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

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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.  
 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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