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

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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

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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

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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.

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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.

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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

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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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