Petition for Writ of Certiorari — Jose Alexander Callejas Rivera, Petitioner v. United States

NO.

IN THE SUPREME COURT OF THE UNITED STATES

JOSE ALEXANDER CALLEJAS RIVERA,

WILFREDO FUNEZ GARSILLA, and

MIGUEL ANGEL IBARRA-RAMOS,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

Attorney of Record

MICHAEL HERMAN

Assistant Federal Public Defender

Attorneys for Petitioners

440 Louisiana Street, Suite 1350

Houston, TX 77002-1056

Telephone: (713) 718-4600

QUESTION PRESENTED

Whether, in light of Pereira v. Sessions, 138 S. Ct. 2105

(2018), the immigration court issuing orders of removal against

each petitioner lacked jurisdiction to issue such orders, so that

use of such orders in a prosecution for illegal reentry violated

the separation of powers and due process.

PARTIES TO THE PROCEEDINGS

Petitioners were convicted in separate proceedings before the district court, and the

United States Court of Appeals for the Fifth Circuit entered separate judgments in each of

their cases. Because petitioners seek review of these judgments on the basis of identical

questions, they jointly file this petition with this Court. See Sup. Ct. R. 12.4.

All parties to petitioners’ Fifth Circuit proceedings are named in the caption of the

case before this Court.

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RELATED PROCEEDINGS

United States District Court (S.D. Tex.):

United States v. Jose Alexander Callejas Rivera, No. 4:19-CR-94 (March 25, 2019)

United States v. Wilfredo Funez Garsilla, No. 4:19-CR-5 (May 1, 2019)

United States v. Miguel Angel Ibarra-Ramos, No. 4:18-CR-618 (July 8, 2019)

United States v. Tzul, 4:18-CR-521 (Dec. 4, 2018)

United States Court of Appeals (5th Cir.):

United States v. Jose Alexander Callejas Rivera, No. 19-20274 (Oct. 30, 2019)

United States v. Wilfredo Funez Garsilla, No. 19-20339 (Oct. 17, 2019)

United States v. Miguel Angel Ibarra-Ramos, No. 19-20466 (Nov. 25, 2019)

United States Supreme Court

Pedroza-Rocha v. United States, No. 19-6588

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ...0......cccccccessesseesceeseeseeesececeenceesecececaeeeaeeeaeeaeseeeaeeeaeenaeeeeearseseees i

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OPINIONS BELOW ..... ...csccsncsrnessensennnssns sinsinioinh dibs sn 6h ini 2s ta Ks Casa anaes subs neeewe TORANTASNETENE 1

JURISDICTION ..cccccosssneresnnensananansnamansennannnsanneas insist bibs ssi Ss 166 055i sNEia Sananiers dineN aaa 1

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED .......cccccceccesesseeeseeeseeeeeeseeeececeeseeseeseesseseaesneeseeeseenseesseessseeeeees 2

BASIS OF FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT..........1-ncaccenservesansih sos ci sash souanane dsienhensanauh samen s 2

STATEMENT OF THE CASE ..........--.n-ccsccorennsarenneannanensiesensindaishsad is 5UEGH6S SA sta anEaaUNa NOB aNeIN MOONS 3

REASONS FOR GRANTING THE WRIT ........ccccccceeeeseeeseceeceseeeeeeneesseeeseeneesseeeseeneeeseas 7

The Court should grant certiorari to address the important issue whether, in

light of Pereira v. Sessions, 138 S. Ct. 2105 (2018), the immigration court

issuing orders of removal against each petitioner lacked jurisdiction to issue

such orders, so that use of such orders in a prosecution for illegal reentry

violated the separation of powers and due proceS. ...........ceecceeeeeeeeseeeeseeeessenenseees 7

A. The decisions below in each case are incorrect and violate the

Separation Of POW CLS uss. sssc0s x1 vessnives caxesuea sxcnanawsnvnatoexensemereswcseranneen anaeeneawcmmanenens 7

B. This Court should resolve a circuit split over whether, in light of

Pereira, the statutory definition of “notice to appear” defines the

jurisdiction of the immigration COUTTS. «0.0... ec eeeeeesseeeeeeeetseeeeeeseeeseeeseaeees 10

iv

TABLE OF CONTENTS - (Cont’d)

Page

CC. The Fifth Circuit’s restrictions on collaterally attacking removal

orders in illegal reentry prosecutions conflict with this Court’s

precedent and violate GUS PrOCOSS, asics. scccsissscernrcesenm remem mseneessnee 12

D. The Court should grant Certorgit... aca: 2s.acos.caaseesancssoxeavermenans maemmwansanmanron 14

CONCLUSION ....nencnnccrnecenessaannsnnnannanen xantente ses tinh Sti sBidis ish si6h Us SSBA RONEN Hiden cere eaRER 16

APPENDIX A: Order of the Court of Appeals in

JOSE ALEXANDER CALLEJAS RIVERA .......ecceecceeceeeeceteeseeeeeeaetesesaeesaeeseeeasenseesenes 17

