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US v. MORALES-CASTILLO (12/11/02 - No. 02-10535) Because defendant's state probation had been revoked, under U.S.S.G. section 5G1.3(c) and Application Note 6, the district court properly ordered that a sentence for an illegal re-entry offense run consecutively to a state sentence for violation of probation. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/11th/0210535.html
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Requirement To Report To Probation Office Within 3 Days Of Reentry, Legal Or Illegal, Is Not Plain Error
In US v. Calles-Abrego, No. 02-2357 (8th Cir. Dec. 12, 2002), the court said that the district court did not plainly err in imposing on the Defendant, as a special condition of his supervised release, the requirement that he comply with the INS rules and not reenter the US illegally, and report to the nearest US Probation Office within 72 hours of any reentry during his supervised release. http://www.ilw.com/lawyers/immigdaily/cases/2002,1213-calles.pdf
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Alleged Fifth Amendment Violation Is Not Plain Error Since It Was Not Raised Before District Court
In US v. Bustos-Hernandez, No. 02-1399 (8th Cir. Dec. 18, 2002), the court said there was no plain error in the district court's requirement that Defendant report to the Probation Office if he reenters the US after being deported. http://www.ilw.com/lawyers/immigdaily/cases/2002,1219-Bustos.pdf
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U.S. 2nd Circuit Court of Appeals
US v. CARRASCO (12/20/02 - No. 01-1646) Downward departures on "lesser harm" (U.S.S.G. section 5K2.11) and "exceptional family circumstances" (section 5K2.0) grounds were unavailable in a case against a deported alien reentering the country illegally. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/2nd/011646.html
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No Temporal Fiction When Probationary Term Is Reinstated
In US v. Carrillo-Lopez, No. 00-10631 (9th Cir. Dec. 20, 2002), the court held that the Defendant could not benefit from the temporal fiction that the reinstatement of his probationary term employed to determine the original date of a prior removal order. http://www.ilw.com/lawyers/immigdaily/cases/2002,1223-carrillo.pdf
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U.S. 2nd Circuit Court of Appeals
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US v. SIMPSON (12/23/02 - No. 02-1059)
The rule of lenity applies to the U.S.S.G., but section 2L1.2(b) is not ambiguous and the district court was warranted in imposing an enhancement due to an illegal reentry defendant's conviction of crimes which constitute "aggravated felonies" under the guidelines.
To read the full text of this opinion, go to: http://laws.lp.findlaw.com/2nd/021059.html
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Deportation Does Not Moot Habeas Petition Where Collateral Consequences Continue
In Zegarra-Gomez v. INS, No. 01-57021 (9th Cir. Jan. 02, 2003), the court held that where an alien is deported during the pendancy of a habeas petition, the fact of his deportation does not render the habeas petition moot where there are collateral consequences arising from the deportation that create concrete legal disadvantages, such as being ineligible to seek cancellation of removal for twenty years after deportation as an aggravated felon. http://www.ilw.com/lawyers/immigdaily/cases/2003,0106-ZEGARRA.pdf
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U.S. 4th Circuit Court of Appeals
US v. WILSON (01/16/03 - No. 02-4202)
An alien's collateral attack on a deportation order fails where, even assuming a due process violation occurred, no prejudice was shown. Simple possession of drugs, if a felony under state law, can constitute an aggravated felony under U.S.S.G. section 2L1.2.
To read the full text of this opinion, go to:http://laws.lp.findlaw.com/4th/024202p.html
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U.S. 6th Circuit Court of Appeals
US v. DAILIDE (01/15/03 - No. 01-3820)
Under 8 U.S.C. section 1451, the federal judiciary has jurisdiction to determine if citizenship was illegally procured, and it was proper to apply the Displaced Persons Act to petitioner because it was in effect when he entered the country. A finding of misrepresentation was unnecessary for revocation of citizenship.
To read the full text of this opinion, go to: http://laws.lp.findlaw.com/6th/03a0019p.html
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U.S. 9th Circuit Court of Appeals
US v. LUNA-MADELLAGA (01/15/03 - No. 02-10157)
The enhanced penalty provided by 8 U.S.C. section 1326(b)(2), for unlawful entry of a deported alien, applies to a removal that was subsequent to a reinstated prior removal order.
