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United States v. Flores

United States District Court, E.D. Virginia, Richmond Division

April 19, 2019

UNITED STATES OF AMERICA,
v.
EFRAIN AVILA FLORES, Defendant.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.

         Efrain 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.

         I. BACKGROUND

         Flores 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."[1] (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.

         II. DISCUSSION

         A. Statutory and Regulatory

         Notices 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 review; and
(3) the entry of the order was fundamentally unfair. Id.

         In this 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.

         The 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 immigration courts.

         After 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, ...


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