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United States v. Flores

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

January 25, 2019



          Elizabeth K. Dillon, United States District Judge

         Pending before the court is defendant Angel Orlando Vasquez Flores's motion to dismiss the indictment. (Dkt. No. 49.) Vasquez Flores, a citizen of Honduras, is charged in this case with a violation of 8 U.S.C. § 1326, which requires the government to prove that he had previously been deported or removed from the United States. United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005). He seeks to dismiss the indictment on the grounds that the immigration court that ordered his deportation lacked subject-matter jurisdiction and thus that order was void ab initio. Specifically, he argues that the immigration court only obtains jurisdiction when a valid Notice to Appear (NTA) is issued and, relying on Pereira v. Sessions, 138 S.Ct. 2105 (2018), he argues that his NTA was not valid to confer jurisdiction because it did not provide a specific date, time, and place for him to appear.

         Defendant's motion raises a number of interrelated issues which, as counsel for both parties acknowledged at a hearing, have not been directly addressed by the Fourth Circuit and on which district courts have expressed differing views. For the reasons set forth herein, the court concludes that the NTA-standing alone-was insufficient to serve as a charging document. At the very least, the court will assume that is true for purposes of this opinion. Regardless, the court does not believe that the deficiency in the NTA resulted in a lack of subject-matter jurisdiction such that the order was void ab initio.

         The court further concludes that, in order for Vasquez Flores to challenge the deficiency in the NTA as part of this criminal proceeding, he must satisfy the three requirements set forth in § 1326(d). The court finds, however, that he cannot satisfy the third requirement. For these reasons, discussed below, the court will deny the motion to dismiss the indictment.

         I. BACKGROUND

         Vasquez Flores is charged in a single-count indictment with illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The deportation referenced in the indictment occurred in 2011. Specifically, on November 1, 2011, Vasquez Flores, who then was being held at Middle River Regional Jail, was served with a warrant for arrest of an alien. On the same date, Vasquez Flores was transported to Harrisonburg, Virginia, and served with an NTA, but that NTA did not contain a set hearing date or place, which was, and is, a common occurrence. The record is silent as to whether he subsequently received a Notice of Hearing. He was then detained in the custody of Homeland Security and remained in that custody (in several different locations) until he appeared before an immigration court in York, Pennsylvania, on November 23, 2011, and was ordered removed.

         Although the order signed by the immigration judge (IJ) has the word “Waived, ” indicating that Vasquez Flores waived his right to appeal (Dkt. No. 51-4), the audio recording of the proceedings does not reflect that his appeal rights were discussed or waived. Nonetheless, he did not appeal from the deportation order. He was removed from the United States on December 16, 2011, pursuant to a “Warrant of Removal/Deportation.” Then, on August 8, 2018, he was found in the United States and subsequently indicted in this case.

         The audio recording of Vasquez Flores's 2011 immigration proceeding is part of the record before this court. The recording lasts approximately eight minutes, and it contains the exchange between the IJ and Vasquez Flores, through his interpreter. Some portions of it are emphasized by the parties and worth noting. After Vasquez Flores confirmed that he was not legally present in the United States, the IJ asked him if he would voluntarily leave the United States if ordered to do so. Vasquez Flores said he would. The IJ told him that the fine was $5, 000 and asked if anyone could pay that for him. He told the IJ that he had no money; it would have to be less. Then the IJ asked whether his girlfriend or anybody else would be willing to buy him an airline ticket to leave, and Vasquez Flores said no. Thereafter, the IJ ordered his deportation back to Honduras. The IJ then asked if he had any questions, and Vasquez Flores responded that he could pay a lower bail. The IJ told Vasquez Lopez he was not going to give a lower bail and now that the deportation order had been signed, “you don't have a bail at all.” The IJ then concluded with “Good luck to you, ” and the recording ends.

         For purposes of the motion before the court, there are two significant aspects of that recording. First, Vasquez Flores twice informed the IJ that he had some unknown amount of funds available to him. Vasquez Flores argues that this supports his assertion that the IJ should have allowed him to voluntarily depart, rather than being removed, and that if he had appealed the order of removal, he could have been given the opportunity to voluntarily depart. Critically, a voluntary departure does not qualify as a removal or deportation under 8 U.S.C. § 1326. Second, and as the United States concedes, the recording does not contain any discussion by the IJ concerning Vasquez Flores's rights to appeal from his deportation order, nor does it contain any statement by Vasquez Flores that he was waiving his appeal rights.[1]


         A. Parties' Arguments

         As noted, Vasquez Flores's primary argument, relying on Pereira, is that the NTA is invalid because it failed to specify a date and time for his hearing. From there, he argues that because the NTA is the charging document in an immigration case and it confers jurisdiction on the immigration court, an invalid NTA means that the immigration court never had subject-matter jurisdiction. He then relies on cases in other contexts in which courts held that any “ultra vires” orders from agencies or orders from a tribunal without subject-matter jurisdiction are void ab initio. Accordingly, he contends that this lack of subject-matter jurisdiction alone is enough to dismiss the indictment because, without any valid order of removal, he cannot be convicted under 8 U.S.C. § 1326(a). As an alternative argument, he asserts that, even if he were required to satisfy the three § 1326(d) requirements for a collateral challenge to a deportation order, he can do so.

         The United States responds that Pereira's holding is narrow and limited to its context, and, as such, the NTA here was valid to confer jurisdiction on the immigration court under the regulations governing NTAs as charging documents. It further argues that, even if the NTA was invalid, that does not result in a loss of subject-matter jurisdiction, so as to render the order necessarily void ab initio. Finally, it argues that, no matter how Vasquez Flores's challenge is characterized-and even if it is considered a challenge to subject-matter jurisdiction-he must still satisfy the three § 1326(d) requirements in order to raise that challenge in this criminal proceeding. He cannot do so, according to the United States.

         Since Pereira, a number of district courts have grappled with motions similar to the one before the court. Notably, each side's arguments (or portions of them) can find support in some of those decisions, many of which are cited in the parties' briefing. The court has reviewed many of those cases and has also considered some cases decided after the briefing or hearing in this case, several of which are cited herein.

         B. Pereira and Its Application

         Pereira was an immigration appeal that involved a statutory remedy known as cancellation of removal and application of the “stop-time rule.” That cancellation is available to some nonpermanent residents who have “been physically present in the United States for a continuous period of not less than 10 years.” 8 U.S.C. § 1229b(b)(1). The “stop-time rule” provides that the period of continuous physical presence is deemed to end “when the alien is served a notice to appear under section 1129(a) of this title.” § 1229b(d)(1). In Pereira, the Supreme Court acknowledged an INA regulation that required a time and place to be included only “where practicable, ” 138 S.Ct. at 2111, but it refused to allow that regulation to trump the plain language of the statute describing the contents of an NTA. Instead, the Supreme Court held that an NTA that does not specify when and where the removal hearing will take place “is not a ‘notice to appear under 1229(a)' and therefore does not trigger the stop-time rule.” Id. at 2110.

         Although the Pereira Court described the question before it as a “distinct” one that included a reference to the stop-time rule, id. at 2118, its reasoning and the language used elsewhere in the opinion suggest that an NTA under § 1229(a) is categorically deficient absent a time and place for the hearing, and that it was applying that general holding to the stop-time rule. See, e.g., id. at 2116 (“[W]hen the term ‘notice to appear' is used elsewhere in the statutory section, including as the trigger for the stop-time rule, it carries with it the ...

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