United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
Jesus Leonardo Castillo-Martinez
(“Castillo-Martinez” or “defendant”)
seeks to dismiss the indictment against him for illegal
reentry pursuant to 8 U.S.C. § 1326(d). He submits that
the removal order that underlies the sole count of illegal
reentry is unlawful and thus there is no valid removal to
form the necessary predicate for the charged offense.
primarily relies upon the United States Supreme Court's
recent decision in Pereira v. Sessions, 138 S.Ct.
2105 (2018), for the proposition that a Notice to Appear
(“NTA”) that lacks notification of the time and
place for the removal proceedings is facially deficient and
cannot vest the Immigration Judge with jurisdiction over the
matter. He contends that without such jurisdiction, the
Immigration Judge lacks authority to issue a valid order of
removal. Furthermore, he contends that his original removal
order, based on an incorrect determination that his drug
conviction was for an “aggravated felony”, was
wrongful and that he was not therefore automatically
reasons that follow, the Court finds that the decision in
Pereira is not controlling and the Immigration Judge had
jurisdiction to issue Castillo-Martinez's order of
removal. Moreover, defendant cannot satisfy the factors set
forth in § 1326(d) to attack collaterally his prior
order of removal.
was born in the Dominican Republic in 1973. He became a
Lawful Permanent Resident (“LPR”) in July, 1981,
when he was eight years old.
August, 1996, at age 23, Castillo-Martinez was convicted in
Massachusetts state court of Distribution of a Class D
Controlled Substance (marijuana) in violation of M.G.L. c.
94C, § 32C. He received a two-year suspended sentence
and probation. In December, 2010, Immigration and Customs
Enforcement (“ICE”) officials encountered
Castillo-Martinez at a jail in New Hampshire while he was
awaiting trial on another drug trafficking charge for the
sale of OxyContin. ICE lodged a detainer at that time.
June, 2012, Castillo-Martinez was convicted in New Hampshire
state court on the second drug-trafficking charge. He
received a suspended sentence of 5 to 10 years. Defendant was
then transferred into ICE custody and removal proceedings
were initiated against him.
was served an NTA while in ICE custody. It notified him that
he was removable from the United States based on his
conviction of an aggravated felony but did not state a date,
time or place for his removal hearing. The sole grounds
for removal listed in the NTA was defendant's 1996 drug
conviction in Massachusetts state court.
July, 2012, counsel for Castillo-Martinez filed a responsive
pleading with the Immigration Court conceding defendant's
removability but indicating that he would apply for deferral
of removal pursuant to the Convention Against Torture
(“the CAT”). After a hearing in November, 2012,
the Immigration Judge denied defendant's application for
relief under the CAT. Castillo-Martinez appealed that denial
to the Board of Immigration Appeals (“the BIA”)
but it denied the petition and ordered his removal. The
Department of Homeland Security (“DHS”) deported
Castillo-Martinez to the Dominican Republic in April, 2013.
Subsequent Reentry and Prosecution
August, 2016, Castillo-Martinez was arrested in Massachusetts
and taken into administrative custody by ICE. DHS reinstated
his prior order of removal and he was again deported to the
Dominican Republic in November, 2016.
June, 2018, Castillo-Martinez was again arrested in
Massachusetts and charged with trafficking in heroin. In
August, 2018, he was charged in a one-count indictment with
illegal reentry in violation of 8 U.S.C. § 1326(a) and
(b)(2). That charge was based on the 2016 removal order which
was itself a reinstatement of the initial 2013 removal order.
February, 2019, defendant filed a motion to dismiss the
indictment on the grounds that 1) based on a broad reading of
the Supreme Court's decision in Pereira, the Immigration
Judge lacked jurisdiction to enter the initial order of
removal in 2013 that forms the basis of the present
prosecution and 2) the sole charge of removability in the
2012 NTA was not based upon an “aggravated
felony” within the meaning of 8 U.S.C. §
1101(a)(43)(B) and thus he was not removable as a result.
Motion to ...