UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 18-cr-133-01-JL Opinion No.

Luis Vigniero Mejia

MEMORANDUM ORDER

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 Luis

Vigniero Mejia with one count of reentry after deportation in

violation of

Vigniero Mejia, who has twice

previously been deported from the United States, seeks dismissal

of this charge through a collateral attack on his first removal

order. Specifically, he argues that, under the Supreme Court’s

recent decision in Pereira v. Sessions,

(2018),

the Immigration Court that ordered his first removal in 1999

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.

1 Indictment (doc. no. 7). To collaterally attack a removal predicate to a charge for

illegal reentry, a defendant must generally satisfy the

requirements of

(d). Vigniero Mejia 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 Vigniero

Mejia’s motion to dismiss his indictment.

Background

Vigniero Mejia, a citizen of the Dominican Republic, first

entered the United States in 1991. He became a lawful permanent

resident in 1994. Three years later, he was convicted of two

felonies and a misdemeanor. As a result, in September 1999, the

Immigration and Nationalization Service (INS) instituted removal

proceedings.

He was served with a Notice to Appear for removal

proceedings, which charged him with removability for committing

multiple crimes of moral turpitude.2 The notice listed the date

and time of his removal hearings as “to be set.”3 Vigniero Mejia

2 Gov’t Ex. 1 (doc. no. 13-1). 3

at 18R203-28.

2 signed the Notice to Appear, thereby acknowledging his receipt

and understanding of the document,4 and was taken into custody.

On October 13, 1999, he was served with a hearing notice,

which set the time and date for his removal hearing for

November 3, 1999 at 9:00am.5 Vigniero Mejia, along with his

attorney, appeared at the hearing as scheduled. The Immigration

Judge ordered him removed to the Dominican Republic for having

committed crimes of moral turpitude,6 and he was then deported.

Vigniero Mejia neither moved to reopen his proceedings nor

appealed the decision.

After entering the United States a second time, Vigniero

Mejia was again deported in April 2007, upon reinstatement of

the 1999 removal order. He reentered again on July 14, 2018,

leading to his present indictment for illegal reentry.

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

4

at 18R203-29. 5 Gov’t Ex. 2 (doc. no. 13-2). 6 Gov’t Ex. 4 (doc. no. 13-4).

3 improperly deprived the alien of the opportunity for judicial

review; and (3) the entry of the order was fundamentally

unfair.”

(d). Vigniero Mejia 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

Vigniero Mejia 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.7 He derives this

argument from the definition of “notice to appear” in

(a)(1), regulations promulgated under that statute, and a

broad interpretation of the Supreme Court’s recent decision in

Pereira v. Sessions,

(2018). The court declines

to adopt so broad an interpretation of that decision and

concludes that lack of the time and place in Vigniero Mejia’s

initial notice to appear did not divest the Immigration Court of

subject-matter jurisdiction to issue his removal order.

7 Mot. to Dismiss (doc. no. 10) at 5-6.

4 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.”

(a). A “charging document” is “the

written instrument which initiates a proceeding before an

Immigration Judge.”

§ 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.”

(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.”

§ 1229(a)(2)(A)(i).

Pursuant to regulations promulgated under

(a), allowing that “the Service shall provide in the

Notice to Appear, the time, place and date of the initial

removal hearing, where practicable,”

(emphasis added), Vigniero Mejia’s initial Notice to Appear did

not include the time and date of the hearing. Instead, it

5 indicated that those were “to be set.”8 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.”9

. It did so in Vigniero Mejia’s

case, setting a hearing for November 3, 1999 at 9:00am, and

providing Vigniero Mejia with a notice of that hearing, dated

October 13, 1999.10 Vigniero Mejia, accompanied by his counsel,

attended the hearing. The Immigration Judge subsequently

ordered his removal. And, in 2007, he was removed a second time

upon reinstatement of that order.

