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United States v. Lorenzo-Valmaceda

United States District Court, D. Utah, Central Division

February 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ISAAC LORENZO-VALMACEDA, Defendant.

          MEMORANDUM DECISION AND ORDER DENYING MOTION TO DISMISS

          David Nuffer District Judge

         Defendant Isaac Lorenzo-Valmaceda (“Lorenzo”) filed a motion to dismiss (“Motion”)[1]his indictment on grounds that the removal order underlying the charges against him is invalid. Because he is barred from collaterally attacking the removal order in this case, the Motionis DENIED.

         BACKGROUND

         Lorenzo is a citizen of Mexico who was admitted into the United States and given the status of lawful permanent resident. On February 8, 2012, the Department of Homeland Security served him with a Notice to Appear (“NTA”), charging him with being subject to removal under § 237(a)(2)(E)(i) of the Immigration and Nationality Act. Based on this charge, the NTA instructed him to appear before an immigration judge in Las Vegas, Nevada, on “a date to be set” and at “a time to be set” to show why he should not be removed from the United States.[2] This hearing, the NTA explained, would not be set until at least 10 days after the date of the NTA, unless Lorenzo requested otherwise, and a separate hearing notice would be mailed to him.[3]

         Upon receiving the NTA, Lorenzo executed a written Request for Prompt Hearing, which read: “To expedite a determination in my case, I request an immediate hearing. I waive my right to a 10-day period prior to appearing before an immigration judge.”[4]

         On February 22, 2012, a separate Notice of Hearing was mailed to Lorenzo, informing him that the removal hearing was scheduled to be held at a specified location at 8:00 a.m. on March 7, 2012.[5]

         (Image Omitted)

         He received this notice and attended the hearing with counsel. At the conclusion of the hearing, the immigration judge ordered his removal to Mexico.[6] Although Lorenzo had 30 days to appeal this order, he chose not to appeal. As a result, on April 10, 2012, he was physically removed from the United States.[7]

         Following his removal, Lorenzo reentered the United States. He was indicted on April 4, 2018, for unlawful reentry under 8 U.S.C. § 1326.[8]

         Although the motion deadline in this case expired April 27, 2018, [9] Lorenzo waited until November 16, 2018, to file this Motion, which for the first time challenged the validity of the removal order based on the NTA's alleged deficiencies.

         DISCUSSION

         Lorenzo argues that the immigration court never had jurisdiction over him because the NTA did not specify a date and time for his removal hearing. He claims that the subsequent removal order was therefore invalid, and that consequently the government cannot now prove that he was removed under an order that comports with due process.[10]

         As a preliminary matter, even though the NTA failed to specify a date and time for the removal hearing, “the immigration court was properly vested with jurisdiction.”[11] Lorenzo argues that the Supreme Court's decision in Pereira v. Sessions[12] requires that an NTA must include the date and time of the removal hearing, but “[t]hat argument fails.”[13] Pereira's “narrow holding does not require a NTA to include the date and time of a noncitizen's pending removal proceeding to vest the immigration court with jurisdiction over the proceeding.”[14]

         Although the government has the burden of proving beyond a reasonable doubt all elements of the charges against Lorenzo, there is a rebuttable presumption that the order of removal in the immigration proceeding was valid.[15] To overcome this presumption, Lorenzo has the burden of proving that: (1) he “exhausted any administrative remedies that may have been available to seek relief against the order”; (2) the proceeding in “which the order was issued improperly ...


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