obtained through plea agreements and who, notwithstanding those convictions, would have been
eligible for § 212(c) relief at the time of their plea under the law then in effect.” Id. at 326. The
Court also held that “habeas jurisdiction under § 2241 was not repealed by AEDPA and IRIRA.”
Id. at 315. Thus, the Supreme Court’s decision in St. Cyr invalidated the decisions of the IJ and BIA,
who rejected Lara-Unzueta’s requests for discretionary relief from removal under § 212(c) based on
their interpretations that the AEDPA precluded discretionary relief for aliens removable for the
commission of an “aggravated felony.”

On October 3, 2002, Lara-Unzueta was arrested in Broadview, Illinois, by the Chicago Police
Department for armed robbery and attempted armed robbery. Lara-Unzueta was transferred to INS
custody on October 4, 2002. In October 2002, he was charged with violating 8 U.S.C. § 1326(b)(2)
for illegally re-entering the United States following a lawful order of removal without the
authorization of the Attorney General.

Il. DISCUSSION

Section 1326(a) of Title 8 of the United States Code makes it a crime for a deported or
removed alien to enter, attempt to enter, or be found in the United States without the expressed
consent of the Attorney General. To sustain this charge, the government must prove that the
defendant previously had been removed properly, meaning that the underlying removal proceedings
complied with some level of due process. In United States v. Mendoza-Lopez, 481 U.S. 828, 839
(1987), the Supreme Court held that due process requires allowing a defendant to collaterally attack
the underlying deportation order “where the deportation proceeding effectively eliminates the right
of the alien to obtain judicial review” of the deportation. However, the Mendoza-Lopez decision

“did not offer specific guidelines about the minimal due process requirements for a deportation


received. Id. Lara-Unzueta does not argue that he would have received “relief from deportation.”
As such, he fails to indicate how he was prejudiced, and thus, cannot satisfy the third prong of the
inquiry under § 1326(d).
IV. CONCLUSION
For the reasons stated above, the Court denies Lara-Unzueta’s Motion to Dismiss the
Indictment.
IT IS SO ORDERED.

ENTER:

Late R Pevy

CHARLES RONALD NORGLE, Judge WA
United States District Court

DATED: Lo, ‘S/O B


rejected Lara-Unzueta’s requests for discretionary relief from removal under § 212(c) based on their
interpretations that the AEDPA precluded discretionary relief for aliens removable for the
commission of an “aggravated felony.” However, the now erroneous rulings on the IJ and BIA are
of no import at this stage. Lara-Unzueta cannot satisfy the three-step process for collaterally
challenging his underlying deportation proceedings.

1. Exhaustion of Administrative Remedies

In the hearing before the IJ, Lara-Unzueta did not specifically argue that his case should be
considered under the law in effect prior to the AEDPA and IIRIRA. Yet, in his Notice of Appeal to
the BIA, Lara-Unzueta did state that “[t]his case should be considered under the law in effect before
April 24, 1996.” However, in his brief to the BIA, this issue was not raised. As such, this would
not constitute exhaustion of administrative remedies.

Additionally, Lara-Unzueta does not contend in this Court that raising the issue would have
been futile in light of the Attorney General’s interpretation of the AEDPA and IIRIRA. See Attorney
General Opinion February 21, 1997, 1997 WL 33347804, at n. 4 (instructing that the AEDPA was
retroactive, and vacating Matter of Soriano, 21 1 & N Dec. 516 (BIA June 27, 1996), which held that
the AEDPA would not affect 212(c) applications pending on the effective date of the AEDPA).
However, such an argument would not likely succeed in light of the Seventh Circuit’s statement in

Roque-Espinoza, indicating that futility arguments would likely be unavailing in light of the

Supreme Court’s decisions in Porter v. Nussle, 534 U.S. 516 (2002) and Booth v. Churner, 532 U.S.
731 (2001). See Roque-Espinoza 34 F.3d at 729.
In the end, however, this Court need not decide whether Lara-Unzueta exhausted his

administrative remedies, because he cannot satisfy the other two steps required under § 1326(d).


proceeding.” United States v. Roque-Espinoza, 338 F.3d 724, 727 (7th Cir. 2003).

