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United States v. Flores-Mora

United States District Court, D. New Hampshire

November 19, 2018

United States of America
v.
Eleazar Flores-Mora

          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 Eleazar Flores-Mora with one count of reentry after deportation in violation of 8 U.S.C. § 1326.[1] 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.

         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). 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.

         I. Background

         Flores-Mora, 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.[2] The notice listed the date and time of his removal hearings as “to be set.”[3] Flores-Mora signed the Notice to Appear, thereby acknowledging his receipt and understanding of the document, [4] and was then released on his own recognizance.

         On 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.[5] Flores-Mora appeared at the hearing. He received notices of four subsequent removal hearings[6] 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.[7] The Immigration Judge ordered Flores-Mora removed in absentia. Flores-Mora never moved to reopen his proceedings nor appealed the decision.

         On 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.

         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). 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.

         A. Immigration Court's subject-matter jurisdiction

         Flores-Mora 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.[8] 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.

         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 . . . specifying, ” among other things, “the new time or place of the proceedings.” Id. § 1229(a)(2)(A)(i).

         Pursuant 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.”[9] 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.”[10] 8 C.F.R. ยง 1003.18. It did so in Flores-Mora's case, setting five subsequent hearings ...


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