390 F. Supp. 3d 653
E.D. Va.2019Background
- Defendant Erlin Torres Zuniga (citizen of Honduras) was indicted for illegal reentry under 8 U.S.C. § 1326(a) after being encountered in Virginia in November 2018.
- Torres first entered the U.S. in July 2007, received an NTA and was granted voluntary departure (left Oct. 31, 2007). He reentered in Feb. 2008, received a second NTA that did not list time/date, then received a subsequent Notice of Hearing (NOH) setting a March 17, 2008 hearing.
- Torres appeared at the March 17, 2008 hearing with counsel, admitted the NTA allegations, waived appeal, and the immigration court issued an Order of Removal; he was removed April 14, 2008.
- After 2008 removal, Torres unlawfully reentered several times (2012, 2013, 2014) and was removed each time under the reinstated 2008 order; he was again encountered in 2018 leading to the § 1326 charge.
- Torres moved to dismiss the indictment arguing the 2008 removal was void for lack of immigration-court jurisdiction under Pereira v. Sessions because the NTA lacked a time/date; he also contended that a void order excuses the § 1326(d) requirements.
- The government argued Torres must meet § 1326(d)’s three conjunctive elements to collaterally attack the removal order and that any NTA defect was cured by subsequent NOH and regulatory rules vesting jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2008 removal order was void for lack of immigration-court jurisdiction because the NTA omitted time/date (Pereira-based attack) | NTA without time/date is not an NTA under §1229(a) per Pereira, so IJ lacked jurisdiction and the removal order is ultra vires | Jurisdiction vests under regulations (8 C.F.R. §§1003.13-.14); two-step notice (NTA + subsequent NOH) or filing with court vests jurisdiction; Pereira addressed stop-time rule, not IJ jurisdiction | Court rejected Pereira-based jurisdictional void; regulations govern vesting and NOH cured any defect; removal order not void |
| Whether Torres may bypass §1326(d) and collaterally attack the removal order outside that statutory framework | A jurisdictionally void order is presumed prejudicial and excuses exhaustion and judicial-review requirements of §1326(d) | Collateral attacks must satisfy §1326(d) (exhaustion, deprivation of judicial review, fundamental unfairness) unless excused; Torres did not satisfy or meaningfully argue those elements | Court held Torres failed to meet §1326(d); his jurisdiction argument was rejected, so §1326(d) attack fails and dismissal is denied |
| Whether Pereira’s holding on the stop-time rule nullifies the regulatory two-step notice practice (NTA then NOH) | Pereira’s textual reading of §1229(a) undermines any NTA lacking time/date and thus precludes the two-step practice | Pereira resolved stop-time statutory question; it did not address regulatory vesting of IJ jurisdiction; the BIA and several circuits approve the two-step process | Court followed authority holding Pereira is narrow; two-step process recognized and NOH can vest jurisdiction; Pereira does not render removal void |
| Whether Torres showed prejudice under §1326(d)(3) | Presumed prejudice from a void order; thus prejudice requirement is satisfied | Record shows Torres appeared, admitted allegations, waived appeal, sought removal to Honduras, and had prior voluntary departure—he cannot show reasonable probability he would avoid deportation | Court found Torres did not show prejudice; §1326(d)(3) not met even aside from jurisdictional ruling |
Key Cases Cited
- United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (aliens have due process right to collaterally attack underlying deportation in §1326 prosecutions)
- United States v. El Shami, 434 F.3d 659 (4th Cir. 2006) (to satisfy §1326(d)(3) defendant must show due-process violation and prejudice)
- United States v. Wilson, 316 F.3d 506 (4th Cir. 2003) (discusses requirements for collateral attack under §1326)
- United States v. Moreno-Tapia, 848 F.3d 162 (4th Cir. 2017) (§1326(d) governs collateral attacks; statute targets procedural due-process defects)
- United States v. Lopez-Collazo, 824 F.3d 453 (4th Cir. 2016) (procedural defects can constitute due-process violations; voluntary departure not a prior removal for §1326)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding that a notice to appear lacking time/place is not a §1229(a) NTA for stop-time rule purposes)
- Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (rejects Pereira-based jurisdictional nullity; approves post-NTA NOH vesting jurisdiction)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (regulations, not §1229(a), define IJ jurisdiction; Pereira narrow)
- Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018) (approves BIA two-step notice approach)