United States v. Juan Cortez
930 F.3d 350
| 4th Cir. | 2019Background
- Juan Cortez, a Mexican national, was served a Notice to Appear (NTA) in Feb. 2011 that listed the immigration court location but did not state a date/time; he was orally told the hearing date and attended a March 17, 2011 hearing via video, where an IJ ordered removal and Cortez was removed in April 2011.
- Cortez later reentered the U.S. and was criminally charged under 8 U.S.C. § 1326(a) for illegal reentry based on the 2011 removal order.
- Before trial, Cortez moved to dismiss, arguing the NTA filed with the immigration court omitted date/time and therefore, under 8 C.F.R. § 1003.14(a), the immigration court lacked jurisdiction to enter a removal order (rendering it void and not a § 1326 predicate).
- The district court denied dismissal, holding (1) § 1003.14(a) is a docketing/claim-processing rule (not an adjudicatory jurisdictional limit), and (2) the regulatory definition of an NTA (8 C.F.R. § 1003.15/1003.18) does not require date/time where impracticable; Cortez also had oral notice and suffered no prejudice.
- Cortez pleaded guilty reserving the right to appeal the denial of his dismissal motion; the Fourth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a notice-to-appear that omits date/time prevents vesting of "jurisdiction" under 8 C.F.R. § 1003.14(a) and thus renders a removal order void for collateral attack in a § 1326 prosecution | Cortez: The NTA filed with the court lacked required date/time (per § 1229(a) and Pereira), so § 1003.14(a) never vested jurisdiction; removal order is void | Government: § 1003.14(a) is a docketing/claim-processing rule; the regulatory definition of NTA controls and does not require date/time where impracticable; Pereira addressed a different statutory context | The Court: § 1003.14(a) is non-jurisdictional (a docketing/claim-processing rule), and the regulatory definition controls; the NTA complied with regs and did not render the removal order void |
| Whether a jurisdictional defect (if found) would exempt a collateral attack from §1326(d)’s exhaustion and prejudice requirements | Cortez: A jurisdictional defect cannot be waived and thus would allow collateral attack without meeting §1326(d) | Government (assumed in briefing): A jurisdictional defect would permit collateral attack; parties largely assumed this point | The Court: Expressed doubt that agency "jurisdictional" claims automatically bypass §1326(d), but did not decide because Cortez’s claim fails on other grounds |
| Whether Pereira controls the contents required for an NTA filed to commence proceedings under the filing regulations | Cortez: Pereira requires date/time for any "notice to appear" and thus applies to the filing-regulation context | Government: Pereira concerned the stop-time rule and §1229(a) definition; it did not govern separate regulatory filing requirements under §1003.14(a) | The Court: Pereira is limited to the statutory context; regulatory definition in 8 C.F.R. §1003.15/1003.18 governs commencement of proceedings and does not mandate date/time where impracticable |
| Whether Cortez suffered "fundamental unfairness" or prejudice sufficient to collaterally attack the removal order under §1326(d) | Cortez: The procedural defect was fundamental because it allegedly prevented proper commencement and review | Government: Cortez had actual notice (oral), attended the hearing, and offered no exhaustion or prejudice reason | The Court: Cortez failed §1326(d) requirements; he had no prejudice and did not exhaust administrative remedies |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (interpreting statutory "notice to appear" for stop-time rule and requiring date/time in that statutory context)
- Kontrick v. Ryan, 540 U.S. 443 (2004) (explaining that subject-matter jurisdiction is not freely detachable as a basis for collateral attack)
- City of Arlington v. FCC, 569 U.S. 290 (2013) (cautioning against treating agency rules as jurisdictional and discussing statutory grants of authority)
- Union Pac. R.R. Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67 (2009) (distinguishing jurisdictional rules from claim-processing rules)
- United States v. Moreno-Tapia, 848 F.3d 162 (4th Cir. 2017) (describing when a defendant may collaterally attack a removal order in a §1326 prosecution)
- Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (defining claim-processing rules and their non-jurisdictional character)
- United States v. El Shami, 434 F.3d 659 (4th Cir. 2005) (standard for "fundamental unfairness" prejudice inquiry in §1326(d) context)