APPENDIX B: Order of the Court of Appeals in

WILFREDO FUNEZ GARSILLA........ncccsenesenesnennnnennensannisinaiia sine Sone senen ans wansabenicea sissies 18

APPENDIX C: Opinion of the Court of Appeals in

MIGUEL ANGEL IBARRA-RAMOS .......cccccceseeseeeeeeeeeeeeeeseeneeeseesseseeeeseseeesasesasensessenee 20

APPENDIX D: Opinion of the District Court in

JOSE ALEXANDER CALLEJAS RIVERA wu... ccecececceeeeeeseeseeseeseeeeeseeeesseeaeeaeesesseaees 22

APPENDIX E: Opinion of the District Court in

WILFREDO FUNEZ GARSILLA.........cccccesceeeeeeseeeeseeneeeesseeseesesseeseeseesesesseeseeesesessens 23

APPENDIX F: Opinion of the District Court in

MIGUEL ANGEL IBARRA-RAMOS ......ecceceeceeseeseceeeeeeseeeeaceeseeeeesseeeseeseensesseeeeseeesees 24

APPENDIX G: Texts of Constitutional, Statutory and Regulatory Texts Involved....... 26

TABLE OF CITATIONS

Page

CASES

Ali v. Barr, 924 F.3d 983

hcg bes 10.) ee a he 11

Banegas Gomez v. Barr, 922 F.3d 101

(2d Cir. 2019) ooecccccccccccesccsseesecsseeeeeeseeeeceseceeesseceeessecsaecseeeseesaesseeessesseesesesesesessseceeeentiaes 11

Bowles v. Russell, 551 U.S. 205 (2007) ....cccccecccesesceesceceeseeceeeeeeesneeeeseeeeseeeeseseeesssaeeseseeseeees 8

City of Arlington v. F.C.C., 569 U.S. 290 (2013) wove eececeeeeccesseseeeeesseesesseeessesseeseeenaeeas 7

Estep v. United States, 327 U.S. 114 (1946) woo. ceceeeceeceeeeseeseesesesseesseeneeenees 13-14

Goncalves Pontes v. Barr, 938 F.3d 1

(188 Cie DOTDY ......nenrenasennsnnnnnanunnenncsnnsnnamennn pnacinstsdibsha bibl ids bk si ShWaAiaUN a Santa annauNnh 11-12

Hernandez-Perez v. Whitaker, 911 F.3d 305

(6th Cir. 2018) ieee cccccssccsseceseeeeseeceseeeseeceeeeeesenecsaeeeeeeceseeessesseeeseeenseeesaeeesesenees 11-12

Karingithi v. Whitaker, 913 F.3d 1158

Ct CaP, 2019)... nreeececneceenrecansnunacacennennennennnanaancanenanne tad Sibi isi sis db SNSSGS4 END <Obth auNADA 11-12

Lopez v. Barr, 925 F.3d 396

(Oth Cir, 2019) woeccccccccceceseeseeeeceeceseeseeseeseceeseceeseaeeeeeeessecaecsecseeseseesesessessesseseseeeseessseees 1]

Lopez-Munoz v. Barr, 941 F.3d 1013

(LOth Cir, 2019) ooo ccceccecssceseeeeeceseceeeeeesseceeeseeeeeeaeesaecsseeseessseessesseseesseeeeesneessteaes 12

Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018) woe eee eee eeeeeee 11-12

Nkomo vy. U.S. Att’y Gen., 930 F.3d 129

C5 Cie ZO TD) a nsnnsennnensannennnninnsinidie ith ka thera. tie. sre stae sisi cua saniieae eR RAR ANDRO NAN SMD TENE 11-12

Ortiz-Santiago v. Barr, 924 F.3d 956-62

(7th Cir, 2019) oceccccceccsessececesecsseceeecseeceeeeeeeeeseesseeseesseesseesseesssesecesessuesseseeeeserenees 10-12

Pereira v. Sessions, 138 S. Ct. 2105 (2018) ...eeeceeeeeeeseeesseecesseecesneeeesseeeeeseeseseeseeees passim

vi

TABLE OF CITATIONS -— (Cont’d)

Page

CASES -— (Cont’d)

Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148

CL Dat A, DI DY) cna a sre crt tain a aR Os RS RMN NER ex RRO 10, 12

Pierre-Paul v. Barr, 930 F.3d 684

(Sth Cir, 2019) oo.cecccccceceecseceesceceeseeseeeceeseeesecseeeeesseceeeseseesesseseeseseaseeseessesseeeees 5, 8, 11-12

Santos-Santos v. Barr, 917 F.3d 486-91

(BH Cif, D019) ....ncconncncnncerrecnannanensagensnnnannneninndatinasAsshds ith iii Si iSSsaUen saline mieaeonensanecen eae 11

United States v. Cortez, 930 F.3d 350

(4th Cir, 2019) oo.cceccccccccccesccesceseeseeseeeeseesseeseeeesaeseeseecseeseessesseesessesseseessesseeseeseeeeeses 11-12

