United States v. Cortez

          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 ...