United States v. Mendoza-Sanchez

United States Court of Appeals
For the First Circuit

No. 19-1091

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO MENDOZA-SÁNCHEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Torruella, Boudin, and Kayatta,
Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, for
appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief, for
appellee.

June 30, 2020
 TORRUELLA, Circuit Judge. Defendant-Appellant Roberto

Mendoza-Sánchez ("Mendoza"), a Mexican citizen, pleaded guilty to

one count of reentry after deportation, in violation of 8 U.S.C.

§ 1326(a). Prior to sentencing, and in the wake of the Supreme

Court's decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018),1

Mendoza moved to withdraw his plea and dismiss the indictment,

believing that the removal order underlying his conviction for

reentering after deportation had been rendered null and void.

According to Mendoza, the immigration court lacked jurisdiction to

issue the removal order in the first place because his notice to

appear -- the document served on a noncitizen and filed with the

immigration court that initiates removal proceedings -- did not

specify the date or time of the removal hearing. The district

court denied the motion, finding that Mendoza did not satisfy any

of the prerequisites set forth in 8 U.S.C. § 1326(d) for

collaterally attacking the removal order during the criminal

proceedings, and it sentenced Mendoza to time served. Mendoza now

1 In Pereira, the Supreme Court held that the stop-time rule,
which governs the length of an alien's continuous physical presence
in the United States for the purpose of an application for
cancellation of removal, applies once "the alien is served a notice
to appear under [8 U.S.C. § 1229(a)]." 138 S. Ct. at 2110. It
concluded that a notice to appear "that does not inform a
noncitizen when and where to appear for removal proceedings is not
a 'notice to appear under section 1229(a)' and therefore does not
trigger the stop-time rule." Id.

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appeals this denial. He contends that: (1) the immigration court

lacked jurisdiction to consider his removal because the notice to

appear served on him did not include the date and time of the

hearing; and (2) if the immigration court lacked jurisdiction,

then for that reason he need not satisfy the requirements of

section 1326(d) in order to successfully challenge in this

subsequent criminal proceeding the order resulting in his removal.

Because we conclude that the immigration court did not lack

jurisdiction, we reject Mendoza's appeal without needing to

consider whether he would need to satisfy section 1326(d) if he

could show that the immigration court lacked jurisdiction over his

removal.

I.

Mendoza is a native and citizen of Mexico. In 2003 and

2009, he was arrested for being unlawfully present in the United

States and was granted voluntary departure to Mexico on both

occasions. Mendoza returned to the United States without approval

later in 2009.

On May 7, 2014, U.S. Immigration and Customs Enforcement

("ICE") agents arrested Mendoza in New Hampshire. The next day,

the U.S. Department of Homeland Security ("DHS") personally served

Mendoza with a notice to appear, which informed him that he was

being charged with removability based on his unlawful presence in

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the United States and directed him to appear before an immigration

judge in Boston at an unspecified date and time. On May 28, 2014,

the immigration court issued a notice of hearing, which directed

Mendoza to appear in the Boston immigration court in seven days

-- on June 4, 2014, at 8:00 a.m. -- for his removal proceeding.

According to annotations on the document, personal service was

made by delivery to Mendoza's attorney or representative and to

DHS. However, the name of his attorney on the document was

inexplicably crossed out. At the hearing, Mendoza requested

voluntary departure, but the immigration judge ordered him removed

to Mexico. Mendoza subsequently waived any appeal. Ultimately,

he was deported on June 26, 2014.

Years later, on November 28, 2017, New Hampshire State

Police conducted a stop of a commercial vehicle. Mendoza was the

driver. He admitted to the state trooper that he did not have a

driver's license, that he was unlawfully present in the United

States, and that he had been previously deported. After

confirming his identity, ICE arrested Mendoza.

II.

On December 13, 2017, a grand jury sitting in the

U.S. District Court for the District of New Hampshire returned a

one-count indictment charging Mendoza with reentry after

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deportation, in violation of 8 U.S.C. § 1326(a). Mendoza pleaded

guilty to the offense on May 31, 2018.

While Mendoza awaited sentencing, the Supreme Court

decided Pereira, 138 S. Ct. at 2105. As a result, Mendoza filed

a motion to withdraw his guilty plea and dismiss the indictment,

contending that, under Pereira, the notice to appear in his

underlying immigration case was defective because it failed to

include the date and time of the removal hearing and, consequently,

that defect "deprive[d] the immigration court of jurisdiction to

issue [the removal order]." In Mendoza's view, because the 2014

removal was invalid, he was legally innocent of reentry after

deportation.

