US v. Cortez:
Cortez, a Mexican citizen, was found in the United States in 2011 and served
with a “notice to appear” that removal proceedings were being initiated against
him. It did not provide a date or time for the proceeding (it did have a
location), noting that they would be set later. Cortez was orally informed of the
date and time, however, and appeared for the hearing, which resulted in his
removal to Mexico. In 2018, Cortez was located in Virginia and charged with
illegal reentry. He moved to dismiss the indictment, arguing that the notice he
initially received was insufficient because it lacked the date and time of his
revocation hearing, rendering the removal proceeding void for lack of
jurisdiction and, thus, the Government unable to prove that he “reentered” the
country without permission. The motion was denied and Cortez entered a
conditional guilty plea and was sentenced to time served.
On appeal, the Fourth Circuit affirmed
Cortez’s conviction. The court bypassed the issue of whether a successful
challenge to the “subject matter jurisdiction” of a removal proceeding could be
a defense to an illegal reentry charge, holding that the rule upon which Cortez
relied was not a jurisdictional one anyway. Rather, it was a “claim processing”
rule that didn’t define the scope of the immigration court’s authority. In addition,
the court held that Cortez failed to show that the notice to appear he received
was defective under the applicable regulations.
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