, 1991, “[Board of Immigration Appeals] ordered proceedings continued indefinitely.” (Filing No. 24-11 at p. 3). Defendant was represented by counsel throughout this removal proceeding.

         On March 16, 1990, Defendant was convicted under Florida state law for the offense of sale of cocaine. (Filing No. 24-1). As a result, a second removal proceeding was initiated against Defendant by an “Order to Show Cause, Notice of Hearing, and Warrant for the Arrest of Alien” (“the OSC”) dated April 5, 1990. (Filing No 20-2). The OSC reflects that Defendant was served with the OSC and was detained by the Immigration and Naturalization Service (“INS”) the following day. (Filing No. 24-9 at p. 2). Although the OSC provided Defendant with options to request a redetermination of custody and an expedited hearing, Defendant requested neither. The OSC notified Defendant that he was to appear for a hearing before an immigration judge at a “location to be set” on a “time and date to be set.” The OSC was written in English.

         Defendant was ordered to be removed from the United States on May 17, 1990. (Filing No. 20-4). The order provided that Defendant was to be deported from the United States to Guatemala “upon [Defendant's] admissions[.]” (Filing No. 20-4). The order also notes that Defendant waived an appeal and that he was served with a copy of the order. A warrant for Defendant's deportation was issued on May 29, 1990, and Defendant was deported to Guatemala on June 1, 1990. Defendant's signature and right thumb print were affixed to the deportation warrant form. (Filing No. 20-5 at pp. 1-2).

         According to the DHS's Records, Defendant at some point thereafter reentered the United States. In September 2006, Defendant was convicted under the name “Jose Luis Martinez” in the United States District Court for the Southern District of New York for Conspiracy to Distribute and Possess with Intent to Distribute Heroin, Possession with intent to Distribute Heroin, and Illegal Re-entry subsequent to Deportation. (Filing No. 24-2; Filing No. 24-11 at p. 2).[3] Defendant again was removed from the United States in 2010 by Immigration and Customs Enforcement (“ICE”). (Filing No. 24-11 at p. 2).

         The Indictment in this case alleges that on August 30, 2018, Defendant, who had previously been deported to Guatemala, was found in the United States without the express consent of the Attorney General or Secretary of the Department of Homeland Security. (Filing No. 1). Defendant now moves to dismiss the Indictment by collaterally attacking the May 17, 1990, deportation order. (Filing No. 19). Specifically, Defendant argues that the April 5, 1990, OSC provided inadequate notice of the hearing before the immigration judge because it did not specify the time, date, and location of the hearing. Defendant asserts that due to this failure, the subsequent removal order is void for lack of jurisdiction and for denial of due process. Defendant argues that since the prior removal order is void, he cannot be charged with illegal reentry following a prior removal. Finally, Defendant asserts that his failure to receive proper notice of the deportation hearing is a “structural error that infected the entirety of immigration proceedings” requiring the court to make a finding of fundamental unfairness and prejudice to Defendant. (Filing No. 19).

         The government contests Defendant's assertions by arguing that jurisdiction did indeed vest with the immigration court during the 1990 proceedings. (Filing No. 24 at 4). The government asserts that the manner of how and when jurisdiction vests with an immigration court is determined by regulation, rather than statute, and that the OSC contained all the information required by the applicable regulations. (Filing No. 24 at pp. 6-9). The government also asserts that Defendant failed to meet his burden to demonstrate any resulting prejudice.


         To convict a noncitizen 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). Defendant collaterally attacks the May 1990 removal order forming the basis of this prosecution. A defendant “bears the burden of proof in a collateral attack upon a prior deportation.” United States v. Tamayo-Baez, 820 F.3d 308, 313 (8th Cir. 2016)(quoting United States v. Martinez-Amaya, 67 F.3d 678, 681-82 (8th Cir. 1995)).

         A. Jurisdiction

         Defendant's motion to dismiss is primarily based on his contention that the immigration court lacked jurisdiction to enter the May 1990 deportation order, rendering the order void. Specifically, Defendant argues that the OSC[4] dated April 5, 1990, did not contain the time, date, and place of the removal hearing, which information was necessary to confer jurisdiction on the immigration court. Defendant, like a growing number of defendants in illegal reentry prosecutions in district courts across the country, [5] derives this jurisdictional argument from Pereira v. Sessions, 138 S.Ct. 2105, 2114 (2018), wherein the Supreme Court concluded that, under the plain text of the statute, a “notice to appear” (hereinafter “NTA”) under 8 U.S.C. § 1229(a) must specify the time and place of a noncitizen's removal proceedings.

         This jurisdictional argument generally goes as follows: under the applicable regulations, “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court[.]” United States v. Virgen-Ponce, 320 F.Supp.3d 1166 (E.D. Wash. July 26, 2018)(quoting 8 C.F.R. § 1003.14(a)). For immigration proceedings initiated after April 1, 1997, a charging document includes, among other documents, an NTA. Id. (quoting 8 C.F.R. § 1003.13). Relying on Pereira's language that says, “A document that fails to include [the time and place of removal proceedings] is not a ‘notice to appear under section 1229(a), '” some district courts have concluded that an NTA that omits the time and place of removal proceedings is a defective charging document that cannot confer jurisdiction over removal proceedings. Seeid. at 1165-66 (quoting Pereira, 138 S.Ct. ...

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