United States District Court, D. Nebraska
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the magistrate
judge's Findings and Recommendation (Filing No.
28) recommending the Court deny defendant Carlos Ely Ramos
Gonzalez's (“Ramos Gonzalez”) “Motion
to Dismiss - Out of Time - and Request for Hearing”
(Filing No. 19). Ramos Gonzalez objects (Filing No. 29) to
the Findings and Recommendation. Both parties offered
exhibits in support of their briefs without objection. For
the purposes of this motion, the Court accepts the facts
within the parties' exhibits as undisputed.
Gonzalez is a Guatemalan citizen. On September 27, 1988, an
“Order to Show Cause and Notice of Hearing”
initiated deportation proceedings against Ramos Gonzalez. An
immigration judge (“IJ”) denied Ramos
Gonzalez's application for asylum and ordered his
deportation to Guatemala on June 5, 1989.
March 16, 1990, an “Order to Show Cause, Notice of
Hearing, and Warrant for the Arrest of Alien”
(“OSC”) commenced a second deportation proceeding
against Ramos Gonzalez and notified him he was to appear
before an IJ at a “location to be set” on a
“time and date to be set.” “[U]pon [Ramos
Gonzalez's] admissions, ” an IJ ordered his
deportation to Guatemala on May 17, 1990 (“1990
Deportation Order”). Ramos Gonzalez waived his right to
appeal and was deported on June 1, 1990.
Gonzalez reentered the United States and, in September 2006,
was convicted of conspiracy to distribute and possess with
intent to distribute heroin, possession with intent to
distribute heroin, and illegal reentry subsequent to
deportation in the United States District Court for the
Southern District of New York. He was again removed from the
United States in 2010.
Indictment in the present case charges Ramos Gonzalez with
illegal reentry subsequent to deportation on or about August
30, 2018, in violation of 8 U.S.C. § 1326(a) and (b)(2).
Ramos Gonzalez argues this Indictment should be dismissed
because the 1990 Deportation Order is void. Relying on an
interpretation of Pereira v. Sessions, ___ U.S.___,
138 S.Ct. 2105 (2018), set forth in United States v.
Virgen-Ponce, 320 F.Supp.3d 1166 (E.D. Wash. 2018),
Ramos Gonzalez asserts that his 1990 Deportation Order is
void for lack of jurisdiction, due process, and structural
integrity because the OSC failed to specify the time, date,
and location of his deportation hearing. Without that 1990
Deportation Order, Ramos Gonzalez contends he cannot be
charged with illegal reentry subsequent to deportation.
the parties jointly waived an evidentiary hearing, the
magistrate judge denied Ramos Gonzalez's motion. Aptly
recognizing the narrowness of the Supreme Court's holding
in Pereira, ___ U.S.___, 138 S.Ct. 2105, the
magistrate judge joined those district courts who have
addressed this question, including this Court, in rejecting
Ramos Gonzalez's jurisdictional argument. See,
e.g., United States v. Duarte, 4:18CR3083,
2018 WL 6493090 (D. Neb. Nov. 30, 2018) findings and
recommendation adopted, 4:18CR3083, 2018 WL 6492750 (D.
Neb. Dec. 10, 2018); see also German Bermudez-Cota,
27 I&N Dec. 441 (BIA 2018) (distinguishing
Pereira, ___ U.S.___, 138 S.Ct. 2105, and concluding
a notice to appear not specifying the date and location of a
noncitizen's deportation proceeding vests an IJ with
jurisdiction when the noncitizen later receives the
information). The magistrate judge further concluded that
Ramos Gonzalez has failed to show prejudice by establishing
that, but for the OSC's alleged deficiencies, he would
not have been deported.
Court has reviewed de novo Ramos Gonzalez's Motion to
Dismiss, the parties' briefs and exhibits, and the
Findings and Recommendation. See 28 U.S.C §
636(b)(1). The Court agrees with the prior rulings of this
Court and concludes Ramos Gonzalez's motion should be
denied for the reasons stated in the magistrate judge's
well-founded Findings and Recommendation.
Defendant Carlos Ely Ramos Gonzalez's objection (Filing
No. 29) is overruled.
magistrate judge's Findings and Recommendation (Filing
No. 28) are accepted.
Ramos Gonzalez's “Motion to Dismiss - Out of Time -
and Request for Hearing” (Filing No. 19) is denied.