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 Eleazar
Flores-Mora with one count of reentry after deportation in
violation of 8 U.S.C. § 1326. Flores-Mora, who has
previously been deported from the United States, seeks
dismissal of this charge through a collateral attack on his
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 removal in 2013 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). Flores-Mora 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 Flores-Mora's motion to
dismiss his indictment.
a citizen of Mexico, first entered the United States in 1995.
He never obtained legal immigration status. Immigration and
Customs Enforcement (ICE) served him with a Notice to Appear
for removal proceedings in September 2009, which charged him
with removability for entering the United States without
inspection. The notice listed the date and time of his
removal hearings as “to be set.” Flores-Mora
signed the Notice to Appear, thereby acknowledging his
receipt and understanding of the document,  and was then
released on his own recognizance.
February 4, 2010, he was served with a hearing notice, which
set the time and date for his removal hearing for June 24
2010 at 9:00am. Flores-Mora appeared at the hearing. He
received notices of four subsequent removal
hearings and appeared at three of them. He failed
to appear at a hearing scheduled for May 19, 2011, apparently
for medical reasons, though his counsel was
present. The Immigration Judge ordered Flores-Mora
removed in absentia. Flores-Mora never moved to reopen his
proceedings nor appealed the decision.
February 19, 2013, ICE arrested Flores-Mora in Manchester,
New Hampshire. He was deported to Mexico. Flores-Mora
returned to the United States at some point thereafter and
ICE arrested him in Manchester on August 28, 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).
Flores-Mora 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
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 Flores-Mora'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 . . .
specifying, ” among other things, “the new time
or place of the proceedings.” Id. §
to regulations promulgated under 8 U.S.C. § 1228(a),
allowing that “the Service shall provide in the Notice
to Appear, the time, place and date of the initial removal
hearing, where practicable, ” 8 C.F.R. § 1003.18
(emphasis added), Flores-Mora's initial Notice to Appear
did not include the time and date of the hearing. Instead, it
indicated that those were “to be
set.” The regulations further provided that, if
the time and date were “not contained in the Notice to
Appear, the Immigration Court shall be responsible for
scheduling the initial removal hearing and providing notice
to the government and the alien of the time, place, and date
of hearing.” 8 C.F.R. § 1003.18. It did so in
Flores-Mora's case, setting five subsequent hearings ...