United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
INDICTMENT ***USMS ACTION REQUIRED***
ROSANNA MALOUF PETERSON United States District Judge.
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
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.
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.
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).
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.
to Include the Address of the Immigration Court
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.
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.
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.
to Inform Mr. Suchite-Ramirez of His ...