United States v. Cotton, 535 U.S. 625 (2002)... eeeceesseeeseeceeeeeeeseeeesseesesseesseeesesesensneeees 7

United States v. Mendoza-Lopez, 481 U.S. 828 (1987) ...ceeeseeeeesseeeeeeseeeseeeseeeeeeeeseeseees 12

United States v. Pedroza-Rocha, No. 18-50828, 933 F.3d 490

(5th Cir. 2019), petition for cert. filed, (No. 19-6588) (U.S. Nov. 12, 2019)......... passim

United States v. Tzul, 345 F. Supp. 3d 785 (S.D. Tex. 2018) woes ee eeeeeeeenens 3-4

Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) w..eee ee eeeeteeeeeeeeseeeeeneeeees 9

STATUTES AND RULES

8 CFR. § 1003.13 coocccccceccccccesecsneeeeeesecseeeseeseeseeeesesseeeaeeeaeseeesaeesseeseseseeeaseessesseeeees 3, 8-9

8 CFR. § 1003.14 (a) w..ccccccccccccccecsseeseeeseceeeeeeeeseeeseeeseeecssessseeseeeseeeaesaeeeseseseessseeeeseeeenenees 9

8 C.F.R. § 1003.15(b) woo. cccccccccesccseceseeeeeeeeeeseceseceeeceeeeaeeneeeseeeaessseeeessesssessesseeseeeeseseeesee 8-9

3k OO od OE Ss 00 On) (0) 9

8 CF.R. § 1003.18... ccc cccccseesceeceesceseeseeseeeeceeesaeesecseesesneesseesccaessessesseseessesessssesseeesesesesseee 9

eee Rey ee ee 8

Vii

TABLE OF CITATIONS — (Cont’d)

Page

STATUTES AND RULES — (Cont’d)

8 C.FLR. § 1103.14 (a) ieee cece ccceeceeeceeeseeeeeeeeseesesseeseesesaessesseseeeseessessesaesseeseeseseseseneeseneeees 3

8 CF.R. § 1239.1 iceccccccsessecsscesceeeeeeseceeeceseeseessecseessesseesaeseaeesseseessesssceseesseessenseeesesensaees 9

8 U.S.C. § L225(b)(1) .ceecccecceceecceceescesceseeeeeeceseeeeeaeeseeseesessecsessecsecssecsessesaeessesessesesenseeaneaneeees 8

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8 U.S.C. § 1229(a)(1) ceeccccccccccccescecesseeeeeseeeceseeeesaeeeeaeeseeeeeseeeeesseeseneeeeesaeesnaeeseneeeees passim

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WE PE eee 2-3

BULSAG. § U526(89 ccssscocmcsseances sucnasus anomeon arenas ennommamnare eanes merenmaernmenameer eaxeanens 12-13

BOS.) OBE 1: (ke ee 4, 12-14

B TBC. § TS 2GGA NY —accini-cnncsvn m.nesene. ss ascnnse sinew seers saeeaasenmsnn usa eamunONns enmneueRENKeNENTeDIER 4

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ZB USC. § T25ACL) ...ncrenennecannonennnnnnnenih kia bin 508 ii 30} 050th ATURE LOAD SeNeUNORAER Me eRTERNaRENNANETIO 1

STP. Ce Ro 131... eecnesenennerancnnnenenenacnnannmannennnnn sith ia Sia ds Sik SND AR Sa AS Rianne NORM UATTR SERN 1

viii

TABLE OF CITATIONS — (Cont’d)

MISCELLANEOUS

Immigration and Naturalization Service and EOIR, Proposed Rules, Inspection and

Expedited Removal of Aliens, 62 Fed. Reg. 444-01, 1997 WL 1514 (Jan. 3, 1997)

Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996,

§ 309(c)(2), Pub. L. No. 104-208, 110 Stat 3009 (1996) ..scccssssssssssssssssssessssssesenen

TRAC-Immigration, Immigration Prosecutions for 2019 (Oct. 31, 2019),

https://tracfed.syr.edu/results/9x70Sdbb47eSa0 htm. oo. ee ee eeseeeeeeseeseeeeeeeenenens

U.S. Dep’t of Justice, EOIS, Statistics Yearbook FY 2018,

https://www.justice. gov/eoir/file/1198896/download .......... cece eeeeeeeeeeeeeeeeeeneeeneees

U.S. Dep’t of Justice, EOIR, FY 2013 Statistics Yearbook (Apr. 2014),

https://www.justice. gov/sites/default/files/eoir/legacy/2014/04/16/fy13syb.pdf........

U.S. Dep’t of Justice, EOIR, FY 2008 Statistical Year Book (Mar. 2009),

https://www.justice. gov/sites/default/files/eoir/legacy/2009/03/27/fy08syb.pdf.......

U.S. Dep’t of Justice, EOIR, FY 2003 Statistical Year Book (Apr. 2004),

https://www.justice. gov/sites/default/files/eoir/legacy/2008/04/18/fy03syb.pdf. _ ....

