ILNews

7th Circuit upholds denial of alien's motion to dismiss

Back to TopCommentsE-mailPrintBookmark and Share

The 7th Circuit Court of Appeals sidestepped ruling directly on the exhaustion requirement of a federal law dealing with an alien’s challenge to the validity of a deportation order. The appellate court could affirm the denial of the man’s motion to dismiss because he failed to meet any of the law’s exhaustion requirements.

In United States of America v. Mario Arita-Campos, No. 09-2368, Mario Arita-Campos moved to dismiss his 2005 indictment in Indiana for violating 8 U.S.C. Section 1326(a), which makes it illegal to re-enter the country after being deported. Arita-Campos first came to the U.S. illegally when he was 14. After he was caught by immigration officials, he failed to show at his hearing and was ordered to be deported in absentia. He had provided a mailing address to officials before the hearing.

Ten years later, he resurfaced in Illinois and was deported again. Then he re-entered the country and was caught in Indiana. He was indicted here for violating Section 1326(a), but he claimed he never received notice of the 1994 hearing, so it couldn’t be the basis for his violation of the 2005 indictment.
The District Court denied his motion to dismiss, finding he failed to exhaust his administrative remedies or show the hearing was fundamentally unfair. He pleaded guilty but reserved the right to appeal.

A defendant may collaterally attack the deportation order underlying an offense under Section 1326, but the burden of proof is on the defendant. The law says that in order to challenge the validity of a deportation order, the alien must exhaust any administrative remedies available; must demonstrate that the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and must demonstrate the entry of the order was fundamentally unfair.

Some Circuit Courts have held that the defendant must satisfy all three prongs to prevail in a collateral attack; the 9th Circuit Court held the exhaustion requirement can’t bar collateral review when the waiver of right to administrative appeal didn’t comport with due process. The 7th Circuit has yet to discuss the distinction between the Circuit Courts or expressly hold that all three requirements must be met. The appellate court decided it didn’t have to resolve any of those issues today because Arita-Campos failed to satisfy any of the three requirements.

He had ample time to file a motion to reopen the case upon the entry of the final decision, but failed to do so. Arita-Campos also didn’t attempt to show that habeas relief was unavailable to him. He also didn’t show that his due process rights were violated and he suffered from prejudice from the deportation proceedings, the judges ruled.  
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  2. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT