UNITED STATES v. ARTEAGA CENTENO (2021)

United States Court of Appeals, Ninth Circuit.2021-02-12No. No. 19-10412

Summary · law.co

Holding. The court affirmed the district court's order refusing to dismiss the indictment for illegal reentry, rejecting arguments that the district court lacked jurisdiction to reconsider its dismissal, that the removal order was invalid, and that the removal proceedings were fundamentally unfair.

Jose Arteaga-Centeno was indicted for illegal reentry after deportation and challenged the district court's refusal to dismiss the indictment. He raised three arguments: first, that the district court lacked power to reconsider its own dismissal order after an appeal was filed; second, that his removal order was invalid because his Notice to Appear omitted required information about the immigration court hearing; and third, that his removal proceedings were fundamentally unfair and thus could not support a conviction for illegal reentry.

The court rejected each argument. The district court had authority to reconsider its dismissal within 30 days under Federal Rule of Criminal Procedure 37, even though an appeal was pending. The immigration court's jurisdiction vested upon the filing of the Notice to Appear itself, regardless of missing procedural details. Finally, although the Notice to Appear lacked the hearing date and time, Arteaga-Centeno actually appeared and participated in his removal hearing without objecting to his removability, so he suffered no prejudice from the defect and cannot mount a successful collateral attack on his deportation.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

District court jurisdiction to reconsider its own dismissal order after appeal docketed
Whether missing information on Notice to Appear defeats immigration court jurisdiction
Whether omissions in deportation notice render removal fundamentally unfair

Procedural posture

Arteaga-Centeno appealed the district court's order denying his motion to dismiss the illegal reentry indictment, challenging the validity of his underlying removal order.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Jose Arteaga-Centeno appeals the district courts order refusing to dismiss his indictment for illegal reentry under 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and reviewing de novo, United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008); United States v. Rojas-Pedroza, 716 F.3d 1253, 1261 (9th Cir. 2013), we affirm.

1. Arteaga-Centeno first argues that district court did not have jurisdiction to reconsider its dismissal of the indictment. We disagree. A district court has inherent power to reconsider its own order within the 30-day appeal period. United States v. Foumai, 910 F.2d 617, 620–21 (9th Cir. 1990). Here, the district court dismissed the indictment on January 8, 2019. That means the government had until February 8 to move for reconsideration. The government appealed on January 11, but then moved for reconsideration on February 1.

The government was able to move for reconsideration notwithstanding the pendency of the appeal because of Federal Rule of Criminal Procedure 37. That rule allows “a timely motion ․ for relief that the [district] court lacks authority to grant because of an appeal that has been docketed and is pending.” Fed. R. Crim. P. 37. Thus, the motion for reconsideration was timely because it was made pursuant to Rule 37 and within 30 days of the district courts order dismissing the indictment. That the government dismissed its appeal instead of waiting for this court to remand, does not change that result. Because the reconsideration motion was made within the relevant 30-day period, the district court had jurisdiction to grant it and reconsider its dismissal order.

2. Arteaga-Centeno next argues that his removal order was invalid and cannot form the basis of a conviction for illegal reentry under 8 U.S.C. § 1326. Specifically, he argues that the Immigration Courts jurisdiction never vested because his Notice to Appear (“NTA”) lacked the address of the immigration court where it was to be filed, as well as the time and place of his removal hearing, in violation of 8 C.F.R. §§ 1003.14(a), 1003.15(b)(6), and 1003.18(b). But this argument is foreclosed by our precedent.

In United States v. Bastide-Hernandez, we held that “when an NTA is filed, jurisdiction exists and vests with the immigration court.” No. 19-30006, 986 F.3d 1245, 1248 (9th Cir. Feb. 2, 2021). In other words, “the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing.” Id. Here, the Department of Homeland Security personally served Arteaga his NTA while he was in custody. Accordingly, the Immigration Court had jurisdiction.

3. Finally, Arteaga-Centeno raises a collateral attack to his removal. To succeed, he must show that “(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d).

Arteaga-Centeno cannot carry this burden. “An underlying removal order is fundamentally unfair if an aliens due process rights were violated by defects in the underlying deportation proceeding, and if he suffered prejudice as a result of the defects.” United States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010). Here, despite the omission of the date and time of the hearing from Arteaga-Centenos NTA, he still appeared before an immigration judge for his removal hearing and did not contest his removability. Thus, the defect in the NTA did not impede his ability to understand, participate in, or contest the removal proceedings.

Moreover, Arteagas only argument in support of prejudice was that the Immigration Court never had jurisdiction to remove him. But as explained above, that approach is foreclosed by our precedent. Arteaga-Centeno therefore has suggested no other “plausible ground for relief from deportation,” which is required to show prejudice. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (simplified).

AFFIRMED.