381 F. Supp. 3d 1216
N.D. Cal.2019Background
- Defendant Jorge Arturo Rojas-Osorio, a Mexican national, was served a 1997 Notice to Appear (NTA) that omitted a specific hearing date/time; he was removed after a May 9, 2005 video-removal hearing and later prosecuted in 2017 for illegal reentry under 8 U.S.C. § 1326.
- Defendant moved to withdraw a guilty plea and to dismiss the § 1326 indictment, arguing (1) Pereira v. Sessions voided the IJ’s jurisdiction because the NTA lacked date/time and (2) the IJ failed to meaningfully advise him of eligibility for pre-hearing voluntary departure.
- On Jan 16, 2019 the district court dismissed the indictment based on Pereira (lack of jurisdiction).
- The government sought reconsideration after the Ninth Circuit decided Karingithi v. Whitaker, which held an NTA without date/time can still vest IJ jurisdiction under the regulations.
- On reconsideration the court vacated its Pereira-based dismissal (reopening the case) but independently found a due-process violation: the IJ failed to meaningfully advise about pre-hearing voluntary departure and denied a genuine opportunity to apply, causing prejudice.
- The court dismissed the § 1326 indictment with prejudice on the voluntary-departure due-process ground, concluding exhaustion and judicial-review requirements were excused.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Rojas-Osorio) | Held |
|---|---|---|---|
| Whether an NTA that omits date/time deprives IJ of jurisdiction over removal proceedings | Regulations, not §1229(a), govern vesting of IJ jurisdiction; under 8 C.F.R. an NTA need not include date/time | Pereira controls; a Notice missing date/time is not a §1229(a) NTA and thus jurisdiction never vested | Denied as to dismissal: Ninth Circuit authority (Karingithi) controls — NTA without date/time can vest jurisdiction (court vacated Pereira-based dismissal) |
| Whether IJ’s advisement about voluntary departure satisfied due process | Argues defendant was ineligible for voluntary departure and record shows IJ properly handled case | IJ failed to meaningfully advise about pre-hearing voluntary departure or solicit an application; defendant thus lacked opportunity to present countervailing equities | Granted: IJ’s cursory discussion and refusal to solicit application violated due process; dismissal of §1326 indictment upheld on this ground |
| Whether defendant showed prejudice from the due-process violation | Government contends defendant would not have qualified (emphasis on post-hearing bars) | Defendant had plausible grounds for pre-hearing voluntary departure (no statutory bars proven; family ties, long residence, ability to pay) | Held defendant demonstrated plausible grounds and prejudice for pre-hearing voluntary departure; prejudice prong satisfied |
| Whether §1326(d) exhaustion and judicial-review requirements bar relief | Govt argues procedural bars apply | Defendant argues waiver and exhaustion excused because IJ failed to advise him of relief | Held exhaustion/judicial-review excused: waiver of appeal was not intelligent where IJ failed to advise of relief |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court decision limiting the statutory definition of “Notice to Appear” in the stop‑time context)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (regulations, not §1229(a), govern when IJ jurisdiction vests; NTA without date/time may suffice)
- Raya-Vaca v. United States, 771 F.3d 1195 (9th Cir. 2014) (elements of §1326 conviction and standards for collateral attack on removal order)
- Arrieta v. Holder, 224 F.3d 1076 (9th Cir. 2000) (IJ must advise and allow alien opportunity to develop eligibility for relief when record suggests possible relief)
- Ubaldo-Figueroa v. Holder, 364 F.3d 1042 (9th Cir. 2004) (failure to advise of relief is denial of due process and can excuse exhaustion)
- Melendez-Castro v. Mukasey, 671 F.3d 950 (9th Cir. 2012) (advice about voluntary departure must be meaningful; perfunctory disclaimers can violate due process)
- Ortiz-Lopez v. Holder, 385 F.3d 1202 (9th Cir. 2004) (failure to meaningfully advise of voluntary departure can excuse exhaustion and judicial-review requirements)