The district court denied Mendoza's motion, rejecting

his argument that the immigration court lacked subject-matter

jurisdiction in 2014.2 It further concluded that, in any event,

Mendoza had to satisfy the requirements set forth in 8 U.S.C.

§ 1326(d) in order to challenge the validity of the underlying

removal order during his criminal case, which Mendoza had failed

2 The district court aptly noted that there was a split among the
lower courts on whether removal orders entered after a defective
notice to appear under Pereira had been served were void for lack
of subject-matter jurisdiction and that, at the time, no court of
appeals had addressed the issue.

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to do. Thus, the court held that Mendoza could not withdraw his

guilty plea or challenge the indictment. This appeal ensued.

III.

Our review of a district court's denial of a

plea-withdrawal motion is for abuse of discretion. United States

v. Caramadre, 807 F.3d 359, 367 (1st Cir. 2015). To make that

assessment, we consider "the strength of the reasons offered in

support of the motion," keeping in mind that a defendant may

withdraw his plea so long as he shows that there is "a fair and

just reason" for requesting the withdrawal. United States v.

Powell, 925 F.3d 1, 4 (1st Cir. 2018); see United States v.

González-Arias, 946 F.3d 17, 28 (1st Cir. 2019). "In determining

whether the defendant offered such a 'fair and just reason,'" we

review the district court's legal conclusions de novo. Powell,

925 F.3d at 4 (citing United States v. Gates, 709 F.3d 58, 69 (1st

Cir. 2013)).

Similarly, "[w]hen reviewing the trial court's denial of

a motion to dismiss an indictment, we review questions of law de

novo." United States v. Doe, 741 F.3d 217, 226 (1st Cir. 2013)

(citing United States v. López-Matías, 522 F.3d 150, 153 (1st Cir.

2008)). Any factual findings made by the district court are

reviewed for clear error, and its "ultimate ruling" for abuse of

discretion. Id.

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 IV.

Mendoza's overarching reason for requesting the

withdrawal of his guilty plea is that, in his view, the immigration

court's 2014 removal order -- upon which his reentry after

deportation conviction is premised -- is invalid because the

immigration court lacked jurisdiction over his removal

proceedings. His theory rests on the contention that the notice

to appear that initiated his removal proceedings in 2014 was

defective because it did not contain the date or time of his

removal hearing. Mendoza avers that the inclusion of that

information was required both by statute, see 8 U.S.C.

§ 1229(a)(1), and by the Supreme Court's decision in Pereira.

Because his removal is a "nullity," his argument goes, it cannot

support his conviction, and he is innocent of that offense. Thus,

he contends that the district court erred in not allowing him to

withdraw his guilty plea.

We have already squarely rejected the contention that

the omission of the initial hearing date and time in a notice to

appear deprives the immigration court of jurisdiction over a

removal proceeding. See Goncalves Pontes v. Barr, 938 F.3d 1 (1st

Cir. 2019); see also Arévalo v. Barr, 950 F.3d 15, 20 (1st Cir.

2020); Ferreira v. Barr, 939 F.3d 44, 45 (1st Cir. 2019). We held

in Goncalves Pontes that the jurisdiction of an immigration court

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is governed by agency regulation, see 8 C.F.R. § 1003.14(a), not

by 8 U.S.C. § 1229(a) -- the statute upon which Mendoza relies --

and that the regulations do not concern the written notice

contemplated in that statute. See 938 F.3d at 3-4, 6. While

section 1229(a) governs the information that must be provided to

noncitizens about their impending removal hearings -- i.e., "the

'time' and 'place,' that would enable them 'to appear' at the

removal hearing in the first place," id. at 6 (quoting Pereira,

138 S. Ct. at 2115) -- the regulations "set forth the process by

which the immigration court obtains jurisdiction over a removal

proceeding," id. (citing 8 C.F.R. § 1003.14). And the regulations

do not require that the time and place of the initial hearing be

included in the notice to appear in order to commence removal

proceedings. Id. at 4. Thus, we concluded that an undated notice

to appear that complies with the regulations is effective to confer

jurisdiction upon the immigration court. Id. at 7.

