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United States v. Leal-Monroy

United States District Court, D. Minnesota

July 16, 2019

United States of America, Plaintiff,
v.
Arturo Leal-Monroy, Defendant.

          Diane Dodd, Special Assistant United States Attorney, United States Attorney's Office, Counsel for Plaintiff.

          Douglas Olson, Assistant Federal Defender, Federal Defender's Office, Counsel for Defendant.

          ORDER

          MICHAEL J. DAVIS, UNITED STATES DISTRICT COURT JUDGE

         I. Introduction

         Defendant has been charged with re-entry of a removed alien in violation of the Immigration and Naturalization Act (“INA”), 8 U.S.C. §§ 1326(a), (b)(2) and 6 U.S.C. §§202, 557. The Indictment alleges that Defendant was previously removed from the United States on or about April 3, 1998 following his 1997 conviction in the state of Illinois of the charge of Aggravated Criminal Sexual Abuse in violation of ILCS § 5/12-16(c)(1)(i). The Indictment further alleges that on or about October 22, 2017, Defendant knowingly and unlawfully entered and was found in the United States without having obtained the consent of the Attorney General.

         Defendant moves to dismiss the Indictment pursuant to Fed. R. Crim. P. 12(b)(3) due to procedural deficiencies in the 1998 immigration removal proceedings underlying the current charge. The motion was heard by Magistrate Judge Rau. Following briefing and oral argument, Magistrate Judge Rau issued a Report and Recommendation recommending the Court grant the motion to dismiss the Indictment. The government has filed objections to the Report and Recommendation asserting the Magistrate Judge failed to apply the proper legal standard, erred in finding the defendant was functionally deprived of judicial review and that the removal proceedings were fundamentally unfair.

         Pursuant to statute, the Court has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the Court will adopt the Report and Recommendation to the extent it finds the removal proceedings were unfair based on misinformation provided by the government attorney and the lack of judicial review.[1]

         II. Motion to Dismiss

         A. Standard

         Pursuant to 8 U.S.C. § 1326(d), an alien-defendant may collaterally attack the underlying removal proceedings where:

(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.

         “The defendant must meet all three requirements in order to successfully collaterally attack the prior removal order.” United States v. Tamayo-Baez, 820 F.3d 308, 313 (8th Cir. 2016). “The defendant ‘bears the burden of proof in a collateral attack upon a prior deportation.'” Id. (quoting United States v. Martinez-Amaya, 67 F.3d 678, 681-82 (8th Cir. 1995)).

         B. Analysis

         1. ...


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