                                  In the

     United States Court of Appeals
                   For the Seventh Circuit
No. 13-1069

UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,

                                    v.


MIGUEL LARA-UNZUETA,
                                                   Defendant-Appellant.

          Appeal from the United States District Court for the
            Northern District of Illinois, Eastern Division.
           No. 11 CR 495— Samuel Der-Yeghiayan, Judge.


    ARGUED OCTOBER 2, 2013 — DECIDED NOVEMBER 19, 2013


    Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.

     MANION, Circuit Judge. Miguel Lara-Unzueta,1 a native and
citizen of Mexico, was convicted of one count of illegal reentry



1
   As in our prior decision concerning an appeal by Mr. Lara-Unzueta, see
United States v. Lara-Unzueta, No. 04-1954 (7th Cir. May 24, 2005), we refer
to Mr. Lara-Unzueta as “Lara.”
2                                                            No. 13-1069

in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court
sentenced him to 78 months’ imprisonment. Lara appeals,
arguing that the district judge erred by failing to disqualify
himself from hearing Lara’s motion to dismiss the indictment
and that this failure requires vacating the conviction and
sentence and remanding to a new judge. Alternatively, Lara
argues that the district court erred in failing to dismiss the
indictment because Lara was erroneously denied the opportu-
nity to seek discretionary relief from deportation under the
Immigration and Nationality Act (“INA”) § 212(c) in his first
deportation proceeding in 1997–1998.2 Consequently, he argues
that his conviction and sentence should be vacated and this
case should be remanded for an evidentiary hearing regarding
the likelihood of obtaining relief under INA § 212(c). We hold
that the district judge was not disqualified from ruling on
Lara’s motion to dismiss the indictment. We do not reach the
question of whether our circuit’s precedents interpreting 8
U.S.C. §1326(d) foreclose Lara’s collateral attack on his under-
lying deportation order because his counsel concedes the issue.
For the reasons that follow, we affirm Lara’s conviction and
sentence.




2
   The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) took effect on April 1, 1997, and ceased utilizing the word
“deport” and its derivations. See United States v. Zambrano-Reyes, 724 F.3d
761, 762 (7th Cir. 2013). Because this case implicates official action taken
before and after that date, including the frequent citation of court orders
utilizing derivations of the word “deport,” we use it and “removal”
interchangeably throughout this opinion.
No. 13-1069                                                   3

                               I.
                      BACKGROUND
    Miguel Lara-Unzueta was born in Mexico on August 13,
1977. He became a temporary resident alien in 1988 and a
permanent resident alien in 1990. On March 1, 1996, following
a guilty plea, he was convicted in the Circuit Court of Cook
County of attempted first degree murder in violation of 720 Ill.
Comp. Stat. 5/8-4 and 5/9-1(a)(1) and of armed violence in
violation of 720 Ill. Comp. Stat. 5/33A-2. He was sentenced to
six years’ imprisonment. The indictment charged that Lara and
his co-defendants attempted to kill a man by “beat[ing] him
about the head and body with their fists, a 2x4 board and a
baseball bat.” As a lawful permanent resident who had
committed an aggravated felony, Lara was eligible for deporta-
tion from the United States to Mexico pursuant to 8 U.S.C.
§ 1251(a)(2)(A)(iii) (1994) (now 8 U.S.C. § 1227(a)(2)(A)(iii)).
    At the time of Lara’s 1996 conviction for attempted first
degree murder and armed violence, § 212(c) of the INA
provided that a person subject to deportation for the commis-
sion of an aggravated felony could apply for discretionary
relief from deportation, provided that he or she had served no
more than five years’ imprisonment for all such aggravated
felonies and had lived in the United States for at least seven
years. On April 24, 1996, while Lara was serving his prison
sentence, Congress passed the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214 (1996). AEDPA made aliens deportable by virtue of
having committed an aggravated felony ineligible for discre-
tionary relief under § 212(c). AEDPA provided that the denial
4                                                            No. 13-1069

