United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
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.
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,
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.
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.
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 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.
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.
The Notice to Appear Did Not Deprive the Immigration Judge of
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