United States of America v. Eleazar Flores-Mora

2018 DNH 228

• Court: District Court, D. New Hampshire
• Decided: November 19, 2018
• Docket: 18-cr-160-01-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 18-cr-160-JL Opinion No. 2018 DNH 228 Eleazar Flores-Mora

MEMORANDUM ORDER

Resolution of this motion to dismiss a criminal indictment

turns on whether the Immigration Court had jurisdiction to order

the defendant removed. The grand jury charged defendant Eleazar

Flores-Mora with one count of reentry after deportation in

violation of 8 U.S.C. § 1326.1 Flores-Mora, who has previously

been deported from the United States, seeks dismissal of this

charge through a collateral attack on his removal order.

Specifically, he argues that, under the Supreme Court’s recent

decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the

Immigration Court that ordered his removal in 2013 lacked

subject-matter jurisdiction to issue his final removal order.

As a result of that order’s infirmity, he argues that his

present charge of reentry after deportation lacks the necessary

predicate of a valid deportation.

1 Indictment (doc. no. 11). To collaterally attack a removal predicate to a charge for

illegal reentry, a defendant must generally satisfy the

requirements of 8 U.S.C. § 1326(d). Flores-Mora has not done so

here. Nor is the court inclined to extend Pereira’s narrow

holding to divest an immigration court of jurisdiction over

removal proceedings where the initial notice to appear lacked

the time and date of the removal hearing, especially where a

subsequent notice conveyed that information to the defendant

such that he appeared. Accordingly, the court denies Flores-

Mora’s motion to dismiss his indictment.

Background

Flores-Mora, a citizen of Mexico, first entered the United

States in 1995. He never obtained legal immigration status.

Immigration and Customs Enforcement (ICE) served him with a

Notice to Appear for removal proceedings in September 2009,

which charged him with removability for entering the United

States without inspection.2 The notice listed the date and time

of his removal hearings as “to be set.”3 Flores-Mora signed the

Notice to Appear, thereby acknowledging his receipt and

2 Gov’t Ex. 1 (doc. no. 19-1). 3 Id. at 18R248-19.

2 understanding of the document,4 and was then released on his own

recognizance.

On February 4, 2010, he was served with a hearing notice,

which set the time and date for his removal hearing for June 24

2010 at 9:00am.5 Flores-Mora appeared at the hearing. He

received notices of four subsequent removal hearings6 and

appeared at three of them. He failed to appear at a hearing

scheduled for May 19, 2011, apparently for medical reasons,

though his counsel was present.7 The Immigration Judge ordered

Flores-Mora removed in absentia. Flores-Mora never moved to

reopen his proceedings nor appealed the decision.

On February 19, 2013, ICE arrested Flores-Mora in

Manchester, New Hampshire. He was deported to Mexico. Flores-

Mora returned to the United States at some point thereafter and

ICE arrested him in Manchester on August 28, 2018, leading to

his present indictment for illegal reentry.

Analysis

Generally, to successfully attack a deportation order

underlying a charge of illegal reentry, the defendant must

4 Id. at 18R248-20. 5 Gov’t Ex. 2 (doc. no. 19-2) at 6. 6 Id. at 2-5. 7 Id. at 1; Obj. to Mot. to Dismiss (doc. no. 19) at 2-3.

3 demonstrate that “(1) [he] exhausted any administrative remedies

that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued

improperly deprived the alien of the opportunity for judicial

review; and (3) the entry of the order was fundamentally

unfair.” 8 U.S.C. § 1326(d). Flores-Mora has not satisfied

these requirements. Nor does he argue that he has. Rather, he

contends that the Immigration Court lacked subject-matter

jurisdiction to issue that order, rendering his final

deportation order void. Concluding that the Immigration Court

had subject-matter jurisdiction, the court denies his motion to

dismiss.

A. Immigration Court’s subject-matter jurisdiction

Flores-Mora argues that the Immigration Court lacked

subject-matter jurisdiction to issue his removal order because

the initial notice to appear before it failed to designate a

specific time or place for his appearance.8 He derives this

argument from the definition of “notice to appear” in 8 U.S.C.

