Wednesday, February 14, 2007

Illegal Reentry Proseuction Barred by Limitations

United States v. Gunera, No. 05-20544 (5th Cir. Feb. 13, 2007) (Reavley, Jolly, Benavides)

As you're probably aware, there are three ways of committing illegal reentry under 8 U.S.C. § 1326: by attempting to reenter, actually reentering, or being found in the United States after having been deported. The statute of limitations on illegal reentry is five years. The SOL on the found-in alternative commences running on the date that the alien's "physical presence is discovered and noted by the immigration authorities, and the knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities, can reasonably be attributed to immigration authorities." United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996).

The issue in this case is whether the Government blew the SOL on prosecuting Gunera for being found in the U.S. Gunera, a Honduran citizen, was deported in 1991 following his Texas state conviction for possession of a controlled substance. He was again removed in 1992.

On August 18, 1999, Gunera filed an application with the Immigration and Naturalization Service (“INS”) for Temporary Protected Status (“TPS”) with the INS’s Texas Service Center. He provided his true name, date of birth, and place of birth, all of which had been known to the INS at the time of his 1991 deportation. The application also contained Gunera’s then-current Texas address. He did not disclose that he had been previously convicted of a crime and deported, or that he had been issued an alien registration number (“A-Number”) in the past.

At the same time he submitted his TPS application, Gunera applied for an employment authorization document (“EAD”). That application was approved and an EAD issued under the same A-Number under which Gunera had been deported in 1991.

Slip op. at 2. On September 28, 1999, the Texas Service Center ran a check on Gunera's name and DOB in the National Automated Immigration Lookout System (NAILS), and learned of his prior drug conviction, his 1991 deportation, and his A-number. On October 1, 1999, the INS sent a letter to the address Gunera provided in his TPS application informing him of the agency's intent to deny the application based on his prior drug conviction, and that he had to submit fingerprints if he hadn't already done so.
[Over five years later, o]n November 23, 2004, Gunera reported to the offices of Immigration and Customs Enforcement (“ICE”) pursuant to correspondence requesting that he appear for further processing. He was arrested and held in ICE custody. Gunera moved to dismiss the illegal presence indictment of December 20, 2004 as being returned more than five years following the date he was “found” in the United States. Following an evidentiary hearing on that issue, the district court denied the motion to dismiss. Gunera was convicted following a bench trial.

Slip op. at 3. Gunera appealed, challenging the district court's denial of his limitations defense, among other things. The Government argued that the INS did not have constructive knowledge of Gunera's illegal presence in the U.S. at the time of his TPS application because he "(1) omitted the facts that he had previously been issued an A-number and convicted, and (2) failed to submit fingerprints with his TPS application, thus concealing his true identity." Slip op. at 5.

The court rejected the Government's argument, holding that the INS had actual knowledge of Gunera's status as a previously deported alien and his illegal presence as of September 28, 1999, when the Texas Service Center ran the NAILS search, and that the SOL began running on that date. The court also rejected the district court's "implicitl[] conclu[sion] that knowledge of the INS’s Texas Service Center is not knowledge of the immigration authorities for purposes of the statute of limitations." Slip op. at 6. It pointed out that in 1999, the INS was the "immigration authorities" as it was responsible for processing and investigating immigration matters. Moreover, the Government admitted that there was an investigative unit at the Texas Service Center, but that "the Center simply did not refer Gunera's file for further investigation of the NAILS inquiry results of 1999 until 2003." Id. at 7.

Because the Government did not indict Gunera until more than five years after he was found in the United States illegally on September 28, 1999, the court reversed the conviction and dismissed the indictment.

Good heads-up work by defense counsel in this case.



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