To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/circs/9th/0210157p.pdf
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U.S. 6th Circuit Court of Appeals
US v. MURILLO-INIGUEZ (02/05/03 - No. 01-3485)
In sentencing for illegal reentry into the U.S., the district court did not fail to explicitly find that the original deportation was based on an "aggravated felony" within the meaning of 8 U.S.C. section 1326(a). Where changes in the U.S.S.G. are substantive, defendant need not be sentenced under the amended Guidelines.
To read the full text of this opinion, go to: http://laws.lp.findlaw.com/6th/03a0041p.html
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Due Process Not Denied Where Petitioner Waives Opportunity By Failing To File Motion To Reopen In Initial Proceeding
In Briones-Sanchez v. INS, No. 02-1287 (8th Cir. Feb. 10, 2003), the court said Petitioner was not denied judicial review in the original removal proceedings; rather he waived his opportunity for review by failing to file a motion to reopen the initial proceedings before he was initially deported, and then reentered the country illegally. The court also said that although the separation of a family was an unfortunate result, the Petitioner had ample opportunity to avoid the problem during his stay in the US for nearly 20 years before attempting to legalize his status, and that his choice to re-enter the country illegally effectively precluded any rights he may have had to seek review. http://www.ilw.com/lawyers/immigdaily/cases/2003,0211-Briones.pdf
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Health-Related Grounds Of Inadmissibility
Gregory Siskind and Amy Ballentine discuss the health-related grounds that render an applicant for a visa, admission, or adjustment of status inadmissible. http://www.ilw.com/lawyers/colum_article/articles/2003,0403- siskind.shtm
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Senate Findings On The State Criminal Alien Assistance Program
The Senate passed the House Concurrent Resolution 95, which included its findings on the State Criminal Alien Assistance Program (SCAAP). The Senate found that the control of illegal immigration was a federal responsibility and that the 56% cut in FY 03' funding for SCAAP would place an enormous burden on state and local law enforcement agencies during a time of heightened efforts to secure our homeland.
http://www.ilw.com/lawyers/immigdaily/congress_news/2003,0403- funding.shtm
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No Meritorious Issues For Appeal Found
In US v. Solis-Ponce, No. 02-4632 (4th Cir. Apr. 1, 2003), the court said that it examined the entire record in accordance with the requirements of Anders and found no meritorious issues for appeal in a case involving illegal reentry. http://www.ilw.com/lawyers/immigdaily/cases/2003,0403-Solis.pdf
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Two Separate Illegal Re-entry Acts Are Not Grouped Under Sentencing Guidelines
In US v. Bahena-Guifarro, No. 02-1349 (7th Cir. Apr. 1, 2003), the court found in this case of first impression that two separate acts of illegal re-entry into the US should not be grouped under the sentencing guidelines because Defendant's offenses did not constitute a single, composite harm and he did not provide the court with any evidence that the crimes were committed as part of a common scheme or plan even though it was his burden to do so. In its decision the court said that the two counts of illegal re-entry must be grouped together because they involved the same victim, society at large, and they were connected by a common criminal objective. The court likened Defendant's two illegal re-entries to two counts of escape from prison.
http://www.ilw.com/lawyers/immigdaily/cases/2003,0403-Bahena.pdf
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State Prisoner Serving An Indeterminate Life Sentence By Virtue Of His Being Under A Final Order Of Removal Is In INS Custody For Purposes of 28 USC 2241
In Simmonds v. INS, No. 02-2135 (2nd Cir. Apr. 21, 2003), the court found that Petitioner, a state prisoner serving an indeterminate life sentence, was in INS custody for purposes of 28 USC 2241 but found that for reasons of prudence his claim was not ripe.