§ 1229(a)(1), regulations promulgated under that statute, and a

broad interpretation of the Supreme Court’s recent decision in

Pereira v. Sessions, 138 S. Ct. 2105 (2018). The court declines

to adopt so broad an interpretation of that decision and

8 Mot. to Dismiss (doc. no. 15) at 3-7.

4 concludes that lack of the time and place in Flores-Mora’s

initial notice to appear did not divest the Immigration Court of

subject-matter jurisdiction to issue his removal order.

Under the applicable regulations, “[j]urisdiction vests,

and proceedings before an Immigration Judge commence, when a

charging document is filed with the Immigration Court by the

Service.” 8 C.F.R. § 1003.14(a). A “charging document” is “the

written instrument which initiates a proceeding before an

Immigration Judge.” Id. § 1003.13. A “Notice to Appear” is one

such document. Id.

A related statute provides that written notice, called a

“notice to appear,” must be given to an alien in removal

proceedings, and that such written notice must specify, among

other things, “[t]he time and place at which the proceedings

will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). “[I]n the case of

any change or postponement in the time and place of such

proceedings . . . a written notice shall be given in person to

the alien . . . specifying,” among other things, “the new time

or place of the proceedings.” Id. § 1229(a)(2)(A)(i).

Pursuant to regulations promulgated under 8 U.S.C.

§ 1228(a), allowing that “the Service shall provide in the

Notice to Appear, the time, place and date of the initial

removal hearing, where practicable,” 8 C.F.R. § 1003.18

(emphasis added), Flores-Mora’s initial Notice to Appear did not

5 include the time and date of the hearing. Instead, it indicated

that those were “to be set.”9 The regulations further provided

that, if the time and date were “not contained in the Notice to

Appear, the Immigration Court shall be responsible for

scheduling the initial removal hearing and providing notice to

the government and the alien of the time, place, and date of

hearing.”10 8 C.F.R. § 1003.18. It did so in Flores-Mora’s

case, setting five subsequent hearings and providing Flores-Mora

notice, including the date and time, of each one.11 Flores-Mora

attended four of those hearings; his counsel attended the last.

The Immigration Judge subsequently ordered his removal.

In Pereira, the Supreme Court interpreted § 1229(a) in the

context of the stop-time rule, holding 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.” 138 S. Ct. at 2113-14. Under that rule, “any period of

9 Gov’t Ex. 1 (doc. no. 19-1) at 18R248-19. 10At oral argument, the defendant suggested that Pereira explicitly rejected this regulation. The court does not read Pereira to do so, except perhaps as to its application in the context of the stop-time rule. Even if Pereira rejected it, explicitly or implicitly, the Court in no way indicated that the lack of a time or date on the initial Notice to Appear divested the Immigration Court of jurisdiction as provided by 8 C.F.R. § 1003.14(a). 11 Gov’t Ex. 2 (doc. no. 19-2) at 2-6.

6 . . . continuous physical presence in the United States shall be

deemed to end . . . when the alien is served a notice to appear

under section 1229(a) of this title.” Id. § 1229b(d)(1)(A).

This is important to certain forms of discretionary relief that

may be afforded to nonpermanent residents who have, among other

requirements, “been physically present in the United States for

a continuous period of not less than 10 years immediately

preceding the date of [an] application” for cancellation of

removal. 8 U.S.C. § 1229b(b)(1)(A).

Invoking Pereira, Flores-Mora argues that his initial

Notice to Appear was not a “Notice to Appear” for purposes of

8 C.F.R. § 1003.13, and thus could not constitute a “charging

document” under 8 C.F.R. § 1003.14(a), because it did not

indicate the time and date of the hearing, as required by

8 U.S.C. § 1229(a) under the interpretation in Pereira. And, he

argues, because no “charging document” was filed with the

Immigration Court, jurisdiction never vested in that court. His

2013 removal order thus lacked the force of law, he concludes,

and therefore cannot serve as a predicate removal for purposes

of 8 U.S.C. § 1326.

