United States v. Arroyo
356 F. Supp. 3d 619
W.D. Tex.2018Background
- Arroyo, a Mexican national and former lawful permanent resident, was charged in 2018 with illegal reentry under 8 U.S.C. § 1326 based on a 2002 removal to Mexico.
- In 2002 DHS served an NTA that omitted the hearing time; a separate Notice of Hearing (NOH) with date/time was filed and served on August 3, 2002. The immigration judge held a hearing in September 2002, ordered removal, and Arroyo waived his BIA appeal. He was removed on October 15, 2002.
- Arroyo argues the 2002 removal order is void because the NTA lacked the time of hearing, so the IJ lacked jurisdiction under 8 C.F.R. § 1003.14 and 8 U.S.C. § 1229(a)(1), relying on Pereira v. Sessions.
- The Government contends Arroyo forfeited any challenge by appearing at the hearing and waiving appeal and that the NTA+NOH satisfied notice requirements.
- The Court denied Arroyo’s motion to dismiss, holding Regulation 1003.14(a) is procedural (not an allocation of subject-matter jurisdiction), the NTA and NOH together satisfied § 1229(a)(1), and Arroyo failed to meet § 1326(d)’s prerequisites because he waived appeal.
Issues
| Issue | Plaintiff's Argument (Arroyo) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether 8 C.F.R. § 1003.14(a) is jurisdictional so a defective NTA voids the IJ's order | NTA omitted hearing time, so jurisdiction never vested; removal order is void ab initio | §1003.14 is procedural; IJ’s statutory authority under INA §1229a is independent and was not negated by a defective NTA | §1003.14 is procedural and does not implicate IJ subject-matter jurisdiction; order not void for lack of jurisdiction |
| Whether omission of hearing time in NTA violated 8 U.S.C. §1229(a)(1) after Pereira and invalidated removal | Pereira requires an NTA to specify time/place; omission renders notice defective and invalidates proceedings | Pereir a does not control two-step procedure where NTA + subsequent NOH together provide required information; Fifth Circuit precedent supports two-step compliance | NTA and subsequent NOH together satisfied §1229(a)(1); Pereira did not abrogate Fifth Circuit two-step precedent; proceeding valid |
| Whether the indictment under 8 U.S.C. §1326 must be dismissed because prior removal was invalid | If removal order void, defendant was never removed and §1326 cannot stand | Defendant forfeited review by waiving appeal; even on merits removal was valid | Dismissal denied; defendant fails §1326(d) because he did not exhaust administrative remedies and waived appeal |
| Whether defendant satisfied §1326(d)’s three-prong test to collaterally attack removal | Need not satisfy all prongs if order void; alternatively, he satisfies them | Defendant failed to exhaust and had opportunity for judicial review (waived appeal); claim fails | Defendant fails §1326(d) prongs 1 and 2; motion denied |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding an NTA that does not inform when and where to appear is not a valid notice to appear for stop-time rule purposes)
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (defining subject-matter jurisdiction and cautioning against labeling rules jurisdictional)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (distinguishing substantive jurisdictional rules from procedural ones)
- Bowles v. Russell, 551 U.S. 205 (2007) (discussing consequences of treating time limits as jurisdictional vs. procedural)
- United States v. Garcia-Ruiz, 546 F.3d 716 (5th Cir. 2008) (describing §1326's scope for illegal reentry prosecutions)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (endorsing two-step notice procedure: NTA + NOH together satisfy §1229(a)(1))
- United States v. Cotton, 535 U.S. 625 (2002) (rejecting overly broad uses of the jurisdictional label)