Friday, October 01, 2021

No IAC Where Illegal Reentry Defendant Couldn’t Show Removal Order Was Unfair

US v. Herrera-Pagoada: Herrera-Pagoada, a native of Honduras, has been caught illegally entering the United States multiple times. In 2010, during a deportation hearing, the immigration judge had informed Herrera-Pagoada that he might qualify for discretionary relief and avoid deportation, but Herrera-Pagoada said he just wanted to go “back to my home country.” The immigration judge ordered him removed, concluding he was not eligible for any other form of relief. In 2019, while serving a supervised release revocation sentence related to a 2016 illegal reentry conviction in North Carolina, Herrera-Pagoada filed a 2255 motion arguing he had received ineffective assistance of counsel because counsel in North Carolina has failed to get a recording of the 2010 deportation proceeding, which had allowed Herrera-Pagoada’s counsel in California to argue the immigration just had not explored another alternative to deportation, which led to the Government dropping the illegal reentry charge in California. The district court in North Carolina denied Herrera-Pagoada’s 2255 motion.

On appeal, the Fourth Circuit affirmed the dismissal, for several reasons. First, Herrera-Pagoada’s motion was procedurally barred because it was not timely filed and, because he had not raised the arguments as to the inadequacy of the deportation proceedings before, that claim was procedurally defaulted. Second, the court turned to whether an exception due to actual innocence applied to excuse the procedural issues. This turned on whether Herrera-Pagoada could satisfy the requirement in the illegal reentry statute for collaterally challenging deportation orders that the “entry of the order was fundamentally unfair.” The court concluded it was not and, therefore, Herrera-Pagoada could not succeed on the actual innocence argument. The court held that Herrera-Pagoada “had no due process right to be advised of discretionary relief.”

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