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United States v. Rivas-Gomez

United States District Court, D. Utah, Central Division

July 3, 2019




         Before the court is Mr. Rivas-Gomez's Motion to Dismiss, (ECF No. 16). For the reasons stated below, the court GRANTS the motion.


         Mr. Rivas-Gomez is a citizen of Mexico. (ECF No. 16-1 at 5.) In June of 1997, he entered the United States without authorization. (See ECF No. 16-1 at 1.) On or around June 6, 2002, Mr. Rivas-Gomez received a document titled “Notice to Appear. (See ECF No. 16-1 at 5.) This document alleged that Mr. Rivas-Gomez (1) was not citizen or national of the United States; (2) was a native and citizen of Mexico; (3) had entered the United States at an unknown date in June, 1997; (4) without being admitted or paroled after inspection by an Immigration Officer. (ECF No. 16-1 at 5.) The document advised Mr. Rivas-Gomez that he was required to appear before an immigration judge at a “date, time[, ] and place to be set.” (ECF No. 16-1 at 5.) According to the Government, Mr. Rivas-Gomez was then “detained in ICE custody pending his hearing.” (ECF No. 20 at 2.)

         On or around June 13, 2002, Mr. Rivas-Gomez received a document titled a “Notice of Hearing in Removal Proceedings.” (ECF No. 23-1 at 2.) This document provided that “the above captioned case has been scheduled for a MASTER hearing before the Immigration Court on Jul[y] 15, 2002 at 8:30 a.m. at ” a courtroom in Lancaster, California. (ECF No. 23-1 at 2.)

         It appears that on July 15, 2002, an immigration court ordered Mr. Rivas-Gomez removed. (ECF No. 16-1 at 3.) The next day, it appears that he was taken to the San Ysidro port of entry and was deported “afoot.” (ECF No. 16-1 at 2.)

         On December 19, 2018, the Government filed an Information charging Mr. Rivas-Gomez with a single count of illegal reentry in violation of 8 U.S.C. § 1326. (ECF No. 1.) Mr. Rivas-Gomez represents that this charge is based on the immigration court's 2002 removal order. (See ECF No. 16 at 2.) The Government does not dispute this.

         On May 27, 2019, Mr. Rivas-Gomez filed a Motion to Dismiss the Indictment, arguing that the single charge of illegal reentry “should be dismissed because the Notice to Appear did not include all of the information necessary to confer jurisdiction on the immigration court.” (ECF No. 16 at 2 (citing Pereira v. Sessions, 138 S.Ct. 2105 (2018); United States v. Zuniga-Hernandez, 1:18-cr-53, 2019 WL 2161551 (D. Utah May 17, 2019).)

         In Zuniga-Hernandez, this court held that “under a plain reading of 8 C.F.R. § 1003.13, 8 C.F.R. § 1003.14, and 8 U.S.C. § 1229(a), a notice to appear that provides the date and time of an alien's removal proceeding is required in order to vest an immigration court with subject matter jurisdiction over that alien.” Zuniga-Hernandez, 2019 WL 2161551 at *4. The court also held that if an immigration court lacks jurisdiction, any removal order it enters is void. See id. at *5. The court further held that if a removal order is void, an alien-defendant is not required to satisfy 8 USC § 1326(d) in order to challenge its validity. See id. At the time of this writing, the Tenth Circuit has issued no binding opinion precluding the court's conclusions in Zuniga-Hernandez.


         In response to Mr. Rivas-Gomez's Motion, the Government makes three primary arguments. The court addresses each in turn. I. 1326(d)

         First, the Government argues that “because [Mr. Rivas-Gomez] fails to meet his burden under § 1326(d) his collateral attack of the removal order should be rejected.” (ECF No. 20 at 3.) In support of this argument, the Government relies most heavily on an unpublished Tenth Circuit decision, Garcia-Galvan. The panel in Garcia-Galvan held that an alien-defendant challenging a prior removal order “even if based on subject-matter jurisdiction, ” “must satisfy § 1326(d)'s conditions” because the “statute does not exempt subject-matter jurisdiction challenges from this requirement . . . .” United States v. Garcia-Galvan, No. 18-6198, 2019 WL 2513637, at *3 (10th Cir. June 18, 2019) (citing United States v. Millan-Torres, 139 Fed.Appx. 105, 109 (10th Cir. 2005) (another unpublished decision) as “expressing doubt about the notion of a ‘broader exception for all collateral attacks based on jurisdictional failings,' noting that ‘no federal court has yet adopted that view.'”)). As an unpublished decision, Garcia-Galvan is not binding on this court. The court does not find its reasoning persuasive and declines to adopt it.

         This court has already held that if an “immigration court did not have jurisdiction over [an alien-defendant] the [underlying] Removal Order is void, and [the alien-defendant] is free to challenge that court's order at any point.” United States v. Zuniga-Hernandez, No. 1:18-CR-53, 2019 WL 2161551, at *5 (D. Utah May 17, 2019). The court sees no reason to depart from its prior holding. It is well established that defects relating to subject matter jurisdiction may be raised at anytime. If the immigration court lacked subject matter jurisdiction to enter the removal order, it was void from the outset. As this court previously held, “8 USC § 1326(d) does not control when the” removal order at issue “was entered by a court that did not have subject matter jurisdiction over the challenger.” Zuniga-Hernandez, 2019 WL 2161551 at *5. The question for this court is whether the immigration court's order was void.

         II. The Government Argues that the Immigration ...

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