353 F. Supp. 3d 897
N.D. Cal.2019Background
- Arteaga, a Honduran national, was charged with illegal reentry under 8 U.S.C. § 1326 after multiple removals; the initial removal arose from removal proceedings begun with an NTA issued April 15, 1997.
- The 1997 NTA left the time and date of the hearing blank; an IJ ordered removal and Arteaga was removed in April 1997; later removals (1998, 2001, 2006, 2012) were reinstatements of the 1997 order.
- Arteaga moved to dismiss the § 1326 indictment, arguing Pereira v. Sessions invalidates the 1997 NTA because it omitted time/place, so the original removal was jurisdictionally void and cannot predicate a § 1326 charge.
- The Government argued regulations (8 C.F.R. § 1003.14/.15) permit vesting IJ jurisdiction without time/date on the NTA and that § 1326(d) governs collateral attacks on removals in criminal prosecutions.
- The court found Pereira controls, holding an NTA must include time and place; the 1997 NTA was invalid and therefore the immigration court lacked jurisdiction, rendering the removal a legal nullity.
- Because a jurisdictionally void removal is not a "removal" under § 1326(a), the court granted Arteaga's motion and dismissed the indictment.
Issues
| Issue | Arteaga's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether an NTA lacking time/place is valid to vest IJ jurisdiction | 1997 NTA invalid under Pereira; omission voids NTA and jurisdiction | Regulations allow differing NTA content for vesting jurisdiction; jurisdictioned anyway | NTA must include time/place; 1997 NTA invalid and IJ lacked jurisdiction |
| Whether a jurisdictionally-invalid removal order can predicate a § 1326 charge | A jurisdictionally-void removal is no removal; § 1326 cannot apply | Defendant must meet § 1326(d) collateral-challenge requirements to attack removal | A jurisdictionally-void order is a legal nullity; § 1326 cannot be predicated on it |
| Whether § 1003.15/§1003.14 can redefine statutory "notice to appear" for jurisdictional purposes | Statute controls; regs cannot override § 1229(a) per Pereira | Regulations supply content for charging document and vesting jurisdiction | Statutory definition governs across INA; regs cannot negate time/place requirement |
| Relevance of prior Ninth Circuit cases upholding flawed NTAs | Pereira overrules harmful precedent where statutory text requires time/place | Cites Kohli, Lazaro, Popa to support validity despite defects | Kohli/Lazaro distinguishable; Pereira controls and supersedes conflicting principles |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA must specify time and place; omission prevents triggering statutory consequences)
- Wilson v. Carr, 41 F.2d 704 (9th Cir. 1930) (orders void for want of jurisdiction are disregarded as legal nullities)
- Noriega-Lopez v. Ashcroft, 335 F.3d 874 (9th Cir. 2003) (BIA lack of authority renders removal order a legal nullity)
- Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007) (defects not shown to be jurisdictional where statute/regulation not violated)
- Lazaro v. Mukasey, 527 F.3d 977 (9th Cir. 2008) (minimal compliance with § 1229(a) can suffice for jurisdiction)
- Mendoza-Lopez v. United States, 481 U.S. 828 (1987) (criminal conviction under § 1326 generally need not prove lawfulness of prior deportation)