United States v. Rangel-Rodriguez

367 F.Supp.3d 836

UNITED STATES of America

v.Ismael RANGEL-RODRIGUEZ

Case No. 18 CR 581

United States District Court, N.D. Illinois, Eastern Division.

Signed February 12, 2019

AUSA, Melody Wells, United States Attorney's Office, Chicago, IL, Pretrial Services, for United States of America.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Ismael Rangel-Rodriguez,¹ a native of Mexico, was indicted on September 12, 2018 under 8 U.S.C. § 1326(a) for allegedly reentering the United States after he was previously found to be in the country illegally. Rangel has moved to dismiss the indictment on the basis that the underlying removal was legally defective under the Supreme Court's recent ruling in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). He argues that, because of the defect, his prior removal cannot, as a matter of law, serve as an element of the present charge. After reviewing the record and controlling authority, the Court concludes that the motion must be denied.

Background

On November 26, 2010, Rangel was arrested for driving on a suspended license and other offenses. United States Immigration and Customs Enforcement (ICE) initiated removal proceedings by serving the defendant with a notice to appear (NTA) the same day. The NTA directed Rangel to appear before an immigration judge on a date and time "to be set."

The parties appear to agree that ICE subsequently issued three hearing notices that specified the times, dates, and locations of proceedings that occurred in the following months, though there is some disagreement about whether each was properly served on Rangel. The parties also agree that Rangel appeared by video conference at three hearings in February and March 2011. After the third hearing, which occurred on March 15, 2011, Rangel was released on bond. The parties disagree about whether Rangel was notified of his next court date at the time of his release, and neither side has obtained a transcript of the hearing.

The record says little about what happened in the year following Rangel's bond.² And neither party has produced records of any hearings that may have occurred during the remainder of 2011, though Rangel offers the observation that ICE's internal record system suggests no such hearings occurred.³

The next relevant proceeding included in the record was a hearing in February 2012. Specifically, on February 22, 2012, eleven months after Rangel was released on bond, the immigration court conducted a removal hearing and ordered him removed from the United States. But Rangel was not present at the removal hearing because he had been arrested on a DUI charge in late January and was in state custody pending trial. In short, he was ordered removed in absentia. Rangel was then convicted of DUI in August 2012 and served another year in state custody before he was released to ICE custody in September 2013. ICE caused him to be physically removed from the United States on September 24, 2013.

Two days after his removal, Rangel was again apprehended in the United States. ICE reinstated the removal order and immediately removed him to Mexico.

At some point between then and August 2018, Rangel again reentered the United States. He was arrested by Chicago police on August 13, 2018. A grand jury then indicted him on a charge of illegal reentry under 8 U.S.C. § 1326(a).

Discussion

In relevant part, section 1326(a) makes it a crime when "any alien who ... has been deported[ ] or removed ... thereafter ... enters, or attempts to enter, or is at any time found in, the United States...." Id. Rangel has moved to dismiss the indictment on the basis that his initial removal was defective under Pereira , 138 S.Ct. at 2105. In Pereira , the Supreme Court held, in an arguably analogous context, that the NTA statute, 8 U.S.C. § 1229(a), requires date and time information be provided to a respondent in order for that document to have effect. Rangel alleges that the government's failure to include time and date information in the 2010 NTA rendered it legally ineffective and that as a result, his removal following issuance of that NTA cannot, as a matter of law, serve as a basis for this indictment. The government contends that Pereira is readily distinguishable and ought not to apply here. Alternatively, it contends that 8 U.S.C. § 1326(d) sets out specific statutory requirements for collaterally attacking the removal order underlying an indictment like this one and that Rangel has failed to satisfy those requirements. The Court addresses each of these arguments in turn.

A. Pereira 's applicability

At the threshold, the parties dispute whether Pereira is applicable here at all.

1. The Supreme Court's holding in Pereira

Pereira involved a challenge to a removal order under the "stop-time" rule from 8 U.S.C. § 1229b. See Pereira , 138 S.Ct. at 2110. Section 1229b(b)(1)(A) provides relief from deportation for noncitizens who have "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application" for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(A). The stop-time rule is a carve-out that stops a noncitizen from accruing time toward eligibility for cancellation of removal "when the alien is served a notice to appear under section 1229(a) of this title." Id. § 1229b(d)(1).

