UNITED STATES of America, Plaintiff-Appellee, v. Miguel LARA-UNZUETA, Defendant-Appellant.
No. 13-1069.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 2, 2013. Decided Nov. 19, 2013.
735 F.3d 954
The Board has used the “unwilling or unable to control” formula since 1964 yet has never attempted to quantify just how far a nation may depart from perfect law enforcement without being deemed complicit in private crimes. See Cece, 733 F.3d at 679-80 (separate opinion). Many places in the United States endure high levels of violence without any suggestion that the police and judiciary have abetted criminals in “persecution” of persons whose property is stolen or whose lives are threatened. But we need not explore the subject here. Petitioners have not asked us to address it or explained why they think Honduras‘s demonstrated commitment to evicting their squatters is inadequate. We have not been given any reason to doubt that the Board‘s decision is supported by substantial evidence, so the petition for review is DENIED.
Patrick M. McKenna, Attorney, Michelle Marie Peterson, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Daniel T. Hansmeier, Attorney, Office of the Federal Public Defender, Springfield, IL, Jonathan E. Hawley, Federal Public Defender, Office of the Federal Public Defender, Peoria, IL, Peter W. Henderson, Attorney Office of the Federal Public Defender Urbana, IL, for Defendant-Appellant.
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
Miguel Lara-Unzueta,1 a native and citizen of Mexico, was convicted of one count of illegal reentry in violation of
I. BACKGROUND
Miguel Lara-Unzueta was born in Mexico on August 13, 1977. He became a temporary resident alien in 1988 and a permanent resident alien in 1990. On March 1, 1996, following a guilty plea, he was convicted in the Circuit Court of Cook County of attempted first degree murder in violation of 720 Ill. Comp. Stat. 5/8-4 and 5/9-1(a)(1) and of armed violence in violation of 720 Ill. Comp. Stat. 5/33A-2. He was sentenced to six years’ imprisonment. The indictment charged that Lara and his co-defendants attempted to kill a man by “beat[ing] him about the head and body with their fists, a 2x4 board and a baseball bat.” As a lawful permanent resident who had committed an aggravated felony, Lara was eligible for deportation from the United States to Mexico pursuant to
At the time of Lara‘s 1996 conviction for attempted first degree murder and armed violence,
As a result of Lara‘s 1996 convictions, the INS initiated a deportation proceeding against Lara in January 1997. At his August 14, 1997, deportation hearing, Lara admitted that he had been convicted of attempted murder and armed violence, but requested a waiver under
Lara timely filed a notice of appeal and brief with the Board of Immigration Appeals (“BIA“) seeking discretionary relief.3 On March 30, 1998, the BIA dismissed his appeal, finding that he had been convicted of aggravated felony offenses, and was correctly found to be deportable. The BIA further held that Lara was “statutorily ineligible” for a
Three years after Lara was removed from the United States, the Supreme Court held, as a matter of statutory interpretation, that the 1996 AEDPA amendments to the INA did not apply to aliens, like Lara, who pleaded guilty to criminal charges prior to the passage of those laws. INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Thus, in light of St. Cyr, the IJ‘s and BIA‘s determinations that the AEDPA amendments automatically precluded Lara from eligibility for discretionary relief under
On October 3, 2002, Lara was arrested in Illinois for armed robbery and attempted armed robbery. He was transferred to INS custody and was indicted on October 17, 2002, on one count of illegally reentering the United States in violation of
After denying Lara‘s motion to dismiss the indictment, the district court held a bench trial on December 5, 2003. Following the trial, Lara was convicted of illegally reentering the country. The district court sentenced him on April 7, 2004, to 65 months’ imprisonment.
Lara appealed his 2003 illegal-reentry conviction and sentence, and on May 24, 2005, we affirmed his conviction. United States v. Lara-Unzueta, No. 04-1954 (7th Cir. May 24, 2005) (granting limited remand to solicit the sentencing court‘s view of the probable result of ordering resentencing under United States v. Paladino, 401 F.3d 471 (7th Cir.2005)). Following his term of imprisonment, Lara was removed on August 30, 2007. Sometime between August 30, 2007, and July 2011, Lara—for the second time—reentered the United States. On July 21, 2011, Lara was charged with one count of illegal reentry in the present case. Specifically, the indictment alleged that on or about June 30, 2011, Lara illegally reentered the United States after prior deportations and removals on June 25, 1998, and August 30, 2007. On April 23, 2012, Lara moved to dismiss the indictment, collaterally attacking (for the second time) the June 25, 1998, removal. On June 20, 2012, District Judge Samuel Der-Yeghiayan denied Lara‘s motion to dismiss.
After the district court‘s denial of Lara‘s motion to dismiss the indictment, he was found guilty following a jury trial on August 6, 2012. Lara was convicted and sentenced to 78 months’ imprisonment.
Having concluded this procedural odyssey, we turn to Lara‘s arguments on appeal.
