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Defending Illegal Re-Entry
Defending Illegal Re-Entry Cases:The audacity of hope
CJA Training
September 2009
8 U.S.C. 1326
Not a citizen or national of the United States
Lawfully deported
Re-entered
No official permission to return
Initial Appearance
Most likely, AUSA will hand you:
Your clients immigration file
(A-file)
A fast-track plea offer
A waiver of preliminary hearing
A waiver of indictment
At the initial appearance, client must waive preliminary hearing to keep the fast track offer.
Bail: A Tough Sell
Beware immigration detainer
Immigration custody = no credit
Hail Mary
Hail Mary - for sympathetic client with resources
4
Start the Clock
You have THREE WEEKS from the initial appearance to accept the fast track or reject it.
Find a Defense!
Attacking Alienage
Acquired Citizenship
Your client was a citizen at birth
because of his parent(s)s citizenship
Derivative Citizenship
Your client became a citizen while a minor because his parent(s) naturalized**
The Government Cant Prove Alienage BRD
** refer to packet for various extra rules
7
Attacking Lawfulness of Deportation
Eligible for Benefit + Plausible Ground for Relief
Not Deportable for Facts Alleged
Not Deportable Under the Law
Requirements for Successful Collateral Attack 1326(d)(1)
Exhaustion of Administrative Remedies
Deprivation of Meaningful Opportunity for Judicial Review
Fundamentally Unfair Proceeding
*distinguish between deportation and lawfulness of deportation--Deportation is an element so can attack collaterallybefore trial; Not deportable under the law = prior conviction not an agg felony; not deportable for facts alleged =
should not have been deported, or was eligible for some benefit from deportation
Failure of Due Process: Not too hard to find, if there was prejudice
Exhaustion: Also not too hard to get around, if there was prejudice
Appeal to BIA
8
The A-File
Notice to Appear/OSC
Order of Immigration Judge
Warrant of Removal
Sworn Statement of your Client
Certificate of Non-Existence of Record
Birth Certificate Documents
Prior Applications for Immigration Benefits
Record of Deportable Alien (Form I-213)
Rap Sheet/Conviction Documents
Notice to Appear:The ImmigrationCourt Charging Document
Notice to Appear
Elements
Charge
1996?
From Notice to Appear, ASK:
Did the elements add up to the charge? For example, was my clients burglary really an aggravated felony?
If this was the charge, what immigration benefits was my client still eligible for? Voluntary departure? Adjustment of status? 212(c) waiver?
Order of the Immigration Judge
Benefits Considered?
Warrant of Removal/Deportation
Who supposedly witnessed?
When was he physically removed and from where?
Keep in mind:
Many times the fingerprint and picture are done before physical removal.
Sworn Statement of Client
Where were you born?
A: Puebla, Mexico
But consider whether his admission is reliable if he doesnt know his father, his mothers deceased, and theres no birth certificate.
From Sworn Statement, ASK:
When did your client say he came back to the US and how?
CNR: Certificate of non-existence of record
They checked. Your client didnt ask the AGs
permission to come back.
Other Documents to Look For
Prior Application for Benefits
Your Clients Birth Certificate
Residential/School/Social History records
G-28 Form: Attorney who represented client
Rap Sheet and Conviction Documents
Record of Deportable/Inadmissible Alien
Narrative about parents, siblings, convictions, prior applications, eligibility for relief
Administrative Removal
Not every person who is deported goes through the process. When is it allowed?
Expedited Removal 8 U.S.C. 238
Reinstatement of Removal 8 U.S.C. 241(a)(5)
Client Interview
Parents/Grandparents legal status
Was anyone a citizen before client was 18?
Immigration history
What happened at the proceedings? Anything strange?
Social history
What are the mitigating facts about your client?
Options?
Received the Fast Track
Accept the Fast Track
Plead Open
Litigate
Without a defense
With a defense
Fast Track: What you get
4-level downward departure + acceptance + low end
11(c)(1)(c) the Govt cant ask for anything higher
Lock in the
offense level
Fast Track: What you give up --Your First Born Child!
YOU GIVE UP:
Time! Sign within 3 weeks of initial appearance
Mitigation Arguments!
Appellate Waiver! Everything except criminal history
Full PSR!
