378 F. Supp. 3d 46
D.D.C.2019Background
- Castillo-Martinez, a Dominican-born lawful permanent resident, had prior state drug convictions (1996 MA distribution; 2012 NH trafficking) and was placed in removal proceedings and removed in 2013; DHS reinstated removal in 2016 after subsequent returns.
- The 2012 Notice to Appear (NTA) charged removability as an "aggravated felony" based on the 1996 Massachusetts conviction but did not state time/place for the initial hearing; defendant appeared with counsel and sought CAT relief, which was denied; BIA affirmed.
- Defendant was later prosecuted in federal court for illegal reentry under 8 U.S.C. § 1326 based on the reinstated removal order.
- Castillo-Martinez moved to dismiss the § 1326 indictment, arguing (1) Pereira v. Sessions requires NTAs to include time/place to vest IJ jurisdiction, rendering his initial removal order void, and (2) his 1996 conviction was not an "aggravated felony," so he was not removable.
- The government argued the regulatory definition of an NTA (8 C.F.R. §§1003.13, 1003.14, 1003.18) governs vesting of IJ jurisdiction and that subsequent Notice of Hearing cures any initial omission; it also argued defendant failed to satisfy §1326(d) requirements for collateral attack.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pereira invalidates an NTA that omits time/place for purposes of vesting IJ jurisdiction | Pereira controls; an NTA lacking time/place is facially deficient and cannot vest IJ jurisdiction | The regulatory definition governs vesting; Pereira addressed the stop-time rule only and is inapplicable to jurisdiction vesting | Court held the regulations govern; Pereira is not controlling for IJ jurisdiction; IJ had jurisdiction because regs require only that NTA include time/place "where practicable" and subsequent Notice of Hearing cures defect |
| Whether the 1996 MA conviction was an "aggravated felony" making defendant removable | Conviction does not categorically constitute an aggravated felony under post-Moncrieffe precedent | At the time counsel conceded it was an aggravated felony under controlling First Circuit law | Court assumed arguendo the conviction might not be an aggravated felony but ruled defendant cannot collaterally attack removal because he failed §1326(d) requirements |
| Whether defendant exhausted administrative remedies and had opportunity for judicial review (§1326(d) prongs 1–2) | Exhaustion should be excused because removal was void ab initio (jurisdictional defect) or counsel was ineffective | Defendant failed to exhaust; he appeared and litigated; any omission was cured; counsel relied on binding precedent at the time | Court found defendant did not exhaust and his excuse (void ab initio or ineffective counsel) failed because IJ had jurisdiction and counsel’s performance was consistent with controlling law then |
| Whether the removal was "fundamentally unfair" (§1326(d) prong 3: procedural error + prejudice) | The omission in the NTA and alleged misclassification as an aggravated felony caused fundamental unfairness | Defendant actually appeared with counsel and would still have faced deportability absent aggravated-felony label; no reasonable likelihood of different outcome | Court held defendant failed to show procedural prejudice or reasonable likelihood of a different result; §1326(d) not satisfied and motion to dismiss denied |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (interpreting statutory NTA definition for the stop-time rule; discussed limits of that holding)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (regulatory NTA definition suffices to vest IJ jurisdiction despite lack of time/place)
- Santos-Santos v. Barr, 923 F.3d 495 (6th Cir. 2019) (adopting Karingithi approach; regulatory definition controls for jurisdiction vesting)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach for determining whether a state marijuana-distribution conviction is an aggravated felony)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- United States v. Luna, 436 F.3d 312 (1st Cir. 2006) (requirements for collateral attack under 8 U.S.C. § 1326(d))
- United States v. Soto-Mateo, 799 F.3d 117 (1st Cir. 2015) (ineffective assistance and exhaustion analysis in §1326(d) context)
- Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (agency deference framework applied to INA/regulatory interpretation)