U.S. Dep’t of Justice, U.S. Marshals Service, FY 2020 Performance Budget:

Federal Prisoner Detention Appropriation 19 (Mar. 2019),

https://www.justice. gov/jmd/page/file/1144161/download ........... eects

U.S. Sentencing Comm’n, Quick Facts: Illegal Reentry Offenses (Fiscal Year 2018),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-

facts/Mlegal Reentry FY 18. pd .........--.------00ener-r-ernnnbsin sa snssascnsnasentamirsanscansenneaneenenen

ix

Page

— 14

PRAYER

Petitioners Jose Alexander Callejas Rivera, Wilfredo Funez Garsilla, and Miguel

Angel Ibarra-Ramos respectfully pray that a writ of certiorari be granted to review the

judgments entered by the United States Court of Appeals for the Fifth Circuit in their

respective cases.

OPINIONS BELOW

The opinions of the United States Court of Appeals for the Fifth Circuit in

petitioners’ cases are attached to this petition as Appendices A through C. The opinions of

the United States District Court for the Southern District of Texas are attached as

Appendices D through F.

JURISDICTION

The United States Court of Appeals for the Fifth Circuit issued its opinions on the

following dates: on October 30, 2019, for Mr. Callejas Rivera; on October 17, 2019, for

Mr. Funez Garsilla; and on November 25, 2019, for Mr. Ibarra-Ramos. See Appendices A-

C. This petition is filed within 90 days after entry of judgment in each case. See Sup. Ct.

R. 13.1. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS

INVOLVED

The texts of the following constitutional, statutory and regulatory provisions

involved are attached as Appendix G.

BASIS OF FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT

These cases were originally brought as federal criminal prosecutions under 8 U.S.C.

1326. The district court therefore had jurisdiction pursuant to 8 U.S.C. § 1329 and 18

U.S.C. § 3231,

STATEMENT OF THE CASE

In separate district court proceedings in the Southern District of Texas, petitioners

were charged by indictment with the offense of illegal reentry of a previously deported

alien, in violation of 8 U.S.C. § 1326. Each petitioner filed a motion to dismiss the

indictment in his respective case, arguing that, in light of Pereira v. Sessions, 138 S. Ct.

2105 (2018), the prior order of removal and any reinstatement thereof was void because

the Immigration judge issuing the order did not have jurisdiction to issue such an order and

that the use of such a void order violated due process. Specifically, each petitioner argued

that the “Notice to Appear” provided by immigration authorities alleging the grounds of

removal prior to issuance of the first order of removal did not state the time and place at

which removal proceedings were to be held and, in light of Pereira, such a document

lacking that information was not a valid “Notice to Appear’ under 8 U.S.C. §

1229(a)(1)(G)(i). Consequently, petitioners argued, the document did not vest jurisdiction

with the Immigration court in light of regulations which provide that “[jJurisdiction vests,

and proceedings before an Immigration Judge commence, when” the Department of

Homeland Security files a notice to appear with the immigration court. 8 C.F.R. §

1103.14(a); see also 8 C.F.R. 1003.13.

The district court granted the motion to dismiss as filed by petitioners Callejas

Rivera and Funez Garsilla. See Appendices D and E. The district court supported its order

in each case by reference to its previous decision in United States v. Tzul, 345 F. Supp. 3d

785 (S.D. Tex. 2018), in which the district court agreed with a similarly-situated defendant

that this Court’s decision in Pereira required that a valid Notice to Appear state the time

and place for proceedings, id. at 789-92, that such a valid Notice to Appear was a

jurisdictional pre-requisite for exercise of an Immigration judge’s authority to order

removal, id. at 788-89, and that the absence of jurisdiction rendered the order of removal

void and subject to collateral attack without regard to the more stringent rules for collateral

attack of prior orders of removal under 8 U.S.C. § 1326(d). Jd. at 787-88. The district court

ordered dismissal of the indictment in each case, and Immigration authorities subsequently

deported both Mr. Callejas Rivera and Mr. Funez Garsilla.

The Government appealed the district court’s order of dismissal in the case of each

of Mr. Callejas Rivera and Mr. Funez Garsilla. In each case, on the Government’s motion,

the Fifth Circuit placed the cases in abeyance pending its decision in United States v.

Pedroza-Rocha, No. 18-50828, 933 F.3d 490 (Sth Cir. 2019), petition for cert. filed, (No.

19-6588) (U.S. Nov. 12, 2019).

The district court in effect denied Mr. Ibarra-Ramos’s motion to dismiss the

indictment. Contrary to the district court ruling in the cases of petitioners Calleja Rivera

and Funez Garsilla, the district court in Mr. Ibarra-Ramos’ case opined that the absence of

the date and time in the Notice to Appear did not deprive the Immigration judge of subject

matter jurisdiction and that any collateral attack must be preceded under 8 U.S.C. §

1326(d)(1) by exhaustion of administrative remedies, which Mr. Ibarra-Ramos had not

undertaken. See Appendix F. The district court abated the case to give Mr. Ibarra-Ramos

an opportunity to exhaust such remedies, but he acknowledged that no such remedies were

available and, pursuant to a written stipulation in which he preserved his right to appeal the

denial of his motion to dismiss, entered a plea of guilty to the indictment. The district court

ultimately sentenced him to a term of imprisonment of 45 months followed by two years

of supervised release.

