United States v. Castillo-Martinez

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         Defendant 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.

         Castillo-Martinez 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 removable.

         For the 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.

         I. Background

         A. Criminal History

         Castillo-Martinez was born in the Dominican Republic in 1973. He became a Lawful Permanent Resident (“LPR”) in July, 1981, when he was eight years old.

         In 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.

         In 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.

         B. Removal Proceedings

         Castillo-Martinez 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.^[1] The sole grounds for removal listed in the NTA was defendant's 1996 drug conviction in Massachusetts state court.

         In 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.

         C. Subsequent Reentry and Prosecution

          In 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.

         In 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.

         In 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.

         II. Motion to ...