United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
matter is before the Court on Defendant's “Motion
to Dismiss - Out of Time - and Request for Hearing”
(Filing No. 19). 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.
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. 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
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.
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
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).
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). Defendant again was removed from the
United States in 2010 by Immigration and Customs Enforcement
(“ICE”). (Filing No. 24-11 at p. 2).
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).
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.
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)).
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 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,  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.
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. ...