Mr. Ibarra-Ramos appealed the district court’s judgment of conviction and sentence

to the Fifth Circuit. Mr. Ibarra-Ramos argued in his brief, as he had before the district court,

that the Notice to Appear vested jurisdiction in the Immigration court, that Pereira meant

that the Notice to Appear in this case was not valid, depriving the Immigration court of

jurisdiction, that the order of removal was void, and that the district court erred in refusing

to dismiss the indictment. By the time of the filing of briefs in Mr. Ibarra-Ramos’s case,

however, the Fifth Circuit had issued its opinion in Pedroza-Rocha, and Mr. Ibarra-Ramos

recognized that relief was foreclosed in the Fifth Circuit.

In all of Petitioners’ cases, the Government filed a Motion for Summary

Disposition, which the Fifth Circuit granted, relying on its decision in Pedroza-Rocha. In

Pedroza-Rocha, the Fifth Circuit held that the omission of the hearing time did not make

the notice to appear defective because the regulatory definition of the notice to appear

(which does not require a hearing time), not the statutory definition (which does), controls.

Pedroza-Rocha, 933 F.3d at 497 (citing Pierre-Paul v. Barr, 930 F.3d 684, 689-90 (Sth

Cir. 2019)). Even if the notice to appear was defective, the later notice of hearing cured it.

Pedroza-Rocha, 933 F.3d at 497. And the regulation requiring a notice to appear to be filed

with the immigration court was not jurisdictional. Jd. at 497-98. Consequently, the Fifth

Circuit reversed the judgment of the district court in the cases of Mr. Callejas Rivera and

Mr. Funez Garsilla, and affirmed the judgment of the district court in the case of Mr. Ibarra-

Ramos.

Because the Fifth Circuit relied on its decision in Pedroza-Rocha to grant summary

disposition in each of petitioners’ cases, each Petitioner asks this Court to grant a petition

for a writ of certiorari on the basis of arguments that are substantially the same as those

presented in by the petitioner in Pedroza-Rocha v. United States, No. 19-6588 (filed Nov.

12, 2019).

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari to address the important issue whether, in

light of Pereira v. Sessions, 138 S. Ct. 2105 (2018), the immigration court

issuing orders of removal against each petitioner lacked jurisdiction to issue

such orders, so that use of such orders in a prosecution for illegal reentry

violated the separation of powers and due process

A. The decisions below in each case are incorrect and violate the separation of

powers.

An agency’s power to act comes from Congress. City of Arlington v. F.C.C., 569

U.S. 290, 298 (2013). Courts must “tak[e] seriously, and apply[ ] rigorously, in all cases,

statutory limits on agencies’ authority.” Jd. at 307.

The notice to appear is such a limit. Congress specified that the notice to appear

must be served on every noncitizen in removal proceedings. § 1229(a)(1). It also required

that a notice to appear must have a hearing time. § 1229(a)(1)(G)(i). The omission of a

hearing time cannot be cured; without it, the document is not a notice to appear. Pereira,

138 S. Ct. at 2116.

Without a notice to appear, the immigration court lacks authority to remove a

noncitizen. § 1229(a)(1). That is because service of the notice to appear is necessary for

subject matter jurisdiction — the immigration judge’s authority to preside over cases. See

United States v. Cotton, 535 U.S. 625, 630 (2002) (describing subject matter jurisdiction

as “the court’s statutory or constitutional authority to hear the case” (cleaned up)).

Immigration judges only have authority to decide cases in which the Department of

Homeland Security chooses to serve a notice to appear. § 1229(a)(1). In contrast,

immigration officials — not judges — can rule on a noncitizen’s deportability and inadmis-

7

sibility through certain expedited procedures when no notice to appear is filed. See, e.g., 8

U.S.C. §§ 1225(b)(1), 1228(b). The notice to appear confers subject matter jurisdiction by

defining the cases over which immigration judges preside. See Bowles v. Russell, 551 U.S.

205, 213 (2007) (“the notion of subject-matter jurisdiction obviously extends to classes of

cases ... falling within a court’s adjudicatory authority” (cleaned up)).

The government has sought to avoid this straightforward application of § 1229(a)(1)

and Pereira by arguing that the regulatory definition of a notice to appear, not the statutory

one, applies to the notice to appear required to start the removal proceeding. The

regulations do not require a hearing time. 8 C.F.R. §§ 1003.15(b), 1003.18(b).

In Pierre-Paul and Pedroza-Rocha, the Fifth Circuit agreed. By ignoring the

jurisdictional import of § 1229(a)(1) and finding “no glue” between the regulations and §

1229(a)(1), the Fifth Circuit distinguished Pereira and approved a two-step procedure: first

a notice to appear with no hearing time, and then a notice of hearing. Pierre-Paul, 930 F.3d

at 691.

