963 F.3d 158
1st Cir.2020Background:
- Roberto Mendoza-Sánchez, a Mexican national, had prior voluntary departures and reentered the U.S.; ICE arrested him in May 2014 and served a Notice to Appear (NTA) that omitted the hearing date/time.
- The immigration court later issued a separate notice of hearing specifying the date/time; at the June 4, 2014 hearing the immigration judge ordered Mendoza removed to Mexico; Mendoza waived appeal and was deported.
- In November 2017 Mendoza was arrested again; a federal indictment charged him with unlawful reentry in violation of 8 U.S.C. § 1326(a); he pleaded guilty in May 2018.
- After the Supreme Court decision in Pereira v. Sessions (2018), Mendoza moved to withdraw his plea and dismiss the indictment, arguing the original removal order was void because the NTA lacked date/time and thus the immigration court lacked jurisdiction.
- The district court denied the motion, concluding Mendoza failed to show lack of jurisdiction and, in any event, had not satisfied the collateral-attack prerequisites of 8 U.S.C. § 1326(d); the First Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that omits date/time deprives the immigration court of jurisdiction | NTA without date/time (per Pereira) is defective; removal order is void | Jurisdiction governed by agency regulations (8 C.F.R. §1003.14); an NTA that complies with regs vests jurisdiction | Court: Immigration court had jurisdiction; Goncalves Pontes controls — undated NTA that complies with regs is effective |
| Whether Mendoza can avoid §1326(d) collateral-attack requirements if immigration court lacked jurisdiction | If removal was void for lack of jurisdiction, Mendoza need not satisfy §1326(d) to challenge the removal in his criminal case | §1326(d) sets prerequisites for collateral attack in criminal proceedings | Court did not reach §1326(d) question because it found immigration court had jurisdiction; appeal rejected |
| Whether failure to receive or untimely service of the notice of hearing prevents a later notice from "curing" the defective NTA | The notice of hearing here was not properly/timely served, so the two-step issuance/service did not cure the defective NTA | Goncalves Pontes and related precedents do not rely on successful service of a notice of hearing; jurisdiction can vest through documents that comply with regs | Court: Proper service of a notice of hearing is not required to invoke Goncalves Pontes; Mendoza's service argument fails |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (a notice to appear that omits when and where to appear does not trigger the stop-time rule)
- Goncalves Pontes v. Barr, 938 F.3d 1 (1st Cir. 2019) (immigration-court jurisdiction governed by regulations; undated NTA that complies with regs can vest jurisdiction)
- Ferreira v. Barr, 939 F.3d 44 (1st Cir. 2019) (reaffirming that compliance with agency regulations controls jurisdiction despite Pereira)
- Arévalo v. Barr, 950 F.3d 15 (1st Cir. 2020) (confirming circuit precedent that undated NTAs do not automatically void removal orders)