The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
A federal grand jury charged Miroslaw Laguna ("Laguna") with intentionally acting to prevent and hamper his departure from the United States pursuant to an outstanding removal order. See 8 U.S.C. § 1253. Laguna moved to dismiss the Indictment alleging that his underlying convictions, which were the basis for the removal order, were obtained in violation of Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Laguna argued that because his previous counsel failed to advise him of the immigration consequences of his guilty plea before entering it, contrary to the requirement now set forth in Padilla, the Indictment must be dismissed. For the following reasons, the Court denies Laguna's Motion to Dismiss the Indictment.
Laguna, a Polish citizen, entered the United States in December 1967 as a legal permanent resident. On June 24, 2001, he pled guilty to possession of a stolen vehicle, aggravated fleeing and eluding a police officer, and aggravated DUI in the Circuit Court of DuPage County. It is undisputed that before entering the guilty plea, his court-appointed attorney did not inform him of the immigration consequences of his guilty plea. As a result of these convictions, the immigration court entered a removal order on September 18, 2002 ("2002 removal order").
On March 14, 2002, due to these convictions, the U.S. Bureau of Immigration and Customs Enforcement ("ICE") served Laguna with notice of its intent to deport him from the United States because he committed two crimes of moral turpitude. On May 2, 2002, ICE added two additional charges to deportation because Laguna committed two crimes that were aggravated felonies.
An immigration judge issued a final order of removal on September 18, 2002, requiring that Laguna be removed to Poland upon his release from the Illinois Department of Corrections ("IDOC"). At the removal hearing, Laguna admitted the allegations of fact regarding the 2001 convictions but argued that he was a U.S. citizen because his mother was a U.S. citizen. The immigration judge rejected this argument and ordered that he be removed.
Laguna appealed to the Board of Immigration Appeals ("BIA"), which affirmed the removal order without opinion on February 5, 2003. Laguna then challenged the removal order by filing a petition of review with the Seventh Circuit. On June 4, 2004, the Seventh Circuit granted Laguna's request to transfer the petition to the district court, which denied the petition on August 27, 2004. Laguna v. U.S. Dep't of Justice, 333 F. Supp. 2d 748 (N.D. Ill. 2004).
After being released from IDOC on June 18, 2004, Laguna was taken into ICE custody. ICE released Laguna on September 24, 2004 under the condition that he help ICE in obtaining his passport and other travel documents necessary to be removed to Poland. These documents had to be obtained because Poland required its citizens to present a Polish passport upon entering and leaving the country. Laguna agreed to his release on these terms.
On September 29, 2005, Laguna provided ICE with receipt of a mailing to show he had applied for a Polish passport. Further, on March 10, 2010, Laguna provided ICE a receipt also indicating he had applied for the passport, which would be ready to be picked up on April 21, 2010.
When Laguna reported to ICE on April 21, 2010, he refused three times to go to the Polish consulate and pick up the passport. ICE informed Laguna numerous times that if he did not sign the necessary documents to obtain his passport he would be charged with a federal crime. Laguna understood this warning but refused to take action as ICE required.
A federal indictment returned on May 19, 2010 charged Laguna with failing to comply with this 2002 removal order by intentionally acting to prevent his departure from the United States. Since being released from the Illinois Department of Corrections in 2004, Laguna has failed to assist Immigration and Customs Enforcement in obtaining documents, such as a passport and other travel documents, necessary for his removal to Poland.
Laguna contends that the 2002 removal order was a "condition precedent" to the charge in this case. As such, because Laguna's attorney did not advise him of the deportation consequences of his guilty plea, in violation of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the charge cannot stand. In other words, Laguna maintains that he cannot be convicted of hampering ...