Virginia Immigration Lawyers Deportation Federal Criminal Lawyers TPS Denied Norfolk
UNITED STATES OF AMERICA, v. JUAN ADALVERTO VEGA-PENA
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NORFOLK DIVISION
668 F. Supp. 2d 742
November 4, 2009, Decided
Defendant illegally reentered the United States in 1992 and timely filed a petition for asylum in that same year. On April 25, 2001, defendant submitted an INS application for Temporary Protected Status. In addition to his 2001 TPS application, defendant's immigration file contains a more recent TPS application, submitted in March of 2005. The second TPS application indicates that it was "DENIED" on August 21, 2006. Following such denial, INS deemed Vega-Pena to be in an unauthorized period of stay in the United States and he was reported to the INS Fugitive Operations Division in December of 2006 as an "absconder." Defendant was arrested on November 15, 2008, by the City of Norfolk Police Department and federal immigration officials were thereafter contacted. Two days after his arrest, INS issued a Notice of Intent/Decision to Reinstate Prior Order of deportation. The matter was before the court on defendant's motion to dismiss the criminal indictment pending against him on the ground that it was barred by the statute of limitations.
Issue:
- Whether, prior to March 19, 2004, federal immigration officials were aware of defendant's presence in the United States?
- When the limitations clock started running for the purpose of 1326?
The court finds that the INS had actual knowledge of Vega-Pena's true identity and status as an illegal reentrant either in 2001, or 2003, both more than five years prior to the issuance of the indictment. In reachingsuch conclusion, the court rejects the government's argument that the limitations clock should not start running because Vega-Pena both failed to report his original A-number to INS and made misstatements on his INS applications regarding his name, criminal history, and prior deportation. Regardless of whether defendant attempted to deceive INS through such misstatements, it simply did not work, and once INS actually discovered defendant's true identity and presence in the United States as an illegal re-entrant, he was "found" for purposes of 1326 and the limitations clock started running. Here, like in Gunera, the court finds distinguishable the cases where immigration authorities could not have known of the illegality of the alien's presence because the alien gave a false name or omitted other key informationthat concealed his identity, id., because Vega-Pena's identity was not successfully concealed beyond either 2001, or 2003, both of which are more than five years before the indictment was issued.
Hence this court granted the Defendant's motion to dismiss the indictment.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
