United States District Court, W.D. Virginia, Lynchburg Division
MEMORANDUM OPINION
NORMAN
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
This
matter is before the Court upon Defendant Juan Cortez's
motion to dismiss the indictment. (Dkt. 25). The indictment
contains one count, charging Cortez with illegally reentering
the United States in violation of 8 U.S.C. § 1326. (Dkt.
15). Cortez argues that the indictment should be dismissed
because the notice to appear issued to him failed to specify
the time and date of the removal proceedings against him, as
he contends is required by 8 U.S.C. § 1229(a)(1) and
Pereira v. Sessions, 138 S.Ct. 2105 (2018). Cortez
advances two specific attacks on the indictment. First,
Cortez 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, Cortez launches a collateral attack against his
deportation order under 8 U.S.C. § 1326(d), arguing that
his initial deportation proceedings lacked fundamental
fairness.
The
Court declines to dismiss the indictment on jurisdictional
grounds. Moreover, Cortez's collateral attack on the
underlying deportation order fails because, although the
initial notice to appear lacked the time and date of the
removal proceedings, Cortez attended and participated in his
deportation hearing via video conference. Cortez therefore
cannot make the necessary showing under § 1326(d) that
his deportation proceedings were fundamentally unfair.
Accordingly, the motion to dismiss the indictment will be
denied.
I.
FACTS & KEY PRECEDENT
A.
Factual Background
On
October 25, 2018, Juan Cortez was indicted on one count of
illegal reentry into the United States in violation of 8
U.S.C. § 1326. (Dkt. 15). Cortez, allegedly a native of
Mexico, was served in person with a notice to appear on
February 27, 2011. (Dkt. 25-2). This notice to appear ordered
Cortez to appear 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 Cortez should appear. On March 17, 2011, Cortez appeared
via video conference at a removal hearing, at which he was
ordered deported. (Dkt. 25-1). The immigration court's
removal order indicates that Cortez waived his right to
appeal the order. (Id.). The indictment states that
Cortez was removed from the United States on or about April
22, 2011, and was later found in the United States on or
about September 19, 2018. (Dkt. 15). The illegal reentry
charge at issue 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).[1] 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.
II.
STANDARD OF REVIEW
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). A court should not
dismiss an indictment on the basis of “facts that
should” be “developed at trial.” United
States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012).
Rather, motions to dismiss indictments should generally be
denied unless “the allegations therein, even if true,
would not state an offense.” United States v.
Thomas, 367 F.3d 194, 197 (4th Cir. 2004).
Collateral
attacks of deportation orders are authorized where, as here,
those orders are necessary to establish an element of the
charged illegal reentry offense.[2] 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
Cortez
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 has recently addressed these arguments in
ruling on several motions to dismiss indictments in similar
illegal reentry cases. See, e.g., United States v.
Saravia-Chavez, No. 3:18-cr-00016, Dkt. 39 (denying
motion to dismiss indictment); United States v.
Ramos-Delcid, No. 3:18-cr-00020, 2018 WL 5833081 (W.D.
Va. Nov. 7, 2018) (dismissing indictment under §
1326(d)). Cortez has “expressly adopt[ed] all of the
arguments in those cases” for consideration here,
acknowledging that his case is
“indistinguishable” from two cases-United
States v. Saravia-Chavez, 3:18-cr-00016, and United
States v. Ramirez, 3:18-cr-00026-where the Court has
recently denied identical motions to dismiss indictments.
(Dkt. 25 at 1). We consider each of Cortez's arguments
below.
A.
Immigration Court's Subject Matter Jurisdiction ...