A few courts have adopted this interpretation of Pereira,

granting motions to dismiss on this basis. E.g., United States

v. Valladares, No. 17-cr-156-SS, slip op. at 12-13 (Oct. 30,

2018); United States v. Virgen-Ponce, 320 F. Supp. 3d 1164, 1166

7 (E.D. Wash. 2018); United States v. Zapata-Cortinas, No. SA-18-

CR-00343-OLG, 2018 WL 4770868, at *3-4 (W.D. Tex. Oct. 2, 2018);

United States v. Pedroza-Rocha, No. EP-18-cr-1286-DB, 2018 U.S.

Dist. LEXIS 178633, at *9-10 (W.D. Tex. Sep. 21, 2018).

The majority, however, have rejected it--especially where,

unlike Pereira but like this case, the defendant did receive

notice of the time and date of his hearing and appeared. E.g.,

United States v. Mendoza-Sanchez, No. 17-CR-189-JD, 2018 WL

5816346, at *3 (D.N.H. Nov. 5, 2018) (DiClerico, J.); Romero-

Colindres, 2018 WL 5084877, at *2; United States v. Larios-

Ajualat, No. 18-10076-JWB, 2018 WL 5013522, at *6-7 (D. Kan.

Oct. 15, 2018); Lira-Ramirez, 2018 WL 5013523, at *6-7; United

States v. Rosa Fernandez, No. 7:18-CR-11-BO-1, 2018 WL 4976804,

at *1 (E.D.N.C. Oct. 15, 2018); United States v. Munoz-Alvarado,

No. CR-18-171-C, 2018 WL 4762134, at *1 (W.D. Okla. Oct. 2,

2018); United States v. Ibarra-Rodriguez, No. CR-18-190-M, 2018

WL 4608503, at *2-3 (W.D. Okla. Sept. 25, 2018); United States

v. Morales-Hernandez, No. CR1800365TUCRCCJR, 2018 WL 4492377 (D.

Ariz. Sept. 18, 2018).

This court is likewise disinclined to extend Pereira to

this context. First, nowhere in Pereira did the Supreme Court

suggest that its interpretation of § 1229(a) vis-à-vis the stop-

time rule acted to strip immigration courts of jurisdiction over

removal proceedings. To the contrary, the Court emphasized the

8 narrow scope of its ruling. See Pereira, 138 S. Ct. at 2110

(describing “[t]he narrow question in this case” as whether a

notice to appear that “fails to specify either the time or place

of the removal proceedings . . . trigger[s] the stop-time

rule”); id. at 2113 (describing the question addressed as “much

narrower” than the question presented by the appellant).

Second, unlike the stop-time rule, neither the

jurisdiction-vesting provision of 8 C.F.R. § 1003.14(a) nor the

definition of charging document under § 1003.13 expressly

requires that a notice to appear contain the information set

forth in § 1229(a). Nor do they cross-reference § 1229(a) when

defining the notice to appear, as the stop-time rule does.

Finally, even assuming that the initial notice to appear

ran afoul of § 1229(a) in a manner that precluded the

Immigration Court from exercising jurisdiction, the subsequent

notice of hearing setting a date and time cured any defect in

the initial notice to appear. See Rosa Fernandez, 2018 WL

4976804, at *1. While the analogy is not perfect, it is

instructive that a federal district court may lack subject-

matter jurisdiction under 28 U.S.C. § 1332 (diversity) where the

plaintiff failed to allege in its complaint the citizenship of

the parties or an amount in controversy over § 75,000. See

Milford-Bennington R. Co. v. Pan Am Railways, Inc., 695 F.3d

175, 178 (1st Cir. 2012) (plaintiff has burden of pleading facts

9 in support of diversity jurisdiction). The court may, however,

exercise jurisdiction over such a case after the plaintiff

amends the complaint to include the necessary jurisdictional

facts. That is to say, the lack of jurisdictional information

is not in and of itself fatal to the court’s jurisdiction; just

as it may be cured in the civil context, the subsequent written

notice informing Flores-Mora of the time and date of his

proceedings cured any defect in the original Notice to Appear.