of discretionary relief from deportation was not reviewable by
any court. (AEDPA § 440(a), 110 Stat. 1276-77, codified at 8
U.S.C. § 1105a(a)(10) (1997) (subsequently repealed).)
    As a result of Lara’s 1996 convictions, the INS initiated a
deportation proceeding against Lara in January 1997. At his
August 14, 1997, deportation hearing, Lara admitted that he
had been convicted of attempted murder and armed violence,
but requested a waiver under § 212(c) on the grounds that his
convictions did not constitute aggravated felonies. The
Immigration Judge (“IJ”) ordered Lara deported, noting that
his prior convictions “clearly fall within the definition of
‘aggravated felony.’” The IJ further denied Lara’s request for
a waiver under § 212(c), stating that he was “ineligible for a
§ 212(c) waiver” under AEDPA.
    Lara timely filed a notice of appeal and brief with the Board
of Immigration Appeals (“BIA”) seeking discretionary relief.3
On March 30, 1998, the BIA dismissed his appeal, finding that
he had been convicted of aggravated felony offenses, and was
correctly found to be deportable. The BIA further held that
Lara was “statutorily ineligible” for a § 212(c) waiver under
AEDPA. The BIA noted that “[i]n reaching our decision, we
have considered the respondent’s argument that the AEDPA
violates the equal protection clause ... because the provisions
on § 212(c)” apply only “in deportation proceedings and not in
exclusion proceedings.” A warrant for Lara’s removal was




3
  Importantly, Lara made no mention in his brief of the applicability of the
pre-1996 law regarding § 212(c).
No. 13-1069                                                             5

issued on June 12, 1998, and he was removed from the country
on June 25, 1998. Lara did not file a petition for judicial review.
    Three years after Lara was removed from the United States,
the Supreme Court held, as a matter of statutory interpretation,
that the 1996 AEDPA amendments to the INA did not apply to
aliens, like Lara, who pleaded guilty to criminal charges prior
to the passage of those laws. INS v. St. Cyr, 533 U.S. 289 (2001).
Thus, in light of St. Cyr, the IJ’s and BIA’s determinations that
the AEDPA amendments automatically precluded Lara from
eligibility for discretionary relief under § 212(c) ultimately
proved incorrect.
   On October 3, 2002, Lara was arrested in Illinois for armed
robbery and attempted armed robbery. He was transferred to
INS custody and was indicted on October 17, 2002, on one
count of illegally reentering the United States in violation of 8
U.S.C. § 1326(a) and (b)(2).4 Lara filed a motion to dismiss the
indictment, collaterally attacking the underlying deportation
order by arguing that he was denied due process when the
immigration judge denied him a discretionary hearing under
§ 212(c). The district court denied Lara’s motion to dismiss.
United States v. Lara-Unzueta, 287 F. Supp. 2d 888 (N.D. Ill.
2003).
    After denying Lara’s motion to dismiss the indictment, the
district court held a bench trial on December 5, 2003. Following
the trial, Lara was convicted of illegally reentering the country.



4
 Although the record is unclear, presumably the state charges against Lara
were dropped after his transfer to INS custody.
6                                                     No. 13-1069

The district court sentenced him on April 7, 2004, to 65 months’
imprisonment.
    Lara appealed his 2003 illegal-reentry conviction and
sentence, and on May 24, 2005, we affirmed his conviction.
United States v. Lara-Unzueta, No. 04-1954 (7th Cir. May 24,
2005) (granting limited remand to solicit the sentencing court’s
view of the probable result of ordering resentencing under
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005)). Following
his term of imprisonment, Lara was removed on August 30,
2007. Sometime between August 30, 2007, and July 2011,
Lara—for the second time—reentered the United States. On
July 21, 2011, Lara was charged with one count of illegal
reentry in the present case. Specifically, the indictment alleged
that on or about June 30, 2011, Lara illegally reentered the
United States after prior deportations and removals on June 25,
1998, and August 30, 2007. On April 23, 2012, Lara moved to
dismiss the indictment, collaterally attacking (for the second
time) the June 25, 1998, removal. On June 20, 2012, District
Judge Samuel Der-Yeghiayan denied Lara’s motion to dismiss.
   After the district court’s denial of Lara’s motion to dismiss
the indictment, he was found guilty following a jury trial on
August 6, 2012. Lara was convicted and sentenced to 78
months’ imprisonment.
   Having concluded this procedural odyssey, we turn to
Lara’s arguments on appeal.
No. 13-1069                                                   7

