Petition for Writ of Certiorari — Anastacio Castruita-Escobedo, Petitioner v. United States

No. _________________

In the Supreme Court of the United States

October Term, 2020

ANASTACIO CASTRUITA-ESCOBEDO, PETITIONER,

V.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MAUREEN SCOTT F RANCO

Federal Public Defender

JUDY FULMER MADEWELL

First Assistant

Federal Public Defender

Western District of Texas

727 E. César E. Chávez Blvd., B-207

San Antonio, Texas 78206-1205

(210) 472-6700

(210) 472-4454 (Fax)

Counsel of Record for Petitioner

i

QUESTIONS PRESENTED FOR REVIEW

Anastacio Castruita-Escobedo, like many noncitizen defendants, was ordered removed by an immigration judge after being served a document titled

“notice to appear” that did not tell Mr. Castruita-Escobedo when to appear for

removal proceedings. The statute requires that noncitizens facing removal proceedings be served a notice to appear with a hearing time. 8 U.S.C. §

1229(a)(1)(G)(i). Mr. Castruita-Escobedo was convicted of illegal reentry based

on that putative removal order.

The questions presented are:

1. Did the immigration court lack authority to remove Mr. Castruita-Escobedo because he was not served a notice to appear that had a hearing

time?

2. In an illegal reentry prosecution, can the defendant attack the jurisdictional basis for a removal order outside the 8 U.S.C. § 1326(d) requirements for a collateral attack? If not, is § 1326(d) unconstitutional?

No. _________________

In the Supreme Court of the United States

October Term, 2020

ANASTACIO CASTRUITA-ESCOBEDO, Petitioner,

V.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Petitioner Anastacio Castruita-Escobedo asks that a writ of certiorari issue to review the opinion and judgment entered by the United

States Court of Appeals for the Fifth Circuit on June 25, 2020.

PARTIES TO THE PROCEEDING

The caption of this case names all parties to the proceeding in the

court whose judgment is sought to be reviewed.

RELATED PROCEEDINGS

All proceedings directly related to the case are as follows:

• United States v. Castruita-Escobedo, No. 4:19-cr-00036-DC (W.D.

Tex. July 1, 2019) (denying motion to dismiss)

• United States v. Castruita-Escobedo, No. 19-51030 (5th Cir. June

25, 2020) (affirming judgment of the district court)

• United States v. Castruita-Escobedo, No. 19-51031 (5th Cir. June

25, 2020) (affirming judgment of the district court in case consolidated with No. 19-51030 on appeal)

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........................................ i

PARTIES TO THE PROCEEDING ..................................................... ii

RELATED PROCEEDINGS................................................................. ii

TABLE OF AUTHORITIES ................................................................ vi

OPINION BELOW .................................................................................1

JURISDICTION OF THE SUPREME COURT OF THE UNITED

STATES ..................................................................................................1

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED....................................................................1

STATEMENT .........................................................................................1

REASONS FOR GRANTING THE WRIT ............................................5

I. The decision below is incorrect and violates the separation of

powers. .............................................................................................5

II. The circuit split over the hearing time requirement for the

notice to appear has revealed deep confusion about agency

authority...........................................................................................8

A. 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. ...................................................................9

B. Four circuits and the BIA believe that a notice to appear

is a jurisdictional requirement, but five circuits disagree.

.......................................................................................... 11

III. Due process requires a defendant be allowed to challenge the

jurisdictional basis of the removal order being used to prosecute

him, even if he has not exhausted administrative remedies. .... 12

v

IV. These issues recur and are exceptionally important............ 15

V. Mr. Castruita-Escobedo’s case is an ideal vehicle to decide

these issues. .................................................................................. 17

CONCLUSION .................................................................................... 18

APPENDIX A

United States v. Castruita-Escobedo,

Nos. 19-51030 & 19-51031 (5th Cir. June 25, 2020)

APPENDIX B

U.S. Const. amend. V (Due Process Clause)

