United States District Court, D. New Hampshire
Dorothy E. Graham, Esq., Alfred J.T. Rubega, Esq., Helen W.
J. Barbadoro, United States District Judge.
United States charged Misael Herrera-Fuentes with one count
of violating 8 U.S.C. § 1326(a), the illegal reentry
statute. Herrera-Fuentes responded with supplemental motions
to dismiss that collaterally attack the immigration court
order the government relies on to prove that he had
previously been removed from the United States. Because I
conclude that Herrera-Fuentes cannot collaterally attack the
immigration court order, I deny his motions.
a Honduran national, has been removed twice before. In
September 2007, the Department of Homeland Security
(“DHS”) found him living in Manchester, New
Hampshire, and removed him to Honduras. In October 2012, he
was detained after unlawfully entering the United States near
Eagle Pass, Texas. His removal order was reinstated and he
was again removed.
details surrounding Herrera-Fuentes' first removal are
central to this case. On September 13, 2007, the Patrol
Agent-in-Charge served Herrera-Fuentes with a Notice to
Appear before an immigration judge. See Doc. No.
11-1. That Notice instructed him to appear at the Ribicoff
Federal Building in Hartford, Connecticut “on a
date to be set at a time to be set.” Doc.
No. 11-1. On September 24, Herrera-Fuentes, who was then in
detention, received a “Notice of Hearing in Removal
Proceedings” specifying that his removal hearing would
be held “on Sep 26, 2007 at 9:00 A.M.” Doc. No.
11-2. Herrera-Fuentes appeared at the hearing via video
teleconference. Following the hearing, the Executive Office
for Immigration Review ordered his removal (“2007
Removal Order”). See Doc. No. 11-3. He did not
challenge the order and he was later removed.
August 2018, Herrera-Fuentes was indicted in this court for
illegal reentry. See Doc. No. 1. He responded with a
motion to dismiss claiming that the 2007 Removal Order was
improper because his Notice to Appear did not specify the
date and time of his removal hearing. I denied his motion
from the bench because Herrera-Fuentes was served with a
Notice of Hearing that gave him advance notice of when the
hearing would be held. On January 24, 2019, he entered a
conditional guilty plea preserving his right to appeal from
the denial of his motion to dismiss. On March 29 and May 24,
2019, he filed supplemental motions to dismiss providing new
factual and legal support for his original motion.
See Doc. Nos. 32, 38. Those motions are before the
illegal reentry charge requires proof that the defendant
“(1) is an alien, (2) was previously deported, and (3)
thereafter entered, or attempted to enter, the United States
without permission.” United States v. Contreras
Palacios, 492 F.3d 39, 42 (1st Cir. 2007).
Herrera-Fuentes targets the second element of the crime by
collaterally attacking the 2007 Removal Order. As he sees it,
the immigration court lacked jurisdiction over him because
his original Notice to Appear did not specify the date and
time of his removal hearing as is required by 8 U.S.C. §
1229(a). Accordingly, he contends that the 2007 Removal Order
was unlawful and cannot be used to satisfy the second element
of an illegal reentry prosecution. This apparently simple
argument is a straight thread pulled from an entangled skein.
Before I address it, I describe the law on which it is based.
Collateral Attacks on Orders
has not always permitted collateral attacks on removal
orders. But in United States v. Mendoza-Lopez, 481
U.S. 828 (1987), the Supreme Court held that the due process
clause entitles an alien to collaterally challenge a removal
proceeding during an illegal reentry prosecution if
“defects in [the] administrative proceedings
foreclose[d] judicial review of that proceeding.”
See id. at 838. Because the defendants in
Mendoza-Lopez had been denied their right to appeal
their removal orders, the Court concluded that the
defendants' motions to dismiss must be granted. See
id. at 842.
responded to the Mendoza-Lopez decision some years
later. In the Antiterrorism and Effective Death Penalty Act
of 1996, PL 104-132 (Apr. 24, 1996), 110 Stat. 1214, Congress
amended the Immigration and Nationality Act
(“INA”) by adding a new subsection to §
(d) In a criminal proceeding under this section, an alien may
not challenge the validity of the deportation order described
in subsection (a)(1) or subsection (b) unless the alien
(1) the alien exhausted any administrative remedies that may
have been available to seek ...