                              II.
                         ANALYSIS
    Lara first argues that District Judge Samuel Der-Yeghiayan
was disqualified from presiding over his trial and sentencing.
His arguments are based on 28 U.S.C. § 455(b)(3), the federal
judicial disqualification statute, and can be distilled to two
principal contentions. First, he argues that because Judge Der-
Yeghiayan served as INS District Counsel when Lara was first
deported, and because his conviction in this case relates back
to that deportation order, he insists Judge Der-Yeghiayan had
a role “concerning the proceeding” that subjects him to
disqualification under § 455(b)(3). Second, he argues that in
United States v. Ruzzano, 247 F.3d 688, 695 (7th Cir. 2001), we
recognized a rule that disqualifies a Presidentially-appointed
United States Attorney who ascends to the federal bench from
presiding over trials of defendants whose investigations
initiated during the United States Attorney’s tenure. Lara
argues that this rule applies analogously to Judge Der-
Yeghiayan by virtue of his past service as INS District Counsel,
arguably the INS equivalent of the Presidentially-appointed
United States Attorney. We address these arguments in turn.
   A. Judicial Disqualification
   Lara first argues that the district judge erred by failing to
disqualify himself from ruling on Lara’s motion to dismiss and
that this failure requires vacating his conviction and sentence
and remanding for new proceedings before a new judge. The
parties acknowledge that Judge Der-Yeghiayan, who presided
over the trial resulting in the conviction and sentence now on
appeal, served as District Counsel for the INS in Chicago
8                                                             No. 13-1069

during 1997–1998.5 It is also a fact that INS was the agency
responsible for Lara’s deportation proceeding resulting from
his felony convictions in 1997–1998.
   The parties also agree that, if not raised below, a claim
under the judicial disqualification statute, 28 U.S.C. § 455(b), is
reviewed for plain error, United States v. Johnson, 680 F.3d 966,
980 (7th Cir. 2012) (plain error); United States v. Diekamper, 604
F.3d 345, 351 (7th Cir. 2011) (clear error).6
    If Judge Der-Yeghiayan were to be disqualified from
presiding over Lara’s trial and sentence, Lara would be entitled
to have his conviction reversed and remanded for proceedings
before a new district judge. See Franklin v. McCaughtry, 398 F.3d


5
    See Def. Br. at 5 n.3 and Gov’t Br. at 4 n.3.

6
   Lara acknowledges our precedent, but argues that the proper standard
of review should be de novo because “a deferential standard of review does
not correlate well with the alleged error” inasmuch as Section 455 is
“directed to the judge and is self-executing … [and] imposes a duty on the
judge to act sua sponte, even if no motion or affidavit is filed.” See United
States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985). But in
Balistrieri—unlike here—the defendant sought the district judge’s disqualifi-
cation during the trial court proceeding by filing numerous recusal motions
and supporting memoranda thus authorizing a less-deferential standard of
review in this court. Id. at 1196. Because the record was well-developed
below in Balistrieri, we said that “appellate review of a judge’s decision not
to disqualify himself, when he is asked to do so by a proper and timely
motion supported by affidavits and perhaps other evidence, should not be
deferential.” Id. at 1203. No such arguments or filings were made at trial in
this case, so we review Judge Der-Yeghiayan’s failure to disqualify himself
sua sponte for plain error. Johnson, 680 F.3d at 980.
No. 13-1069                                                     9

955, 962 (7th Cir. 2005) (reversing for new trial because trial
judge was actually biased); Tumey v. Ohio, 273 U.S. 510, 523
(1927) (same). Section 455 provides that a judge:
        shall disqualify himself … [w]here he has served
        in governmental employment and in such capacity
        participated as counsel, adviser or material wit-
        ness concerning the proceeding or expressed an
        opinion concerning the merits of the particular
        case in controversy.
   28 U.S.C. § 455(b)(3); see also Code of Conduct for United
States Judges, Canon 3(C)(1)(b).
   i.   “The Proceeding”
    We conclude that Judge Der-Yeghiayan was not disquali-
fied from presiding over Lara’s trial and sentencing. First,
Judge Der-Yeghiayan has not “served in governmental
employment and in such capacity participated as counsel, [or]
adviser … concerning the proceeding or expressed an opinion
concerning the merits of the particular case in controversy.” 28
U.S.C. § 455(b)(3) (emphasis added). The proceeding means the
current proceeding. This interpretation is dictated by the text of
the statute. On July 21, 2011, Lara was indicted for the crime
that is the subject of this direct appeal. On the day of Lara’s
indictment, Judge Der-Yeghiayan had been a sitting United
States District Judge for over eight years. Judge Der-Yeghiayan
was not involved in the investigation, preparation of the
indictment, presentment of the indictment, or prosecution of
the 8 U.S.C. § 1326(a) conviction that is the subject of the
proceeding—this criminal case. The present appeal of Lara’s
criminal proceeding presided over by Judge Der-Yeghiayan in
10                                                 No. 13-1069

