United States v. Aquilar Escobar, No. 19-3251 (8th Cir. 2020)
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The Eighth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment charging defendant with illegal reentry in the United States. The court held that an alien may not collaterally attack the underlying deportation order unless: (1) the alien exhausted his administrative remedies with respect to the order; (2) the deportation proceedings improperly deprived the alien of an opportunity for judicial review; and (3) entry of the order was fundamentally unfair.
In this case, defendant failed to meet his burden on any of the elements. Furthermore, even if defendant could collaterally attack the deportation order under Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018), his attack fails. Therefore, the immigration court had jurisdiction over defendant's deportation proceedings and the district court did not err in denying his motion to dismiss the indictment.
Court Description: [Benton, Author, with Colloton and Wollman, Circuit Judges] Criminal case - Criminal law. In this prosecution for illegal reentry, the district court did not err in denying defendant's motion to dismis which was based on an argument that his 1996 deportation order was invalid; an alien charged with illegal reentry may not collaterally attack the underlying deportation order unless: (1) the alien exhausted his administrative remedies with respect to the order; (2) the deportation proceedings improperly deprived the alien of an opportunity for judicial review; and (3) entry of the order was fundamentally unfair; here, defendant has not met his burden of proof on any of the three elements; even if defendant could attack the order, his Pereria arguments have been rejected by this Circuit. [ August 13, 2020 ]
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