8 U.S.C. § 1229

8 U.S.C. § 1326

8 C.F.R. § 1003.13

8 C.F.R. § 1003.14

8 C.F.R. § 1003.15

8 C.F.R. § 1003.18

vi

TABLE OF AUTHORITIES

Cases

Ali v. Barr,

924 F.3d 983 (8th Cir. 2019) ..................................................... 10, 11

Banegas Gomez v. Barr,

922 F.3d 101 (2d Cir. 2019),

cert. denied, 140 S. Ct. 954 (2020) ............................................ 10, 11

Banuelos v. Barr,

953 F.3d 1176 (10th Cir. 2020) ....................................................... 10

Bowles v. Russell,

551 U.S. 205 (2007) ........................................................................... 6

City of Arlington v. F.C.C.,

569 U.S. 290 (2013) ........................................................................... 5

Estep v. United States,

327 U.S. 114 (1946) ............................................................. 12, 13, 15

Goncalves Pontes v. Barr,

938 F.3d 1 (1st Cir. 2019) ......................................................... 10, 12

Guadalupe v. Attorney Gen. United States,

951 F.3d 161 (3d Cir. 2020) ............................................................ 10

Hernandez-Perez v. Whitaker,

911 F.3d 305 (6th Cir. 2018) ..................................................... 10, 11

Karingithi v. Whitaker,

913 F.3d 1158 (9th Cir. 2019),

cert. denied, 140 S. Ct. 1106 (2020) .......................................... 10, 11

Lopez v. Barr,

925 F.3d 396 (9th Cir. 2019),

reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020) ..................... 10

Lopez-Munoz v. Barr,

941 F.3d 1013 (10th Cir. 2019) ....................................................... 12

vii

Matter of Bermudez-Cota,

27 I. & N. Dec. 441 (BIA 2018) ....................................................... 11

Nkomo v. U.S. Att’y Gen.,

930 F.3d 129 (3d Cir. 2019),

cert. denied, 140 S. Ct. 2740 (2020) .......................................... 10, 12

Ortiz-Santiago v. Barr,

924 F.3d 956 (7th Cir. 2019) ....................................................... 9, 11

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ..............................................................passim

Perez-Sanchez v. U.S. Att’y Gen.,

935 F.3d 1148 (11th Cir. 2019) ................................................... 9, 11

Pierre-Paul v. Barr,

930 F.3d 684 (5th Cir. 2019),

cert. denied, 140 S. Ct. 2718 (2020) .................................. 4, 6, 10, 11

Santos-Santos v. Barr,

917 F.3d 486 (6th Cir. 2019) ........................................................... 10

United States v. Cortez,

930 F.3d 350 (4th Cir. 2019) ..................................................... 10, 11

United States v. Cotton,

535 U.S. 625 (2002) ........................................................................... 5

United States v. Lopez-Urgel,

351 F. Supp. 3d 978 (W.D. Tex. 2018)............................................ 14

United States v. Mendoza-Lopez,

481 U.S. 828 (1987) ............................................................. 12, 14, 15

United States v. Pedroza-Rocha,

933 F.3d 490 (5th Cir. 2019),

cert. denied, 140 S. Ct. 2769 (2020) .................................................. 4

United States v. Sosa,

387 F.3d 131 (2d Cir. 2004) ............................................................ 15

viii

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ........................................................................... 8

Constitutional Provision

U.S. Const. amend. V (Due Process Clause) ....................................... 1

Statutes

8 U.S.C. § 1225(b)(1) ............................................................................. 6

8 U.S.C. § 1228(b) ................................................................................. 6

8 U.S.C. § 1229 .................................................................................. 1, 7

8 U.S.C. § 1229(a) ................................................................................. 3

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

8 U.S.C. § 1229(a)(1)(G)(i) ............................................................. i, 2, 5

8 U.S.C. § 1229b(d)(1) ........................................................................... 3

8 U.S.C. § 1326 .......................................................................... 1, 13, 14

8 U.S.C. § 1326(a) ......................................................................... 12, 13

8 U.S.C. § 1326(d) ...................................................................... i, 13, 15

28 U.S.C. § 1254(1) ............................................................................... 1

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 § 309(c)(2), Pub. L. No. 104-208, 110 Stat 3009 (1996) ...... 7

Rule

Sup. Ct. R. 13.1 ..................................................................................... 1

