UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States

v. Case No. 18-cr-126-PB Opinion No.

Misael Herrera-Fuentes

O R D E R

The United States charged Misael Herrera-Fuentes with one

count of violating

(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.

I. FACTUAL BACKGROUND

Herrera-Fuentes, 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.

1 The 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.

In 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

2 supplemental motions to dismiss providing new factual and legal

support for his original motion. See Doc. Nos. 32, 38. Those

motions are before the court.

II. LEGAL BACKGROUND

An 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,

(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

(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.

A. Collateral Attacks on Orders

The law has not always permitted collateral attacks on

removal orders. But in United States v. Mendoza-Lopez,

(1987), the Supreme Court held that the due process clause

entitles an alien to collaterally challenge a removal proceeding

3 during an illegal reentry prosecution if “defects in [the]

administrative proceedings foreclose[d] judicial review of that

proceeding.” See

. 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

.

Congress 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),

, Congress

amended the Immigration and Nationality Act (“INA”) by adding a

new subsection to § 1326:

(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 demonstrates that—

(1) the alien 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.

(d). A proceeding is fundamentally unfair under

§ 1326(d) only if there is “a reasonable likelihood that the

result would have been different if the error in the deportation

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

(1st Cir. 2006) (quoting United States v. Loaisiga,

(1st Cir. 1997)).

4 Herrera-Fuentes does not claim that the result of the 2007

removal proceeding would have been different if his Notice to

Appear had specified the date and time of his removal hearing.

Instead, he claims that his challenge is not subject to

§ 1326(d) at all because the alleged deficiency in his Notice to

Appear is a jurisdictional defect that can always be

collaterally challenged during an illegal reentry prosecution.

Herrera-Fuentes bases his jurisdictional challenge on the

Supreme Court’s recent decision in Pereira v. Sessions,

(2018), which I turn to next.

B. Pereira and the “Notice to Appear”

Nonpermanent residents who are subject to removal and have

lived in the United States for ten consecutive years may

petition the Attorney General of the United States for a

discretionary cancellation of removal. 8 U.S.C. § 1229b(b)(1).

The statute governing cancellations of removal also sets forth a

“stop-time rule” which provides that continuous physical

presence is “deemed to end . . . when the alien is served a

notice to appear under section 1229(a).” See 8 U.S.C.

§ 1229b(d)(1)(A). Section 1229(a), in turn, requires that

“written notice (in this section referred to as a ‘notice to

appear’) shall be given” to the alien.

(a)(1).

That written notice must “specify[] . . . [t]he time and place

at which the proceedings will be held.”

(a)(1);

5 1229(a)(1)(G)(i). The Court held in Pereira that a Notice to

Appear that stated the hearing would be held “on a date to be

set at a time to be set,” Pereira,

, was “not

a notice to appear under section 1229(a)” and therefore did not

trigger the stop-time rule. See

at 2114 (quoting 8 U.S.C.

§ 1229b(d)(1)(A)).

The Notice to Appear that DHS served on Herrera-Fuentes

contained the same time and date deficiencies as the Notice to

Appear in Pereira. Herrera-Fuentes, however, is not petitioning

the Attorney General for cancellation of removal; he is moving

to dismiss his indictment. How, then, could Pereira affect this

case? Defendant maintains that because his so-called “Notice to

Appear” was not actually a Notice to Appear at all (just as in

Pereira), the immigration court rendered a judgment against him

on a matter that it had no jurisdiction to decide.

III. ANALYSIS

A. Pereira Defect

Herrera-Fuentes argues that he is entitled to press his

collateral challenge to the 2007 Removal Order without complying

with § 1326(d) because the immigration court never acquired

jurisdiction to issue the order. This argument is based on the

premise that a Notice to Appear cannot confer jurisdiction on an

immigration court unless it specifies the date and time of the

removal hearing as is required by Pereira. Because I determine

6 that Pereira establishes a claim-processing rule rather than a

jurisdictional requirement, I reject Herrera-Fuentes’ argument.

Although courts have addressed this question in different

ways, 1 I find that the Seventh Circuit’s recent decision in

Ortiz-Santiago v. Barr,

(7th Cir. 2019), reh’g

denied (July 18, 2019), neatly describes why a Pereira error is

not jurisdictional. As that court notes, the relevant statutory

provision,

(a)(1)(G)(i)), makes no mention of

jurisdiction. See Ortiz-Santiago,

. Indeed, the

entire INA omits reference to the jurisdiction of the

immigration courts. See

, et seq. Statutory

text must provide a “clear indication” that a rule is meant to

be jurisdictional. See Henderson v. Shinseki,

, 436

(2011). This statute provides no indication at all.

