424 F.Supp.3d 758
N.D. Cal.2019Background
- Defendant Antonio Rosas-Ramirez had prior convictions and multiple removals (1998 administrative removal, 2002 reinstatement, 2014 removal); earlier challenges to the 1998/2002 removals were previously granted, leaving the 2014 removal as the sole predicate for the § 1326 indictment.
- On Feb. 13, 2014 DHS served an NTA that omitted the required field identifying the address of the Immigration Court where the NTA would be filed (8 C.F.R. § 1003.15(b)(6)); a February 27, 2014 hearing occurred and an IJ ordered removal; defendant was deported March 1, 2014.
- Defendant was later indicted for illegal reentry (8 U.S.C. § 1326) based in part on the March 1, 2014 removal; he moved to dismiss the indictment as to the 2014 removal, arguing the defective NTA deprived the Immigration Court of jurisdiction.
- The government argued the regulatory requirement is non-jurisdictional (a claim-processing rule) and that defendant’s actual notice / appearance (or a Notice of Hearing) cured any defect.
- The court held the NTA omission was jurisdictional (relying on Ninth Circuit precedent), that actual notice/Notice of Hearing/appearance could not cure the defect, and that defendant satisfied § 1326(d) (fundamental unfairness and prejudice).
- The court dismissed the indictment with prejudice as to the 2014 removal because the removal order was void for lack of Immigration Court jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 C.F.R. § 1003.15(b)(6) (NTA must include court address) is jurisdictional | United States: the regulation is a claim-processing rule, not jurisdictional | Rosas-Ramirez: omission of court address is jurisdictional and invalidates the NTA | Court: § 1003.15(b)(6) is jurisdictional (following Karingithi) |
| Whether a subsequent Notice of Hearing or actual appearance cures a defective NTA | United States: multiple documents or actual notice/appearance can vest jurisdiction | Rosas-Ramirez: Lopez and regulatory text forbid curing a defective NTA by later documents or appearance | Court: a Notice of Hearing or appearance does not cure the defective NTA; jurisdiction never vested |
| Whether the IJ had jurisdiction over the 2014 removal and thus whether the removal order is valid | United States: removal order was effective despite the defective NTA | Rosas-Ramirez: removal order is void because the IJ lacked jurisdiction | Court: IJ lacked jurisdiction; the 2014 removal is void |
| Whether defendant meets 8 U.S.C. § 1326(d) to collaterally attack the removal | United States: defendant cannot show the removal was fundamentally unfair or prejudicial | Rosas-Ramirez: defective, jurisdictional NTA violated due process and caused prejudice; § 1326(d) satisfied (and jurisdictional voidness would independently dispel the need for exhaustion) | Court: defendant satisfied § 1326(d); removal was fundamentally unfair and prejudicial; indictment dismissed with prejudice |
Key Cases Cited
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (regulations govern when immigration-court jurisdiction vests and inform the NTA requirements)
- Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (a defective NTA under Pereira cannot be cured by a subsequent Notice of Hearing)
- Raya-Vaca v. United States, 771 F.3d 1195 (9th Cir. 2014) (elements and collateral-attack framework for § 1326(d); due-process and prejudice required for “fundamentally unfair”)
- United States v. Ochoa-Oregel, 904 F.3d 682 (9th Cir. 2018) (removal on illegitimate grounds can show prejudice for § 1326(d))
- United States v. Aguilera-Rosa, 769 F.3d 626 (9th Cir. 2014) (prejudice where defendant was removed when he should not have been)
- United States v. Arteaga-Centeno, 353 F. Supp. 3d 897 (N.D. Cal. 2019) (discussion of jurisdictional vs. non-jurisdictional defects and the effect of void immigration orders)