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United States v. Gutierrez-Mayagoitia

United States District Court, D. New Mexico

May 24, 2019




         THIS MATTER is before the Court on Defendant Carlos Alfredo Gutierrez-Mayagoitia's Motion to Dismiss. Doc. 44. The government filed a Response to the Defendant's Motion to Dismiss the Indictment [Doc. 45] as well as a Notice of Decision in Another Matter [Doc. 48]. Mr. Gutierrez-Mayagoitia did not file a reply. Having considered the briefs, relevant law, and being otherwise fully informed, the Court finds that the Motion is not well-taken and accordingly will be DENIED.


         On November 16, 2011, Mr. Gutierrez-Mayagoitia was contacted by Immigration and Customs Enforcement (ICE) agents and taken into ICE custody. Doc. 44 at 2. On November 23, 2011, he was issued a Notice to Appear. Doc. 45 at 1. One notice was issued to an address in Chaparral, New Mexico and a second notice was issued to an address in El Paso, Texas. Doc. 44 at 2. Both copies ordered Mr. Gutierrez-Mayagoitia to appear “on a date to be set at a time to be set.” Id. at 3. On December 15, 2011, Mr. Gutierrez-Mayagoitia appeared before an Immigration Judge who ordered him removed to Mexico. Doc. 45 at 1. He was subsequently removed from the United States on December 20, 2011. Id.

         On September 17, 2017, Mr. Gutierrez-Mayagoitia was arrested in New Mexico for disorderly conduct and negligent use of a weapon. Id. A records check revealed that he was a national and citizen of Mexico and that he had previously been removed from the United States. Id. Mr. Gutierrez-Mayagoitia was scheduled to appear at the Albuquerque municipal court for the above chargers on November 6, 2017. Id. at 2. At that time, ICE agents approached him and when he admitted that he was a citizen and national of Mexico and that he had previously been removed, he was transported to the ICE office and fingerprinted. Id. On February 13, 2019, Mr. Gutierrez-Mayagoitia was charged in a one-count Indictment with Reentry of a Removed Alien, in violation of 8 U.S.C. §§ 1326(a) and (b). Doc. 37.


         On March 11, 2019, Mr. Gutierrez-Mayagoitia filed the instant Motion. Doc. 44. He argues that because the Notice to Appear did not specify a time and date, the notice was defective. Id. at 3. Accordingly, he argues that the Immigration Judge who entered his Order of Removal lacked jurisdiction to hear his removal proceedings. Id. at 7. Because his removal is an essential element of his Reentry of a Removed Alien charge, he argues that the present Indictment must be dismissed. Id. at 3-7. In making this argument, Mr. Gutierrez-Mayagoitia relies on Pereira v. Sessions, 138 S.Ct. 2105, 2115 (2018). Id. He further argues that he has met the threshold requirements under 8 U.S.C. § 1326(d) to bring a collateral attack. Id. at 8-9.

         On March 25, 2019, the government filed its Response. Doc. 45. The government argues that the Immigration Judge had jurisdiction irrespective of whether the Notice to Appear listed the date and time of the proceedings. Id. at 3. The government also contends that the Supreme Court's narrow holding in Pereira does not apply to this context. Id. at 6. Finally, the government argues that Mr. Gutierrez-Mayagoitia failed to meet the threshold requirements to collaterally attack his removal order. Id. at 14. For the reasons stated below, the Court is persuaded that there are no grounds for dismissal of the Indictment.

         I. Legal Standard

         An indictment is considered constitutionally sufficient if 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.” United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994) (citing Russell v. United States, 369 U.S. 749, 763- 64 (1962)). The sufficiency of an indictment should be “tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” Id.

         The elements that the government must establish to convict an individual of an illegal reentry offense are: (1) the defendant was an alien; (2) who has previously been deported or removed from the United States; (3) and thereafter reentered the United States; (4) without permission. 8 U.S.C. § 1326. Under certain circumstances, 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). A defendant can challenge the legality of a deportation order only where: “(1) the alien exhausted any administrative remedies that may have been able 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.” Id. (citing 8 U.S.C. § 1326(d)). Because there is a “presumption of regularity” for a final deportation, once the government establishes that the defendant was deported pursuant to an order, the burden shifts to the defendant to prove that all three of § 1326(d)'s elements have been met. Id.

         II. Analysis

         a. The Notice to Appear Did Not Deprive the Immigration Judge of Jurisdiction

         Mr. Gutierrez-Mayagoitia argues that the “time and place of removal proceedings” is “integral information” that is essential to a Notice to Appear, and any Notice to Appear that fails to designate the time and place is not a “notice to appear under section 1229(a).” Doc. 44 at 5-6 (citing Pereira, 138 S.Ct. at 2113-14, 2116-17). He argues that an invalid Notice to Appear “cannot properly trigger the commencement of ...

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