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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. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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