But there is glue binding the statute to the regulations. Congress’s transitional

instructions recognize the jurisdictional significance of the notice to appear. Illegal

Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, § 309(c)(2),

Pub. L. No. 104-208, 110 Stat 3009 (1996) (making certain documents “valid as if provided

under [§ 1229] (as amended by this subtitle) to confer jurisdiction on the immigration

judge”). And the regulations incorporate the statutory jurisdictional limit by providing that

a charging document such as a notice to appear vests jurisdiction with the immigration

court. §§ 1003.13, 1003.14(a); see 8 C.F.R. § 1239.1.

The agency even acknowledged the need to “implement[ ] the language of the

amended Act indicating that the time and place of the hearing must be on the Notice to

Appear” and committed to providing a hearing time in the notices to appear “as fully as

pos-sible by April 1, 1997[.]” Immigration and Naturalization Service and EOIR, Proposed

Rules, Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444-01, 1997 WL 1514

(Jan. 3, 1997). But the agency created an exception that hearing times could be omitted if

providing them was not practicable, such as when “automated scheduling [is] not possible

... (€.g., power outages, computer crashes/downtime).” Jd. at 449; see 8 C.F.R. §§

1003.15(b), (c); 1003.18.

Two decades later, “almost 100 percent of notices to appear omit the time and date

of proceeding[.]” Pereira, 138 S. Ct. at 2111 (cleaned up). The “where practicable”

regulatory exception swallowed the statutory rule of including the hearing time in the

notice to appear. And the Fifth Circuit sanctioned the agency’s attempt to rewrite the

statute. This violates the separation of powers. Utility Air Regulatory Group v. EPA, 573

U.S. 302, 327 (2014) (agencies cannot “revise clear statutory terms that turn out not to

work in practice’).

B. This Court should resolve a circuit split over whether, in light of Pereira, the

statutory definition of “notice to appear” defines the jurisdiction of the

immigration courts.

Eleven circuits, as well as the Board of Immigration Appeals (BIA), have weighed

in on the proper definition of a “notice to appear” and the effect of a putative notice missing

a hearing time. The circuits are split on whether the statutory or regulatory definition of a

notice to appear governs, and whether a notice to appear is a jurisdictional requirement or

a claims-processing rule.

Two circuits hold that the statutory definition of a notice to appear applies to starting

a removal proceeding, but eight circuits and the BIA hold that the regulatory definition

does.

The Seventh and Eleventh Circuits, applying this Court’s reasoning in Pereira,

interpret § 1229(a)(1) as requiring the notice to appear used to begin removal proceedings

to have a hearing time. The Seventh Circuit rejects as “absurd” the government’s argument

that the notice to appear referenced in the regulations is not the same notice to appear

defined in the statute. Ortiz-Santiago v. Barr, 924 F.3d 956, 961-62 (7th Cir. 2019). The

Eleventh Circuit explains that, per § 1229(a)(1), Congress intended for service of the notice

to appear to “operate as the point of commencement for removal proceedings[,]” and “the

agency was not free to redefine the point of commencement[.]” Perez-Sanchez v. U.S. Att’y

Gen., 935 F.3d 1148, 1154 (11th Cir. 2019).

The First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Ninth Circuits find that

the regulatory definition of a notice to appear, which does not require a hearing time,

10

applies for beginning removal proceedings.' Several circuits also hold that a later notice

of hearing cures any statutory defect. See Pierre-Paul, 930 F.3d at 690; but see Lopez v.

Barr, 925 F.3d 396, 405 (9th Cir. 2019) (a defective § 1229(a)(1) notice to appear cannot

be cured by a notice of hearing for the stop-time rule).

In finding that the regulatory definition controls, the First, Sixth, and Ninth Circuits

specifically defer to the BIA’s reasoning. Goncalves Pontes, 938 F.3d at 7; Karingithi, 913

F.3d at 1161; Hernandez-Perez v. Whitaker, 911 F.3d 305, 312 (6th Cir. 2018). The BIA

interpreted Pereira narrowly, limiting it to the stop-time rule, and approved the two-step

process of notice to appear without a hearing time followed by a notice of hearing. Matter

of Bermudez-Cota, 27 I. & N. Dec. 441, 443-47 (BIA 2018). The Seventh Circuit,

however, sharply criticized reliance on the BJA’s decision, which it found “brushed too

quickly over the Supreme Court’s rationale in Pereira” and failed to consider significant

legislative history. Ortiz-Santiago, 924 F.3d at 962.

Four circuits and the BIA believe that a notice to appear is a jurisdictional

requirement, but five circuits disagree.

