United States District Court, D. New Hampshire
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
order sets forth in greater detail the bases for the
court's March 5, 2019 order denying defendant Eleazar
Flores-Mora's motion for reconsideration. See, e.g.,
United States v. Joubert, 980 F.Supp.2d 53, 55 n.1
(D.N.H. 2014), aff'd, 778 F.3d 247 (1st Cir. 2015)
(citing In re Mosley, 494 F.3d 1320, 1328 (11th Cir.
2007) (noting a district court's authority to later
reduce its prior oral findings and rulings to writing)).
found Flores-Mora guilty on one count of reentry after
deportation in violation of 8 U.S.C. §
1326. Before trial, Flores-Mora moved to dismiss
this charge through a collateral attack on his prior removal
order, arguing 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
argued that his present charge of Reentry after Deportation
lacked the necessary predicate of a valid deportation.
court denied Flores-Mora's motion to dismiss the
indictment. See United States v. Flores-Mora, No.
18-CR-160-JL, 2018 WL 6050907 (D.N.H. Nov. 19, 2018). In
doing so, it concluded that Flores-Mora had not satisfied the
requirements of 8 U.S.C. § 1326(d), as is generally
necessary to collaterally attack a removal predicate to a
charge for unlawful reentry. The court also declined 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. Flores-Mora moved for reconsideration of
that order, also before trial. The court denied that motion,
now further explains its reasoning.
for reconsideration are appropriate only . . . if the moving
party presents newly discovered evidence, if there has been
an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a
manifest error of law or was clearly unjust.”
United States v. Allen, 573 F.3d 42, 53 (1st Cir.
2009). They “are not to be used as ‘a vehicle for
a party to undo its own procedural failures [or] allow a
party to advance arguments that could and should have been
presented to the district court prior to judgment.”
Id. (quoting Iverson v. City of Boston, 452
F.3d 94, 104 (1st Cir. 2006)).
seeks reconsideration on three grounds, none of which warrant
Flores-Mora attempts to relitigate the scope of Pereira's
holding in favor of a broader interpretation. Flores-Mora
raised that argument, and his proposed construction of
Pereira's holding, in his motion to
dismiss. The court disagreed and fully explained
its analysis, which was grounded in the Supreme Court's
own characterization of the Pereira decision as
“narrow.” See Flores-Mora, 2018 WL 6050907 at
*3-4. While a concurring opinion to an unpublished decision
from the Eleventh Circuit Court of Appeals offers an
alternative interpretation, and one that supports
Flores-Mora's view, see Duran-Ortega v. U.S. Attorney
General, No. 18-14563-D (11th Cir. Nov. 29, 2018), it is
not authority that binds this court. It thus does not
constitute a change in the law, nor does it demonstrate that
this court's reasoned (and reasonable) interpretation of
Pereira constitutes a manifest error of law. See
Allen, 573 F.3d at 53.
Flores-Mora challenges the court's discussion of the
actual notice he received as “clearly
erroneous.”Specifically, he argues that Pereira
expressly rejected the contention that § 1229's
notice requirement could be satisfied by a
subsequently-issued notice of hearing that included the
actual hearing date. To the extent that Pereira did so,
however, it did so explicitly in the context of the stop-time
rule. See Pereira, 138 S.Ct. at 2110, 2113-2114,
2118. And the cases Flores-Mora cites as having been
expressly rejected by Pereira all addressed the same question:
“Does service of a document styled as a ‘notice
to appear' that fails to specify ‘the items
listed' in § 1229(a)(1) trigger the stop-time
rule?” Id. at 2113-14 (emphasis added).
event, this court's decision -- specifically, that an
immigration court retains jurisdiction over removal
proceedings when the initial notice to appear lacked the time
and date of the removal hearing -- did not turn on whether
Flores-Mora received actual notice. See Flores-Mora,
2018 WL 6050907 at *3-4. Rather, it turned, first, on the
court's understanding of Pereira as limiting its
application of its interpretation of § 1229(a)(1) to the
stop-time rule and, second, on the fact that 8 C.F.R. §
1003.14(a), which vests jurisdiction in an immigration court
“when a charging document is filed, ” contains no
equivalent to the stop-time rule's requirement that the
notice to appear contain the information set forth in §
1229(a)(1). Although the court's decision contemplated
that actual, subsequent notice may cure a defect in the
initial notice, it did so only “assuming that the
initial notice to appear ran afoul of § 1229(a), ”
which, as discussed supra, the notice in question did not.
Flores-Mora observes that several other district courts have
concluded that the Supreme Court's interpretation of
§ 1229(a) in Pereira divests the immigration courts of
jurisdiction over a removal action when the initial notice to
appear did not include the time, date, or place of the
hearing.But none of these decisions constitutes
binding authority on this court. And while some district
courts have, in the intervening time, agreed with
Flores-Mora, a large majority of those Courts of Appeals that
have considered the question have agreed with this
court's interpretation of Pereira. See Ali v.
Barr, 924 F.3d 983, 986 (8th Cir. 2019) (joining the
“the BIA and a unanimous chorus of other circuits that
have considered and rejected” a broader interpretation)
(citing In re Bermudez-Cota, 27 I. & N. Dec.
441, 442-47 (BIA 2018); Banegas Gomez v. Barr, 922
F.3d 101, 109-12 (2d Cir. 2019); Soriano-Mendosa v.
Barr, No. 18-9535, 2019 WL 1531499, at *4 (10th Cir.
Apr. 9, 2019) (unpublished); Santos-Santos v. Barr,
917 F.3d 486, 489-91 (6th Cir. 2019); Karingithi v.
Whitaker, 913 F.3d 1158, 1159-62 (9th Cir. 2019)). But
cf. Ortiz Santiago v. Barr, 924 F.3d 956, 961-64
(adopting a broader interpretation of Pereira, but concluding
that the statutory time, place, and date requirement is a
nonjurisdictional claim-processing rule). This additional
authority therefore does not warrant reconsideration.
Flores-Mora argues in an addendum to his motion for
reconsideration that due-process failures may excuse a
defendant mounting a collateral attack on a removal order
from demonstrating exhaustion of administrative remedies and
denial of the opportunity for judicial review. See 8 U.S.C.
§ 1326(d). Specifically, he argues that the Immigration
Court's lack of subject-matter jurisdiction to issue his
removal order, under his interpretation of Pereira, denied
him due process. Flores-Mora discussed the requirements of
§ 1326(d), albeit tangentially, in his motion to dismiss
the indictment. He could have, but failed, to raise the
issue in his original motion, thus waiving it. See
Allen, 573 F.3d at 53.
were it not waived, Flores-Mora's new argument would
still fail. Ultimately, his argument turns on whether the
Immigration Court had subject-matter jurisdiction to issue
Flores-Mora's predicate removal order. And because the
court declines to reconsider its reading of Pereira, and thus
declines to conclude that the Immigration Court lacked such
jurisdiction, no due process violation excused compliance
with § 1326(d) in this circumstance.
motion for reconsideration of this court's order
denying his motion to dismiss his indictment is DENIED.