United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
Avila Flores moves to dismiss the one-count indictment
charging him with illegal reentry. Flores contends that the
immigration court that issued his removal order lacked
jurisdiction based on a defective initial notice to appear.
Because the initial notice to appear did not render
Flores' deportation order void, the Court will deny the
motion to dismiss.
is a citizen of Guatemala. On March 27, 2012, U.S.
immigration authorities served Flores with a notice to
appear, and placed him in removal proceedings. The notice to
appear ordered Flores to appear on "a date to be
set" at "a time to be set." (Dk. No. 11, at
4.) On April 23, 2012, Flores attended his hearing before an
immigration judge, who ordered Flores' removal from the
United States. On May 24, 2012, the government deported
Flores to Guatemala. On December 18, 2018, a grand jury
indicted Flores for illegal reentry. Flores has moved to
dismiss his indictment.
Statutory and Regulatory
to Appear The Immigration and Nationality Act
("INA") provides a vehicle for
noncitizen-defendants to collaterally attack the validity of
an underlying deportation order. See 8 U.S.C. §
1326(d). To lodge a collateral attack in a prosecution for
illegal reentry, the noncitizen must show the following:
(1) the alien 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 the alien of the opportunity for judicial
(3) the entry of the order was fundamentally unfair.
case. Flores does not argue that he has met the requirements
under § 1326(d). but instead asserts that "there is
an exception to the exhaustion and deprivation of judicial
review requirement for void [deportation] orders." (Dk.
No. 14, at 14.) Flores contends that the immigration court
that issued the underlying deportation order lacked subject
matter jurisdiction because the initial notice to appear
failed to specify a time and place for the removal hearings.
Illegal Immigration Reform and Immigrant Responsibility Act
("IIRIRA") requires immigration authorities to
serve a "notice to appear" on a noncitizen subject
to deportation proceedings. 8 U.S.C. § 1229(a)(1). Among
other requirements, the statute requires notices to appear to
include "[t]he time and place at which the proceedings
will be held." Id. § l229(a)(1)(G)(i).
Section 1229 does not address the jurisdiction of the
Congress enacted the IIRIRA, the Attorney General promulgated
regulations governing removal proceedings. Under the
regulations, "[j]urisdiction vests, and proceedings
before an Immigration Judge commence, when a charging
document is filed with the Immigration Court." 8 C.F.R.
§ 1003.14(a). One such "charging document" is
a "Notice to Appear." Id. § 1003.13.
The regulations set forth the requirements for the contents
of notices to appear, which largely track the statutory
requirements. Id. Under the regulations, ...