The Second and Eighth Circuits hold that a notice to appear, as defined by the

regulations, confers “jurisdiction” on the immigration court. Ali, 924 F.3d at 986; Banegas

Gomez, 922 F.3d at 112. The Sixth and Ninth Circuits adopt similar reasoning after

' See Goncalves Pontes v. Barr, 938 F.3d 1, 6-7 (1st Cir. 2019); Banegas Gomez v. Barr,

922 F.3d 101, 110-12 (2d Cir. 2019); Nkomo v. U.S. Att’y Gen., 930 F.3d 129, 133-34 (3d Cir.

2019); United States v. Cortez, 930 F.3d 350, 363 (4th Cir. 2019); Pierre-Paul, 930 F.3d at 690;

Santos-Santos v. Barr, 917 F.3d 486, 490-91 (6th Cir. 2019); Ali v. Barr, 924 F.3d 983, 986 (8th

Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1161-62 (9th Cir. 2019).

11

deferring to the BIA. Hernandez-Perez, 911 F.3d at 314-15; Karingithi, 913 F.3d at 1161;

see Bermudez-Cota, 27 I. & N. Dec. at 447.

The Fourth and Fifth Circuits disagree and find the regulations provide a claimsprocessing, not jurisdictional, rule. Cortez, 930 F.3d at 362; Pierre-Paul, 930 F.3d at 692.

The Seventh and Eleventh Circuits also hold that the statutory time requirement is a claimsprocessing, not a jurisdictional rule. Perez-Sanchez, 935 F.3d at 1154; Ortiz-Santiago, 924

F.3d at 963. Similarly, the Tenth Circuit holds that neither the statute nor the regulations

provide a jurisdictional rule. Lopez-Munoz v. Barr, 941 F.3d 1013, 1015-18 (10th Cir.

2019).

The First and Third Circuits reject that § 1229(a)(1) has jurisdictional significance

but do not decide whether the regulations do. Goncalves Pontes, 938 F.3d at 7 n.3; Nkomo,

930 F.3d at 134. In light of the fractured reasoning of the circuits’ decisions on the

jurisdictional significance of the statutory and regulatory definitions of “Notice to Appear,”

certiorari should be granted.

C. The Fifth Circuit’s restrictions on collaterally attacking removal orders in

illegal reentry prosecutions conflict with this Court’s precedent and violate due

process

The offense of illegal reentry depends on a determination made in an administrative

proceeding. § 1326(a); United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). The

government must prove the defendant is a noncitizen who “has been ... removed” from the

United States and later reenters the United States without permission. § 1326(a). Section

1326(d) provides that a defend-ant “may not challenge the validity of the deportation order

. unless” the defendant shows exhaustion of administrative remedies, deprivation of

12

judicial review, and fundamental unfairness. Due process, however, requires a defendant

be allowed to challenge the jurisdictional basis of the administrative order being used to

prosecute him.

This Court considered the use of an administrative order to impose criminal

sanctions when selective service registrants, whose military inductions were ordered by

local boards, were prosecuted for refusing to be inducted into the military. Estep v. United

States, 327 U.S. 114 (1946). Even though the statute did not specify that defendants could

collaterally attack those induction orders, the Court could not “believe that Congress

intended that criminal sanctions were to be applied to orders issued by local boards no

matter how flagrantly they violated the rules and regulations which define their

jurisdiction.” Jd. at 121. The Court refused to resolve any statutory ambiguity against the

accused, noting that “[w]e are dealing here with a question of personal liberty.” Jd. at 122.

Here, too, we are dealing with a question of personal liberty and an administrative

agency that acted outside the authority defining its jurisdiction. Congress limits any

challenge to the “validity of the deportation order” in § 1326(d), but that cannot be read to

remove the government’s burden to prove that a defendant has been removed. § 1326(a).

Just as a notice to appear without a hearing time is not a notice to appear, Pereira, 138 S.

Ct. at 2116, a removal order entered without jurisdiction is not removal order.

Alternatively, § 1326(d) is unconstitutional if it prevents a defendant from

challenging the jurisdictional validity of the removal order. To comport with due process,

petitioners must be able to challenge whether the immigration court lacked jurisdiction

13

even if he cannot satisfy the § 1326(d) criteria. The Fifth Circuit’s decision in Pedroza-

Rocha to the contrary, as applied to petitioners’ cases, conflicts with this Court’s precedent

in Estep.

D. The Court should grant certiorari.

For decades, immigration authorities ignored the statutory requirement to include a

hearing time in the notice to appear. In the past two decades, well over 200,000 notices to

appear were filed on average per year.* Most of those notices lacked hearing times.

Pereira, 1388S. Ct. at 2111. As aresult, millions of people have been deported by an agency

without authority to do so.

Many of those removed came back unlawfully. Illegal reentry continues to be the

most prosecuted federal felony.* In fiscal year 2018, over 18,000 people were sentenced

for illegal reentry.* These prosecutions not only cost defendants their liberty, taxpayers

2 See U.S. Dep’t of Justice, Executive Office for Immigration Review (EOIR), Statistics

Yearbook FY 2018, at 7, https://www.justice.gov/eoir/file/]1198896/download; U.S. Dep’t of Justice,

EOIR, FY 2013 Statistics Yearbook, at A7 (Apr. 2014),

https:/Avww.justice.gov/sites/default/files/eoir/legacy/2014/04/16/fyl3syb.pdf; U.S. Dep’t of Justice,

EOIR, FY 2008 Statistical Year Book, at Bl (Mar. 2009),

https:/Awww. justice. gow/sites/default/files/eoir/legacy/2009/03/27/fy08syb.pdf; U.S. Dep’t of Justice,

EOIR, FY 2003 Statistical Year Book, at B2 (Apr. 2004),

https:/Awww. justice. gov/sites/default/files/eoir/legacy/2008/04/18/fy03syb.pdf.