In Pereira, the Supreme Court interpreted § 1229(a) in the

context of the stop-time rule, holding that “[a] putative notice

to appear that fails to designate the specific time or place of

the noncitizen’s removal proceedings is not a ‘notice to appear

under section 1229(a),’ and so does not trigger the stop-time

8 Gov’t Ex. 1 (doc. no. 13-1) at 18R203-27. 9 At oral argument, the defendant suggested that Pereira explicitly rejected this regulation. The court does not read Pereira to do so, except perhaps as to its application in the context of the stop-time rule. Even if Pereira rejected it, explicitly or implicitly, the Court in no way indicated that the lack of a time or date on the initial Notice to Appear divested the Immigration Court of jurisdiction as provided by

(a). 10 Gov’t Ex. 2 (doc. no. 13-2) at 18R203-25.

6 rule.” 138 S. Ct. at 2113–14. Under that rule, “any period of

. . . continuous physical presence in the United States shall be

deemed to end . . . when the alien is served a notice to appear

under section 1229(a) of this title.”

§ 1229b(d)(1)(A).

This is important to certain forms of discretionary relief that

may be afforded to nonpermanent residents who have, among other

requirements, “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).

Invoking Pereira, Vigniero Mejia argues that his initial

Notice to Appear was not a “Notice to Appear” for purposes of

, and thus could not constitute a “charging

document” under

(a), because it did not

indicate the time and date of the hearing, as required by

(a) under the interpretation in Pereira. And, he

argues, because no “charging document” was filed with the

Immigration Court, jurisdiction never vested in that court. His

1999 removal order and the 2007 reinstatement of that order thus

lacked the force of law, he concludes, and therefore cannot

serve as a predicate removal for purposes of

.

A few courts have adopted this interpretation of Pereira,

granting motions to dismiss on this basis. E.g., United States

v. Valladares, No. 17-cr-156-SS, slip op. at 12-13 (Oct. 30,

7 2018); United States v. Virgen-Ponce,

(E.D. Wash. 2018); United States v. Zapata-Cortinas, No. SA-18-

CR-00343-OLG,

, at *3-4 (W.D. Tex. Oct. 2, 2018);

United States v. Pedroza-Rocha, No. EP-18-cr-1286-DB,

, at *9-10 (W.D. Tex. Sep. 21, 2018).

The majority, however, have rejected it--especially where,

unlike Pereira but like this case, the defendant did receive

notice of the time and date of his hearing and appeared. E.g.,

United States v. Mendoza-Sanchez, No. 17-CR-189-JD,

, at *3 (D.N.H. Nov. 5, 2018) (DiClerico, J.); Romero-

Colindres,

, at *2; United States v. Larios-

Ajualat, No. 18-10076-JWB,

, at *6-7 (D. Kan.

Oct. 15, 2018); Lira-Ramirez,

, at *6-7; United

States v. Rosa Fernandez, No. 7:18-CR-11-BO-1,

,

at *1 (E.D.N.C. Oct. 15, 2018); United States v. Munoz-Alvarado,

No. CR-18-171-C,

, at *1 (W.D. Okla. Oct. 2,

2018); United States v. Ibarra-Rodriguez, No. CR-18-190-M,

, at *2-3 (W.D. Okla. Sept. 25, 2018); United States

v. Morales-Hernandez, No. CR1800365TUCRCCJR,

(D.

Ariz. Sept. 18, 2018).

This court is likewise disinclined to extend Pereira to

this context. First, nowhere in Pereira did the Supreme Court

suggest that its interpretation of § 1229(a) vis-à-vis the stop-

time rule acted to strip immigration courts of jurisdiction over

8 removal proceedings. To the contrary, the Court emphasized the

narrow scope of its ruling. See Pereira,

(describing “[t]he narrow question in this case” as whether a

notice to appear that “fails to specify either the time or place

of the removal proceedings . . . trigger[s] the stop-time

rule”);

(describing the question addressed as “much

narrower” than the question presented by the appellant).

Second, unlike the stop-time rule, neither the

jurisdiction-vesting provision of

(a) nor the

definition of charging document under § 1003.13 expressly

requires that a notice to appear contain the information set

forth in § 1229(a). Nor do they cross-reference § 1229(a) when

defining the notice to appear, as the stop-time rule does.