The Seventh Circuit elucidated the Mendoza-Lopez decision stating that in order to
collaterally attack a removal proceeding in a § 1326 case, a defendant must show that “the
underlying order was the result of a ‘deportation hearing [that] effectively foreclosed his right to
direct judicial review of the deportation order’ and then establish that ‘the deportation hearing was

fundamentally unfair.”” Id. at 728 (citing United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir.

1994)). The Seventh Circuit deems a deportation hearing to be “fundamentally unfair” ifa defendant
can show “prejudice,” meaning that “relief from deportation” would have been received. See
Espinoza-Farlo, 34 F.3d at 471.

In 1996, Congress codified the Mendoza-Lopez decision, and its progeny, in 8 U.S.C. §
1326(d), entitled “Limitation on collateral attack on underlying deportation order.” That statute
provides a three-step process for collaterally challenging an underlying deportation proceeding:

Ina criminal proceeding under this section, an alien may not challenge the validity

of the deportation order described in subsection (a)(1) of this section or subsection

(b) of this section unless the alien demonstrates that--

(1) the alien exhausted any administrative remedies that may have been available to

seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived

the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d)(2003). If the deportation order is successfully challenged collaterally it cannot
be used to establish prior deportation.
Ill. ANALYSIS

Lara-Unzueta’s underlying convictions occurred before the effective date of the AEDPA.

Thus, the Supreme Court’s decision in St. Cyr invalidated the decisions of the IJ and BIA, who


practice in such proceedings, as he shall choose”)(emphasis added).

3. Fundamental Unfairness

In addition, the entry of Lara-Unzueta’s removal order was not fundamentally unfair. In
dicta, the Seventh Circuit stated that “it would be hard to show that the loss of a chance at wholly
discretionary relief from removal is the kind of deprivation of liberty or property that the due process
clause is designed to protect.” Roque-Espinoza, 338 F.3d at 729 (relying on United States v. Lopez-
Ortiz, 313 F.3d 225, 231 (5th Cir. 2002) and United States v. Wilson, 316 F.3d 506, 510 (4th Cir.
2003)). This court finds that the minimal due process requirements for a removal proceeding do not
include a right to discretionary relief under § 212(c). To say that the denial of discretionary relief
is fundamentally unfair presents somewhat of an oxymoron. The discretionary relief under § 212(c)
is not available as of right, but rather is “an act of extrasovereign generosity,” Jean v. Nelson, 727
F.2d 957, 972 (11th Cir. 1984) (en banc). As such discretionary relief under § 212(c) is not a liberty
or property interest as contemplated by the Due Process Clause of the Fifth Amendment.

Lara-Unzueta argues that the IJ and BIA’s denial of his request for a § 212(c) waiver of
deportation hearing, based on their now erroneous interpretations of the AEDPA, renders his
removal proceedings fundamentally unfair. Lara-Unzueta argues that it is the denial of the request,
and not whether he would have been granted a waiver of deportation, that makes the indictment
insufficient. However, this argument misses the issue of prejudice.

InEspinoza-Farlo, the Seventh Circuit expressly rejected the argument that no prejudice need
be shown to prevent a deportation order from being used to prove an element of a § 1326 charge.
34 F.3d at 471. The Seventh Circuit interpreted a deportation hearing to be “fundamentally unfair”

only if a defendant can show “prejudice,” meaning that “relief from deportation” would have been


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Charles R. Norgle Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 CR 995 DATE 10/15/2003
CASE United States of America vs. Miguel Lara-Unzeuta
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

GB) Oo Answer brief to motion due___. Reply to answer briefdue__.

