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United States v. Naing

United States Court of Appeals, Eighth Circuit

May 2, 2016

United States of America, Plaintiff - Appellee
v.
Yan Naing, Defendant - Appellant

         Submitted February 12, 2016

Page 1007

[Copyrighted Material Omitted]

Page 1008

          Appeal from United States District Court for the Western District of Missouri - Kansas City.

         For 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.

         For Yan Naing, Defendant - Appellant: Rebecca L. Kurz, Stephen C. Moss, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Kansas City, MO.

         Yan Naing, Defendant - Appellant, Pro se, Kingston, MO.

         Before LOKEN, ARNOLD, and BENTON, Circuit Judges.

          OPINION

Page 1009

          ARNOLD, Circuit Judge.

         Yan 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[1] 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.

         Naing, 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 § 21-3833 (repealed 2011) (now codified at Kan.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.

         Naing 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 ...


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