United States District Court, D. Arizona
MICHAEL T. LIBURDI UNITED STALES DISTRICT JUDGE.
14, 2019, Defendant Miguel Andres Lara-Unzueta was indicted
for illegal reentry in violation of 8 U.S.C. §1326(a)
and (b)(1). (Doc 15.) He now moves to dismiss the indictment
on grounds that the underlying order of removal violated his
due process rights. (Doc. 23 at 1.) The Government filed a
response and supplemental exhibits. (Doc. 29.) The Court
heard oral argument on October 29, 2019. For the following
reasons, Defendant's motion is denied.
Factual and statutory background
is a native and citizen of Mexico. (Doc. 29 at 1.) He was
previously a lawful permanent resident alien of the United
States. (Doc. 23 at 2; Doc. 29 at 1.) On March 1, 1996,
Defendant pleaded guilty to charges of attempted first-degree
murder and armed violence in the Circuit Court of Cook
County, Illinois. (Id.) Because these charges were
“aggravated felonies” under the Immigration and
Naturalization Act (“INA”), 8 U.S.C. §
1101(a)(43), Defendant was eligible for deportation pursuant
to 8 U.S.C. § 1227(a)(2)(A)(iii). At the time of his
conviction, however, § 212(c) of the INA permitted a
person subject to deportation for committing an
“aggravated felony” to apply for discretionary
relief from removal in certain circumstances. 8 U.S.C. §
1182(c) (1994) (repealed).
enacted two changes to § 212(c) relief while Defendant
was serving a six-year sentence for the state court
convictions. First, on April 24, 1996, Congress passed the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which eliminated § 212(c)
discretionary relief for deportable aliens convicted of
aggravated felonies. See Pub. L. No. 104-132, 110
Stat. 1214, 1277 (1996). Second, on September 30, 1996,
Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), which repealed
§ 212(c) relief in its entirety. See Pub. L.
No. 104-208, 110 Stat. 3009-546, 3009-597 (1996).
removal proceedings arising from his state court convictions
commenced in January 1997. (Doc. 29 at 2.) During his removal
hearing on August 14, 1997, Defendant admitted removability
but requested a hearing for discretionary relief from removal
under § 212(c) on grounds that his convictions were not
“aggravated felonies” under the INA. The
Immigration Judge (“IJ”) rejected this argument
and concluded that Defendant was not eligible for
discretionary § 212(c) relief following the AEDPA's
enactment. (Doc. 23 at 3.) The IJ terminated Defendant's
permanent resident status and ordered him removed.
timely appealed to the Board of Immigration Appeals
(“BIA”), which affirmed the IJ's decision on
March 30, 1998. (Id.) Defendant was removed from the
United States on June 25, 1998. (Id.) In the nearly
three months between the BIA's ruling and his removal,
Defendant did not challenge the BIA's order by filing a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, or
by appealing to the appropriate Court of Appeals (in this
case, the Seventh Circuit). (Id.)
his removal, the U.S. Supreme Court held in INS v. St.
Cyr, 533 U.S. 289, 326 (2001), that the AEDPA did not
apply to aliens, like Defendant, who pleaded guilty to a
criminal charge before the AEDPA and IIRIRA were enacted.
Defendant and the Government agree that the IJ and BIA
therefore erred in determining that Defendant was precluded
from seeking discretionary relief under § 212(c). (Doc.
23 at 3; Doc. 29 at 3.)
Subsequent reentries and legal proceedings
was again arrested in Illinois on October 3, 2002, this time
for armed robbery and attempted armed robbery. (Doc. 29 at
3.) He was subsequently indicted for illegal reentry in
violation of 8 U.S.C. § 1326(a) & (b)(2).
(Id.) As in the present case, Defendant moved to
dismiss the indictment, arguing that he was denied due
process when the IJ and BIA denied him a hearing for
potential relief under § 212(c). (Id.)
District Court for the Northern District of Illinois denied
the motion, concluding that Defendant could not meet at least
two of the three prongs required by 8 U.S.C. § 1326(d)
to collaterally attack his underlying removal. See United
States v. Lara-Unzueta, 287 F.Supp.2d 888, 891-92 (N.D.
Ill. 2003) (cited in Doc. 29-1 at 7). On April 7, 2004,
Defendant was convicted at trial of illegal reentry and
sentenced to 65-months' imprisonment. (Doc. 29 at 4.)
appealed the denial of the motion to dismiss to the Seventh
Circuit Court of Appeals. See United States v.
Lara-Unzueta, No. 04-1954 (7th Cir. May 24, 2005) (cited
in Doc. 29-2). On May 24, 2005, the Seventh Circuit affirmed
the denial on the same grounds as the District Court.
Id. at 6. The Seventh Circuit also remanded for a
discrete sentencing issue. Id.
connection with the armed robbery charges, Defendant also
filed a habeas petition pursuant to 28 U.S.C. § 2241 to
challenge his 1998 removal. See Lara-Unzueta v.
Monica, No. 03 C 6083, 2004 WL 856570 (N.D. Ill. Apr.
20, 2004) (cited in Doc. 29-3). The District Court for the
Northern District of Illinois denied his petition on
procedural grounds. (Id.) Defendant did not appeal.
(Doc. 29 at 4.) He was ultimately removed to Mexico for a
second time on August 30, 2007. (Id.)
2011, Defendant was again indicted for illegal reentry in
violation of 8 U.S.C. § 1326(a). See United States
v. Lara-Unzueta, No. 11 CR 495, 2012 WL 2359350, (N.D.
Ill. June 20, 2012), aff'd, 735 F.3d 954 (7th
Cir. 2013) (cited in Doc. 29-4). He again moved to dismiss
the indictment on grounds that his 1998 removal violated his
due process rights. The District Court for the Northern
District of Illinois denied the motion on June 20, 2012.
See id. In addition to substantive rulings, the
District Court also found that Defendant was collaterally
estopped from “presenting the same issue before this
court that was already resolved in his prior criminal
action.” Id. at *3. This time, Defendant did
not appeal to the Seventh Circuit. (Doc. 29 at 5.) Defendant
was removed from the United States for a third time on or
about June 28, 2017. (Doc. 15.)
instant action, the Government charges that, on or about
March 17, 2019, Defendant again reentered the United States
in violation of 8 U.S.C. § 1326(a) and (b)(1). (Doc. 1.)
On May 14, 2019, he was indicted for illegal reentry. (Doc.
15.) Defendant moves to dismiss the indictment.