360 F. Supp. 3d 1084
E.D. Wash.2018Background
- Josue Quijada-Gomez was brought to and raised in the U.S.; DHS served him a Form I-862 "Notice to Appear" on June 8, 2010 that did not include a hearing date or time.
- He appeared before an IJ on August 16, 2010; the IJ ordered him removed to Mexico.
- Quijada-Gomez returned to the U.S. in June 2018 and was indicted for illegal reentry under 8 U.S.C. § 1326.
- Defendant moved to dismiss the § 1326 indictment, arguing the 2010 removal order is void because the NTA lacked the time-and-place information required by 8 U.S.C. § 1229(a).
- The Government argued Pereira v. Sessions should be limited to the stop-time context, the immigration court’s later Notice of Hearing cured any defect, and § 1326(d) limits collateral attacks.
- The Court held the NTA was not a valid charging document, the immigration court lacked subject-matter jurisdiction, and § 1326(d) does not bar a jurisdictional challenge; the indictment was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Notice to Appear that omits time/place is a valid charging document under § 1229(a) and 8 C.F.R. § 1003.14 | The defective NTA is not a "notice to appear" under Pereira and thus no charging document was filed, so the immigration court never acquired jurisdiction | Pereira should be limited to stop-time rule; regulations and later Notice of Hearing cure the defect | Court: Pereira’s statutory interpretation applies beyond stop-time; an NTA lacking time/place is not a valid charging document and does not vest jurisdiction |
| Whether 8 C.F.R. §§ 1003.15/.18 permit filing an NTA without time/place or create a separate regulatory NTA | N/A (argument by government) | Regulations allow administrative scheduling and thus can supply or cure time/place requirements | Court: Regulations cannot override statutory § 1229(a); § 1003.18’s "where practicable" does not eliminate the statutory time/place requirement |
| Whether a subsequent Notice of Hearing from the immigration court cures a defective NTA | N/A (argument by government) | A Notice of Hearing sent by the court can cure the omission and vest jurisdiction | Court: Notice of Hearing is not a charging document filed by the Service and does not cure the defective NTA |
| Whether § 1326(d) or collateral-attack limits bar a jurisdictional challenge to a void deportation order | The removal order is void for lack of jurisdiction, so collateral-attack limits do not apply | § 1326(d) limits collateral attacks on prior deportation orders in § 1326 prosecutions | Court: A jurisdictional defect renders the removal order void ab initio; due process allows a free-standing jurisdictional challenge in the § 1326 case, so § 1326(d) does not bar relief |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (statutory definition of "notice to appear" requires time and place)
- Mendoza-Lopez v. United States, 481 U.S. 828 (1987) (due process may require collateral attack on deportation order used in criminal prosecution)
- United States v. Cotton, 535 U.S. 625 (2002) (modern view of subject-matter jurisdiction and charging documents)
- Lamar v. United States, 240 U.S. 60 (1916) (jurisdiction rooted in enabling statute)
- United States v. Williams, 341 U.S. 58 (1951) (federal courts' jurisdiction over federal offenses)
- Popa v. Holder, 571 F.3d 890 (9th Cir. 2009) (addressed notice-of-hearing issues in in absentia removals)
- United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002) (indictment defects and jurisdiction analysis)
- Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) (agency regulations cannot revise clear statutory terms)