United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ELAINE E. BUCKLO, District Judge.
Defendant's motion to dismiss the indictment charging him with illegal reentry in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4) is DENIED for the reasons stated below.
The following facts are undisputed unless noted otherwise. Defendant is a male of Mexican origin who became a lawful permanent resident of the United States on April 12, 1989. In September 1993, Defendant was convicted of several drug offenses in Arizona state court. See State v. Orendain, 932 P.2d 1325 (Ariz. 1997) (affirming convictions). Immigration authorities placed Defendant in removal proceedings in February 1999. Two months later, on April 5, 1999, an immigration judge terminated Defendant's status as a lawful permanent resident and ordered his removal. Defendant was deported to Mexico the following day.
After being deported in April 1999, Defendant surreptitiously reentered the United States on an unknown date and was indicted for illegal reentry on October 16, 2013. See Dkt. No. 1. Defendant's motion to dismiss challenges whether federal authorities initiated this prosecution within five years of discovering his illegal presence in the United States.
The government contends that Immigration and Customs Enforcement ("ICE") officers first discovered Defendant's unlawful presence in the United States in May 2012 when they encountered him at the Stateville Correctional Center in Crest Hill, Illinois, where he was serving a sentence for marijuana possession with intent to deliver.
In contrast, Defendant argues that the U.S. Immigration and Naturalization Service ("INS") discovered his illegal presence in the United States in September 1999, five months after he was deported. Defendant's argument is based on a letter that the INS sent to the Chicago, Illinois mailing address listed on his November 1998 application for a replacement green card. See Dkt. No. 15 at Ex. A. The INS letter, which is dated September 20, 1999, states:
A search of this Service's records indicates that your status has been removed and you have been deported to Mexico [on] 6 Apr. 1999. You are not eligible for the issuance of an Alien Registration Card. Therefore your application must be denied as a matter of law.
Id. (internal citation and paragraph break omitted).
Although the INS letter was returned as undeliverable, Defendant contends that it reflects the agency's "subjective expectation" or "belief" that he had unlawfully reentered the United States and was living in Chicago, Illinois in September 1999. Dkt. No. 18 at 1; see also id. at 2 (advancing the somewhat different argument that the INS letter reflects actual "knowledge" of Defendant's unlawful presence and location such that the INS "knew exactly where to find him").
Setting aside his shifting arguments about what inference(s) I should draw from the INS letter, Defendant's basic contention is the five year statute of limitations governing illegal reentry prosecutions started running in September 1999, which would render the present indictment untimely.
"The crime of illegal reentry under 8 U.S.C. § 1326(a)(2) is committed when a previously deported, removed, or excluded alien enters, attempts to enter, or is at any time found in, the United States' without the Attorney General's permission." U.S. v. Are, 498 F.3d 460, 461 (7th Cir. 2007) (emphasis added).
Defendant has been indicted for the "found in" version of illegal reentry. This is a continuing offense because "a deportee who has reentered surreptitiously prolongs his illegal presence in the United States each day he goes undetected." Id. at 466. "[T]he statute of limitations generally does not begin to ...