Immigration Offenses

United States v. Guerrero-Jasso, 752 F.3d 1186 (9th Cir. 2014)

In order to invoke the twenty-year maximum sentence for being found in the United States after having been removed following a conviction for an aggravated felony, the indictment must allege, or the defendant must admit, that he had a prior aggravated felony that preceded his removal. Triggering the twenty-year maximum absent an allegation in the indictment or an admission by the defendant to these additional facts violates Apprendi.

United States v. Borrero, 771 F.3d 973 (7th Cir. 2014)

The evidence in this harboring case failed to establish that the defendants knew that their clients were illegal aliens or that the defendants were recklessly indifferent to this fact.

United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014)

A defect in the procedure that led to the defendant’s removal (the failure of the immigration officer to advise the alien of the charge against him and to permit his to read the sworn statement against him), invalidated his illegal re-entry conviction.

United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014)

Defendant was charged with illegal re-entry. He was originally removed based on having possessed a firearm after being convicted of a felony. The removal, however, was improper because it was based on a charge that did not qualify as a removable offense. (The offense was for possession of a firearm after being convicted of a felony, but the state offense did not have an exception for antique weapons, which meant it was not categorically a removable offense, according to Moncrieffe v. Holder, 133 S. Ct. 1678 (2013)).

United States v. Vargas-Cordon, 733 F.3d 366 (2d Cir. 2013)

The offense of harboring requires some evidence more than simply providing shelter. In addition, there must be some indication of an intent to hide or conceal.

United States v. Wei Lin, 738 F.3d 1082 (9th Cir. 2013)

18 U.S.C. § 1546 makes it a crime to possession of forged or false documents used to gain entrance into the United States. The defendant possessed a forged driver’s license from the Northern Mariana Islands. The Ninth Circuit held that this type of document is not covered by the statute.

United States v. Macias, 740 F.3d 96 (2d Cir. 2014)

After the defendant unsuccessfully tried to cross into Canada at Niagra Falls, the Canadian authorities returned the defendant to CBP agents. When it was determined that the defendant had previously been deported, he was charged with being found in the Untied States in violation of 8 U.S.C. § 1326. The Second Circuit reversed the conviction. Macias was not “in” the United States when the Canadian officials returned him to the CBP agents.

United States v. Thum, 749 F.3d 1143 (9th Cir. 2014)

The defendant’s supervised release was revoked based on evidence that he escorted an illegal alien from a restaurant to a waiting van, knowing that the person was illegally in the country and needed transportation away from the post of entry. While this evidence may have supported a charge that he aided in the transportation of an illegal alien, it did not amount to encouraging or inducing the alien to reside in the country illegally. Because the revocation petition alleged that he encouraged or induced the alien to remain in the country, the trial court erred in granting the petition.

United States v. Melendez-Castro, 671 F.3d 950 (9th Cir. 2012)

The defect in the defendant’s 1997 immigration proceedings – that he was not meaningfully informed of his eligibility for voluntary departure – violated his due process rights. A remand to determine whether he was prejudiced was necessary to determine the impact on this criminal illegal reentry case.

United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir. 2011)

If a defendant’s immigrantion illegal re-entry case is based on a prior removal that was expedited, he may challenge – in the criminal case – the procedure used in that prior proceeding.

United States v. Costello, 666 F.3d 1040 (7th Cir. 2012)

The girlfriend of an illegal alien was not guilty of harboring under § 1324(a)(1)(A)(iii) simply by virtue of the fact the alien/boyfriend lived in her apartment. There was no evidence that she concealed the boyfriend, or shielded him from detection. The court spends considerable time discussing the definition of the word “harboring” and concludes that it means more than simply providing a place to live. Various dictionaries were consulted, as well as Google in this endeavor to figure out the meaning of the word.

United States v. Dominguez, 661 F.3d 1051 (11th Cir. 2011)

An essential element of a § 1324(a)(1)(A)(ii) offense of transporting an alien “in furtherance of such violation of law” requires proof that the transportation was designed to further the illegal presence of the alien. In this case, the defendant was a sports agent. He smuggled Cubans into the United States and after they arrived, he participated in transporting them to Los Angeles. This transportation, however, was not designed or intended to further their illegal status, but rather to get them in contact with a lawyer who endeavored to have them processed through Immigration so that they could remain. The Eleventh Circuit reversed the convictions on the § 1324(a)(1)(A)(ii) counts as well as harboring counts of the indictment.

United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010)

A prosecution under 8 U.S.C. § 1324(a)(1)(A)(i) for bringing an illegal alien into the country requires some proof that the defendant participated in bringing the alien into the country. Simply providing a phony stamp for his passport that would have assisted him in getting a job was not sufficient evidence to prosecute the defendant under this statute. In this case, the defendant entered a guilty plea and the Fifth Circuit concluded that that factual basis for the plea was insufficient, because the only facts offered to support the defendant’s guilt related to his providing the fraudulent documents that were needed to assist the alien to enter the county.