B. Section 1326(d) requirements

Having concluded that the lack of time or date on the

original notice to appear did not deprive the Immigration Court

of subject-matter jurisdiction to issue a removal order, the

court turns to whether Flores-Mora has satisfied the

requirements for mounting a collateral challenge to such an

order under 8 U.S.C. § 1326(d). He has not.

1. Exhaustion of administrative remedies

First, Flores-Mora has not demonstrated -- indeed, has not

attempted to demonstrate -- that he exhausted his administrative

remedies. See 8 U.S.C. § 1326(d)(1). Appeal of a removal order

“to the Board of Immigration Appeals (BIA) is such an

administrative remedy, and . . . failure to take such an appeal

constitutes a failure of exhaustion.” United States v. DeLeon,

444 F.3d 41, 50 (1st Cir. 2006).

10 Flores-Mora does not claim that he appealed his removal

order to the BIA. He argues, instead, that his underlying

removal order was unlawful because the Immigration Court lacked

jurisdiction to issue it.12 Some courts have acknowledged that

“exhaustion is not required . . . where the administrative

proceeding would be void.” Shawnee Coal Co. v. Andrus, 661 F.2d

1083, 1093 (6th Cir. 1981). Cf. United States v. Romero-

Colindres, No. 1:18-CR-00415, 2018 WL 5084877, at *2 (N.D. Ohio

Oct. 18, 2018) (addressing this argument in the § 1326(d)

context). As explained supra Part II.A, however, Flores-Mora’s

initial Notice to Appear did not deprive the Immigration Court

of jurisdiction, rendering this argument moot.

C. Deprivation of opportunity for judicial review

Nor has Flores-Mora must argued that his deportation

proceedings “deprived [him] of the opportunity for judicial

review.” 8 U.S.C. § 1326(d)(2). An Immigration Judge’s

“failure to adequately explain the availability of relief,

resulting in an uninformed waiver of the right to appeal, [is]

an error that deprive[s] [defendants] of their opportunity for

judicial review.” United States v. Luna, 436 F.3d 312, 319 (1st

Cir. 2006) (citing United States v. Mendoza-Lopez, 481 U.S. 828,

842 (1987)). Nothing in the record suggests a failure of that

12 Mot. to Dismiss (doc. no. 15) at 3-7.

11 nature--or any other deprivation of an opportunity for judicial

review--in Flores-Mora’s case.

D. Fundamental fairness

Finally, Flores-Mora has not demonstrated that “the entry

of [his removal] order was fundamentally unfair.” 8 U.S.C.

§ 1326(d)(3). To satisfy this requirement, the defendant must

demonstrate both “a procedural error and prejudice.” Luna, 436

F.3d at 319. Specifically, he must “show prejudice in the sense

of a reasonable likelihood that the result would have been

different if the error in the deportation proceeding had not

occurred.” United States v. Loaisiga, 104 F.3d 484, 487 (1st

Cir. 1997).

Flores-Mora received notice of the hearings and attended

all but the last, which his counsel attended. He thus cannot

demonstrate the prejudice required to satisfy that requirement--

that “the result would have been different if the error in the

deportation proceeding had not occurred.” Loaisiga, 104 F.3d

484, 487 (1st Cir. 1997).

Conclusion

The Immigration Court had jurisdiction to issue Flores-

Mora’s removal order and he has not satisfied the requirements

set forth in 8 U.S.C. § 1326(d) for mounting a collateral attack

12 on that order. His motion to dismiss his indictment13 is,

therefore, DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: November 19, 2018

cc: Helen W. Fitzgibbon, AUSA Jeffrey R. Levin, Esq.

13 Doc. no. 15.