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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. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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