http://www.ilw.com/lawyers/immigdaily/cases/2003,0428-Simmonds.pdf
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*Relief Foreclosed By Apprendi*
In US v. Valtierra-Rojas, No. 02-3356 (10th Cir. May. 14, 2003), the court said that the district court sentenced Defendant to 64 months of imprisonment, which was well within the statutory maximum of 20 years for one count of illegal reentry by an alien deported after an aggravated felony conviction. http://www.ilw.com/lawyers/immigdaily/cases/2003,0516-Valtierra.pdf
BICE Says 36,000 Criminal Aliens Deported To Date For FY 03' - For link to article, click here: http://www.ilw.com/lawyers/immigdaily/digest/2003,0516.shtm#Other-items
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Attempted Reentry Following Deportation For An Aggravated Felony Is A Serious Crime
In US v. Mancia-Perez, No. 01-2129 (5th Cir. May 19, 2003), the court said that "attempted reentry following deportation for an aggravated felony was a serious crime within the meaning of 18 USC 3162(a)(2) because the Defendant's prior conviction, which exposed him to 8 USC 1326(a) liability, was for aggravated assault with a deadly weapon."
http://www.ilw.com/lawyers/immigdaily/cases/2003,0521-Mancia.pdf
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U.S. 8th Circuit Court of Appeals
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JAMA v. IMMIGRATION & NATURALIZATION SERV. (05/27/03 - No. 02-2324)
Court has jurisdiction to hear challenge to Attorney General's statutory construction of 8 U.S.C. section 1231(b)(2)(E)(iv), allowing INS to remove alien to country of birth. Plain meaning of statute does not require agency to obtain a destination country's acceptance when alien is returned to his country of birth.
To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/circs/8th/022324p.pdf
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No Due Process Violation Where Petitioner Explicitly Declines To Choose Alternate Country Of Deportation
In Desta v. Ashcroft, No. 01-9530 (10th Cir. Jun. 2, 2003), the court said that it found no violation of Petitioners' procedural due process rights since "Petitioners were represented by competent counsel and when asked by the Immigration Judge to designate an alternate country of deportation, they explicitly declined, choosing instead to stand mute on the matter."
http://www.ilw.com/lawyers/immigdaily/cases/2003,0604-Desta.pdf
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Revision Of Good Conduct Time Guidelines Proposed For Deportable Aliens
The Bureau of Prisons of the Department of Justice issued a propose rule to change 28 CFR 523.20(a)(1) on good conduct time (GCT) to allow 54 days GCT for each year served if the inmate is an alien with a confirmed order of deportation, exclusion, or removal from the INS (BCIS).
http://www.ilw.com/lawyers/immigdaily/federal_reg/2003,0626-conduct.shtm
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U.S. 6th Circuit Court of Appeals
US v. CAMEJO (06/26/03 - No. 01-1572)
Previous incarceration as an immigration detainee is not categorically proscribed by the Guidelines, thus the district court did possess the discretion to depart downward on that basis. The court should have gone on to determine whether defendant's status as a previously-confined immigration detainee removed the case from the heartland of the applicable Guideline.
To read the full text of this opinion, go to: http://laws.lp.findlaw.com/6th/03a0212p.html
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US v. SANCHEZ-SANCHEZ (06/26/03 - No. 02-10005)
In an appeal of conviction for Illegal Reentry After Deportation, the district court must again review the record and resolve the discrepancies articulated by this court regarding defendant's prior Arizona conviction. The court must then apply the decision in Corona-Sanchez, 291 F.3d 1201, in order to determine whether that conviction is an aggravated felony. To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/circs/9th/0210005p.pdf
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U.S. 11th Circuit Court of Appeals
PATEL v. U.S. ATTORNEY GEN. (06/27/03 - No. 02-12662) A petition for review to reopen a removal proceeding filed after the removal order has been executed is dismissed for lack of jurisdiction.
To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/circs/11th/0212662p.pdf
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BICE's "Operation Predator" Initiative Prioritizes Removal Of Undocumented With Sex Offense History
The Bureau of Immigration and Customs Enforcement (BICE) issued a fact sheet http://www.ilw.com/lawyers/immigdaily/doj_news/2003,0710-predator.pdf and Secretary Ridge issued a press release http://www.ilw.com/lawyers/immigdaily/doj_news/2003,0710-ridge.pdf on Operation Predator, a comprehensive program to identify child predators, prosecute them, and remove them from the US (if subject to deportation).
http://www.ilw.com/lawyers/immigdaily/doj_news/2003,0710-predator.shtm
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Police won't ask aliens of status By Brian DeBose
The Washington Times, July 29, 2003
http://www.washingtontimes.com/metro/20030728-091925-3832r.htm
D.C. police officers making routine stops are prohibited from asking people about their immigration status, Metropolitan Police officials said yesterday in a restatement of department policy. "We will leave that to the federal officials," Police Chief Charles H. Ramsey said at a briefing to announce new training procedures and a public information campaign about the policy.
