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United States v. Cortez

United States Court of Appeals, Fourth Circuit

July 17, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JUAN CORTEZ, a/k/a Jasinto Morales, Defendant-Appellant. STEVEN ABRAMS; ESMERALDA CABRERA; TEOFILO CHAPA; JEFFREY S. CHASE; GEORGE T. CHEW; MATTHEW J. D'ANGELO; BRUCE J. EINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART, JR.; MIRIAM HAYWARD; REBECCA JAMIL; WILLIAM P. JOYCE; CAROL KING; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES ERNST PAZAR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY DIANA ROSENBERG; SUSAN ROY; PAUL WILLIAM SCHMIDT; DENISE NOONAN SLAVIN; ANDREA H. SLOAN; WILLIAM PETER VAN WYKE; GUSTAVO D. VILLAGELIU; POLLY A. WEBBER, Amici Supporting Appellant.

          Argued: May 9, 2019

          Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:18-cr-00022-NKM-1)

         ARGUED:

          Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Harrisonburg, Virginia, for Appellant.

          Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

         ON BRIEF:

          Juval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa M. Lorish, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant.

          Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

          Before MOTZ, AGEE, and HARRIS, Circuit Judges.

          PAMELA HARRIS, Circuit Judge.

         Juan Cortez, a citizen of Mexico, was charged with illegally reentering the United States after having been removed years prior. Cortez conceded that he was unlawfully present, but argued that his initial removal order was invalid because of an alleged filing defect that deprived the immigration court of "jurisdiction" over his case. The district court rejected that argument, and Cortez subsequently pleaded guilty while preserving his right to raise the issue on appeal.

         We affirm the district court's order. We first hold that the premise of Cortez's argument - that the purported filing defect in his case deprived the immigration court of authority to enter a removal order, so that he may collaterally challenge that order in subsequent criminal proceedings - is incorrect. And in any event, there in fact was no defect. As the district court explained, the applicable regulations do not require that the information identified by Cortez - a date and time for a subsequent removal hearing - be included in the "notice to appear" that is filed with an immigration court to initiate proceedings.

         I.

         A.

         Juan Cortez is a citizen of Mexico who has been found to be unlawfully present in the United States on two occasions. The first was in 2011. On February 27 of that year, the Department of Homeland Security ("Department") served Cortez with a document labeled "Notice to Appear." That notice advised him, among other things, that he was charged with being unlawfully present in the country, and that the Department was initiating removal proceedings against him. The notice provided Cortez with the location of the immigration court where his removal hearing would be held, but did not provide a date and time, stating only that the hearing would occur "on a date to be set at a time to be set." J.A. 10. At the same time it served Cortez with this written notice, however, the Department orally informed him of his hearing date and time.

         The Department filed the notice to appear with the immigration court on March 3, 2011. Two weeks later, on March 17, 2011, the immigration court held a removal hearing, which Cortez attended via video conference. The immigration judge confirmed that Cortez was unlawfully present and ordered that he be removed from the country. There is no indication that Cortez challenged the contents of the notice to appear or the immigration judge's authority to order his removal, and Cortez neither administratively nor judicially appealed the removal order on any ground. Cortez was removed from the United States in April 2011.

         B.

         At some point following his removal, Cortez entered the United States a second time, again without applying for legal admission. In September 2018, the government located Cortez in the vicinity of Lynchburg, Virginia. This time, the government criminally charged Cortez with illegal reentry under 8 U.S.C. § 1326(a), which is violated when an individual who previously was "deported" or "removed" from the country "enters, attempts to enter, or is at any time found in, the United States" without legal authorization.

         Before the district court, Cortez moved to dismiss the indictment against him. He conceded that he had entered the United States without legal authority, so that the second element of his criminal charge - unlawful presence - was satisfied. But the first element - a previous removal from the country - was not satisfied, Cortez argued, because even though he attended his 2011 immigration hearing, "the immigration judge lacked subject matter jurisdiction to enter an order of removal against him." J.A. 6. It followed, Cortez contended, that his 2011 removal order was void, and could not be the basis for a charge under § 1326(a).

         As a general rule, Cortez recognized, a criminal defendant may collaterally attack a removal order in a prosecution for illegal reentry only if three conditions are met: "(1) [he] 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 [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). But according to Cortez, that framework did not apply because he was challenging the "subject matter jurisdiction" of the immigration court, "an issue that cannot be waived or forfeited." And even if it did apply, Cortez argued, a lack of "subject matter jurisdiction" by itself satisfied all three prerequisites for a collateral attack under § 1326(d).

         The purported error at the heart of Cortez's claim was the failure of the notice to appear filed in connection with his 2011 removal proceeding to specify a date and time for his hearing. Under the regulations governing removal proceedings, Cortez explained, proceedings commence and "[j]urisdiction vests" with the immigration judge when a "charging document" is filed with the immigration court. 8 C.F.R. § 1003.14(a). The regulations list three documents that may qualify as "charging document[s]," including a "[n]otice to [a]ppear." Id. § 1003.13. And a "notice to appear," Cortez finished, is defined in the Immigration and Nationality Act ("INA") itself, which requires that a "notice to appear" include the "time and place at which the proceedings will be held," 8 U.S.C. § 1229(a)(1)(G)(i); see also Pereira v. Sessions, 138 S.Ct. 2105, 2114 (2018) (confirming that notice to appear under § 1229(a) "include[s] . . . the time and place of the removal proceedings"). Putting all of that together, Cortez argued that because the notice filed in his case omitted a hearing time, it did not vest the immigration court with "jurisdiction," rendering his removal order a legal nullity.

         The district court disagreed. The court did not dispute the premise of Cortez's argument: that a defect in the notice to appear would implicate the immigration court's jurisdiction and allow for a collateral attack on the removal order. But, the court held, the notice to appear was not defective, because the regulatory definition of the "notice to appear" that vests a court with "jurisdiction" under 8 C.F.R. § 1003.14(a) does not "list the time and date of the removal proceedings as required criteria." J.A. 18 (citing 8 C.F.R. § 1003.15(b)-(c)). Cortez, the court reasoned, was pointing to the wrong definition of "notice to appear": The statutory provision in § 1229(a) does not address "the immigration court's . . ...


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