Finally, even assuming that the initial notice to appear

ran afoul of § 1229(a) in a manner that precluded the

Immigration Court from exercising jurisdiction, the subsequent

notice of hearing setting a date and time cured any defect in

the initial notice to appear. See Rosa Fernandez,

, at *1. While the analogy is not perfect, it is

instructive that a federal district court may lack subject-

matter jurisdiction under

(diversity) where the

plaintiff failed to allege in its complaint the citizenship of

the parties or an amount in controversy over $75,000. See

Milford-Bennington R. Co. v. Pan Am Railways, Inc.,

(1st Cir. 2012) (plaintiff has burden of pleading facts

in support of diversity jurisdiction). The court may, however,

exercise jurisdiction over such a case after the plaintiff

amends the complaint to include the necessary jurisdictional

facts. That is to say, the lack of jurisdictional information

is not in and of itself fatal to the court’s jurisdiction; just

as it may be cured in the civil context, the subsequent written

notice informing Vigniero Mejia of the time and date of his

proceedings cured any defect in the original Notice to Appear.

B. Section 1326(d) requirements

Having concluded that the lack of time or date on the

original notice to appear did not deprive the Immigration Court

of subject-matter jurisdiction to issue a removal order, the

court turns to whether Vigniero Mejia has satisfied the

requirements for mounting a collateral challenge to such an

order under

(d). He has not.

1. Exhaustion of administrative remedies

First, Vigniero Mejia has not demonstrated--indeed, has not

attempted to demonstrate--that he exhausted his administrative

remedies. Appeal of a removal order “to the Board of

Immigration Appeals (BIA) is such an administrative remedy, and

. . . failure to take such an appeal constitutes a failure of

10 exhaustion.” United States v. DeLeon,

(1st Cir.

2006).

Vigniero Mejia does not claim that he appealed his removal

order to the BIA. He argues, instead, that his underlying

removal order was unlawful because the Immigration Court lacked

jurisdiction to issue it.11 Some courts have acknowledged that

“exhaustion is not required . . . where the administrative

proceeding would be void.” Shawnee Coal Co. v. Andrus,

(6th Cir. 1981). Cf. United States v. Romero-

Colindres, No. 1:18-CR-00415,

, at *2 (N.D. Ohio

Oct. 18, 2018) (addressing this argument in the § 1326(d)

context). As explained supra Part II.A, however, Vigniero

Mejia’s initial Notice to Appear did not deprive the Immigration

Court of jurisdiction, rendering this argument moot.

2. Deprivation of opportunity for judicial review

Nor has Vigniero Mejia must argued that his deportation

proceedings “deprived [him] of the opportunity for judicial

review.”

(d)(2). An Immigration Judge’s

“failure to adequately explain the availability of relief,

resulting in an uninformed waiver of the right to appeal, [is]

an error that deprive[s] [defendants] of their opportunity for

judicial review.” United States v. Luna,

(1st

11 Mot. to Dismiss (doc. no. 10) at 3-6.

11 Cir. 2006) (citing United States v. Mendoza-Lopez,

(1987)). Nothing in the record suggests a failure of that

nature -- or any other deprivation of an opportunity for

judicial review -- in Vigniero Mejia’s case.

3. Fundamental fairness

Finally, Vigniero Mejia has not demonstrated that “the

entry of [his removal] order was fundamentally unfair.”

(d)(3). To satisfy this requirement, the

defendant must demonstrate both “a procedural error and

prejudice.” Luna,

. Specifically, he must “show

prejudice in the sense of a reasonable likelihood that the

result would have been different if the error in the deportation

proceeding had not occurred.” United States v. Loaisiga,

(1st Cir. 1997).

Vigniero Mejia received notice of the hearing and attended

it accompanied by counsel. He thus cannot demonstrate the

prejudice required to satisfy that requirement -- that “the

result would have been different if the error in the deportation

proceeding had not occurred.” Loaisiga,

(1st

Cir. 1997).

Conclusion

The Immigration Court had jurisdiction to issue Vigniero

Mejia’s removal order and he has not satisfied the requirements

12 set forth in

(d) for mounting a collateral attack

on that order. His motion to dismiss his indictment12 is,

therefore, DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: November 19, 2018

cc: Anna Z. Krasinski, AUSA Jonathan R. Saxe, Esq.

12 Doc. no. 10.

13