Chief Ramsey also said illegal immigrants need to know that reporting a crime does not mean a trip back to their native country and that officers will deliver fair and equal police services to every person within the District.
D.C. police officers cannot inquire about somebody's residency status under a 1984 executive order that prohibits D.C. government employees from getting involved in immigration matters.
The policy on immigrants has not changed in 19 years, but adherence to it among D.C. officers purportedly has lapsed at times.
The policy became a major issue during the Mount Pleasant riots in 1991. Blacks and Hispanics took to the streets for three days of burning and looting in protest of a rookie cop who shot a Hispanic man before a crowd of witnesses.
D.C. Council member Jim Graham, Ward 1 Democrat, said the city has become less vigilant about keeping officers from stopping Hispanics on the street and using the threat of deportation to press them for information.
Ten percent of the District's population is Hispanic, with the majority in Mr. Graham's ward.
"My office has taken several complaints about police violating the policy and inquiring about immigration status," Mr. Graham said. "And that does concern us."
Chief Ramsey said he was not restating the policy over accusations that officers were failing to follow procedure.
Rather, "There was an agreement between the mayor [Anthony A. Williams] and the Latino Lawyers Association that we would reiterate the policy and we are doing that," he said.
Mr Graham said crimes against immigrants in the District go unreported and immigrants are reluctant to cooperate with police investigations.
He also said many Hispanics expect the same experience with D.C. officers as those they had with police in their native countries, "which was not good."
"What you don't want is this natural mistrust compounded by officers asking residents questions they should not be [asking] about their status," Mr. Graham said.
D.C. police, however, are required to ask for identification in all situations. Police also must ask immigrants who are suspects about their residency status. Cases with residency violations are turned over to the U.S. Immigration and Naturalization Service.
"The myth is that when an officer asks for identification he wants to see your immigration papers and your status, but that is not their job," said Enrique Rivera, the chief's special assistant on Hispanic affairs.
Chief Ramsey said the policy does not conflict with efforts to help the U.S. Department of Homeland Security.
The chief said he made it clear to federal officials that D.C. police cannot be used for immigration enforcement, unless in specific cases such as a terrorist cell that has been identified.
EDITOR'S NOTE: The D.C. police department press release is online at: http://mpdc.dc.gov/news/news.asp?sid=2226
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Chief offers assurance to immigrants
The Washington Post, July 29, 2003
http://www.washingtonpost.com/wp-dyn/articles/A59726-2003Jul28.html
[Second item] D.C. Police Chief Charles H. Ramsey called a news conference yesterday to reassure members of the city's immigrant community that officers are not permitted to question the legal residency of people during routine police procedures.
Ramsey, appearing with D.C. Council member Jim Graham (D-Ward 1) and other officials, attempted to address concerns raised by Latino activists and civil rights advocates, who say that many people are fearful of dealing with police because they have immigration-related issues.
Ramsey urged those who have been asked by officers to show proof of legal residency to contact the police department's Office of Professional Responsibility at 202-727-4385. But police are permitted to seek proof of legal immigration status when they are investigating crimes involving smuggling and harboring of immigrants, Ramsey said.
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Bill would empower police to arrest deportation absconders
By Joseph A. D'Agostino
Human Events, August 5, 2003
http://www.humaneventsonline.com/article.php?id=1431
Chairman John Hostettler’s (R.-Ind.) House Subcommittee on Immigration will hold a hearing on the Clear Law Enforcement for Criminal Alien Removal Act (CLEAR) in September, making it one of the few pieces of immigration enforcement legislation that may get a vote on the House floor in this Congress. The bill [H.R. 2671], sponsored by Rep. Charlie Norwood (R.-Ga.), would make it easier for local law enforcement agencies to enforce some immigration laws and reimburse them for the cost of doing so.
