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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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