United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
was indicted on June 19, 2018 for having returned to this
country after being deported in 2010. (Docket #1). He filed a
motion to dismiss the indictment on August 14, 2018. (Docket
#11). On October 10, 2018, after taking briefing on the
motion, Magistrate Judge David E. Jones issued a report and
recommendation to this Court (the “Report”)
recommending that the motion be denied. (Docket #19).
Defendant objected to the Report and the objection is now
fully briefed. For the reasons explained below, the Court
agrees that the motion must be denied.
was born on July 8, 1986, in Jalisco, Mexico. (Docket #13 at
1). He unlawfully immigrated to the United States at age
seventeen to live with his brother and sister-in-law in
Milwaukee. Id. at 2. On September 10, 2009, the
Department of Homeland Security (“DHS”) served
Defendant with a Notice to Appear (“NTA”) for
removal proceedings. (Docket #11-1). The NTA stated that
Defendant was subject to removal because he was a non-citizen
who entered the country without official approval.
Id. The NTA ordered Defendant to appear before an
immigration judge in Chicago on “a date to be
set” and at “a time to be set” to show
cause as to why he should not be removed. Id.
Defendant says that he later received a notice from the
immigration court itself which provided the precise date and
time of his hearing. (Docket #11 at 2).
show cause hearing was held on June 14, 2010. (Docket #11-2).
Defendant appeared at the hearing and sought permission to
voluntarily depart the country. Id. The court issued
an order that day granting Defendant's request and
setting a deadline of November 12, 2010 for him to leave.
Id. If he failed to do so, the order would
automatically convert into an order of involuntary removal to
Mexico. Id. Defendant waived his right to appeal the
claims that he left the country prior to the November 12
deadline. (Docket #11 at 2). However, a form from the U.S.
consulate in Ciudad Juarez indicates that Defendant departed
on November 13, 2010 by taxi from El Paso. (Docket #11-3).
Even though Defendant was no longer physically present in the
country, his purported failure to depart by the November 12
deadline triggered the removal provision of the immigration
court's order. Thus, on November 15, 2010, DHS issued a
warrant of removal for Defendant to be detained and removed
if found in the U.S.
nevertheless returned to the country and to the Milwaukee
area specifically. On January 28, 2018, Defendant was
arrested in the Village of East Troy for operating a vehicle
while intoxicated and for possession of cocaine. (Docket #13
at 3-4). A few months later, he was taken into custody by
Immigration and Customs Enforcement. Id. at 4. On
June 19, 2018, a grand jury in this District indicted
Defendant for illegally re-entering the country after being
ordered removed, in violation of 8 U.S.C. § 1326(a).
sole argument for dismissal presented to Magistrate Jones was
that the underlying immigration court proceedings were void
for lack of jurisdiction. Because this was a purely legal
question, Defendant did not request, and Magistrate Jones did
not conduct, an evidentiary hearing on the motion. On October
10, 2018, Magistrate Jones issued the Report recommending
that Defendant's motion be denied. (Docket #19).
Defendant timely objected. (Docket #20). After receiving the
parties' briefing on the objection, this Court ordered
the parties to provide additional briefing on an additional
argument raised by Defendant. (Docket #25). As discussed
further below, the parties did not see fit to comply with
that order, and so the briefing remains incomplete.
Regardless, the time is now ripe to address the Report and
STANDARD OF REVIEW
reviewing a magistrate's recommendation, the Court is
obliged to analyze the recommendation de novo. 28
U.S.C. § 636(b)(1)(C). Thus, the Court can
“accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.”
Id. In other words, the Court's de novo
review of Magistrate Jones' findings and recommendations
is not limited to his legal analysis alone; rather, the Court
may also review his factual findings, and accept, reject, or
modify those findings as it sees fit based upon the evidence.
objection, Defendant offers two arguments in favor of
dismissal of this case. The first is the same legal argument
he presented to Magistrate Jones. The second is a factual
argument based on his contention that he left the country
prior to his November 12 deadline. The Court will address the
contentions separately below.