Regulations

8 C.F.R. § 1003.13 ......................................................................... 1, 2, 7

ix

8 C.F.R. § 1003.14 ................................................................................. 1

8 C.F.R. § 1003.14(a)..................................................................... 2, 3, 7

8 C.F.R. § 1003.15 ................................................................................. 1

8 C.F.R. § 1003.15(b)......................................................................... 6, 7

8 C.F.R. § 1003.15(c) ............................................................................. 7

8 C.F.R. § 1003.18 ............................................................................. 1, 7

8 C.F.R. § 1003.18(b)............................................................................. 6

8 C.F.R. § 1239.1 ................................................................................... 7

Other Authorities

Dep’t of Justice, U.S. Marshals Service,

FY 2020 Performance Budget: Federal Prisoner Detention

Appropriation (Mar. 2019) .............................................................. 17

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) ......................... 7

Miscellaneous Order, 589 U.S. __ (Mar. 19, 2020) .............................. 1

TRAC-Immigration, Immigration Prosecutions for 2019

(Oct. 31, 2019) ................................................................................. 16

U.S. Dep’t of Justice, EOIR, FY 2003 Statistical Year Book

(Apr. 2004) ....................................................................................... 16

U.S. Dep’t of Justice, EOIR, FY 2008 Statistical Year Book

(Mar. 2009) ...................................................................................... 16

U.S. Dep’t of Justice, EOIR, FY 2013 Statistics Yearbook

(Apr. 2014) ....................................................................................... 16

U.S. Dep’t of Justice, Executive Office for Immigration Review,

Statistics Yearbook ......................................................................... 16

x

U.S. Sentencing Comm’n, Quick Facts: Illegal Reentry Offenses

(Fiscal Year 2018) ........................................................................... 16

1

OPINION BELOW

A copy of the opinion of the court of appeals, United States v.

Castruita-Escobedo, Nos. 19-51030 & 19-51031 (5th Cir. June 25,

2020), is attached to this petition as Appendix A.

JURISDICTION OF THE SUPREME COURT OF THE

UNITED STATES

The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on June 25, 2020. This petition is filed within 150 days after entry of judgment. See Sup. Ct.

R. 13.1; Miscellaneous Order, 589 U.S. __ (Mar. 19, 2020). The

Court has jurisdiction to grant certiorari 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 reproduced in Appendix B:

• U.S. Const. amend. V (Due Process Clause)

• 8 U.S.C. §§ 1229, 1326

• 8 C.F.R. §§ 1003.13, 1003.14, 1003.15, 1003.18

STATEMENT

Putative removal proceedings. Mr. Castruita-Escobedo is

a Mexican citizen. In 2004, immigration authorities served him

with documents titled “Notice to Appear” (NTA) alleging that he

2

was removable from the United States as an alien who had not

been admitted or paroled into the country.

The statute requires that noncitizens in removal proceedings

be served with a notice to appear specifying the “time and place at

which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i).

The regulations further provide that “[j]urisdiction 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. § 1003.14(a); see also 8 C.F.R.

§ 1003.13.

But the document given to Mr. Castruita-Escobedo and filed in

immigration court lacked a hearing time. It stated he must appear

before an immigration judge “on a date to be set at a time to be

set[.]”

In 2004, an immigration judge ordered Mr. Castruita-Escobedo

removed to Mexico. The immigration judge found that, based on

Mr. Castruita-Escobedo’s admissions, he was removable as

charged in the NTA. For that reason, the judge ordered that Mr.

Castruita-Escobedo be removed to Mexico. The order reflects that

Mr. Castruita-Escobedo “made no application for relief from removal” and that he waived appeal. Mr. Castruita-Escobedo was

3

subsequently removed to Mexico. The removal order was reinstated on five separate occasions and Mr. Castruita-Escobedo was

removed for the final time on August 29, 2018.

Illegal reentry proceedings. In December 2018, immigration authorities found Mr. Castruita-Escobedo in the Western District of Texas, and he was indicted for illegal reentry.

In June 2018, this Court issued Pereira v. Sessions, holding

that “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a

‘notice to appear under section 1229(a)’ and therefore does not trigger the stop-time rule.” 138 S. Ct. 2105, 2113–14 (2018). Noncitizens across the country began litigating whether the lack of a hearing time has consequences outside the context of the rule for cancellation of removal that the period of physical presence ends when

the noncitizen is served a notice to appear under § 1229(a). See 8

U.S.C. § 1229b(d)(1).

