UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-160-01-JL Opinion No. 2019 DNH 101 Eleazar Flores-Mora
MEMORANDUM ORDER
This order sets forth in greater detail the bases for the
court’s March 5, 2019 order denying defendant Eleazar Flores-
Mora’s motion for reconsideration. See, e.g., United States v.
Joubert, 980 F. Supp. 2d 53, 55 n.1 (D.N.H. 2014), aff’d, 778
F.3d 247 (1st Cir. 2015) (citing In re Mosley, 494 F.3d 1320,
1328 (11th Cir. 2007) (noting a district court’s authority to
later reduce its prior oral findings and rulings to writing)).
A jury found Flores-Mora guilty on one count of reentry
after deportation in violation of 8 U.S.C. § 1326.1 Before
trial, Flores-Mora moved to dismiss this charge through a
collateral attack on his prior removal order, arguing 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
1 Verdict (doc. no. 63). argued that his present charge of Reentry after Deportation
lacked the necessary predicate of a valid deportation.
The court denied Flores-Mora’s motion to dismiss the
indictment. See United States v. Flores-Mora, No. 18-CR-160-JL,
2018 WL 6050907 (D.N.H. Nov. 19, 2018). In doing so, it
concluded that Flores-Mora had not satisfied the requirements of
8 U.S.C. § 1326(d), as is generally necessary to collaterally
attack a removal predicate to a charge for unlawful reentry.
The court also declined 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. Flores-Mora moved for
reconsideration of that order, also before trial.2 The court
denied that motion,3 and now further explains its reasoning.
“[M]otions for reconsideration are appropriate only . . .
if the moving party presents newly discovered evidence, if there
has been an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a manifest
error of law or was clearly unjust.” United States v. Allen,
573 F.3d 42, 53 (1st Cir. 2009). They “are not to be used as ‘a
2 See Mot. for Reconsideration (doc. no. 34); Addendum (doc. no. 44). 3 See Order of Mar. 5, 2019.
2 vehicle for a party to undo its own procedural failures [or]
allow a party to advance arguments that could and should have
been presented to the district court prior to judgment.” Id.
(quoting Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir.
2006)).
Flores-Mora seeks reconsideration on three grounds, none of
which warrant it.
First, Flores-Mora attempts to relitigate the scope of
Pereira’s holding in favor of a broader interpretation.4 Flores-
Mora raised that argument, and his proposed construction of
Pereira’s holding, in his motion to dismiss.5 The court
disagreed and fully explained its analysis, which was grounded
in the Supreme Court’s own characterization of the Pereira
decision as “narrow.” See Flores-Mora, 2018 WL 6050907 at *3-4.
While a concurring opinion to an unpublished decision from the
Eleventh Circuit Court of Appeals offers an alternative
interpretation, and one that supports Flores-Mora’s view, see
Duran-Ortega v. U.S. Attorney General, No. 18-14563-D (11th Cir.
Nov. 29, 2018), it is not authority that binds this court. It
thus does not constitute a change in the law, nor does it
demonstrate that this court’s reasoned (and reasonable)
4 Mot. for Reconsideration (doc. no. 34) at 2-4. 5 See Mot. to Dismiss Indictment (doc. no. 15) at 3-4.
3 interpretation of Pereira constitutes a manifest error of law.
See Allen, 573 F.3d at 53.
Second, Flores-Mora challenges the court’s discussion of
the actual notice he received as “clearly erroneous.”6
Specifically, he argues that Pereira expressly rejected the
contention that § 1229’s notice requirement could be satisfied
by a subsequently-issued notice of hearing that included the
actual hearing date. To the extent that Pereira did so,
however, it did so explicitly in the context of the stop-time
rule. See Pereira, 138 S. Ct. at 2110, 2113-2114, 2118. And
the cases Flores-Mora cites as having been expressly rejected by
Pereira7 all addressed the same question: “Does service of a
document styled as a ‘notice to appear’ that fails to specify
‘the items listed’ in § 1229(a)(1) trigger the stop-time rule?”
Id. at 2113-14 (emphasis added).
In any event, this court’s decision -- specifically, that
an immigration court retains jurisdiction over removal
proceedings when the initial notice to appear lacked the time
and date of the removal hearing -- did not turn on whether
Flores-Mora received actual notice. See Flores-Mora, 2018 WL
6050907 at *3-4. Rather, it turned, first, on the court’s
6 Mot. for Reconsideration (doc. no. 34) at 4-5. 7 See Mot. for Reconsideration (doc. no. 34) at 4-5.
4 understanding of Pereira as limiting its application of its
interpretation of § 1229(a)(1) to the stop-time rule and,
second, on the fact that 8 C.F.R. § 1003.14(a), which vests
jurisdiction in an immigration court “when a charging document
is filed,” contains no equivalent to the stop-time rule’s
requirement that the notice to appear contain the information
set forth in § 1229(a)(1). Although the court’s decision
contemplated that actual, subsequent notice may cure a defect in
the initial notice, it did so only “assuming that the initial
notice to appear ran afoul of § 1229(a),” which, as discussed
supra, the notice in question did not.