2012 is not the same as Lara’s deportation proceeding from
1997–98.
    At oral argument, counsel for Lara indicated that he “read
the ‘concerning’ language differently.” By “differently” counsel
suggested that “concerning” expands the scope of “the
proceeding” to include Lara’s first deportation proceeding in
1997–1998. He argued that if Judge Der-Yeghiayan rules on a
dispositive motion that relies on a deportation order entered
when the judge simply had supervisory responsibility over the
INS office prosecuting that first deportation, then now-Judge
Der-Yeghiayan has a role “concerning the proceeding,”
subjecting him to disqualification. Not so. “Concerning” does
not expand the scope of this disqualification statute. “Concern-
ing” appears twice in 28 U.S.C. § 455(b)(3). Both references
confine the proceeding to this proceeding. The particular case
in controversy is this proceeding—an appeal from an indict-
ment returned on July 21, 2011, for which Lara was convicted
on August 6, 2012, and sentenced on January 3, 2013. Other
than presiding over Lara’s trial, conviction, and sentence,
Judge Der-Yeghiayan had nothing more to do with “the
proceeding” that is the subject of this appeal.
    Even if we were to examine the first proceeding back in
1997–1998 that Lara tries to connect to this one, his argument
would still fail. The statute forbids “actual participation” and
Judge Der-Yeghiayan did not have actual participation in that
first proceeding when he was District Counsel for the INS.
No. 13-1069                                                     11

   ii. The United States Attorney-Exception Does Not Apply
       to Judge Der-Yeghiayan’s Service as INS District
       Counsel
    Lara next argues that as District Counsel for the INS, Judge
Der-Yeghiayan was in an analogous position to the
Presidentially-appointed United States Attorney and thus
should have been prohibited from ruling on a proceeding that
he had prosecuted when he was District Counsel. See United
States v. Arnpriester, 37 F.3d 466, 467 (9th Cir. 1994) (reversing
conviction because a U.S. district judge cannot adjudicate a
case that began while he was a Presidentially-appointed United
States Attorney for the same judicial district where defendant
was prosecuted).
    In United States v. Ruzzano, we said that “[a]s applied to
judges who were formerly AUSAs, § 455(b)(3) requires some
level of actual participation in a case to trigger disqualifica-
tion.” 247 F.3d at 695. We then described a limited “exception
to the requirement of actual participation for a judge who was
formerly the United States Attorney” in that judicial district
when the case was prosecuted. Id. (emphasis added). This
exception is not applicable here because the position of INS
District Counsel is not comparable to that of the Presidentially-
appointed United States Attorney. See Petrov v. Gonzales, 464
F.3d 800, 803-04 (7th Cir. 2006); see also, Shewchun v. Holder, 658
F.3d 557, 570 (6th Cir. 2011).
   In 1998, Judge Der-Yeghiayan, as the District Counsel for
the INS, was part of the Executive Branch when Lara was
adjudicated and deported. As discussed above, he did not
participate in that proceeding, although his name appeared on
12                                                   No. 13-1069

a pleading filed by the government identifying him as the
District Counsel. There is a sharp distinction between the
Judicial Branch where the U.S. Attorney exception might
apply, and the Executive Branch which includes the position of
INS District Counsel. “Officials of the Executive Branch (a
category that includes immigration judges) play dual roles all
the time.” Petrov, 464 F.3d at 803. For service in the Executive
Branch, “[n]o decision of which we are aware holds that this
mixture of prosecutorial and adjudicatory functions violates
the Constitution.” Id. Consequently, there is no conflict of
interest resulting from Judge Der-Yeghiayan’s former service
in the Executive Branch.
    Although then-District Counsel Der-Yeghiayan was not
personally involved in Lara’s 1998 deportation proceeding,
even if he had been, it would have no effect on the criminal
proceeding that is now before us. After his 1998 deportation,
Lara again illegally entered the United States and was arrested
for committing more violent crimes. He was convicted of
illegal reentry in 2004 and deported in 2007. The case before us
now involves his second illegal reentry and conviction.
Although Lara is the same person who was first deported
during Judge Der-Yeghiayan’s tenure as INS District Counsel,
his present appeal from a second criminal conviction has
nothing to do with that 1998 deportation.
   Section 28 U.S.C. § 455(b)(3) requires “some actual level of
participation in a case to trigger disqualification.” See Ruzzano,
247 F.3d at 695-96 (finding no error when the defendant did
“not present any evidence that [the former AUSA judge]
participated in his case in any fashion.”). In light of the
foregoing, the exception for the former Presidentially-ap-
No. 13-1069                                                                13

pointed U.S. Attorney discussed in Ruzzano, 247 F.3d at 695,
does not extend to other past service in the Executive Branch.
Moreover, a district judge who served in the Executive Branch
is not disqualified from presiding over a proceeding under
§455(b)(3) absent an actual conflict of interest. Petrov, 464 F.3d
at 803.
    B. Lara’s Collateral Attack on his 1998 Deportation Order
       Pursuant to 8 U.S.C. § 1326(d).
    Finally, Lara argues that the district court should not have
denied his motion to dismiss the indictment for unlawful
reentry because he satisfied the criteria of 8 U.S.C. § 1326(d).7
The parties agree that the denial of a motion to dismiss the
indictment under 8 U.S.C. § 1326(d) is reviewed de novo. United
States v. Arita-Campos, 607 F.3d 487, 491 (7th Cir. 2010).