1 See Banegas Gomez v. Barr,

(2d Cir. 2019) (holding that jurisdiction vests in the immigration court when a Pereira violation is cured); Santos-Santos v. Barr,

(6th Cir. 2019) (holding that a cured Pereira violation vests jurisdiction, and that alternatively, a notice to appear itself vests jurisdiction even if it does not specify the date and time of the hearing); Karingithi v. Whitaker,

(9th Cir. 2019) (agreeing with Second Circuit that jurisdiction vests when a defective notice is cured). The few district court judgments that have found a jurisdictional error have fared poorly. See, e.g., United States v. Zapata-Cortinas, No. SA-18-CR-00343-OLG,

, at *1 (W.D. Tex. Oct. 2, 2018), vacated (Oct. 17, 2018), opinion superseded on reconsideration,

(W.D. Tex. 2018); United States v. Rojas Osorio, No. 17-CR-00507-LHK,

, (N.D. Cal. Jan. 16, 2019), order vacated on reconsideration sub nom. United States v. Rojas-Osorio,

(N.D. Cal. 2019).

7 Nor does Pereira support the view that the defect is

jurisdictional. “[T]he Supreme Court made no mention of

jurisdiction in Pereira.” See Ortiz-Santiago,

.

“That makes sense: there is no reason why the Court needed to do

so. And had it found a lack of jurisdiction, it would not have

remanded for further proceedings.”

As the Seventh Circuit succinctly explained in concluding

that Pereira establishes a claim-processing rule:

[W]e see a statute (

(a)(1)(G)(i)) that says nothing about the agency’s jurisdiction. It simply sets out the information that must be included in a Notice to Appear. That does not mean that the statute is unimportant or can be ignored. It simply means that an aggrieved party can forfeit any objection she has by failing to raise it at the right time.

(citation omitted).

A party wishing to challenge a claim-processing defect must

timely object, see Eberhart v. United States,

,

(2005) (per curiam), or show actual prejudice. See Pereira,

. Here, Herrera-Fuentes was served with a Notice

of Hearing that gave him advance notice of the date and time of

his hearing and he has not argued that he was prejudiced by the

deficient Notice to Appear. Cf. Ortiz-Santiago,

(“This is not a case in which the Notice of Hearing never

reached him, or it came so quickly that he had trouble preparing

for the hearing, or any other discernible prejudice occurred.”).

8 Without any actual prejudice, he cannot say that the entry of

his order was “fundamentally unfair.” See

(d)(3).

Because the Pereira defect at issue here did not deprive

the immigration court of jurisdiction, Herrera-Fuentes is

subject to the collateral review requirements of

(d). And because he cannot show that his proceedings were

fundamentally unfair, he cannot satisfy those requirements.

B. Immigration Court Defects

Herrera-Fuentes alternatively argues that the immigration

judge’s failure to adequately advise him of his appellate rights

rendered his removal fundamentally unfair. 2 This argument fails.

Herrera-Fuentes did not exhaust his administrative remedies

with respect to this argument and was not denied the opportunity

for judicial review. He knowingly failed to appeal his decision

to the Board of Immigration Appeals. See United States v.

DeLeon,

(1st Cir. 2006) (advising that

“ordinarily, the § 1326(d) analysis should start with the first

ground”). The immigration judge advised Herrera-Fuentes of his

right to appeal on three occasions, and to the question “Do you

2 In two sentences, Herrera-Fuentes contends that the immigration judge’s failure to advise him of pro bono legal services rendered the proceeding fundamentally unfair. He cites no caselaw supporting this proposition, however, and arguments raised in a cursory fashion are thereby waived. See United States v. De Jesus-Viera,

, 58 n.4 (1st Cir. 2011).

9 accept my decision as final or you want to appeal it?” he

responded “No, I accept.” Doc. No. 31-1 at 8-9. “[I]t is quite

clear that Congress has, particularly in the immigration laws,

placed a premium on exhaustion of agency remedies,” and the

failure to do so precludes a collateral attack. DeLeon,

n.7.

Moreover, Herrera-Fuentes makes no argument and provides no

evidence that the result of the removal proceeding would have

been affected by appeal. In addition to showing that he

exhausted available administrative remedies and that he was

improperly deprived of the opportunity for judicial review,

Herrera-Fuentes must show that “the entry of the order was

fundamentally unfair.” See

(d). That means

demonstrating prejudice, and such a showing requires “a

reasonable likelihood that the result would have been different

if the error in the deportation proceeding had not occurred.”

United States v. Soto-Mateo,

(1st Cir. 2015)

(quoting Luna,

). Herrera-Fuentes has not even

suggested how the result of his proceeding would have been

different and therefore has not shown that “the entry of the

order was fundamentally unfair.” See

(d).

10 IV. CONCLUSION

Herrera-Fuentes has not demonstrated that his removal was

fundamentally unfair. I deny his supplemental motions to

dismiss the indictment (Doc. Nos. 32 & 38).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

August 7, 2019

cc: Dorothy E. Graham, Esq. Alfred J.T. Rubega, Esq. Helen W. Fitzgibbon, Esq.

11