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United States v. Mejia

United States District Court, D. New Hampshire

November 19, 2018

United States of America
v.
Luis Vigniero Mejia

          MEMORANDUM ORDER

          JOSEPH N. LAPLANTE UNITED STATES DISTRICT JUDGE.

         Resolution of this motion to dismiss a criminal indictment turns on whether the Immigration Court had jurisdiction to order the defendant removed. The grand jury charged defendant Luis Vigniero Mejia with one count of reentry after deportation in violation of 8 U.S.C. § 1326.[1] Vigniero Mejia, who has twice previously been deported from the United States, seeks dismissal of this charge through a collateral attack on his first removal order. Specifically, he argues that, under the Supreme Court's recent decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), the Immigration Court that ordered his first removal in 1999 lacked subject-matter jurisdiction to issue his final removal order. As a result of that order's infirmity, he argues that his present charge of reentry after deportation lacks the necessary predicate of a valid deportation.

         To collaterally attack a removal predicate to a charge for illegal reentry, a defendant must generally satisfy the requirements of 8 U.S.C. § 1326(d). Vigniero Mejia has not done so here. Nor is the court inclined to extend Pereira's narrow holding to divest an immigration court of jurisdiction over removal proceedings where the initial notice to appear lacked the time and date of the removal hearing, especially where a subsequent notice conveyed that information to the defendant such that he appeared. Accordingly, the court denies Vigniero Mejia's motion to dismiss his indictment.

         I. Background

         Vigniero Mejia, a citizen of the Dominican Republic, first entered the United States in 1991. He became a lawful permanent resident in 1994. Three years later, he was convicted of two felonies and a misdemeanor. As a result, in September 1999, the Immigration and Nationalization Service (INS) instituted removal proceedings.

         He was served with a Notice to Appear for removal proceedings, which charged him with removability for committing multiple crimes of moral turpitude.[2] The notice listed the date and time of his removal hearings as “to be set.”[3] Vigniero Mejia signed the Notice to Appear, thereby acknowledging his receipt and understanding of the document, [4] and was taken into custody.

         On October 13, 1999, he was served with a hearing notice, which set the time and date for his removal hearing for November 3, 1999 at 9:00am.[5] Vigniero Mejia, along with his attorney, appeared at the hearing as scheduled. The Immigration Judge ordered him removed to the Dominican Republic for having committed crimes of moral turpitude, [6] and he was then deported. Vigniero Mejia neither moved to reopen his proceedings nor appealed the decision.

         After entering the United States a second time, Vigniero Mejia was again deported in April 2007, upon reinstatement of the 1999 removal order. He reentered again on July 14, 2018, leading to his present indictment for illegal reentry.

         II. Analysis

         Generally, to successfully attack a deportation order underlying a charge of illegal reentry, the defendant must demonstrate that “(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). Vigniero Mejia has not satisfied these requirements. Nor does he argue that he has. Rather, he contends that the Immigration Court lacked subject-matter jurisdiction to issue that order, rendering his final deportation order void. Concluding that the Immigration Court had subject-matter jurisdiction, the court denies his motion to dismiss.

         A. Immigration Court's subject-matter jurisdiction

         Vigniero Mejia argues that the Immigration Court lacked subject-matter jurisdiction to issue his removal order because the initial notice to appear before it failed to designate a specific time or place for his appearance.[7] He derives this argument from the definition of “notice to appear” in 8 U.S.C. § 1229(a)(1), regulations promulgated under that statute, and a broad interpretation of the Supreme Court's recent decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). The court declines to adopt so broad an interpretation of that decision and concludes that lack of the time and place in Vigniero Mejia's initial notice to appear did not divest the Immigration Court of subject-matter jurisdiction to issue his removal order.

         Under the applicable regulations, “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” 8 C.F.R. § 1003.14(a). A “charging document” is “the written instrument which initiates a proceeding before an Immigration Judge.” Id. § 1003.13. A “Notice to Appear” is one such document. Id.

         A related statute provides that written notice, called a “notice to appear, ” must be given to an alien in removal proceedings, and that such written notice must specify, among other things, “[t]he time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). “[I]n the case of any change or postponement in the time and place of such proceedings . . . a written notice shall be given in person to the alien . . . ...


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