United States v. Lara-Unzueta

          ORDER

          MICHAEL T. LIBURDI UNITED STALES DISTRICT JUDGE.

         On May 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.

         I. BACKGROUND

         A. Factual and statutory background

         Defendant 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“aggravated felony” to apply for discretionary relief from removal in certain circumstances. 8 U.S.C. § 1182(c) (1994) (repealed).

         Congress 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September 30, 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which repealed § 212(c) relief in its entirety.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).

         B. Removal proceedings

         Defendant's 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. (Id.)

         Defendant 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.)

         Following 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.)

         C. Subsequent reentries and legal proceedings

         Defendant 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.)

         The 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.)

         Defendant 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.

         In 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.)

         In July 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.)

         In the 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.

         II. ...