(4) o Ruling/Hearingon set for_— at

(5) oOo Status hearing[held/continued to] [set for/re-set for]on__——setfor at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__setfor__— at
(@) Oo Trial[set for/re-set for]on___at

(8) oO {Bench/Jury trial] [Hearing] held/continuedto___——at__

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4¢n) O Local Rule 41.1 CFRCP41(a\(1) OO FRCP41(a)(2).

to exclude time from 10/15/03 to 11/24/03 is granted. (X-T)

(1) [For further detail see order attached to the original minute order. ]

No notices required, advised in open court.

No notices required.

qo) [Other docket entry] _Defendant’s motion to dismiss the indictment is denied. Status hearing held
and continued to November 24, 2003 at 9:30 a.m. Trial date set for 12/2/03 to stand. Joint oral motion

Notices mailed by judge’s staff.

Notified counsel by telephone.

J | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
EF deputy’s ,
initials i

Date/time received:in
central Clerk's Office



2. Deprivation of Opportunity for Judicial Review

The underlying removal proceedings did not deprive Lara-Unzueta of the opportunity for
judicial review. Like the defendant in Roque-Espinoza, Lara-Unzueta could have sought a direct
appeal to the Seventh Circuit from the decision of the BIA. See Roque-Espinoza, 338 F.3d at 729.
In addition, he could have filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See
id.; see also St. Cyr, 533 U.S. at 315 (holding that “habeas jurisdiction under § 2241 was not
repealed by AEDPA and IIRIRA”). As stated by the Seventh Circuit, “[n]othing prevented [Lara-
Unzueta] from playing the role of St. Cyr in his particular situation.” Id. “The fact that he chose not
to make the attempt does not mean that he was deprived of all avenues of judicial review of his
removal order.” Id.

In response, Lara-Unzueta argues that “[i]t is counterintuitive to suggest that nothing
prevented [him] [from] seek[ing] collateral review and ‘play[ing] the role of St. Cyr in his
situation.”” (Def.’s Reply to Gov’t Opposition to Def.’s Mot. to Dismiss Indictment.) Lara-Unzueta
bases this argument on a distinction between himself and St. Cyr, stating that such an argument was
unavailing at the time of his deportation and that he could not afford privately retained counsel.
However, such an argument was in fact available to Lara-Unzueta at the time of his deportation
proceedings. As the Seventh Circuit indicated, “the law would never change if litigants did not
request the responsible tribunals to reconsider earlier rulings.” Id. Further, the argument that Lara-
Unzueta lacked the financial ability to retain private counsel is of no consequence, because while
there exists a limited right to counsel in removal proceedings, there is no right to appointed counsel.
See 8 U.S.C. § 1362 (stating: “In any removal proceedings . . ., the person concerned shall have the

privilege of being represented (at no expense to the Government) by such counsel, authorized to


argued that Lara-Unzueta’s underlying convictions were not “aggravated felonies.” In addition,
counsel for Lara~-Unzueta requested a hearing for discretionary relief from removal under § 212(c).
The IJ concluded that the underlying convictions of attempted first-degree murder and armed
violence were “aggravated felonies,” and also rejected the request for discretionary relief from
removal under § 212(c). The IJ based his decision to reject the request for discretionary relief from
removal under § 212(c) on an interpretation that the AEDPA precluded § 212(c) discretionary relief
for aliens removable for commission of an aggravated felony. The IJ advised Lara-Unzueta that he
had the right to appeal the decision to the Board of Immigration Appeals (“BIA”).

On appeal to the BIA, Lara-Unzueta again argued that the underlying convictions of
attempted first-degree murder and armed violence were not “aggravated felonies,” and also that he
should be given the opportunity for discretionary relief under § 212(c). In Lara-Unzueta’s Notice
of Appeal, he also stated: “This case should be considered under the law in effect before April 24,
1996.” (Gov’t Resp. in Opposition to Def.’s Mot. to Dismiss Indictment, Ex. 2.) However, this
argument was not presented in the brief to the BIA. On March 30, 1998, the BIA affirmed the IJ’s
decision that Lara-Unzueta’s underlying convictions of attempted first-degree murder and armed
violence were “aggravated felonies,” and that he was ineligible for discretionary relief under § 212(c)
as a result of the change in the law affected by the AEDPA.

