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United States v. Zuniga-Hernandez

United States District Court, D. Utah

May 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CARLOS ZUNIGA-HERNANDEZ, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS COUNT III OF THE INDICTMENT

          Clark Waddoups United States District Judge

         Before the court is Defendant Carlos Zuniga-Hernandez's Motion to Dismiss Count III of the Indictment (ECF No. 21). The motion has been fully briefed, and the court heard argument on the same on February 8, 2019. Having reviewed the pleadings and materials submitted and considered the arguments of counsel, the court now enters this order GRANTING Defendant's motion to dismiss.

         BACKGROUND

         By a three-count indictment filed June 13, 2018, Defendant was charged with possession of heroin with intent to distribute, possession of cocaine with intent to distribute, and reentry of a previously removed alien. (ECF No. 1.) Defendant's motion to dismiss only attacks the charge of illegal reentry, which alleges that “[o]n or about March 29, 2018 in the Northern Division of the District of Utah, the defendant herein, an alien who on or about March 18, 2012, was excluded, removed, and deported from the United States, did knowingly reenter and was found in the United States in the District of Utah, having not obtained the consent of the Secretary of the United States Department of Homeland Security to reapply for admission into the United States; all in violation of 8 U.S.C. § 1326, and punishable pursuant to 8 U.S.C. § 1326(b).” Id.

         On February 11, 2009, Defendant was served with a notice to appear for removal proceedings that did not contain the time and place of his removal hearing. (ECF No. 21-1.) On that same day, he signed a notice of rights and request for disposition in which he acknowledged that he was in the United States illegally, waived his rights to a hearing before the immigration court, expressed his desire to return to his country, and waived his rights to appeal his removal. (ECF No. 22-2.) An immigration judge signed an order of removal on February 20, 2009 (the “Removal Order”), and Defendant was removed from the United States on or about March 5, 2009. (ECF No. 21-3.) Thereafter, Defendant reentered the United States, and his order of removal was reinstated on March 8, 2012. On or about March 29, 2018, Defendant was again found in the United States, giving rise to the current illegal reentry charge. Defendant now moves to dismiss that charge, arguing that because the notice to appear he received on February 11, 2009, did not contain the time and date of his removal proceeding, it was deficient and therefore never vested the immigration court with jurisdiction over him, and as such, that court's order of removal was void and cannot serve as the basis for his current charge of illegal reentry.

         ANALYSIS

         Defendant asks the court to dismiss Count III of the indictment against him, which alleges that Defendant illegally re-entered the United States after he had been previously removed, in violation of 8 U.S.C. § 1326. (See ECF No. 1.) In order to prove that Defendant is guilty of this offense, the government must prove 1) that Defendant had been previously deported or removed and 2) that he was found in the United States without consent. See 8 U.S.C. § 1326(a). Defendant, relying on the Supreme Court's recent ruling in Pereira v. Sessions, 138 S.Ct. 2105 (2018), asserts that because the notice to appear he received on February 11, 2009 did not state the place and time for his removal proceedings, it was defective. He therefore asserts that the immigration court was not vested with jurisdiction over him and that the immigration court's Removal Order is therefore void and cannot, as a matter of law, be used to prove that he was previously removed in order to satisfy the first element of Count III.

         The Tenth Circuit has recognized that district courts may, in “‘limited circumstances, '” dismiss charges at the pretrial stage if it determines that “‘as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.'” United States v. Todd, 446 F.3d 1062, 1068 (10th Cir. 2006) (quoting United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994) (emphasis in original)). Such a dismissal is a “‘rare exception'” and can only be made if the “undisputed evidence shows that, as a matter of law, the Defendant could not have committed the offense for which he was indicted.” Id. (quoting Hall, 20 F.3d at 1088)). The court finds that Defendant's case constitutes such a rare exception.

         A. The notice to appear that Defendant received was not a notice to appear under 8 USC § 1229(a).

         Removal proceedings against an alien are initiated when he or she is served with a notice to appear. Under 8 U.S.C. § 1229(a), that notice to appear is required to specify, among other things, “[t]he time and place at which the proceedings will be held.” The notice to appear that Defendant received on February 11, 2009 did not contain that required information. Rather, Defendant's notice to appear simply stated that his proceeding would occur “on a date to be set” and “at a time to be set.” (ECF No. 21-1.) The notice to appear that Defendant received clearly did not comply with 8 U.S.C. § 1229(a).

         In Pereira v. Sessions, 138 S.Ct. 2105 (2018), the Supreme Court was presented with a nearly identical factual situation but was ultimately asked to resolve a slightly different question than that which Defendant raises here. Mr. Pereira was a Brazilian citizen living in the United States on an expired visa. Id. at 2112. Following a 2006 arrest, he was served with a notice to appear that, instead of providing the date and time of his removal proceeding, stated that his hearing would be held “at a date and time to be set in the future.” Id. Removal proceedings were subsequently initiated against him in 2013, and Mr. Pereira moved to cancel his removal under 8 U.S.C. § 1229b(b)(1)(A) because he had been continuously present in the United States for more than ten years. Id. In support of this argument, he asserted that the stop-time rule, which states that a period of continuous residence ends when an alien is served with a notice to appear, was not triggered because the notice he received did not contain information required by 8 U.S.C. § 1229(a)(1) and was therefore invalid. Id. Thus, the court was asked whether “a ‘notice to appear' that does not specify the ‘time and place at which the proceedings will be held,' as required by § 1229(a)(1)(G)(i), trigger[s] the stop-time rule.” Id. at 2113. The Court answered this question in the negative, ruling that “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a ‘notice to appear under section 1229(a),' and so does not trigger the stop-time rule.” Id. at 2114 (emphasis added).

         Although the question before the Supreme Court was “narrow, ” logic precludes limiting the Court's ultimate holding to apply only to the triggering of the stop time rule. The Court's recognition that a notice to appear that fails to include statutorily-required information is “not a ‘notice to appear under section 1229(a)'” should govern any instance or application where a notice to appear under section 1229(a) is required. Indeed, there is nothing about the Court's statement that “[i]f the three words ‘notice to appear' mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens ‘notice' of the information, i.e., the ‘time' and ‘place,' that would enable them ‘to appear' at the removal hearing in the first place, ” that suggests that proper notice is only required in order to trigger the stop time rule. Although the question before the Court in Pereira was narrow, the declarations, and ultimate holding, of the Court were not. Under Pereira, a notice to appear that does not include the date and time of the alien's removal proceeding is not an effective notice to appear under 1229(a). Defendant therefore never received a notice to appear as was required under 8 U.S.C. § 1229(a).[1]

         B. Because Defendant was not served with a valid notice to appear, the immigration court was never vested with subject matter jurisdiction over him.

         Defendant asserts that because he was not served with a notice to appear that complied with 8 U.S.C. § 1229(a), the immigration court was never vested with jurisdiction over him. Under 8 C.F.R. § 1003.14, “[j]urisdition vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court.” Before the court can determine whether the immigration court had jurisdiction over Defendant, it must answer two ...


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