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United States v. Becerra-Robles

United States District Court, D. Nebraska

February 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCISCO BECERRA-ROBLES, Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Defendant's Motion to Dismiss, ECF No. 22; the Findings and Recommendation of the Magistrate Judge, ECF No. 38, recommending that the Defendant's Motion to Dismiss be granted; and the Government's Objection to the Magistrate Judge's Findings and Recommendations, ECF No. 39. For the reasons discussed below, the Government's Objection will be overruled; the Magistrate Judge's Findings and Recommendations will be adopted; the Defendant's Motion to Dismiss will be granted; and the Indictment will be dismissed, with prejudice.

         BACKGROUND

         The material facts are not in dispute. In the Findings and Recommendation, ECF No. 38, Page ID 141-145, Magistrate Judge Michael D. Nelson presented a thorough statement of the facts, with pinpoint citations to the evidence, including the transcript of proceedings, ECF No. 37. The Court incorporates that statement of facts by reference, and provides the following summary.

         Defendant was convicted of an aggravated felony in 1992, and deported to Mexico in 1994. He reentered the United States in 2000 and began to live in Omaha, Nebraska. On April 30, 2001, the Nebraska service center for the Immigration and Naturalization Service (INS) of the U.S. Department of Justice in Lincoln, Nebraska, received a form I- 130, titled “Petition for Alien Relative, ” filed by Defendant's father on Defendant's behalf. The Petition included the Defendant's social security number, his true name, his true date of birth, and stated that he was at an Omaha address. The Petition also noted that the Defendant was married in Omaha on May 13, 2000, and had a son born in Nebraska on January 21, 2001. The Petition stated that the Defendant was in the United States and would apply for adjustment of status at the INS office in Omaha.

         On August 12, 2003, the Petition was denied by the INS. The INS agent noted that the Defendant was a “NO SHOW” on that date, and the agent stated: “Appears beneficiary is in the U.S.” The INS agent also wrote the Defendant's alien registration number on the Petition the date it was denied. The alien registration number would have allowed the examiner to pull up the Defendant's immigration record “easily” and confirm his prior deportation. Tr., ECF No. 37, Page ID 108.

         On August 4, 2017, an agent of Immigration and Customs Enforcement (ICE) received two anonymous tips that Defendant might be in Omaha. The agent investigated the tips and confirmed that the Defendant was living in Omaha under the name and date of birth that corresponded with the information in the Defendant's Department of Homeland Security (DHS) file, and that Defendant owned a house, and a business, and several cars registered in his name.

         An indictment, ECF No. 13, was returned on November 15, 2017, charging the Defendant with being a previously deported alien found in the United States without express consent of the Attorney General, in violation of 8 U.S.C. § 1326(a). Magistrate Judge Michael D. Nelson recommended that the Indictment be dismissed due to expiration of the five-year statute of limitations under 18 U.S.C. § 3282.

         STANDARD OF REVIEW

         Under 28 U.S.C. § 636(b)(1)(C) and Fed. R. Crim. P. 59(b)(3), the Court shall make a de novo review of the portions of the Magistrate's Findings and Recommendation to which objections have been made. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings and recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.

         DISCUSSION

         The Government argues that the information known to INS in 2001-03 should not be imputed to ICE or DHS. The Government further argues that the information in the Petition submitted to INS in 2001 should not be considered constructive notice of the Defendant's presence in Nebraska, because the Petition was prepared and submitted by the Defendant's father and not the Defendant himself, and the Petition might be viewed as a request for permission for the Defendant to reside in Nebraska rather than notice of his actual presence in Nebraska.

         INS was the predecessor agency that handled all immigration matters before the creation of DHS and its immigration divisions, including ICE, in 2003. This Court concludes that facts known to INS in 2001-03 may trigger the running of a statute of limitations under 18 U.S.C. § 3282 for a violation of 8 U.S.C. § 1326(a).

         The Petition submitted to INS in 2001, ECF No. 30, listed the Defendant's residence as a specific address in Omaha, Nebraska; it stated he was married in Omaha, Nebraska, on May 13, 2000; and it stated that he was “currently in the U.S.” without inspection. It supplied his true name, date of birth, and social security number. The INS agent who denied the Petition on August 12, 2003, noted the Defendant's alien registration number and easily could have ascertained the Defendant's prior deportation. While the Defendant did not physically appear in the INS office in 2001-03, the INS had all the information necessary to confirm the ...


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