Criminal Procedure — collateral attacks

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U.S. Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — collateral attacks

In a prosecution for illegal reentry after removal, the district court correctly denied a motion to dismiss based on a collateral attack of the removal order that could have been raised earlier, but was not.

“The district court correctly determined that Alegria-Saldana did not meet his burden of proving that he was unable to petition for judicial relief. See Arita-Campos, 607 F.3d at 493; United States v. Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir. 2006). The court here concluded that he failed to meet this burden because he offered no explanation other than that he lacked ‘any understanding or particular knowledge of the law.’ As the court noted, aliens are presumed capable of researching generally available remedies, see Bayo v. Napolitano, 593 F.3d 495, 505 (7th Cir. 2010); Dimenski v. INS, 275 F.3d 574, 578 (7th Cir. 2001) (‘In immigration law, as in tax law—and criminal law, too, where knowledge of the law is presumed—the Constitution permits the government to leave people to their own research.’) (internal citation omitted), and Alegria-Saldana offers no other reason to think that two months was not enough time to file a petition for habeas corpus, see Arita-Campos, 607 F.3d at 492 (39 days between arrest and removal was sufficient time for alien to file motion to reopen).”

Affirmed.

13-1607 U.S. v. Alegria-Saldana

Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Rovner, J.