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United States v. Mendoza-Sanchez

United States District Court, D. New Hampshire

November 5, 2018

United States of America
Roberto Mendoza-Sanchez

          Anna Z. Krasinski, Esq., Jonathan R. Saxe, Esq.


          Joseph A. DiClerico Jr., United States District Judge

         The United States charged Roberto Mendoza-Sanchez with one count of illegally reentering the United States after removal in violation of 8 U.S.C. § 1326(a). Mendoza-Sanchez pleaded guilty but now moves to withdraw his guilty plea and dismiss the indictment on the ground that he is legally innocent of the offense. The government objects.

         Standard of Review

         A defendant may withdraw his plea of guilty if he “can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A colorable assertion that the defendant is legally innocent of the offense to which he pleaded guilty is among the factors to be considered when evaluating whether a defendant may withdraw his guilty plea. See United States v. Fernandez-Santos, 856 F.3d 10, 15 (1st Cir. 2017). The government does not appear to contest the facts alleged by Mendoza-Sanchez or that the court should allow him to withdraw his guilty plea if those facts show that he is legally innocent.


         Immigration authorities arrested Mendoza-Sanchez on May 7, 2014. On May 8, Mendoza-Sanchez was served with a notice to appear (“NTA”) at a removal hearing at a date and time “[t]o be set.” Doc. 27-1 at 1. On May 28, 2014, the government served Mendoza-Sanchez with a “notice of hearing” that included the date and time for the hearing, which was June 4, 2014. Mendoza-Sanchez appeared at the removal hearing on June 4, requested voluntary departure, and waived his right to appeal the immigration judge's findings.

         The immigration judge denied Mendoza-Sanchez's request for voluntary departure and ordered removal. Mendoza-Sanchez was removed to Mexico on June 26, 2014. He was found back in the United States on November 28, 2017. The government thereafter brought the illegal reentry charges against Mendoza-Sanchez that are at issue in this case.


         Mendoza-Sanchez argues that he is legally innocent because, under Pereira v. Sessions, 138 S.Ct. 2105 (2018), the NTA served on him was deficient. Because the NTA was deficient, Mendoza-Sanchez contends, the removal order was entered without jurisdiction pursuant to 8 C.F.R. § 1003.14(a), which only vests subject matter jurisdiction in the immigration court when an NTA has been served. The government objects on the ground that Mendoza-Sanchez's challenge to the removal order is a collateral attack, and he does not meet the prerequisites listed under § 1326(d) for making a collateral attack.

         A. Pereira's Effect on Immigration Courts' Subject Matter Jurisdiction

         In Pereira, the Supreme Court addressed whether the “stop-time rule” is triggered when the government serves on a noncitizen an NTA that is defective. Pereira, 138 S.Ct. at 2109-10. A nonpermanent-resident noncitizen may be eligible for a disposition known as “cancellation of removal” if, among other requirements, he has been physically present in the United States for a continuous period of ten years or more. 8 U.S.C. § 1229b(b)(1)(A). The aptly-named “stop-time rule” stops the accumulation of time for cancellation of removal eligibility if the United States serves the noncitizen with an NTA. Id. § 1229b(d)(1)(A); Pereira, 138 S.Ct. at 2109.

         The NTA, however, must inform the noncitizen about the time and place of the removal proceedings at which he is required to appear. 8 U.S.C. § 1229(a)(1)(G)(i). Considering this statutory provision, the Supreme Court in Pereira held that “[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under § 1229(a)' and therefore does not trigger the stop-time rule.” 138 S.Ct. at 2110.

         Relying on Pereira's holding that a defective NTA is “not” an NTA and 8 C.F.R. § 1003.14(a), which vests subject matter jurisdiction in the immigration court only when a noncitizen has been served with an NTA, some district courts have found that removal orders entered after a defective NTA are void for lack of subject matter jurisdiction. United States v. Virgen-Ponce, 320 F.Supp.3d 1164 (E.D. Wash. 2018); United States v. Zapata-Cortinas, 2018 WL 4770868 (W.D. Texas Oct. 2, 2018). Therefore, in the view of those courts, any illegal reentry criminal charge premised on the void removal order must be dismissed. E.g., Virgen-Ponce, 320 F.Supp.3d at 1166. Other courts, however, have rejected that conclusion if the government cured the defect in the NTA by timely informing the noncitizen about the date and time of his or her removal proceedings. ...

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