February 12, 2016
[Copyrighted Material Omitted]
from United States District Court for the Western District of
Missouri - Kansas City.
United States of America, Plaintiff - Appellee: Lajuana M.
Counts, Assistant U.S. Attorney, Philip M. Koppe, Assistant
U.S. Attorney, Kathleen D. Mahoney, Assistant U.S. Attorney,
U.S. ATTORNEY'S OFFICE, Kansas City, MO.
Naing, Defendant - Appellant: Rebecca L. Kurz, Stephen C.
Moss, Assistant Federal Public Defender, FEDERAL PUBLIC
DEFENDER'S OFFICE, Kansas City, MO.
Naing, Defendant - Appellant, Pro se, Kingston, MO.
LOKEN, ARNOLD, and BENTON, Circuit Judges.
ARNOLD, Circuit Judge.
Naing pleaded guilty to one count of failing to depart
because he willfully failed or refused " to make timely
application in good faith for travel or other documents
necessary" for his departure after the Board of
Immigration Appeals held that he was removable. See
8 U.S.C. § 1253(a)(1)(B). Naing appeals the district
court's denial of his motion to dismiss the
indictment, asserting that the deportation order that was a
predicate for the charge against him was invalid. Naing also
appeals the district court's grant of the
government's motion in limine precluding him from raising
a coercion defense at trial.
a citizen of Burma, entered the United States as a refugee.
He later pleaded guilty in a Kansas state court to aggravated
intimidation of a witness or victim, see Kan. Stat.
Ann. § 21-3833 (repealed 2011) (now codified at Kan.
Stat. Ann. § 21-5909(b)), and the government notified
him that this conviction was an " aggravated
felony" that rendered him deportable from the United
States. See 8 U.S.C. § 1227(a)(2)(A)(iii).
After a number of hearings, the immigration judge determined
that Naing was indeed deportable and denied his requests for
discretionary relief. Naing appealed to the BIA, but it
agreed with the IJ and dismissed the appeal. Naing pursued no
other administrative or judicial avenues of relief; instead,
he failed, contrary to his legal obligation, to procure the
necessary travel documents needed for his deportation,
leading to the government's indictment.
maintains that he was not subject to a valid final order of
removal--an element of a failure-to-depart charge--because of
due-process errors that the IJ committed in the course of his
deportation proceedings. A defendant charged with violating
§ 1253(a) may, by a motion in limine in the district
court, challenge the " validity" of his deportation
order if, as here, the order has not previously been
judicially reviewed. 8 U.S.C. § 1252(b)(7)(A). It is not
usual for courts to call an order " invalid" unless
the entity that rendered it was without jurisdiction to do so
or the order suffered from some other fundamental flaw. We do
not ordinarily regard an order invalid merely because it was
erroneous. Nevertheless, the scope of the challenge ...