In this case, there is no suggestion that Mendoza's

notice to appear did not comply with the regulations. Therefore,

pursuant to our holding in Goncalves Pontes, Mendoza's

jurisdictional quarrel is unavailing.

However, Mendoza resists this conclusion by arguing that

our holding in Goncalves Pontes depends on the proper service of

a notice of hearing that "cures" an undated notice to appear.

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Because he was not properly or timely served with the notice of

hearing, he says, the defect in the notice to appear was not cured,

and thus, this "two-step process" did not vest the immigration

court with jurisdiction.

Contrary to Mendoza's contention, we did not tie our

holding in Goncalves Pontes to a successful service of a notice of

hearing.3 In fact, we held -- without mentioning service of a

notice of hearing -- that other documents, such as a notice of

referral to an immigration judge and a notice of intention to

rescind and request for hearing by an alien, see 8 C.F.R.

§ 1003.13, are charging documents that "establish the immigration

court's jurisdiction over a case, commencing removal proceedings

against an alien without resort to a Notice to Appear."

Goncalves Pontes, 938 F.3d at 6-7. We merely added at the end of

the opinion, as a "coda" -- meaning in addition to what we had

previously expressed -- that the Board of Immigration Appeals (the

"BIA") had "likewise concluded that [a notice to appear] that is

served without specification of the time and place of the initial

3 This is not to say that Mendoza could not have successfully
objected to the timing of his removal hearing due to inadequate or
untimely service of notice. He made no such argument, and instead
waived his right to appeal to the Board of Immigration Appeals
from the decision of the immigration court. Nor, for that matter,
does he contend that he can satisfy the requirements of
section 1326.

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hearing may be sufficient to confer subject-matter jurisdiction on

an immigration court in removal proceedings." Id. at 7 (emphasis

added) (citing In re Bermúdez-Cota, 27 I. & N. Dec. 441, 447 (BIA

2018)). And in Bermúdez-Cota, the BIA "clarified its view" that

a notice to appear "'vests an Immigration Judge with jurisdiction

over the removal proceedings' when a notice of hearing is sent to

the alien in advance of those proceedings." Id. (quoting

Bermúdez-Cota, 27 I. & N. Dec. at 447). We simply concluded from

this that the agency's interpretation of its regulations was

"entitled to great deference." Id. (quoting Sidell v. Comm'r.,

225 F.3d 103, 109 (1st Cir. 2000)). Notably, we clarified in a

footnote that we did not decide the question of whether a two-step

process could satisfy the time and date requirements of the statute

at issue in Pereira. Id. at 7 n.2. Moreover, we have confirmed

the holding in Goncalves Pontes that jurisdiction vests with the

issuance of a notice to appear that complies with the regulations

in subsequent cases without resorting to an inquiry into whether

service of a notice of hearing was appropriate or was even made.

See, e.g., Ferreira, 939 F.3d at 45. Therefore, even if neither

Mendoza nor his counsel was served with the notice of hearing, as

Mendoza avers, that does not defeat the application of

Goncalves Pontes's holding, which confirms that the immigration

court had jurisdiction over his removal.

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 Next, Mendoza attempts to circumvent Goncalves Pontes's

holding by arguing that it was wrongly decided. But the law of

the circuit doctrine dooms this claim, as we are "bound by prior

panel decisions that are closely on point," United States v. Wurie,

867 F.3d 28, 34 (1st Cir. 2017) (quoting San Juan Cable LLC v.

P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010)), "absent any

intervening authority," Mass. Delivery Ass'n v. Healey, 821 F.3d

187, 192 (1st Cir. 2016) (quoting United States v. Mouscardy, 722

F.3d 68, 77 (1st Cir. 2013)). Mendoza does not suggest that there

is any such authority, nor does he "offer[] a sound reason for

believing that the [Goncalves Pontes] panel would change its

collective mind," Wurie, 867 F.3d at 34. Hence, Goncalves Pontes

controls our decision here, and Mendoza's jurisdictional argument

fails, and since he does not otherwise argue that he can satisfy

the requirements of section 1326(d) for collaterally challenging

his removal order in this subsequent criminal proceeding, his

appeal fails.

V.

For the foregoing reasons, the district court's denial

of Mendoza's motion to withdraw his guilty plea and dismiss the

indictment is affirmed.

Affirmed.

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