The defendant’s indictment for illegally reentering the United States in violation of 8 U.S.C. § 1326 will be dismissed, on grounds that the notice to appear issued to him following his apprehension by Border Patrol failed to specify the time and date of the removal proceedings against him.
No evidence establishes that the defendant ever received actual notice of the time and date of any hearing in the deportation proceedings. The immigration court issued a deportation order with the defendant in abstentia, and he can show a reasonable probability that, but for the deficient notice, he would not have been deported.
Even if the government is correct about the defendant’s ineligibility for voluntary departure at the conclusion of his removal hearing under 8 C.F.R. § 1240.26(c)(1), he was still prejudiced by immigration officials’ failure to provide notice of the date or time of his master calendar hearing.
Accordingly, the defendant’s indictment has been dismissed with prejudice and the case stricken from the court’s active docket.