United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill U.S. District Court Judge.
the Court is Defendant Sergio Miramontes-Maldonado's
Motion to Dismiss the Indictment (Dkt. 30). For the reasons
explained below, the Court will deny the motion.
is charged with a single count of illegal reentry in
violation of 8 U.S.C. § 1326. Dkt. 1. The indictment
alleges that Miramontes was removed from the United States in
2000. Id. The removal proceeding in 2000 was a
reinstatement of a 1997 exclusion and removal proceeding.
See Def.'s Ex. D, Dkt. 30-4. Miramontes
challenges the validity of the 1997 exclusion
1997 exclusion proceedings began on January 7, 1997 when Mr.
Miramontes applied for entry to the United States from Mexico
at the San Ysidro Port of Entry. Mot. at 5, Dkt. 30;
see Miramontes Decl. ¶ 13, Dkt. 30-3. The next
day, immigration authorities served Miramontes with a Notice
to Applicant for Admission Detained for Hearing Before
Immigration Judge (Form I-122) and a Form I-110 that
indicated Miramontes had applied for admission as “an
alien presenting a counterfeit I-94 form bearing a
counterfeit adit stamp.” Mot. at 5, Dkt. 30;
Def.'s Ex. D, Dkt. 30-4 at 8-9. He was detained
for further inquiry, placed under exclusion proceedings, and
taken into INS custody pending an exclusion hearing.
Def.'s Ex. D, Dkt. 30-4 at 10.
exclusion hearing he indicated that he was willing to accept
an exclusion and deportation order and was then ordered
excluded from the United States under §
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
(INA) (codified as 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994
Sup. II)). Def.'s Ex. D, Dkt. 30-4 at 6-7. The
hearing was recorded but the recording is incomprehensible.
See Def.'s Ex. A, Dkt. 30-1 at 2.;
Def.'s Ex. B, Dkt. 30-2 at 2. On January 13,
1997, Miramontes was presented with a Notice to Alien Ordered
Excluded by Immigration Judge (Form I-296), which stated that
“[a]n immigration judge has ordered that you be
excluded from admission into the United States, and that you
be deported from the United States.” Def.'s Ex.
D, Dkt. 30-4 at 3. Miramontes was thereby excluded and
deported. In his current motion, Miramontes argues the IJ
violated his due process rights by failing to properly
maintain a contemporaneous recording of the exclusion
hearing, failing to inform him of the immigration charges
against him in a language he understood, and by failing to
advise him of his eligibility for withdrawal of application.
U.S.C. § 1326, a defendant charged with illegal re-entry
after removal may collaterally attack the removal order. 8
U.S.C. § 1326 (2019); United States v.
Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). To sustain a
collateral attack, a defendant must demonstrate 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) (2019). An underlying
removal order is fundamentally unfair if: (1) defects in the
underlying deportation proceeding violated a defendant's
due process rights and (2) the defendant was prejudiced
because of such defects. United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). If
a defendant successfully demonstrates prejudice, the burden
shifts and the government may attempt to show that that the
procedural violation could not have changed the outcome.
United States v. Gonzalez-Valerio, 364 F.3d 1051,
1054 (9th Cir. 2003).
The IJ's Subject-Matter Jurisdiction
threshold matter, Miramontes argues that the IJ lacked
jurisdiction over his removal proceedings because the
“Notice to Appear” did not contain a specific
date and time for the hearing. As this Court recently made
clear in United States v. Gonzalez-Sanchez, 398
F.Supp.3d 794 (D. Idaho 2019),  the Ninth Circuit's recent
decision in Karingithi v. Whitaker, 913 F.3d 1158
(9th Cir. 2019) forecloses this argument. In
Karingithi, the Ninth Circuit held that an IJ had
jurisdiction over removal proceedings even though the Notice
to Appear lacked a date and time for the removal hearing.
raises several arguments as to why Karingithi was
wrongly decided. But “once a federal circuit court
issues a decision, the district courts within that circuit
are bound to follow it and have no authority to await a
ruling by the Supreme Court before applying the circuit
court's decision as binding authority.” Yong v.
I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000). Under
controlling Ninth Circuit precedent, the IJ had
subject-matter jurisdiction over the 1997 removal proceeding.