United States District Court, D. New Hampshire
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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
served with a Notice to Appear for removal proceedings, which
charged him with removability for committing multiple crimes
of moral turpitude. The notice listed the date and time of his
removal hearings as “to be set.” Vigniero Mejia
signed the Notice to Appear, thereby acknowledging his
receipt and understanding of the document,  and was taken
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. 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,  and he was then deported.
Vigniero Mejia neither moved to reopen his proceedings nor
appealed the decision.
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.
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.
Immigration Court's subject-matter jurisdiction
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. 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.
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.
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 . . .