United States District Court, W.D. Virginia, Charlottesville Division
K. MOON JUDGE.
matter is before the Court upon Defendant Juan Martinez
Ramirez's motion to dismiss the indictment. (Dkt. 18).
The indictment contains one count, charging Ramirez with
illegally reentering the United States in violation of 8
U.S.C. § 1326. (Dkt. 11). Ramirez argues that the
indictment should be dismissed because the notice to appear
initially issued to him failed to specify the time and place
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). Ramirez advances two specific attacks
on the indictment. First, Ramirez 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, Ramirez launches a collateral
attack against his deportation order under 8 U.S.C. §
1326(d), arguing that his initial deportation proceedings
lacked fundamental fairness.
conceding that the notice to appear issued to Ramirez 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
Ramirez's collateral attack under § 1326(d) fails
because Ramirez cannot show that he exhausted administrative
remedies, that he was deprived of an opportunity for judicial
review, or that his deportation proceedings were
Government is correct that the immigration court had subject
matter jurisdiction over Ramirez's deportation
proceedings under the governing regulations. Moreover,
Ramirez's collateral attack on the underlying deportation
order fails because, although the initial notice to appear
lacked the time, date, and place of the removal proceedings,
Ramirez received subsequent notice of these details and
attended his deportation hearing. Ramirez therefore cannot
make the necessary showing under § 1326(d) that his
deportation proceedings were fundamentally unfair.
Accordingly, the motion to dismiss the indictment has been
denied. (Dkt. 25).
FACTS & KEY PRECEDENT
October 10, 2018, Juan Martinez Ramirez was indicted on one
count of illegal reentry into the United States in violation
of 8 U.S.C. § 1326. (Dkt. 11). Ramirez, allegedly a
native of Mexico, was initially served in person with a
notice to appear on December 31, 2013. (Dkt. 18-2). This
notice to appear ordered Ramirez 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 Ramirez should appear, or the place
where Ramirez should appear. The Government avers that, while
still in custody, Ramirez received notice in person on
January 13, 2014 of the date, time, and place of his removal
hearing. (Dkt. 23 at 3; Dkt. 23-1). On January 28, 2014,
Ramirez attended his removal hearing, at which he was ordered
deported. (Dkt. 18-1). The immigration court's removal
order indicates that Ramirez waived his right to appeal the
order and that Ramirez was personally served with a copy of
the order on January 28, 2014. (Id.). The Government
avers that Ramirez was removed from the United States on
February 7, 2014, (dkt. 23 at 3), and that he later came to
the attention of federal immigration officials following two
arrests in the Western District of Virginia in August 2018.
(Id.). The illegal reentry charge at issue followed.
Pereira v. Sessions (2018)
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). 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.
STANDARD OF REVIEW
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).
attacks of deportation orders are authorized where, as here,
those orders are necessary to establish an element of the
charged illegal reentry offense. 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).
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 two motions to dismiss indictments in similar
illegal reentry cases. See 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)). Ramirez has ...