Third, Flores-Mora observes that several other district
courts have concluded that the Supreme Court’s interpretation of
§ 1229(a) in Pereira divests the immigration courts of
jurisdiction over a removal action when the initial notice to
appear did not include the time, date, or place of the hearing.8
But none of these decisions constitutes binding authority on
this court. And while some district courts have, in the
intervening time, agreed with Flores-Mora, a large majority of
those Courts of Appeals that have considered the question have
agreed with this court’s interpretation of Pereira. See Ali v.
Barr, 924 F.3d 983, 986 (8th Cir. 2019) (joining the “the BIA
8 See Mot. for Reconsideration (doc. no. 34) at 5-6.
5 and a unanimous chorus of other circuits that have considered
and rejected” a broader interpretation) (citing In re Bermudez-
Cota, 27 I. & N. Dec. 441, 442–47 (BIA 2018); Banegas Gomez v.
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-160-01-JL Opinion No. 2019 DNH 101 Eleazar Flores-Mora
MEMORANDUM ORDER
This order sets forth in greater detail the bases for the
court’s March 5, 2019 order denying defendant Eleazar Flores-
Mora’s motion for reconsideration. See, e.g., United States v.
Joubert, 980 F. Supp. 2d 53, 55 n.1 (D.N.H. 2014), aff’d, 778
F.3d 247 (1st Cir. 2015) (citing In re Mosley, 494 F.3d 1320,
1328 (11th Cir. 2007) (noting a district court’s authority to
later reduce its prior oral findings and rulings to writing)).
A jury found Flores-Mora guilty on one count of reentry
after deportation in violation of 8 U.S.C. § 1326.1 Before
trial, Flores-Mora moved to dismiss this charge through a
collateral attack on his prior removal order, arguing 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
1 Verdict (doc. no. 63). argued that his present charge of Reentry after Deportation
lacked the necessary predicate of a valid deportation.
The court denied Flores-Mora’s motion to dismiss the
indictment. See United States v. Flores-Mora, No. 18-CR-160-JL,
2018 WL 6050907 (D.N.H. Nov. 19, 2018). In doing so, it
concluded that Flores-Mora had not satisfied the requirements of
8 U.S.C. § 1326(d), as is generally necessary to collaterally
attack a removal predicate to a charge for unlawful reentry.
The court also declined 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. Flores-Mora moved for
reconsideration of that order, also before trial.2 The court
denied that motion,3 and now further explains its reasoning.
“[M]otions for reconsideration are appropriate only . . .
if the moving party presents newly discovered evidence, if there
has been an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a manifest
error of law or was clearly unjust.” United States v. Allen,
573 F.3d 42, 53 (1st Cir. 2009). They “are not to be used as ‘a
2 See Mot. for Reconsideration (doc. no. 34); Addendum (doc. no. 44). 3 See Order of Mar. 5, 2019.
2 vehicle for a party to undo its own procedural failures [or]
allow a party to advance arguments that could and should have
been presented to the district court prior to judgment.” Id.
(quoting Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir.
2006)).
Flores-Mora seeks reconsideration on three grounds, none of
which warrant it.
First, Flores-Mora attempts to relitigate the scope of
Pereira’s holding in favor of a broader interpretation.4 Flores-
Mora raised that argument, and his proposed construction of
Pereira’s holding, in his motion to dismiss.5 The court
disagreed and fully explained its analysis, which was grounded
in the Supreme Court’s own characterization of the Pereira
decision as “narrow.” See Flores-Mora, 2018 WL 6050907 at *3-4.
While a concurring opinion to an unpublished decision from the
Eleventh Circuit Court of Appeals offers an alternative
interpretation, and one that supports Flores-Mora’s view, see
Duran-Ortega v. U.S. Attorney General, No. 18-14563-D (11th Cir.
Nov. 29, 2018), it is not authority that binds this court. It
thus does not constitute a change in the law, nor does it
demonstrate that this court’s reasoned (and reasonable)
4 Mot. for Reconsideration (doc. no. 34) at 2-4. 5 See Mot. to Dismiss Indictment (doc. no. 15) at 3-4.
3 interpretation of Pereira constitutes a manifest error of law.
See Allen, 573 F.3d at 53.