Mr. Castruita-Escobedo moved to dismiss the illegal reentry

indictment, arguing the removal proceedings were flawed because

no notices to appear started the proceedings. He argued, based on

Pereira, that the putative notices to appear issued in his case failed

to vest jurisdiction with the immigration judge. See § 1229(a)(1); 8

C.F.R. § 1003.14(a). Thus, he was not “removed” as a matter of law

4

and could meet the requirements to collaterally attack the putative

removal order. The district court denied the motion.

The Fifth Circuit affirmed. App. 2–3. The court held that Mr.

Castruita-Escobedo’s arguments were foreclosed by Pierre-Paul v.

Barr, 930 F.3d 684, 689–90 (5th Cir. 2019), cert. denied, 140 S. Ct.

2718 (2020), and United States v. Pedroza-Rocha, 933 F.3d 490,

497 (5th Cir. 2019), cert. denied, 140 S. Ct. 2769 (2020). App. 2–3.

Specifically, Pedroza-Rocha held the omission of the hearing time

did not make the notice to appear defective and that a defendant

cannot challenge a prior removal order without exhausting administrative remedies. App. 3 (citing Pedroza-Rocha, 933 F.3d at 496–

98).

5

REASONS FOR GRANTING THE WRIT

I. The decision below is incorrect and violates 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.” Id. 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—

6

not judges—can rule on a noncitizen’s deportability and inadmissibility 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 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).

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 signif-

7

icance 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 possible 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 … (e.g., power outages, computer

crashes/downtime).” Id. at 449; see 8 C.F.R. §§ 1003.15(b), (c);

1003.18.

8

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”).

II. The circuit split over the hearing time requirement for

the notice to appear has revealed deep confusion about

agency authority.

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, whether the statutory requirements for a notice to appear can be satisfied in two documents or

just one, whether Board of Immigration Appeals’ decisions on this

topic deserve deference, and whether a notice to appear is a jurisdictional requirement or a claims-processing rule.

9

A. 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).

10

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, applies for beginning

removal proceedings. 1

Several circuits also hold that a later notice of hearing cures

any statutory defect. See Pierre-Paul, 930 F.3d at 690; but see Banuelos v. Barr, 953 F.3d 1176, 1180–84 (10th Cir. 2020); Guadalupe v. Attorney Gen. United States, 951 F.3d 161, 164–66 (3d Cir.

2020). 2

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

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

gas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019), cert. denied, 140

S. Ct. 954 (2020); Nkomo v. U.S. Att’y Gen., 930 F.3d 129, 133–34 (3d

Cir. 2019), cert. denied, No. 19-957 (U.S. May 4, 2020); 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), cert. denied, 140 S. Ct. 1106 (2020).

2 The Ninth Circuit initially held the notice of hearing could not complete or cure a notice to appear lacking a hearing time, but the court

granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 399 (9th

Cir. 2019), reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).

11

hearing time followed by a notice of hearing. Matter of BermudezCota, 27 I. & N. Dec. 441, 443–47 (BIA 2018). The Seventh Circuit,

however, sharply criticized reliance on the BIA’s decision, which it

found “brushed too quickly over the Supreme Court’s rationale in

Pereira” and failed to consider significant legislative history. OrtizSantiago, 924 F.3d at 962.

B. 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

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 claims-processing, 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 claims-processing, 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

12

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.

III. Due process requires a defendant be allowed to

challenge the jurisdictional basis of the removal order

being used to prosecute him, even if he has not

exhausted administrative remedies.

The Fifth Circuit held Mr. Castruita-Escobedo could not challenge his removal orders because he did not exhaust administrative remedies. App. 3. This ruling conflicts with this Court’s rulings in Estep v. United States, 327 U.S. 114 (1946), and United

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

The offense of illegal reentry depends on a determination made

in an administrative proceeding. § 1326(a); Mendoza-Lopez, 481

U.S. at 837–38. 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).