3 TRAC-Immigration, Immigration Prosecutions for 2019 (Oct. 31, 2019),

https://tracfed.syr.edu/results/9x705dbb47e5a0.html.

4 U.S. Sentencing Comm’n, Quick Facts: Ilegal Reentry Offenses (Fiscal Year 2018),

https://Awww.ussc. gov/sites/default/files/pdf/research-and-publications/quickfacts/Hlegal Reentry FY18.pdf.

14

pay approximately $27,000 to detain a defendant for the average 10-month sentence.’ The

number affected militates against leaving the agency’s deliberate decades-long violation of

a congressional directive unchecked. Otherwise agencies will continue to ignore Congress

and upend the separation and balance of powers.

Petitioners acknowledge that the petitioner in Pedroza-Rocha has raised in his

petition the same arguments presented in this consolidated petition. Because the Fifth

Circuit has applied the holdings in Pedroza-Rocha to the cases of all three Petitioners in

this case, all Petitioners request that the Court grant the petition for certiorari in Sup. Ct.

Case. No. 19-6588, and hold this consolidated petition pending this Court’s decision in

Pedroza-Rocha.

> U.S. Dep’t of Justice, U.S. Marshals Service, FY 2020 Performance Budget: Federal Prisoner

Detention Appropriation 19 (Mar. 2019), https:/Awww.justice. gov/jmd/page/file/1144161/download

(daily non-federal facility cost in fiscal year 2018 was $90.17).

15

CONCLUSION

For the foregoing reasons, Petitioners Jose Alexander Callejas Rivera, Wilfredo

Funez Garsilla, and Miguel Angel Ibarra-Ramos respectfully pray that this Court grant the

petition for certiorari in Pedroza-Rocha v. United States, Sup. Ct. Case No. 19-6588, and

then grant this consolidated petition to review the judgments of the Fifth Circuit in these

cases in light of this Court’s resolution of the case in Pedroza-Rocha.

Date: December 19, 2019

Respectfully submitted,

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

Attorney of Record

‘aS

By WA Ail .

MICHAEL HERMAN

Assistant Federal Public Defender

Attorneys for Petitioners

440 Louisiana Street, Suite 1350

Houston, TX 77002-1056

Telephone: (713) 718-4600

16

Case: 19-20274 Document: 00515180689 Page:1 Date Filed: 10/30/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20274

UNITED STATES OF AMERICA,

Plaintiff - Appellant

Certified as a true copy and issued

as the mandate on Oct 30, 2019

Attest: Sede W. 0 be

JOSE ALEXANDER CALLEJAS RIVERA, Clerk, U.S. Court of Appeals, Fifth Circuit

Vv.

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before OWEN, Chief Judge, WILLETT and OLDHAM, Circuit Judges.

PER CURIAM:

IT IS ORDERED that appellant’s unopposed motion for summary

judgment is GRANTED.

IT IS FURTHER ORDERED that appellant’s unopposed motion to

extend time for thirty (30) days to file their brief after the denial of the

unopposed motion for summary judgment is DENIED as unnecessary.

APPENDIX A

Case: 19-20339 Document: 00515162175 Page:1 Date Filed: 10/17/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

October 17, 2019

Lyle W. Cayce

Clerk

No. 19-20339

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

WILFREDO FUNEZ GARSILLA,

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CR-5-1

Before SMITH, COSTA, and HO, Circuit Judges.

PER CURIAM:*

IT IS ORDERED that appellant’s unopposed motion for summary disposition is GRANTED. The order of May 1, 2019, granting the motion to dismiss

filed by defendant Wilfredo Garsilla, is REVERSED, and the matter is re-

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5th

Cir. R. 47.5.4.

APPENDIX B

Case: 19-20339 Document: 00515162175 Page:2 Date Filed: 10/17/2019

No. 19-20339

turned to the district court for proceedings as appropriate. IT IS FURTHER

ORDERED that appellant’s unopposed alternative motion for an extension to

file its brief is DENIED as unnecessary.

Case: 19-20466 Document: 00515214499 Page:1 Date Filed: 11/26/2019

REVISED November 26, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-20466 FILED

Summary Calendar November 25, 2019

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

Vv.

MIGUEL ANGEL IBARRA-RAMOS, also known as Miguel Angel Ibarra

Ramos,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CR-618-1

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:*

Miguel Angel Ibarra-Ramos appeals his conviction for illegal reentry into

the United States. He challenges the district court’s denial of his motion to

dismiss the indictment, arguing that the indictment was invalid because the

notice to appear in his removal proceedings was defective because it failed to

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

Cir. R. 47.5.4.

APPENDIX C

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