Second, Flores-Mora challenges the court’s discussion of
the actual notice he received as “clearly erroneous.”6
Specifically, he argues that Pereira expressly rejected the
contention that § 1229’s notice requirement could be satisfied
by a subsequently-issued notice of hearing that included the
actual hearing date. To the extent that Pereira did so,
however, it did so explicitly in the context of the stop-time
rule. See Pereira, 138 S. Ct. at 2110, 2113-2114, 2118. And
the cases Flores-Mora cites as having been expressly rejected by
Pereira7 all addressed the same question: “Does service of a
document styled as a ‘notice to appear’ that fails to specify
‘the items listed’ in § 1229(a)(1) trigger the stop-time rule?”
Id. at 2113-14 (emphasis added).
In any event, this court’s decision -- specifically, that
an immigration court retains jurisdiction over removal
proceedings when the initial notice to appear lacked the time
and date of the removal hearing -- did not turn on whether
Flores-Mora received actual notice. See Flores-Mora, 2018 WL
6050907 at *3-4. Rather, it turned, first, on the court’s
6 Mot. for Reconsideration (doc. no. 34) at 4-5. 7 See Mot. for Reconsideration (doc. no. 34) at 4-5.
4 understanding of Pereira as limiting its application of its
interpretation of § 1229(a)(1) to the stop-time rule and,
second, on the fact that 8 C.F.R. § 1003.14(a), which vests
jurisdiction in an immigration court “when a charging document
is filed,” contains no equivalent to the stop-time rule’s
requirement that the notice to appear contain the information
set forth in § 1229(a)(1). Although the court’s decision
contemplated that actual, subsequent notice may cure a defect in
the initial notice, it did so only “assuming that the initial
notice to appear ran afoul of § 1229(a),” which, as discussed
supra, the notice in question did not.
Third, Flores-Mora observes that several other district
courts have concluded that the Supreme Court’s interpretation of
§ 1229(a) in Pereira divests the immigration courts of
jurisdiction over a removal action when the initial notice to
appear did not include the time, date, or place of the hearing.8
But none of these decisions constitutes binding authority on
this court. And while some district courts have, in the
intervening time, agreed with Flores-Mora, a large majority of
those Courts of Appeals that have considered the question have
agreed with this court’s interpretation of Pereira. See Ali v.
Barr, 924 F.3d 983, 986 (8th Cir. 2019) (joining the “the BIA
8 See Mot. for Reconsideration (doc. no. 34) at 5-6.
5 and a unanimous chorus of other circuits that have considered
and rejected” a broader interpretation) (citing In re Bermudez-
Cota, 27 I. & N. Dec. 441, 442–47 (BIA 2018); Banegas Gomez v.
Barr, 922 F.3d 101, 109–12 (2d Cir. 2019); Soriano-Mendosa v.
Barr, No. 18-9535, 2019 WL 1531499, at *4 (10th Cir. Apr. 9,
2019) (unpublished); Santos-Santos v. Barr, 917 F.3d 486, 489–91
(6th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62
(9th Cir. 2019)). But cf. Ortiz Santiago v. Barr, 924 F.3d 956,
961-64 (adopting a broader interpretation of Pereira, but
concluding that the statutory time, place, and date requirement
is a nonjurisdictional claim-processing rule). This additional
authority therefore does not warrant reconsideration.
Finally, Flores-Mora argues in an addendum to his motion
for reconsideration that due-process failures may excuse a
defendant mounting a collateral attack on a removal order from
demonstrating exhaustion of administrative remedies and denial
of the opportunity for judicial review.9 See 8 U.S.C. § 1326(d).
Specifically, he argues that the Immigration Court’s lack of
subject-matter jurisdiction to issue his removal order, under
his interpretation of Pereira, denied him due process. Flores-
Mora discussed the requirements of § 1326(d), albeit
9 See Addendum (doc. no. 44).
6 tangentially, in his motion to dismiss the indictment.10 He
could have, but failed, to raise the issue in his original
motion, thus waiving it. See Allen, 573 F.3d at 53.
Even were it not waived, Flores-Mora’s new argument would
still fail. Ultimately, his argument turns on whether the
Immigration Court had subject-matter jurisdiction to issue
Flores-Mora’s predicate removal order. And because the court
declines to reconsider its reading of Pereira, and thus declines
to conclude that the Immigration Court lacked such jurisdiction,
no due process violation excused compliance with § 1326(d) in
this circumstance.
Flores-Mora’s motion for reconsideration11 of this court’s
order denying his motion to dismiss his indictment is DENIED.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: June 26, 2019
cc: Helen W. Fitzgibbon, AUSA Jeffrey S. Levin, Esq.
10 See Mot. to Dismiss Indictment (doc. no. 15) at 6. 11 Document no. 34.