United States of America v. Isaac Balbino Dos Santos

2020 DNH 047

• Court: District Court, D. New Hampshire
• Decided: March 25, 2020
• Docket: 19-cr-149-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 19-cr-149-LM Opinion No. 2020 DNH 047 Isaac Balbino Dos Santos

O R D E R

The defendant, Isaac Balbino Dos Santos, is charged with

one count of reentry after Deportation in violation of 8 U.S.C.

§ 1326(a). Dos Santos moves to dismiss the indictment under 8

U.S.C. § 1326(d) and the Due Process Clause of the Fifth

Amendment to the Constitution. The government objects.

STANDARD OF REVIEW

Federal Rule of Criminal Procedure 12(b)(1) provides that

“[a] party may raise by pretrial motion any defense, objection,

or request that the court can determine without a trial on the

merits.” Fed. R. Crim. P. 12(b)(1). When considering a motion

to dismiss under Rule 12(b), the court must accept the factual

allegations in the indictment as true. See United States v.

Guerrier, 669 F.3d 1, 4 (1st Cir. 2011); United States v. Bohai

Trading Co., 45 F.3d 577, 578 n.1 (1st Cir. 1995). BACKGROUND

In July 2004, federal authorities served Dos Santos with a

Notice to Appear (NTA) ordering him to appear before an

immigration judge in Texas on “a date to be set” at “a time to

be set.” Doc. no. 24-1. On August 5, he was served with a

notice of hearing which directed him to appear in immigration

court on August 13, 2004, at 8:30 a.m. His hearing was

subsequently rescheduled for August 17, 2004, at 8:30 a.m. He

appeared pro se and the judge ordered Dos Santos removed and

deported.

In May 2019, Dos Santos was found in Nashua, New Hampshire.

In July 2019, he was indicted for reentry after Deportation in

violation of 8 U.S.C. § 1326(a).

DISCUSSION

Dos Santos moves to dismiss the indictment on the grounds

that the NTA was deficient because it did not contain the time

and place of the hearing. He asserts that the lack of this

information in the NTA does not comply with the requirements of

the Immigration and Naturalization Act; therefore, the

immigration court had no jurisdiction to deport Dos Santos in

2004. He concedes that First Circuit precedent forecloses this

argument, see Goncalves Pontes v. Barr, 938 F.3d 1, 6-7 (1st

2 Cir. 2019), but raises the claim to preserve it for possible

future review.

In Goncalves Pontes, the First Circuit held that an

immigration court has jurisdiction to deport a defendant even if

the NTA does not include the date and time of the contemplated

removal hearing. Id. The court recognized that the section of

the Immigration and Nationality Act dealing with notice to

aliens of removal hearings states that the “time and place” for

immigration proceedings should be specified in the NTA, see 8

U.S.C. § 1229(a)(1)(G)(i). Id. at 4-5. However, the court

concluded that this statute did not control whether an NTA was

sufficient to give immigration court jurisdiction because

jurisdictional questions were controlled by a different set of

regulations. Id. These regulations, which were lawfully

formulated by the Attorney General, do not require that the time

and place of the removal hearing be included in the NTA but

state:

. . . the time, place and date of the initial removal hearing, [shall be provided in the NTA] where practicable. If that information is 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.

8 C.F.R. § 1003.18. The First Circuit noted that there is “some

common sense discomfort in adopting the position that a single

3 document labeled ‘Notice to Appear’ must comply with a certain

set of requirements for some purposes . . . but with a different

set of requirements for others.” Goncalves Pontes, 938 F.3d at

7. However, the court concluded that its task was not to ask

whether the Attorney General had chosen the “wisest or least

convoluted course” in implementing the Immigration and

Nationality Act but whether he acted within the scope of his

authority, which the court concluded he had. Id.

In so holding, the First Circuit joined the clear majority

of other circuits which have considered this issue. See Pierre-

Paul v. Barr, 930 F.3d 684, 689-90 (5th Cir. 2019); United

States v. Cortez, 930 F.3d 350, 363 (4th Cir. 2019), as amended

(July 19, 2019); Nkomo v. Att'y Gen., 930 F.3d 129, 133 (3d Cir.

2019); Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Banegas

Gomez v. Barr, 922 F.3d 101, 110 (2d Cir. 2019); Soriano-Mendosa

v. Barr, 768 F. App'x 796, 802 (10th Cir. 2019); Karingithi v.

Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019); Hernandez-Perez

v. Whitaker, 911 F.3d 305, 314-15 (6th Cir. 2018). But see

Ortiz-Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019), reh'g

denied (July 18, 2019) (rejecting reasoning followed by First

Circuit but agreeing that immigration court had jurisdiction

even if NTA did not include date and time information).

4 Furthermore, a noncitizen facing an illegal reentry order

may not challenge the validity of the deportation order without

showing that:

(1) the alien 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). This section was “intended to ensure that

minimum due process is followed in the original deportation

proceeding while preventing wholesale, time-consuming attack on

underlying deportation orders.” United States v. Wilson, 316

F.3d 506, 514 n.1 (4th Cir. 2003) (Motz., J., concurring in the

judgment (quoting 140 cong. Rec. S.14544 (daily ed. Oct. 6,

1994)), overruled on other grounds by Lopez v. Gonzales, 549

U.S. 47 (2006).

Dos Santos argues that he need not meet these prerequisites

because he is contesting his deportation order on jurisdictional

grounds not encompassed by the text of § 1326(d). His

jurisdictional argument fails for the reasons given by the First

Circuit in Goncalves Pontes, 938 F.3d at 6-7. Therefore, Dos

Santos must fulfill the requirements of 8 U.S.C. § 1326(d) to

challenge his previous removal. He has not done so.

5 CONCLUSION

For the foregoing reasons, Dos Santos’s motion to dismiss

the indictment (doc. no. 24) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

March 25, 2020

cc: Anna Dronzek, Esq. Dorothy E. Graham, Esquire U.S. Probation U.S. Marshal