7
   Title 8, section 1326 of the United States Code makes it an offense to re-
enter the United States illegally after having been deported. Because an
original order of deportation is a condition precedent to the operation of
§ 1326, the Supreme Court has held that a defendant may collaterally attack
the deportation order underlying the offense. United States v. Mendoza-
Lopez, 481 U.S. 828, 837-38 (1987). However, “[i]n a criminal proceeding
under [8 U.S.C. § 1326(d)], an alien may not challenge the validity of the
deportation order described in subsection (a)(1) of this section or subsection
(b) of this section unless the alien demonstrates that–
         (1) the alien exhausted any administrative remedies that may have
         been available to seek relief against the order;
         (2) the deportation proceedings at which the order was issued
         improperly deprived the alien of the opportunity for judicial
         review; and
         (3) the entry of the order was fundamentally unfair.”
8 U.S.C. § 1326(d).
14                                                    No. 13-1069

    Although we have not “expressly held that all three
requirements must be met” for Lara’s collateral attack of his
deportation order to prevail under 8 U.S.C. § 1326(d), we have
“certainly implied that is the case.” Id. Three other circuits have
explicitly held that a defendant must satisfy all three prongs to
prevail in a collateral attack brought pursuant to 8 U.S.C.
§ 1326(d). See United States v. Torres, 383 F.3d 92, 98-99 (3d Cir.
2004); United States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003);
United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.
2002). However, we need not decide whether to join these
circuits today because Lara concedes on brief that “[i]t would
be frivolous to argue that under this Court’s current interpreta-
tion of 8 U.S.C. § 1326(d), the district court erred in denying
Mr. Lara-Unzueta’s motion to dismiss the indictment.” Def. Br.
at 39. See, e.g, United States v. Zambrano-Reyes, 724 F.3d 761 (7th
Cir. 2013); United States v. Arita-Campos, 607 F.3d 487 (7th Cir.
2010); United States v. Santiago-Ochoa, 447 F.3d 1015 (7th Cir.
2006); and United States v. Roque-Espinoza, 338 F.3d 724 (7th Cir.
2003). Lara’s counsel confirmed this concession at oral argu-
ment.
    “We require a compelling reason to overturn circuit
precedent,” Nunez-Moron v. Holder, 702 F.3d 353, 357 (2012)
(citation omitted), as “principles of stare decisis require that we
give considerable weight to prior decisions of this court unless
and until they have been overruled or undermined by the
decisions of a higher court, or other supervening develop-
ments, such as a statutory overruling.” Santos v. United States,
461 F.3d 886, 891 (7th Cir. 2006) (citation omitted). Here, there
has been no such decision by the Supreme Court, or a statutory
overruling, and Lara’s counsel concedes that our precedents
No. 13-1069                                                     15

interpreting 8 U.S.C. § 1326(d) foreclose his client’s ability to
prevail. If Lara files a petition for a writ of certiorari, and the
Supreme Court issues a writ, he will have the full opportunity
to raise arguments preserved here that our precedents fore-
close.
                               III.
                        CONCLUSION
    Judge Der-Yeghiayan was not disqualified from presiding
over Lara’s trial and sentencing because he has not “served in
governmental employment and in such capacity participated
as counsel [or] adviser concerning the proceeding or expressed
an opinion concerning the merits of the particular case in
controversy.” 28 U.S.C. § 455(b)(3) (emphasis added). While
serving as INS Counsel in the Executive Branch, Judge Der-
Yeghiayan was not personally involved in Lara’s 1997–1998
deportation proceeding. Even if he had been, the criminal
proceeding on appeal here is entirely independent of his first
deportation proceeding fifteen years ago. Additionally, Lara’s
counsel concedes that our circuit’s precedents foreclose Lara’s
collateral attack of his deportation order under 8 U.S.C.
§ 1326(d).
   For these reasons, we AFFIRM Lara’s conviction and
sentence.
