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Tuesday, August 22, 2006

Another Bizarre Government Defense in an Immigration (Sort Of) Case

In the famous Seventh Circuit case from late last year where Judge Posner castigated one of the government's attorneys for defending the clearly unjustified decision of the Immigration Judge (see my earlier coverage), Posner repeatedly asked the lawyer why the government was wasting its time and money showing up and trying to argue for affirmance.

But that case pales in comparison to a recent decision of the U.S. District Court for the Northern District of New York.

Duarnis Perez is a U.S. citizen. Unfortunately, he was unaware of this fact when he was deported to the Dominican Republic in 1996 for having committed an aggravated felony (manufacturing and delivering heroin). In 2000, when Perez was arrested in New York, he was charged with illegal reentry, to which he pleaded guilty. In 2004, after serving his sentence for the illegal reentry, he met with officials from the "ICE" concerning the commencement of removal proceedings for illegally reentering. At that time, ICE told Perez that he was, in fact, a U.S. citizen. Oops.

It gets better.

The Customs and Immigration Service issued Perez a certificate of citizenship shortly thereafter, because he automatically became a naturalized U.S. citizen in 1988, derivatively through his mother's successful naturalization. In 2005, after retaining counsel, Perez filed a petition for a writ of coram nobis (which was later recharacterized as a motion for post-conviction relief under 28 U.S.C. 2255), seeking vacatur of his conviction for illegal reentry (since a U.S. citizen cannot illegally reenter), and of the remaining term of his supervised release.

The government opposed his motion!

In a 17-page decision posted here, the district court rejected the government's argument, and granted relief to Perez. The decision itself is an interesting read, sustaining, as it does, an "actual innocence" claim, but it begs a very different question to me: What the hell is the government doing opposing a motion like this? The government did not argue that Perez isn't a U.S. citizen; they argued that Perez was time-barred because he could have discovered earlier that he was a U.S. citizen (even though one might think that someone who was deported would have no reason to check). And they argued that he procedurally defaulted his claims. And they argued that his guilty plea to illegal reentry barred him from collaterally challenging the conviction through 2255.

I must confess that, whatever its legal merits (although it's a sad day if there actually is merit to the argument), I find the government's position wholly indefensible here. Perez is a U.S. citizen. The government deported him in 1996, even though it could not possibly have had the legal authority to do so. The government convicted him of illegal reentry in 2000, even though it could not possibly have had the legal authority to do so. Now, the government argues, Perez can't obtain relief because he waived all of his claims by failing to figure out earlier that he was, in fact, a U.S. citizen.  Why not just let this one go, concede error, and move on to the next case worth the efforts of the ICE?

A troubling case, through and through.

Posted by Steve Vladeck on August 22, 2006 at 08:40 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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