ALRET — If you defend illegal re-entry cases, read this!

On March 8, 2010, a panel of the Ninth Circuit Court of Appeals definitively held that a an order reinstating a prior removal order that did not comply with due process cannot serve as independent basis for a criminal re-entry conviction under 18 U.S.C. sec. 1326.

“Today we express what we implied in Leon-Paz:  A successful collateral attack reinstatment of removal order precludes reliance upon a reinstatment of that same order in criminal proceedings for illegal re-entry.” U.S. v. Arias-Ordoñez, Mar. 8, 2010.

DEFENSE ATTORNEY TIPS — DEFENDING NON-CITIZENS

Criminal convictions have direct and serious consequences for non-citizens. Conviction for a criminal offense may require a non-citizen’s removal (deportation), require that they be detained, make the person ineligible to legalize their status or ineligible for naturalization.  Criminal-immigration law is a complex and changing area of law requiring full analysis on a case by case bases.  Below, we provide some basic rules that will not insulate every non-citizen from adverse criminal immigration consequences, but may prevent defense counsel from making avoidable mistakes.

1. If your client is a Lawful Permanent Resident and is convicted of an offense that is an “aggravated felony” under the Immigration and Nationality Act, the client must be removed (deported).

 

2. Any non-citizen who is convicted of an “aggravated felony” must be detained during his immigration proceedings.

 

3. A misdemeanor can be an “aggravated felony” for immigration purposes.

 

4. A sentence of less than 1 year is always better for immigration purposes than a sentence of 1 year or more.

 

5. A “sentence” for immigration purposes includes all suspended time.

 

6. Sentences matter: For example, misdemeanor petty theft pursuant to I.C. § 18-2407(2) with a 1 year sentence or more is an “aggravated felony” for immigration purposes.

 

7. A “withheld judgment” pursuant to I.C. § 19-2601 is a “conviction” for immigration purposes.

 

8. UPDATE: There is no safe drug-related conviction. In general, the safest resolution of a pending first time marijuana charge is a convciton for possession of less than 30 grams of marijuana or possession of paraphernalia that relates to less than 30 grams of marijuana.  CAUTION: The TYPE of substance (marijuana) and the AMOUNT of substance (less than 30 grams) must be clear from the charging document, judgement, plea agreement/jury instructions for this to work. The immigration court will not look at any other document than the documents listed above.  This was amended in November of 2009.