United States v. Lopez
355 F. Supp. 3d 428
E.D. Va.2018Background
- Aristides Rivera Lopez (defendant), a Salvadoran national, entered the U.S. without inspection in April 2004; ICE served a Notice to Appear that left the hearing date/time blanks as "to be set."
- Defendant signed a bilingual Stipulated Request for Order and Waiver of Hearing admitting the Notice's factual allegations, waiving counsel and appeal, and consenting to removal; an IJ ordered removal on May 6, 2004; defendant was removed and later returned.
- In July 2018 defendant was charged with illegal reentry under 8 U.S.C. § 1326, and he moved to dismiss the indictment arguing the 2004 removal order was void.
- Two principal defenses: (1) under Pereira (2018) the Notice’s omission of time/place deprived the immigration court of jurisdiction so the removal order is void ab initio; (2) alternatively, the removal was fundamentally unfair and § 1326(d) collateral-attack requirements are satisfied.
- The government argued regulations and the Stipulation cured any defect; the district court held the regulatory filing requirement is procedural (not jurisdictional) and the defendant’s voluntary, knowing waiver in the Stipulation foreclosed a § 1326(d) attack.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a NTA that omits hearing time/place deprives IJ of jurisdiction so removal order is void | N/A (gov't defending validity of order) | Pereira requires full §1229(a) contents; because Notice lacked time/place IJ lacked jurisdiction and order is void ab initio | Court: Regulatory filing requirement is procedural, not jurisdictional; omission does not automatically void order |
| Whether INA/regulations require an NTA filed under 8 C.F.R. §1003.13 to include time/place mandated by 8 U.S.C. §1229(a) | N/A | The statutory §1229(a) requirements control; agency regs cannot override statutory mandate; Pereira supports requiring time/place for an NTA under the statute | Court: Agency cannot ignore explicit statutory requirements; a regulatory attempt to limit §1229(a) elements is invalid in that respect |
| Whether 8 C.F.R. §1003.14’s statement that “jurisdiction vests when a charging document is filed” creates a nonwaivable subject-matter jurisdictional bar | N/A | Section 1003.14 is a claim‑processing/procedural rule, not a constitutional jurisdictional limit; defects are waivable/forfeitable | Court: §1003.14 is procedural/claim-processing, not formal subject-matter jurisdiction; defects do not automatically render orders void |
| Whether defendant satisfied 8 U.S.C. §1326(d) to collaterally attack the removal order | N/A | The omission of date/time rendered the proceeding fundamentally unfair and deprived opportunity for review, excusing §1326(d) showings | Court: Defendant failed all three §1326(d) elements—he did not exhaust remedies, was not deprived of judicial review (he knowingly waived), and cannot show prejudice; collateral attack fails |
Key Cases Cited
- United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (administrative deportation with fundamental procedural defects can preclude subsequent criminal prosecution)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA that does not state time and place is not a §1229(a) notice to appear for stop-time purposes)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency regulations fill gaps left by Congress but cannot override clear statutory text)
- Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (distinguishing jurisdictional rules from claim-processing requirements)
- Union Pacific R.R. Co. v. Brotherhood of Locomotive Eng'rs & Trainmen, 558 U.S. 67 (2009) ("jurisdiction" can have multiple meanings; context controls whether requirement is jurisdictional)
- United States v. El Shami, 434 F.3d 659 (4th Cir. 2006) (fundamental unfairness prong requires prejudice; deprivation of review can justify relief)
- United States v. Lopez-Collazo, 824 F.3d 453 (4th Cir. 2016) (to show fundamental unfairness a defendant must show reasonable probability he would not have been deported absent the error)