Saldivar-Vargas
United States v. Saldivar-Vargas
Opinion
Opinion
Rhoades, J.
ORDER DENYING MOTION TO DISMISS INDICTMENT
I. Introduction
Defendant Joel Saldivar-Vargas (“defendant”) is charged in a one-count indictment with being an alien found in the United States after previously being “excluded, deported and removed” in violation of 8 U.S.C. § 1326 . Defendant moves to dismiss the indictment on the ground that his prior removal proceeding may not be used to demonstrate that he was previously removed due to the immigration judge’s failure to inform him of, and to allow him to apply for, certain relief. For the reasons set forth below, the motion is denied.
II. Background
Defendant, a citizen of Mexico, was granted legal permanent resident status on December 1, 1990. On April 7, 1994, defendant pleaded guilty to rape by a foreign object. He served 365 days, or one year, in county jail. Under the immigration laws then in effect, defendant was not deportable or removable.
After his conviction, Congress made sweeping changes to the immigration laws by passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), P.L. 104-132, and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), P.L. 104-208. As will be…