Section 1229(a), entitled "Notice to appear," sets out the requirements for the written notice that "shall be given ... to the alien" who is subject to removal proceedings. Id. § 1229(a). Among other things, section (1)(G)(i) requires an NTA to include "[t]he time and place at which the removal proceedings will be held." Id. § 1229(a)(1)(G)(i). Before Pereira , agency regulation and practice did not follow the letter of this requirement. Specifically, the relevant regulation required only that NTAs provide "[t]he time, place, and date of the initial removal hearing, where practicable. " 62 Fed. Reg. 10332 (1997) (emphasis added). And, in recent years, DHS virtually never deemed providing such information to be practicable. See Pereira , 138 S.Ct. at 2111.

Accordingly, the NTA served upon the appellant in Pereira lacked information about the time and location of the hearing at which he was required to appear. The Supreme Court held in Pereira that (1) the agency's interpretation of the statute was not owed deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), because the relevant requirements of sections 1229b(d)(1) and 1229(a) were wholly unambiguous and (2) "[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a) ’ and therefore does not trigger the stop-time rule." Pereira , 138 S.Ct. at 2110. The Court reversed and remanded for reconsideration of Pereira's application for cancellation of removal.⁴

2. Pereira 's application in this case

The government argues that Pereira 's holding is narrowly applicable only in the stop-time context and therefore irrelevant to Rangel's indictment for violating section 1326(a). It points to the Supreme Court's characterization of "[t]he narrow question" in Pereira : "If the government serves a noncitizen with a document that is labeled ‘notice to appear,’ but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule?" Id. Likewise, the Court's answer to that question—its holding—specifically refers to the stop-time rule. Id. ("No. [Such inadequate] notice ... does not trigger the stop-time rule."). In the government's view, "the Supreme Court's repeated use of the same phrase—‘trigger the stop-time rule’— cannot be accidental, and it leaves no doubt that Pereira only addressed the question of what triggers the stop-time rule." Gov.'s Br. in Opp., dkt. no. 10, at 8. And the government emphasizes that several district courts assessing this question have concluded that Pereira is inapplicable to NTAs for the purposes of a section 1326(a) charge. See, e.g. , United States v. Morales-Hernandez , No. CR-18-00365-TUC-RCC, 2018 WL 4492377 (D. Ariz. Sept. 18, 2018) ; United States v. Fernandez , No. 7:18-CR-11-BO-1, 2018 WL 4976804 (E.D.N.C. Oct. 15, 2018).

Rangel proposes a more expansive reading of Pereira . He argues that, regardless of the Supreme Court's characterization of the question before it, Pereira construed the requirements of section 1229(a), which applies broadly to the initiation of deportation proceedings. After all, Pereira reasoned that section 1229"speak[s] in definitional terms" about the meaning of the words "notice to appear," and that, therefore, when that phrase is "used elsewhere in the statutory section, including as the trigger for the stop-time rule, it carries with it the substantive time-and-place criteria...." Pereira , 138 S.Ct. at 2116. Rangel then argues that "[w]ithout a valid charging document initiating removal proceedings, jurisdiction never vests in the immigration court," rendering any action taken pursuant to such a document null and void. Def.'s Br. in Supp., dkt. no. 8, at 5.

In other words, Rangel asserts that because the NTA served upon him lacked time and date information, it did not meet the statutory requirements of section 1229(a) and thus did not vest the immigration court with jurisdiction to order removal. He contends that the removal order was therefore invalid and cannot not serve as a basis for the present section 1326(a) charge. Rangel notes that several district courts have held such a defect sufficient to require dismissal of a charge under the statute. See, e.g. , United States v. Quijada-Gomez , No. 2:18-cr-00110-SAB, 360 F.Supp.3d 1084, 1093–95, 2018 WL 6706680, at *6-8 (E.D. Wash. Dec. 20, 2018) ; United States v. Lopez-Urgel , 351 F.Supp.3d 978, 988-90 (W.D. Tex. 2018) ; United States v. Virgen-Ponce , 320 F.Supp.3d 1164,...