"Miguel Angelo Gordoba is a child molester and illegally in our country. In August 2001, he finished a four-year sentence at Rivers State Prison for molesting a 3-year-old girl in Alma, Ga.," said Norwood in introducing the bill July 9. "On the day he finished his sentence, you would think he would be picked up and deported. As unbelievable as it sounds, the INS—now the Bureau of Immigration and Customs Enforcement [BICE]—didn’t have his paperwork done. . . . Mr. Gordoba is one of 80,000 criminal aliens with standing deportation orders that are on the loose within our borders."
Criminal aliens are those who have been convicted of a crime other than living in this country illegally.
"There are upwards of 400,000 individuals who have received final deportation orders that are hiding in our communities," said Norwood. Estimates of the total number of illegal aliens residing in this country range from seven to 11 million, but they are not the targets of this bill.
The bill got a boost July 23 when Michael Garcia, acting director of BICE, called for more local law enforcement involvement against illegal aliens. "We are law enforcement officers and we have to enforce the law," he said.
Duke Hipp, Norwood’s spokesman, said the bill would cost about $6 billion annually. But, he said, "The fact of the matter is, they are arresting and re-arresting criminal aliens over and over again. That’s a drain on the system."
The CLEAR Act would not force any state or local agency to participate, said Hipp. But it would explicitly empower them to arrest illegal aliens, while providing that the 400,000 deportation "absconders" be listed on the National Criminal Information Center (NCIC) database that local law enforcement can access.
Hipp said the bill would reimburse local agencies for the cost to "house and detain criminal aliens," as well as for the cost of training officers in enforcing immigration law.
The National Sheriffs Association, the Southern States Police Benevolent Association, and the Law Enforcement Alliance of America have endorsed the bill.
["Overseas Immigration News" is supported by a grant from The German Marshall Fund of the United States, an American institution that stimulates the exchange of ideas and promotes cooperation between the United States and Europe in the spirit of the postwar Marshall Plan.]
U.S. 3rd Circuit Court of Appeals ---------------------------------------------------------------------- - MUNROE v. ASHCROFT (12/16/03 - No. 03-1471)
Although plaintiff was ordered to pay less than $10,000 in restitution to the victim of his offense, the actual loss to the victim exceeded $10,000, making plaintiff an "aggravated felon" deportable under the terms of 8 U.S.C. section 1227(a)(2)(A)(iii). District court properly denied his petition for writ of habeas corpus.
To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/circs/3rd/031471p.pdf
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U.S. 5th Circuit Court of Appeals
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SMALLEY v. ASHCROFT (01/13/04 - No. 02-60231) Because the intentional concealment of illegal drug activity is intrinsically wrong, plaintiff has been convicted of a crime involving moral turpitude. Thus, section 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act precludes the court's jurisdiction over his final order of deportation. To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/circs/5th/0260231cv0p.pdf
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U.S. 8th Circuit Court of Appeals
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PALOMINO v. ASHCROFT (01/15/04 - No. 02-3961) BIA acted within its discretion in deeming alien ineligible for cancellation of removal per 8 U.S.C. section 1229b(b)(1) on the ground that his previous, brief, voluntary departure from the US under threat of deportation constituted a break in continuous physical presence in the US. The 90/180 day limit contained in section 1229b(d)(2) is not the exclusive definition of a break in continuous physical presence. To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/circs/8th/023961p.pdf
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U.S. 11th Circuit Court of Appeals
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US v. MARTE (01/13/04 - No. 02-16722) Defendant unsuccessfully appeals his conviction, per 8 U.S.C. section 1326, of attempted illegal reentry into the US following deportation. To read the full text of this opinion, go to:[PDF File] http://caselaw.findlaw.com/data2/circs/11th/0216722p.pdf
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US v. HERNANDEZ-VERMUDEZ (01/26/04 - No. 03-50160)
An illegal alien who enters this country without inspection and commits an aggravated felony is subject to administrative removal pursuant to 8 U.S.C. section 1228(b). Such an alien is treated just as one who was "admitted" to the US and who then committed an aggravated felony.
To read the full text of this opinion, go to:[PDF File] http://caselaw.lp.findlaw.com/data2/circs/9th/0250160p.pdf