United States District Court, E.D. Washington
ORDER DISMISSING INDICTMENT
FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE.
pretrial conference and motion hearing was held July 24,
2018. The Defendant, who is in custody, was present and
represented by Miles Pope and assisted by Court-appointed
interpreter Bea Rump; Assistant United States Attorney
Matthew Duggan represented the Government.
Court addressed Defendant's Motion to Dismiss. ECF No.
27. The Defendant challenges the validity of the prior
deportation because the notice to appear failed to include
the time and date of the hearing as required by 8 U.S.C.
removal proceedings under section 1229a of this title,
written notice (in this section referred to as a "notice
to appear") shall be given in person to the alien (or,
if personal service is not practicable, through service by
mail to the alien or to the alien's counsel of record, if
any) specifying the following:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory
provisions alleged to have been violated.
(E) The alien may be represented by counsel and the alien
will be provided (i) a period of time to secure counsel under
subsection (b)(1) and (ii) a current list of counsel prepared
under subsection (b)(2).
(F)(i) The requirement that the alien must immediately
provide (or have provided) the Attorney General with a
written record of an address and telephone number (if any) at
which the alien may be contacted respecting proceedings under
section 1229a of this title, (ii) The requirement that the
alien must provide the Attorney General immediately with a
written record of any change of the alien's address or
telephone number, (iii) The consequences under section
1229a(b)(5) of this title of failure to provide address and
telephone information pursuant to this subparagraph.
(G)(i) The time and place at which the proceedings will be
held, (ii) The consequences under section 1229a(b)(5) of this
title of the failure, except under exceptional circumstances,
to appear at such proceedings.
U.S.C. § 1229 (West). The Supreme Court recently
examined this statute in the context of an immigration
mechanism known as the "stop time rule." The
Supreme Court concluded that, "A notice that does not
inform a noncitizen when and where to appear for removal
proceedings is not a 'notice to appear under section
1229(a).'" Pereira v. Sessions, 138 S.Ct.
2105, 2113-14 (2018). "If the three words 'notice to
appear' mean anything in this context, they must mean
that, at a minimum, the Government has to provide noncitizens
'notice' of the information, i.e., the 'time'
and 'place,' that would enable them 'to
appear' at the removal hearing in the first place.
Conveying such time-and-place information to a noncitizen is
an essential function of a notice to appear, for without it,
the Government cannot reasonably expect the noncitizen to
appear for his removal proceedings." Id. At
2115. In support of this plain reading of the statute, the
Supreme Court notes that the same section addresses an
alien's right to an attorney. If the alien does not know
the date and time of the hearing they are effectively denied
their right to counsel for the hearing.
Government argues that because the context for the plaintiff
in the Pereira case differs from the
Defendant's, that the Court need not apply the clear
language of the statute and the Supreme Court's
interpretation thereof. Further, the Government argues that
despite the lack of compliance with the statute as a Notice
to Appear, the document served upon the Defendant still met
the 8 C.F.R. § 1003.14 definition of a charging document
sufficient to confer jurisdiction on the immigration court.
Court concurs from a practical standpoint Defendant clearly
became aware of the time and date set for the immigration
hearing because he was in custody at the time and was
transported to the hearing. However, the Court must rely upon
the plain language of the statute as well as the precedent
set by the Supreme Court. The statute plainly states that the
Notice of Hearing must contain the date and time of the
hearing. Lack of such information deprives the alien of
proper notice as ...