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