The veil of ignoranceYou dont know which judge youre going to get when you decide whether your mitigation arguments will get you more than 4-levels.
31
Fast Track Considerations:Priors
What if you dont get a fast track?
Call the FPDs.
Argue Uniformity
& Consistency .
Beg.
AUSAs sometimes claim an individual should not get a fast track because of a particular prior
They respond to information that another AUSA just offered a fast track to another defendant with the same prior (which is almost always true).
We can probably track one down for you.
33
Open Plea
Use it when
You have mitigation arguments
You cant get the government to agree that a certain crime isnt an aggravated felony, crime of violence, etc.
Client does not like the fast track
Litigation
Received the Fast Track
Accept the Fast Track
Plead Open
Litigate
Without a defense
With a defense
Litigating WITH a Defense
Step One: Negotiate!
Step Two: Motions!
Collateral AttackMtn to Dismiss Indictment
Defend yourself from Govts motion to preclude your defense
Dont assume that the AUSAs carefully reviewed the A-file, knew the immigration law, and decided that the charge was valid. The AUSAs will dismiss cases if there is a valid immigration defense
36
Litigating WITH a Defense
Step Three: Trial
Litigating WITHOUT a defense
Contact the FPDs!
Cant prove actually deported
Cant prove
not born here
People
not papers
MDC 101
Top Ten Things Youll Hear from Illegal Entry Clients
10.I already did my time for that, isnt that double jeopardy?
9.But what about the fact that my family is here? Does that count at sentencing?
8.I heard they can only give me two years for that?
7.I hear President Obama is going to change the law so you only do 50% on illegal entry cases
6.My cellie has a worse jacket and hes getting 12 months.
5.The Judge can still go lower, right?
4.Youre not going to even try to negotiate anything better for me?
3.I didnt even do anything wrong this time.
2.Are you even trying to help me?
1.(After the plea) So youre going to ask for less time right?
At all stages, hire an expert!
Mathew Millen
@ 310-470-8071
The A-File
Notice to Appear/OSC
Order of Immigration Judge
Warrant of Removal
Sworn Statement of your Client
Certificate of Non-Existence of Record
Birth Certificate Documents
Prior Applications for Immigration Benefits
Record of Deportable Alien (Form I-213)
Rap Sheet/Conviction Documents
Alcarez-Garciav. INS
Acquired Citizenship
U.S. v. Aguilar
Permanent Residence Re-established
U.S. v. Padilla
U.S. Marine Now Naturalized Citizen
U.S. v. Guerrero-Real
Client Eligible for 212(c)
Leaving Scene of Accident Conviction not a CIMT
Won Motion, But Wrongfully Removed without Rehearing
Paroled Back into the U.S.
Granted 212(c) Waiver
RE:
Q. WHERE AND WHEN WERE YOU BORN0(En Jande y cuando nacio?A, #?zVICO 11 i -::
i L1i5/ A.
Q, OF WHAT COUNTRY ARE YOU A CITIZEN')(Dc que pais cs Ud. cuidadano?)
A,!i/"l Ki C D
Q, WHA TIS YOUR FATHER'S COMPLETE AND CORRECT NAME?(Cua! cs cl nombre completo y correcto de su padre?)
I '(~,-" ,r=c'~ --OV1,..,iJO ?A.
Q. WHERE WAS YOUR FATHER BORm(En Jande nacio su padre?)( i "N\ Ur:;, ~)iZc.A.
Q. OF WHAT COUNTRY is HE A CITIZEN'(De que pais es el ciudadano?)
L C1J1Ht. ) C~XS~ .A.
Q. WHAT is YOUR MOTHER'S COMPLETE AND CORRCT NAME?(eua! es el nombre completa y correcto de su madre?)
A.
(rc 7;o'))
Q. WHERE WAS YOUR MOTHER BORNo(En Jande nacio su madre?)
TZi "c'iA
A.VAy'c 0
Q. OF WHAT COUNTRY IS SHE A CITIZEN?(Dc que pais cs ella cuidadana?)
A. iM"iyl('~ .
Q. WHEN DID YOU LAST ENTER THE UNITED STATES?(Cuando entro Ud a los Estados Unidos la ultima vez?)
A.L"',- I.TTI"- ,c-Z'T....~t~nz) .';"'i 5c'''(L ~'TLT I~ .
3
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(Inciales)
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