United States Ninth Circuit

In this case, defendant was convicted for violating 8 U.S.C. section 1326, which prohibits a deported alien from being "found in" the United States after reentering without permission. Defendant appeals from his conviction, arguing that the underlying removal proceeding violated his due process rights, that the district court erred in failing to instruct the jury on a constructive knowledge theory for his statute of limitations defense, and that the evidence proved his statute of limitations defense as a matter of law. The judgment is affirmed, where: 1) defendant failed to meet his burden in collaterally attacking his underlying deportation proceeding; 2) even if the Immigration Judge erred in failing to advise defendant of his ability to apply for relief from removal, defendant suffered no prejudice because if he had obtained relief from removal for his 1994 conviction, he would have been rendered ineligible for relief from removal for his 2000 conviction; and 3) defendant's section 1326 was not complete, and therefore the statute of limitations did not begin to run, when he reentered in 2001 because his presentation of an invalid green card as if it were valid did not place authorities on notice that defendant's presence in the United States would be illegal.

Appellate Information

• Decided 01/14/2015
• Published 01/14/2015

Judges

• Wallace

Court

• United States Ninth Circuit

Counsel