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United States v. Ruiz-Gomez

United States District Court, D. New Mexico

April 22, 2019



         THIS MATTER comes before the Court on Defendant's Motion to Dismiss Indictment. [Doc. 20, filed March 1, 2019]. Having reviewed the parties' briefs and applicable law, and having held an evidentiary hearing, Defendant's Motion is DENIED.


         The government has charged Defendant Jorge Humberto Ruiz-Gomez with one count of unlawful reentry of a removed alien in violation of 8 U.S.C. § 1326. In November 2009, Defendant was found by immigration authorities in the custody of the State of Arizona, serving a sentence of 7.5 years for Aggravated Assault. On May 31, 2000, Defendant was served a Notice to Appear (“NTA”) that alleged he was subject to removal for being an alien convicted of a crime involving moral turpitude. The NTA states that his hearing would be at “See attached list of IRP Hearing Sites” on a date “to be set” at a time “to be set.”

         Defendant appeared before an immigration judge on two separate occasions on July 13, 2000 and August 31, 2000. The immigration judge ordered Defendant's removal on August 31, 2000. On February 16, 2006, he was removed from the United States subsequent to serving his state prison sentence. This was Defendant's only removal, and is the removal alleged in the instant indictment. [Doc. 15]. On October 21, 2018, immigration officials located Defendant in the Curry County Adult Detention Facility and immigration authorities arrested him on November 1, 2018. The indictment was filed February 13, 2019.


         “Generally, the strength or weakness of the government's case, or the sufficiency of the government's evidence to support a charge, may not be challenged by a pretrial motion.” United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994). When testing an indictment's sufficiency before trial, an indictment's allegations are taken as true, and courts should not consider evidence outside of the indictment. See id.

         Accordingly, an indictment is legally sufficient so long as it: “(1) contains the essential elements of the offense intended to be charged, (2) sufficiently apprises the accused of what he must be prepared to defend against, and (3) enables the accused to plead an acquittal or conviction under the indictment as a bar to any subsequent prosecution for the same offense.” Id. The Tenth Circuit has, however, carved out an exception to that general rule for cases “where the underlying facts [are] essentially undisputed and the government fail[s] to object to the district court's resort to evidence beyond the four corners of the indictment.” Id. “Under this scenario, a pretrial dismissal is essentially a determination that, as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.” Id. at 1088 (emphasis in original).

         The elements that the government must establish to convict a defendant of an illegal reentry offense are: (1) the defendant was an alien; (2) who has been previously been deported or removed from the United States; (3) and thereafter reentered the United States; (4) without permission. 8 U.S.C. § 1326(a).

         A defendant may “mount a collateral attack against a prior deportation order in response to an illegal reentry prosecution, ” United States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010), only if he can establish that he (1) exhausted administrative remedies; (2) was deprived the opportunity for judicial review; and (3) that the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d)(1)-(3). “Because a final deportation order enjoys a presumption of regularity, ” the burden is on the defendant to “prove each of § 1326(d)'s elements to overcome the presumed legality of the earlier deportation order.” Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Importantly, Congress enacted 8 U.S.C. § 1326(d) to limit collateral attacks on deportation orders. (H. Rept. 104-22 p. 6, 16). Consequently, such attacks are available only to those defendants who exhausted administrative remedies and can show that they were subject to “procedural errors ... so fundamental that they may functionally deprive the alien of judicial review.” United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004) (citing United States v. Mendoza-Lopez, 481 U.S. 828, 839 n. 17. (1987)).


         Defendant presents several arguments all centralized on one issue: whether the NTA was deficient because it did not specify the date and time of the hearing. Defendant argues: (1) the indictment must be dismissed because, as a matter of law, the government cannot establish its case because the NTA was not constitutionally valid; (2) the immigration judge lacked subject-matter jurisdiction to conduct removal proceedings because the NTA was deficient; and (3) he is not required to exhaust his administrative remedies, seek judicial review, or otherwise comply with Section 1326(d) because the NTA was deficient.

         I. Immigration Judge Jurisdiction

         Defendant attempts to circumvent the required analysis set forth under Section 1326 by arguing that the immigration judge never had jurisdiction because of the allegedly deficient NTA. The Immigration and Naturalization Act (“INA”) authorizes immigration judges to “conduct proceedings for deciding the inadmissibility or deportability of an alien.” 8 U.S.C. § 1229a(a)(1). The INA, however, is silent as to the procedure in which jurisdiction vests in an immigration court. Congress empowered the Attorney General to “establish such regulations” as he or she “determines to be necessary for carrying out” the INA. 8 U.S.C. § 1103(g)(2). These regulations provide that “jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” 8 C.F.R. § 1003.14(a). Charging documents “include a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien.” 8 C.F.R. § 1003.13; see Ka Cheung v. Holder, 678 F.3d 66, 67 n.1 (1st Cir. 2012) (“A Notice to Appear is a document that charges an alien with being removable under the INA. The Notice is served on the alien and then filed in immigration court, commencing removal proceedings”).

         Pursuant to 8 C.F.R. Section 1003.15, the NTA must set forth specific information, such as “the charges against the alien and the statutory provision alleged to have been violated.” 8 C.F.R. § 1005.15(b) & (c). The NTA should also include “the time, place and date of the initial removal hearing, where practicable.” 8 C.F.R. § 1003.18. If the date and time are omitted 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.” Id.; see Guamanrriga v. Holder, 670 F.3d 404, 410 (2d Cir. 2012) (noting that ‚Äúcircumstances often arise that make it impracticable for the DHS to provide an alien with the precise date and time of his initial removal hearing at the moment it serves the initial Notice to Appear, and in ...

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