Monday, May 5, 2014

Other than Denial, Few Options Left for Illegal Reentrants and Aggravated Felons


The shift in appropriation by the U.S. Department of Homeland Security ("DHS") of removal-related resources toward those who have severe criminal histories appears to have become reality. This shift as well as other nuances relating to U.S. Immigration Law was discussed yesterday by former Secretary of Homeland Security Janet Napolitano:

NBC News Conference, May 4, 2014

The federal courts have followed this shift as well, and three recent decisions show such a path. The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within those same Western States, held in U.S. v. Ruiz-Lopez that a Mexican man could be federally convicted of the crime of illegal reentry, which requires that the defendant's alienage be proven, based on a previous sworn statement alleged to have been taken by an Immigration officer. While such statements are commonly used in removal proceedings before an immigration judge, it was unclear whether they could be used conclusively to prove alienage in federal criminal proceedings, which have more restrictive evidentiary rules.

Moreover, in U.S. v. Gomez, a case about which I have previously written, the Ninth Circuit threw out its previous decision but nevertheless held once again that a Mexican man's procedurally defective prior removal did not prejudice him, thereby permitting him to be convicted of illegal reentry. The decision shows that egregious errors in the conducting of removal proceedings may continue to take place without any recourse for the affected foreign national.

Finally, in Ragasa v. Holder, the Ninth Circuit rejected the claim of a Filipino man convicted of attempted promoting of a dangerous drug that he was a U.S. citizen by way of his adoption when he was a minor by two U.S. citizens. The claim was creative in that, for the most part, U.S. Immigration Law treats lawfully adopted children the same as biological children provided certain requirements are met and in that biological children of U.S. citizens are commonly legally U.S. citizens as well regardless of the location of birth. Despite denying the man's citizenship claim, the Ninth Circuit nonetheless granted his petition for review and threw out the man's removal order based on the man's conviction's not being for an aggravated felony.

Therefore, and in yet another example of what many perceive as the twisted nature of U.S. Immigration Law, it appears the best strategy for many individuals convicted of serious crimes is simply to argue that the alleged crimes really are not that serious.

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