Lara-Unzueta did not seek judicial review of the BIA’s decision, either by way of appeal to
the Seventh Circuit or a writ of habeas corpus under 28 U.S.C. § 2241; and on June 25, 1998, he was
removed from the United States to Mexico.

In INS v. St Cyr, 533 U.S. 289 (2001), the Supreme Court clarified the AEDPA and the

TIRIRA, The Court held that “§ 212(c) reliefremains available for aliens . .. whose convictions were


However, at the time of Lara-Unzueta’s convictions, § 212(c) of the Immigration and Naturalization.
Act (“INA”), codified at 8 U.S.C. § 1182(c) (now repealed), provided that a person subject to
deportation, on the basis of having committed an “aggravated felony,” could still apply for
discretionary relief from deportation if certain requirements were met.

In 1996, while Lara-Unzueta was serving his sentence for the state court convictions,
Congress adopted the Anti-Terrorism and Effective Death Penalty Act (“SAEDPA”), which in §
440(d) identified the set of offenses for which convictions would preclude relief under § 212(c). See
Pub. L. No. 104-132, 110 Stat. 1214, 1277 (1996). This enactment foreclosed § 212(c) relief
prospectively for all persons convicted of aggravated felonies. Also § 440(a) of the AEDPA
provided that the denial of discretionary relief from deportation for anyone convicted of an
aggravated felony was not reviewable by any court. See Pub. L. No. 104-132, 110 Stat. 1214, 1276-
77 (1996).

Also in 1996, Congress adopted the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), which repealed § 212(c) and replaced it with a procedure under
which persons who had been convicted of an aggravated felony were ineligible for relief from
removal. See Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-597 (1996). Also, the IIRTRA
provided that the final removal order for anyone convicted of any aggravated felony was not directly
reviewable by any court. See Pub. L. No. 104-208, 110 Stat. 3009-625 (1996).

In January 1997, the Immigration and Naturalization Service (“INS”) began removal
proceedings against Lara-Unzueta. On August 14, 1997, following multiple continuances to allow
Lara-Unzueta to obtain legal representation, an Immigration Judge (“IJ”) conducted a removal

hearing. During that hearing, Lara-Unzueta’s counsel admitted the facts supporting removal, but


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, }
v. ‘ Case No. 02 CR 995
y Honorable Charles R. Norgle

MIGUEL LARA-UNZUETA, }

Deane) DOCKETED

OPINION AND ORDER OCT 16 2003

CHARLES R. NORGLE, District Judge:

Miguel Lara-Unzueta is charged in a single count indictment under 8 U.S.C. § 1326(b)(2)
for illegally re-entering the United States following a lawful order of removal. Lara-Unzueta has
filed a motion to dismiss the indictment, arguing that his due process rights were violated in the
removal proceedings that form the basis of the present charge. For the following reasons, Lara-
Unzueta’s Motion to Dismiss the Indictment is denied.

I. BACKGROUND!

Lara-Unzueta is a citizen of Mexico, who initially immigrated to the United States in 1981.
In 1988, his status was changed to temporary resident alien, and in 1990, to permanent resident alien.

On March 1, 1996, an JIlinois state court convicted Lara-Unzueta on two counts of attempted
first-degree murder and armed violence. Since Lara-Unzueta was not a citizen of the United States,
his offenses, if determined to fall within the definition of an “aggravated felony” under 8 U.S.C. §

1101(a)(43), would have made him eligible for deportation pursuant to 8 U.S.C. § 1227(a)(2)(A)iii).

' The background information is taken from the parties’ pleadings, including attached

exhibits. uf