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. -2- 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 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals