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United States v. Ramos-Delcid

United States District Court, W.D. Virginia, Charlottesville Division

November 7, 2018

United States of America,
Mainor Alberto Ramos-Delcid, Defendant



         This matter is before the Court upon Defendant Mainor Alberto Ramos-Delcid's motion to dismiss the indictment. (Dkt. 23). The indictment contains one count, charging Ramos-Delcid with illegally reentering the United States in violation of 8 U.S.C. § 1326. (Dkt. 14). Ramos-Delcid argues that the indictment should be dismissed because the notice to appear issued to him following his apprehension by Border Patrol failed to specify the time and date of the removal proceedings against him, as required by 8 U.S.C. § 1229(a)(1) and Pereira v. Sessions, 138 S.Ct. 2105 (2018). Ramos-Delcid advances two specific attacks on the indictment. First, Ramos-Delcid argues that without a valid notice to appear, subject matter jurisdiction never vested in the immigration court, rendering that court's deportation order a legal nullity. Second, Ramos-Delcid launches a collateral attack against his deportation order under 8 U.S.C. § 1326(d), arguing that his initial deportation proceedings lacked fundamental fairness.

         Although conceding that the notice to appear issued to Ramos-Delcid was defective under § 1229(a)(1) and Pereira, the Government argues that the indictment should be upheld for two reasons. First, the Government asserts that federal regulations, not § 1229(a)(1) or Pereira, control when and how subject matter jurisdiction vests in an immigration court, and these regulations do not require that a notice to appear list the time and place of any removal proceeding. Second, the Government contends that Ramos-Delcid's collateral attack under § 1326(d) fails because Ramos-Delcid cannot show that he exhausted administrative remedies, that he was deprived of an opportunity for judicial review, or that his deportation proceedings were fundamentally unfair.

         The Government is correct that the immigration court had subject matter jurisdiction over Ramos-Delcid's deportation proceedings under the governing federal regulations. However, Ramos-Delcid's collateral attack on the underlying deportation order under § 1326(d) prevails because the notice to appear he received was defective under Pereira and § 1229(a)(1), no evidence establishes that Ramos-Delcid ever received actual notice of the time and date of any hearing in the deportation proceedings, the immigration court issued a deportation order with Ramos-Delcid in abstentia, and Ramos-Delcid can show a reasonable probability that, but for these deficiencies, he would not have been deported. Accordingly, the indictment has been dismissed with prejudice and the case stricken from the Court's active docket. (Dkt. 31).


         A. Factual Background

         On September 4, 2018, Mainor Alberto Ramos-Delcid was indicted on one count of illegal reentry into the United States in violation of 8 U.S.C. § 1326. (Dkt. 14). Ramos-Delcid, allegedly a citizen of Honduras, was initially apprehended by Border Patrol on July 6, 2002. Before releasing Ramos-Delcid in Charlottesville, Virginia, immigration officials served him with a notice to appear on July 11, 2002. (Dkt. 23-2). This notice to appear ordered Ramos-Delcid to appear in San Antonio, Texas on “a date to be set” and at “a time to be set” to “show why [he] should not be removed from the United States.” (Id.). The notice nowhere specified the time or date when Ramos-Delcid should appear but warned that, if he failed to appear, “a removal order may be made by the immigration judge in your absence.” (Id. at 2).[1] Moreover, the notice to appear erroneously listed Ramos-Delcid's city, state, and zip code as “Charlsville, VA 24175” rather than “Charlottesville, VA 22901.” (Dkt. 23-2 at 1; Dkt. 28 at 2). On July 12, 2002-the day after he received the notice to appear but before his release-Ramos-Delcid listed the correct Charlottesville, Virginia address on his bond paperwork. (Dkt. 23-6).

         On September 26, 2002, the immigration court attempted to mail Ramos-Delcid a “notice of hearing” specifying the date, time, and location of his “master hearing”[2] but this notice was mailed to the erroneous “Charlsville, VA 24175” address listed on the notice to appear issued in person to Ramos-Delcid. (Dkt. 29 at 3). This notice again warned Ramos-Delcid that failure to attend the “master hearing” could result in the issuance of a deportation order against him in abstentia. (Id.). On November 4, 2002, an immigration judge in San Antonio, Texas issued a deportation order against Ramos-Delcid with Ramos-Delcid in abstentia. (Dkt. 23-1). Ramos-Delcid has allegedly been removed to Honduras twice on the basis of this November 4, 2002 deportation order, first in July 2011 and again in August 2011. (Dkt. 27 at 3). According to the indictment, (dkt. 14), immigration officials encountered Ramos-Delcid in the United States again on August 3, 2018, and the illegal reentry charge at issue here followed.

         B. Pereira v. Sessions (2018)

         In Pereira v. Sessions, 138 S.Ct. 2105 (2018), the Supreme Court considered whether “notices to appear” in deportation proceedings that do not specify the time and place of removal proceedings against a noncitizen qualify as “notices to appear” under 8 U.S.C. § 1229(a)(1) for purposes of the “stop-time rule” under 8 U.S.C. § 1229b(d).[3] The Court held that such notices to appear are not true “notices to appear” as defined by § 1229(a)(1). Pereira, 138 S.Ct. at 2113- 14. The Court's holding rested primarily on the plain text of § 1229(a)(1), which requires that a “notice to appear” be given to noncitizens facing removal proceedings, and defines a “notice to appear” as “written notice” specifying certain information, including the “time and place at which the proceedings will be held.” Id. The Court noted that “common sense compels the conclusion” that if the “three words ‘notice to appear' mean anything . . . 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.” Id. at 2115. The parties now dispute how Pereira applies in contexts beyond application of the stop-time rule, namely in illegal reentry prosecutions where, as here, the underlying notice to appear provided to the noncitizen and filed with the immigration court fails to specify the time and date of the removal proceedings.


         Criminal defendants may allege defects in indictments in pretrial motions, including “(i) joining two or more offenses in the same count (duplicity); (ii) charging the same offense in more than one count (multiplicity); (iii) lack of specificity; (iv) improper joinder; and (v) failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B). An indictment must contain a “plain, concise and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). See also United States v. Daniels, 873 F.2d 272, 274 (4th Cir. 1992) (“An indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.”). A reviewing court “should regard all well pleaded facts as true when considering a motion to dismiss an indictment.” United States v. Dove, 70 F.Supp.2d 634, 636 (W.D. Va. 1999). If the facts in the indictment would “constitute a criminal offense, the court should not dismiss the indictment.” Id. Although a court “may dismiss an indictment where there is an infirmity of law in the prosecution, ” a court should “not dismiss an indictment on a determination of facts that should be developed at trial.” Id.

         Collateral attacks of deportation orders are authorized where, as here, those orders are necessary to establish an element of the charged illegal reentry offense.[4] See United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (review of deportation proceeding must be “made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense”). Under § 1326(d), a defendant mounting a collateral attack against an underlying deportation order must show (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” him of the “opportunity for judicial review; and (3) entry of the order was “fundamentally unfair.” If a “defendant satisfies all three requirements, the illegal reentry charge must be dismissed as a matter of law.” United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).

         III. ANALYSIS

         Ramos-Delcid advances two arguments in support of his motion to dismiss the indictment. First, he argues the indictment should be dismissed because subject matter jurisdiction never vested in the immigration court. Second, he contends the indictment should be dismissed under the factors set forth for a collateral attack on a deportation order in 8 U.S.C. § 1326(d). The Court addresses each argument in turn ...

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