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United States v. Herrera

March 6, 2007

UNITED STATES
v.
DELFINO HERRERA DEFENDANT.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Defendant Delfino Herrera was charged by Criminal Complaint with an alleged violation of 8 U.S.C. § 1326(a). Dkt. No. 1. He initially appeared before this Court on February 22, 2007. The issue of proper venue was raised at that time. On February 27, 2007, the Court heard further oral argument on this issue.

The Criminal Complaint provides as follows:

On or about February 21, 2007, in Oswego, New York, in the Northern District of New York, the defendant, being an alien and a citizen of Mexico who had previously been removed from the United States on or about April 9, 2002, and again August 18, 2003, was found in the United States, having not obtained the consent of the Attorney General or his/her successor, the Secretary of the Department of Homeland Security of the United States for re-application by the defendant for admission into the United States, in violation of Title 8, United States Code, Section 1326(a).

Dkt. No. 1 at 1.

Border Patrol Special Agent John W. McEachen's Affidavit in support of the Complaint states, among other thing:

2. On February 21, 2007, Senior Patrol Agent Ryan Howe, of the Oswego Border Patrol Station, encountered Delfino HERRERA-Velasquez while performing patrol and Transportation Check duties near the Greyhound Station in Geneva, New York. Agent Howe determined that HERRERA-Velasquez is a citizen of Mexico who had last entered the United States illegally by walking across the U.S./Mexico Border near San Ysidro, Califormnia on March 20, 2006. Agent Howe determined that HERRERA is Present Without Admission in the United States, and arrested HERRERA on the corresponding administrative Immigration violation[.] Pursuant to Border Patrol policy, Herrera-Velasquez was promptly transported to Osewgo, [sic] NY to our Border-Patrol station. The transportation occurred to administratevly [sic] process the alien and to determine whether he had been previously deported, including by taking his finger prints and running them throgh [sic] our database. If the alien had been previously deported, he would be subject to criminal prosecution under 8 USC § 1326(a).

3. A comparison of HERRERA-Velasquez's fingerprints with the FBI's fingerprint database, via the IAFIS system, revealed that the subject's fingerprints do match those possessed by an alien who was deported to Mexico on April 9, 2002, and again on August 18, 2003. The Right index fingerprint, displayed on an Order of Removal (I-205) for Delfino HERRERA-Velasquez, was compared with the IAFIS database and was found to be a match.

4. Once in Osewgo, [sic] I further determined that Delfino HERRERA-Valasquez has never applied for or received permission to re-enter the United States after his removal on April 9, 2002 from the Attorney General. He was thus "found" in the United States for criminal prosecution in Oswego, NY under 8 USC § 1326(a).

Dkt. No. 1 at 2.

DISCUSSION

Section 1326(a) of Title 8 of the United States Code provides, in pertinent part, that an alien who

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless (a) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance ...


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