United States v. Cerna, 603 F.3d 32 (2d Cir. 2010)

Because of counsel’s deficient performance during the administrative proceedings that led to defendant’s initial deportation, the criminal conviction for illegal re-entry could not be upheld in this case.

United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010)

Because of defects in the removal proceedings, the defendant’s prosecution for reentry after removal was properly dismissed by the district court. The defendant was advised during the removal proceedings that there was “no administrative relief which may be extended” which was not true.

United States v. Pereyra-Gabino, 563 F.3d 322 (8th Cir. 2009)

The defendant was charged with harboring illegal aliens. The instruction explained that the jury must find (1) that a person was in the country illegally; (2) that the defendant knew that a person was in the country illegally; and (3) that the defendant harbored or attempted to harbor one of the people identified in #1. The problem with this instruction is that there were several aliens identified in the case and the instruction permitted a jury to find that the defendant harbored one of the illegal aliens, but not that he knew that particular alien was in the country illegally. That is, the court failed to explain that all three elements must apply to at least one of the aliens.

United States v. Barraza-Ramos, 550 F.3d 1246 (10th Cir. 2008)

The defendant’s prior conviction for aggravated battery under Florida law was not categorically a crime of violence and enhancing the sentence on the basis of this prior conviction was error.

United States v. Silveus, 542 F.3d 993 (3rd Cir. 2008)

The evidence was sufficient on counts alleging transportation of illegal aliens, but the evidence was insufficient to prove that the defendant was guilty of harboring the aliens. One illegal alien lived in the same apartment with the defendant. But cohabitation is not alone sufficient to prove harboring. When an agent went to the apartment looking for the alien, the defendant said that the alien was not in the apartment and she did not know if someone had just left out the back door. This evidence, too, was insufficient to prove harboring.

United States v. Ozcelik, 527 F.3d 88 (3rd Cir. 2008)

The defendant, a Customs Officer, accepted bribes from an alien and was convicted of those offenses. The defendant was also charged with harboring the alien, in violation of 8 U.S.C. § 1324. The basis for this charge was that the defendant told the alien, “stay low key for 5 - 6 months.” He also advised him keep a low profile and that it was good that he lived at a different address than the one at file at INS. The Third Circuit held that this conduct – this advice – did not establish that he attempted to conceal or harbor the alien. The conviction on this count was reversed.

United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007)

The crime of bringing an alien into the United States is completed when the alien disembarks inside the United States. A person who transports the alien inside the country after the alien has arrived may only be prosecuted for transporting an alien in the country. He may not be prosecuted for aiding and abetting bringing the alien into the country.

United States v. Gunera, 479 F.3d 373 (5th Cir. 2007)

The agents were aware of the defendant’s presence in the country more than five years prior to the filing of the charges and the illegal reentry charge, therefore, was barred by the statute of limitations. The defendant reentered illegally and then applied for temporary protected status. More than five years later, the charges were filed.

United States v. Charleswell, 456 F.3d 347 (3rd Cir. 2006)

Because the defendant was denied the opportunity for direct review of a reinstatement order, the district court should have further inquired into whether this caused prejudice thus barring a re-entry prosecution.

United States v. Camacho-Lopez, 450 F.3d 928 (9th Cir. 2006)

Defects in defendant’s deportation proceeding rendered his illegal re-entry prosecution impermissible. The Immigration Judge erroneously told the defendant that he was not eligible for discretionary relief.

United States v. Lopez, 445 F.3d 90 (2d Cir. 2006)

Because of an apparent defect in the deportation hearing (the absence of meaningful judicial review), the defendant’s charge of illegal re-entry could not be sustained without further inquiry into the administrative process that resulted in his deportation.

United States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005)

An illegal alien who presents himself at the border for the express purpose of turning himself in to serve a previously-imposed sentence, has not “unlawfully attempted to re-enter.” This case gets my vote for least likely ever to happen again.

United States v. El Shami, 434 F.3d 659 (4th Cir. 2006)

The failure to give proper notice of deportation proceedings to the defendant deprived him of the right to administratively challenge the deportation. Consequently, his prosecution for unlawful entry could not be sustained.

United States v. Smith-Balthier, 424 F.3d 913 (9th Cir. 2005)

The defendant sought to introduce evidence in this illegal re-entry case that he was actually a United States citizen. Barring this testimony was error. In addition, the trial court erred in barring the defendant from introducing evidence that he thought he was a United States citizen, thus negating the mens rea element of the offense.

