United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
PATTI B. SARIS Chief U.S. District Judge
Marvin Odiel Gomez-Ramirez moves to dismiss the indictment
charging him with illegal reentry in violation of 8 U.S.C.
§ 1326. Relying on Pereira v. Sessions, 138
S.Ct. 2105 (2018), he argues that his prior removal order was
entered without jurisdiction because his Notice to Appear
("NTA"), the document served on an alien and filed
with the immigration court that initiates removal
proceedings, did not include the date and time of his removal
hearing. After a hearing, the Court holds that Gomez-Ramirez
fails to satisfy the three requirements of 8 U.S.C. §
1326(d) in his collateral attack on his prior removal order.
Accordingly, the Court DENIES
Gomez-Ramirez's motion to dismiss the indictment (Docket
is a citizen of Guatemala. In 2001, at the age of twelve, he
came to the United States without documents to live with his
sister in Miami, Florida. He subsequently moved to
Massachusetts. On March 17, 2011, he was arrested in
connection with a burglary in Lynn, Massachusetts. Two months
later, he pled guilty and was sentenced to six months of
imprisonment. U.S. Immigration and Customs Enforcement
("ICE") removed Gomez-Ramirez from the country on
November 10. In June 2013, U.S. Customs and Border
Protection ("CBP") encountered Gomez-Ramirez
attempting to reenter the United States in Texas. CBP
reinstated his 2011 removal order and removed him again.
then returned to the United States for a third time. ICE
detained him in Lynn, Massachusetts on November 25, 2015. He
was handed an NTA on the same date. The NTA stated that he
was ordered to appear before an immigration judge in Boston
"on [date] To be set at [time] To be set." Dkt. No.
38-7 at 1. Gomez-Ramirez and an ICE officer attested on the
second page of the NTA that Gomez-Ramirez was personally
served with the NTA and given a list of attorneys providing
free legal services. After a hearing that he attended,
Gomez-Ramirez was ordered removed on December 17, 2015, and
he waived his right to an appeal. On the same day, he was
indicted for illegal reentry in violation of 8 U.S.C. §
1326. He entered a guilty plea in February 2016 and was
sentenced to time served and three years of supervised
release. On June 3, 2016, Gomez-Ramirez was removed to
returned a fourth time. The government encountered him back
in Lynn, Massachusetts on July 1, 2017. On April 26, 2018, he
was indicted again for illegal reentry in violation of 8
U.S.C. § 1326 based on his 2015 removal order.
moves to dismiss the indictment on the basis that his 2015
removal order was entered without jurisdiction because the
NTA filed with the immigration court in his case did not
include the date and time of his removal hearing. He relies
on the Supreme Court's recent decision in Pereira v.
Sessions, which held that an NTA without the date and
time of the removal hearing was not a valid NTA under 8
U.S.C. § 1229(a) and did not trigger the stop-time rule
for cancellation of removal. 138 S.Ct. at 2110. Agency
regulations require the filing of an NTA with the immigration
court to trigger the court's jurisdiction for removal
proceedings, 8 C.F.R. § 1003.14(a), but the regulatory
definition of an NTA does not require that it include the
date and time of the hearing, see id. §§
1003.15, 1003.18. Because Gomez-Ramirez's NTA did not
include the date and time of his hearing, he contends it was
invalid under Pereira and did not vest the
immigration court with jurisdiction to order his removal. He
alleges his prior removal order is therefore void and cannot
support an illegal reentry charge.
Standard of Review
Federal Rule of Criminal Procedure 12(b)(1), a defendant
"may raise by pretrial motion any defense . . . that the
court can determine without a trial on the merits." Pure
questions of law are properly considered on a pretrial motion
to dismiss. United States v. Pope, 613 F.3d 1255,
1260 (10th Cir. 2010); United States v. O'Brien,
994 F.Supp.2d 167, 174 n.2 (D. Mass. 2014). Because courts
must treat the indictment's allegations as true in
evaluating a motion to dismiss, defendants cannot raise
claims relating to the sufficiency of the evidence underlying
the indictment in a motion to dismiss. United States v.
Guerrier, 669 F.3d 1, 3-4 (1st Cir. 2011). However,
"a district court may consider a pretrial motion to
dismiss an indictment where the government does not dispute
the ability of the court to reach the motion and proffers,
stipulates, or otherwise does not dispute the pertinent
facts." United States v. Musso, 914 F.3d 26,
29-30 (1st Cir. 2019) (quoting United States v.
Weaver, 659 F.3d 353, 355 n.* (4th Cir. 2011)).
U.S.C. § 1326(a) "forbids an alien who once was
deported to return to the United States without special
permission." Almendarez-Torres v. United
States, 523 U.S. 224, 226 (1998). To convict a defendant
of illegal reentry, "the government must prove 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, 492 F.3d 39, 42 (1st Cir. 2007).
defendant charged with illegal reentry has a due process
right to challenge the validity of the underlying removal
order. See United States v. Mendoza-Lopez, 481 U.S.
828, 837-39 (1987). Congress codified this right in 8 U.S.C.
§ 1326(d). United States v. DeLeon, 444 F.3d
41, 44 (1st Cir. 2006). Under § 1326(d), a defendant may
challenge the validity of a prior removal order if he shows
that (1) he has "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." 8 U.S.C. § 1326(d);
United States v. Soto-Mateo, 799 F.3d 117, 120 (1st
Cir. 2015). The defendant bears the burden on a collateral
attack of a prior removal order and must satisfy all three
elements to prevail. Soto-Mateo, 799 F.3d at 120-21.
To satisfy the third prong of fundamental unfairness, the
defendant must make "a showing of procedural error and
prejudice." United States v. Luna, 436 F.3d
312, 319 ...