United States District Court, D. Minnesota
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.
MICHAEL J. DAVIS, UNITED STATES DISTRICT COURT JUDGE
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.
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.
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
Motion to Dismiss
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
(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
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.