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United States v. Suchite-Ramirez

United States District Court, E.D. Washington

September 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ESAU SUCHITE-RAMIREZ, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT ***USMS ACTION REQUIRED***

          ROSANNA MALOUF PETERSON United States District Judge.

         BEFORE THE COURT is Defendant's Motion to Dismiss Indictment, ECF No. 24. Defendant argues that his prior removal order was invalid and cannot be used to prove an element of a charge of illegal reentry into the United States in violation of 8 U.S.C. § 1326. Id. A hearing was held in this matter on September 12, 2019. Defendant was present and represented by Assistant Federal Defender J. Houston Goddard. The Government was represented by Assistant United States Attorney Matthew F. Duggan. The Court has considered the parties' arguments, briefing, and the record, and is fully informed.

         BACKGROUND

         The United States has charged Esau Suchite-Ramirez with illegal reentry into the United States after removal under 8 U.S.C. § 1326. Mr. Suchite-Ramirez is a Guatemalan citizen who came to the United States in 2000 to work. ECF No. 24-2. In 2003, he received a DUI, which led to his eventual removal from this country. Id. After his hearing before a Los Angeles Immigration Court on October 1, 2003, Mr. Suchite-Ramirez was ordered to return to Guatemala. ECF No. 24-1. Eleven days before his hearing, Mr. Suchite-Ramirez received a Notice to Appear (NTA) before the Immigration Court. ECF No. 24-3. The notice did not include the time or date that Mr. Suchite-Ramirez should appear, nor did it include the address of the Immigration Court. Id. Mr. Suchite-Ramirez never received updated information, telling him when or where his hearing would be. ECF No. 24-2. Instead, he was transported from the Los Angeles County Jail to immigration custody, then taken to his removal hearing. Id. The United States bases Mr. Suchite-Ramirez's current charge of illegal reentry on this 2003 removal order.

         Mr. Suchite-Ramirez moves to dismiss his indictment on the grounds that the Immigration Judge (IJ) entered the 2003 removal order without jurisdiction. ECF No. 24. Therefore, the order upon which the United States bases its current indictment is invalid. Id. Mr. Suchite-Ramirez maintains that the United States did not comply with jurisdictional regulations to commence the removal proceedings against him in 2003, and therefore the Immigration Court's jurisdiction never vested. Id. at 2. He argues that the government failed to (1) include the address of the Immigration Court in the NTA, (2) provide timely notice of the hearing's date and time, and (3) provide a proper Certificate of Service pursuant to 8 C.F.R. § 1003.14(a). Id. at 5-8. Each one of these failings, he argues, requires this Court to find that the IJ had no jurisdiction to enter his 2003 removal order.

         Legal Standard

         Mr. Suchite-Ramirez moves to dismiss his indictment for failure to state an offense. See Fed. R. Crim. P. 12(b)(3)(B)(v). An indictment is sufficient only if it “contains the elements of the offense charged.” United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). “A valid removal order is a predicate element of a conviction for illegal reentry under § 1326.” United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1063 (9th Cir. 2018). Therefore, an indictment for illegal reentry is sufficient only if a valid removal order exists. A motion to dismiss an indictment that presents a question of law may be considered before trial. United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986).

         Discussion

         In a removal proceeding, jurisdiction vests with the IJ “when a charging document is filed with the Immigration Court.” 8 C.F.R. § 1003.14(a). A Notice to Appear (NTA) is a charging document. 8 C.F.R. § 1003.15(b). In the case Karingithi v. Whitaker, the Ninth Circuit recently explained that the regulatory requirements governing charging documents for removal proceedings are jurisdictional. 913 F.3d 1158, 1159 (9th Cir. 2019) (“Because the charging document in this case satisfied the regulatory requirements, we conclude the Immigration judge (“IJ”) had jurisdiction over the removal proceedings.”). Therefore, if an NTA fails to comply with the regulatory requirements, then jurisdiction does not vest in the Immigration Court. Id.

         Failure to Include the Address of the Immigration Court

         According to the regulation, an NTA “must” include “the address of the Immigration Court where the Service will file the Order to Show Cause and Notice to Appear.” 8 C.F.R. § 1003.15(b)(6). Because the Ninth Circuit looks to the regulation for jurisdictional requirements, the NTA must provide address of the Immigration Court for jurisdiction to vest.

         The United States argues that the regulation does not define the IJ's jurisdiction. ECF No. 25 at 6. Instead, it maintains that the regulation is merely a “claims-processing” rule, with no effect on jurisdiction. Id. This argument directly contradicts the Ninth Circuit's reasoning in Karingithi, in which the Court concluded that the regulatory requirements governing charging documents, including NTAs, are jurisdictional. Karingithi, 913 F.3d at 1159.

         The United States does not dispute that Mr. Suchite-Ramirez's 2003 NTA failed to include the Immigration Court's address. This address is expressly required by the regulation. 8 C.F.R. § 1003.15(b)(6). Therefore, based on the Ninth Circuit's decision in Karingithi, the IJ lacked jurisdiction to enter the 2003 removal order against Mr. Suchite-Ramirez.

         Failure to Inform Mr. Suchite-Ramirez of His ...


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