II. ANALYSIS
Lara first argues that District Judge Samuel Der-Yeghiayan was disqualified
A. Judicial Disqualification
Lara first argues that the district judge erred by failing to disqualify himself from ruling on Lara‘s motion to dismiss and that this failure requires vacating his conviction and sentence and remanding for new proceedings before a new judge. The parties acknowledge that Judge Der-Yeghiayan, who presided over the trial resulting in the conviction and sentence now on appeal, served as District Counsel for the INS in Chicago during 1997-1998.5 It is also a fact that INS was the agency responsible for Lara‘s deportation proceeding resulting from his felony convictions in 1997-1998.
The parties also agree that, if not raised below, a claim under the judicial disqualification statute,
If Judge Der-Yeghiayan were to be disqualified from presiding over Lara‘s trial and sentence, Lara would be entitled to have his conviction reversed and remanded for proceedings before a new district judge. See Franklin v. McCaughtry, 398 F.3d 955, 962 (7th Cir.2005) (reversing for new trial because trial judge was actually biased); Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (same). Section 455 provides that a judge:
shall disqualify himself ... [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness con-
cerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.
i. “The Proceeding”
We conclude that Judge Der-Yeghiayan was not disqualified from presiding over Lara‘s trial and sentencing. First, Judge Der-Yeghiayan has not “served in governmental employment and in such capacity participated as counsel, [or] adviser ... concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”
At oral argument, counsel for Lara indicated that he “read the ‘concerning’ language differently.” By “differently” counsel suggested that “concerning” expands the scope of “the proceeding” to include Lara‘s first deportation proceeding in 1997-1998. He argued that if Judge Der-Yeghiayan rules on a dispositive motion that relies on a deportation order entered when the judge simply had supervisory responsibility over the INS office prosecuting that first deportation, then now-Judge Der-Yeghiayan has a role “concerning the proceeding,” subjecting him to disqualification. Not so. “Concerning” does not expand the scope of this disqualification statute. “Concerning” appears twice in
Even if we were to examine the first proceeding back in 1997-1998 that Lara tries to connect to this one, his argument would still fail. The statute forbids “actual participation” and Judge Der-Yeghiayan did not have actual participation in that first proceeding when he was District Counsel for the INS.
ii. The United States Attorney-Exception Does Not Apply to Judge Der-Yeghiayan‘s Service as INS District Counsel
Lara next argues that as District Counsel for the INS, Judge Der-Yeghiayan was in an analogous position to the Presidentially-appointed United States Attorney and thus should have been prohibited from ruling on a proceeding that he had prosecuted when he was District Counsel. See United States v. Arnpriester, 37 F.3d 466, 467 (9th Cir.1994) (reversing conviction because a U.S. district judge cannot adjudicate a case that began while he was a Presidentially-appointed United States Attorney for the same judicial district where defendant was prosecuted).
In United States v. Ruzzano, we said that “[a]s applied to judges who were formerly AUSAs,
In 1998, Judge Der-Yeghiayan, as the District Counsel for the INS, was part of the Executive Branch when Lara was adjudicated and deported. As discussed above, he did not participate in that proceeding, although his name appeared on a pleading filed by the government identifying him as the District Counsel. There is a sharp distinction between the Judicial Branch where the U.S. Attorney exception might apply, and the Executive Branch which includes the position of INS District Counsel. “Officials of the Executive Branch (a category that includes immigration judges) play dual roles all the time.” Petrov, 464 F.3d at 803. For service in the Executive Branch, “[n]o decision of which we are aware holds that this mixture of prosecutorial and adjudicatory functions violates the Constitution.” Id. Consequently, there is no conflict of interest resulting from Judge Der-Yeghiayan‘s former service in the Executive Branch.
Although then-District Counsel Der-Yeghiayan was not personally involved in Lara‘s 1998 deportation proceeding, even if he had been, it would have no effect on the criminal proceeding that is now before us. After his 1998 deportation, Lara again illegally entered the United States and was arrested for committing more violent crimes. He was convicted of illegal reentry in 2004 and deported in 2007. The case before us now involves his second illegal reentry and conviction. Although Lara is the same person who was first deported during Judge Der-Yeghiayan‘s tenure as INS District Counsel, his present appeal from a second criminal conviction has nothing to do with that 1998 deportation.
Section
B. Lara‘s Collateral Attack on his 1998 Deportation Order Pursuant to 8 U.S.C. § 1326(d) .
Finally, Lara argues that the district court should not have denied his motion to dismiss the indictment for unlawful reentry because he satisfied the criteria of
Although we have not “expressly held that all three requirements must be met” for Lara‘s collateral attack of his deportation order to prevail under
“We require a compelling reason to overturn circuit precedent,” Nunez-Moron v. Holder, 702 F.3d 353, 357 (2012) (citation omitted), as “principles of stare decisis require that we give considerable weight to prior decisions of this court unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening developments, such as a statutory overruling.” Santos v. United States, 461 F.3d 886, 891 (7th Cir.2006) (citation omitted). Here, there has been no such decision by the Supreme Court, or a statutory overruling, and Lara‘s counsel concedes that our precedents interpreting
III. CONCLUSION
Judge Der-Yeghiayan was not disqualified from presiding over Lara‘s trial and sentencing because he has not “served in governmental employment and in such capacity participated as counsel [or] adviser concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”