13

Congress limited 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. The government

cannot prove Mr. Castruita-Escobedo had been removed by relying

on putative removal orders issued without authority.

This construction of § 1326 comports with Estep. There, 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. 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.” Id. 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.” Id. at 122.

14

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

and an administrative agency that acted outside the authority defining its jurisdiction. Mr. Castruita-Escobedo must be allowed to

bring his challenge to the immigration courts’ jurisdiction notwithstanding any congressionally-made limitations to collateral attack.

Mendoza-Lopez also supports Mr. Castruita-Escobedo’s ability

to challenge the removal orders; otherwise § 1326 is constitutionally suspect. In Mendoza-Lopez, this Court addressed a former version of § 1326 that lacked a provision for collateral attack of the

removal order. 481 U.S. at 835–36. The Court held that, “at a minimum,” “a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where

the deportation proceeding effectively eliminates the right of the

alien to obtain judicial review[.]” Id. at 839. Otherwise, the statute

offends due process. Id. at 838–39. The Court also noted that some

“procedural errors are so fundamental that they may functionally

deprive the alien of judicial review, requiring that the result of the

hearing in which they took place not be used to support a criminal

conviction.” Id. at 839 n.17. Entering a removal order without authority is such a procedural error. United States v. Lopez-Urgel,

351 F. Supp. 3d 978, 988–89 (W.D. Tex. 2018).

15

Congress tried to codify Mendoza-Lopez in § 1326(d). United

States v. Sosa, 387 F.3d 131, 136 (2d Cir. 2004). Section 1326(d)

provides that a defendant “may not challenge the validity of the

deportation order … unless” the defendant shows exhaustion of administrative remedies, deprivation of judicial review, and fundamental unfairness. But “[t]here was almost certainly no administrative exhaustion in Mendoza-Lopez itself[.]” Sosa, 387 F.3d at

136. Still, “the Court held that collateral review of the underlying

deportation order was constitutionally required.” Id.

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

from challenging the jurisdictional validity of the removal order

simply because he did not exhaust administrative remedies. The

Fifth Circuit’s decision to the contrary conflicts with this Court’s

precedent in Estep and Mendoza-Lopez.

IV. These issues recur and are exceptionally important.

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

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average per year. 3 Most of those notices lacked hearing times. Pereira, 138 S. Ct. at 2111. As a result, 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. 4 In fiscal year

2019, over 22,000 people were sentenced for illegal reentry. 5 In the

Western District of Texas alone, at least 136 defendants challenged their illegal reentry prosecutions between September 2018

and August 2019 because the underlying putative notice to appear

lacked a hearing time. Many others chose to forgo motions to dismiss and plead guilty. These prosecutions not only cost defendants

3 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://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, at B1 (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, at B2 (Apr. 2004), https://www.justice.gov/sites/default/files/eoir/legacy/2008/04/18/fy03syb.pdf.

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

2019), https://tracfed.syr.edu/results/9x705dbb47e5a0.html.

5 U.S. Sentencing Comm’n, Quick Facts: Illegal Reentry Offenses

(Fiscal Year 2019), https://www.ussc.gov/sites/default/files/pdf/researchand-publications/quick-facts/Illegal_Reentry_FY19.pdf.

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their liberty, taxpayers pay approximately $27,000 to detain a defendant for the average 10-month sentence. 6

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.

V. Mr. Castruita-Escobedo’s case is an ideal vehicle to

decide these issues.

Mr. Castruita-Escobedo challenged his prior removal order

from the beginning of this criminal case, and the district court and

the Fifth Circuit addressed the questions presented. His case presents an ideal opportunity to review these issues that affect the

liberty of countless defendants.

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

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CONCLUSION

FOR THESE REASONS, Mr. Castruita-Escobedo requests that

this Honorable Court grant a writ of certiorari.

Respectfully submitted.

MAUREEN SCOTT FRANCO

Federal Public Defender

Western District of Texas

727 E. César E. Chávez Blvd., B-207

San Antonio, Texas 78206

Tel.: (210) 472-6700

Fax: (210) 472-4454

s/ Judy Fulmer Madewell

JUDY FULMER MADEWELL

First Assistant

Federal Public Defender

Attorney for Defendant-Appellant

DATED: November 23, 2020