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United States v. Mendez Fernandez

United States District Court, E.D. Virginia, Alexandria Division

November 13, 2018



          Leonie M. Brinkema United States District Judge.

         Before the Court is Defendant's Motion to Dismiss Indictment [Dkt. No. 20]. For the reasons stated in open court and further developed below, defendant's motion has been denied.[1]

         I. BACKGROUND

         Jorge Mario Mendez Fernandez ("defendant") is a citizen of Guatemala who entered the United States without authorization in February 1993. After being taken into custody by an officer of the Immigration and Naturalization Service ("INS"), defendant was personally served with an order to show cause printed in both English and Spanish and read to defendant in Spanish. The order alleged that defendant was not a U.S. citizen or national and had entered the United States without being inspected by immigration authorities. It advised defendant that he was required to appear for a hearing before an immigration judge; however, in the blanks left for the time and place of the hearing, the issuing officer wrote: "To be calendared and notice provided by the Executive Office for Immigration Review." Finally, the order advised defendant that he was required to provide an address and telephone number where he could be contacted and to update the immigration court should his contact information change; that notice of a hearing would "be mailed to the address provided"; and that failure to appear could result in an order of deportation.

         Defendant never provided an address or telephone number and never received notice of the deportation hearing held in April 1993. Although defendant failed to appear, the immigration judge concluded that no notice was required under the governing statute and proceeded to adjudicate the case in absentia. Based on uncontested information provided by the government, the immigration judge found that defendant's deportability had been established by "clear, convincing, and unequivocal evidence" and ordered that defendant be deported.

         Defendant had no further contact with immigration authorities for over 16 years. In June 2009, he was taken into custody and removed from the country based on the 1993 deportation order. He returned to the United States at some time after being deported and in August 2016 was found in the Eastern District of Virginia. On August 16, 2018, a grand jury returned a one-count indictment charging him with unlawful reentry under 8 U.S.C. § 1326(a).[2]

         Defendant moved to dismiss the indictment, arguing that the immigration judge lacked jurisdiction to issue the 1993 deportation order because the order to show cause that defendant received had failed to specify a time and place for the hearing. As a result, defendant argues that his 2009 deportation is void and cannot serve as the basis for a prosecution for unlawful reentry. He further argues that because the underlying deportation order is void, he necessarily can satisfy the required showings for a collateral attack under 8 U.S.C. § 1326(d).

         II. ANALYSIS

         Under the Immigration and Nationality Act ("IN A") as it existed in 1993, any alien who "entered the United States without inspection" was subject to removal. 8 U.S.C. § 1251(a) (1988 & Supp. V 1993). To initiate removal proceedings, immigration authorities served the suspected alien with an "order to show cause." Id. § 1252(b)(a)(1). That order was required to specify, inter alia, (i) the "nature of the proceedings against the alien," (ii) the "charges against the alien and the statutory provisions alleged to have been violated," (iii) that "the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted"; (iv) that the alien must update the Attorney General in the event his contact information were to change; and (v) that no notice to appear at a hearing will be issued if no address is provided. Id. § 1252b(a)(1), (c)(2). Separately, the INA required authorities to give the suspected alien written notice of "the time and place at which [removal] proceedings will be held" and "the consequences" of failing to appear, including being ordered deported in absentia. See id. § 1252b(a)(2), (c)(1). The notice to appear could be served as part of the order to show cause "or otherwise." Id. § 1252(a)(2)(A).

         Congress authorized the Attorney General to promulgate regulations governing removal proceedings, see 8 U.S.C. § 1252(b) (1988 & Supp. V. 1993), and in 1993, those regulations provided that jurisdiction vested with an immigration court only upon the filing of a "charging document," 8 C.F.R. § 3.14(a) (1993). "Charging document," in turn, was defined to include the "Order to Show Cause." 8 C.F.R. § 3.13. Echoing the INA, the regulations stated that every order to show cause must specify (among other things) the nature of the proceedings, the charges against the alien, the address of the office of the immigration judge, and the requirement that the alien provide the immigration judge a current address and telephone number. See Id. § 3.15(b). The regulation did not require that the order to show cause itself include the date and time for the hearing to be held before an immigration judge.

         To secure a conviction for illegal reentry after removal, "the government must prove, as an element of the offense, the defendant's prior removal." United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir. 2017). Because the prior removal is an element of the crime, due process requires that a defendant be given the opportunity to mount a collateral attack against the underlying deportation order. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). For such a collateral attack to succeed, the defendant must show that (i) "he exhausted any administrative remedies that may have been available"; (ii) "the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review"; and (iii) "the entry of the deportation order was fundamentally unfair." United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005) (citing 8 U.S.C. § 1326(d)). If a defendant makes all three showings, "the illegal reentry charge must be dismissed as a matter of law." Id.

         A. Jurisdiction

         Both parties focus their arguments on whether the immigration judge had jurisdiction to order defendant deported in 1993. Defendant argues that jurisdiction was lacking because the notice he received did not include a time and a place for the hearing. He supports this argument by pointing to Attorney General-promulgated regulations addressing when jurisdiction vests before an immigration judge as well as to the Supreme Court's decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). The Government disagrees, arguing that in 1993 neither the INA nor its implementing regulations created a jurisdictional requirement that the notice an alien received had to include the time and place for the hearing and that Pereira was concerned only with an unrelated question of statutory interpretation.

         Several courts have addressed these arguments. For example, in United States v. Virgen-Ponce,320 F.Supp.3d 1164 (E.D. Wash. 2018), the district court ruled that a notice to appear lacking a time and place failed to confer jurisdiction on the immigration judge and that Virgen-Ponce's deportation order was invalid as a result. Id. at 1165-66. The court did not require exhaustion of remedies or a particularized showing of prejudice, ruling that no prosecution for illegal reentry after deportation can proceed if the underlying deportation order is void ab initio. See id. at 1166.[3] Other courts, while finding that the notice to appear was defective for failure to include the time and date of the hearing, have denied defendants' motions to dismiss on other grounds.[4] At least one district court ...

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