United States v. Munoz, 412 F.3d 1043 (9th Cir. 2005)

The defendant was found guilty of bringing illegal aliens into the United States for financial gain. The government argued that the defendant did not personally have to receive financial gain; it was only necessary that the defendant knew that somebody would receive financial gain as a result of the defendant’s actions of bringing the illegal aliens into the country. The Ninth Circuit disagreed: the defendant must be shown to have intended to reap financial gain as a result of the smuggling conduct.

United States v. Bello-Bahena, 411 F.3d 1083 (9th Cir. 2005)

In order to be found guilty of an offense under § 1326, it is not enough simply to be “found in” the United States after having been deported. The government must also prove that the defendant entered the United States free from official restraint at the time officials discovered or apprehended him. Official restraint includes constant governmental observation or surveillance from the moment of entry. In other words, a person under constant surveillance from the time that he enters the county is not “found in” the United States, for purposes of § 1326. This is true, even if the defendant is not aware that he is under surveillance and even if the actual arrest occurs at a point well past the point of entry. The trial court’s failure to properly instruct the jury on this concept was reversible error.

United States v. Zavala-Mendez, 411 F.3d 1116 (9th Cir. 2005)

A defendant is not “found in” the United States for purposes of 8 U.S.C. § 1326(a), if he has simply presented himself for entry at the border and been directed to the border station.

United States v. Orellana, 405 F.3d 360 (5th Cir. 2005)

The defendant was charged with possessing a firearm while being an alien “illegally or unlawfully in the United States.” The defendant had a lawful temporary protected status pursuant to 8 U.S.C. § 1254a. The Fifth Circuit, applying the Rule of Lenity, concluded that the defendant was not “unlawfully in the United States” and reversed the conviction.

United States v. Scott, 394 F.3d 111 (2d Cir. 2005)

The defendant successfully demonstrated a fundamental procedural error in his underlying deportation order – ineffective assistance of counsel – thus negating the validity of his deportation, which negated an essential element of his illegal reentry case.

United States v. Calderon, 391 F.3d 370 (2d Cir. 2004)

The defendant successfully collaterally attacked his deportation in the district court and the Second Circuit affirmed. Despite the fact that the defendant failed to exhaust his administrative remedies with INS, his failure to do so was not knowing and intelligent. He was expressly misinformed by the Immigration Judge that no administrative relief was available.

United States v. Sosa, 387 F.3d 131 (2d Cir. 2004)

In this illegal re-entry case, the lower court erred in barring the defendant from collaterally attacking his administrative deportation. Though the defendant had not exhausted his administrative remedies, the waiver of the appeal was invalid, because the waiver was not knowingly and intelligently made.

United States v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. 2004)

The defendant demonstrated that he was prejudiced by the due process defects in his deportation proceeding.

United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004)

18 U.S.C. § 911 makes it a crime to falsely claim to be a U.S. citizen. On an I-9 employment form, the defendant checked a box indicating that he was a U.S. “national.” Checking the box did not violate § 911. Though all citizens are nationals, not all nationals are citizens.

United States v. Copeland, 376 F.3d 61 (2d Cir. 2004)

A deportation order may be collaterally challenged in an illegal reentry criminal case if the alien (1) exhausted administrative remedies; (2) was deprived of the opportunity for judicial review; and (3) showed that the proceeding was fundamentally unfair. 8 U.S.C. § 1326(d). In this case, the district court concluded that all three requirements were met and dismissed the indictment. The Second Circuit approved each of the findings, but remanded to determine if the fundamental unfairness of the proceeding prejudiced the defendant.

United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004)

An underlying removal hearing is “fundamentally flawed” if the alien’s due process rights were violated and he suffered prejudice as a result. If the removal hearing is fundamentally flawed, a criminal prosecution under 8 U.S.C. § 1326 is defensible on this basis. In this case, the removal hearing was flawed because the immigration judge did not inform the defendant that he had the right to appeal the decision.

United States v. Barajas-Chavez, 134 F.3d 1444 (10th Cir. 1998)

The defendant was charged with knowingly transporting undocumented aliens in furtherance of the aliens' illegal presence within the United States. The trial court granted a post-trial judgment of acquittal and the court of appeals affirmed. The evidence did show that the defendant was aware of the illegal alien status of the passengers in his vehicle. But there was insufficient evidence that the reason he was driving them from Arizona to New Mexico was to further their illegal presence in the United States. Even if the transportation was for the purpose of helping the passengers seek employment, this does not satisfy the "in furtherance" element of the offense.

United States v. Alviso, 152 F.3d 1195 (9th Cir. 1998)

The defendant was charged with a violation of 8 U.S.C. § 1326(a) – being a deported alien found in the United States without permission and 8 U.S.C. § 1326(b)(1) – being such an alien after having been deported following a felony conviction. This latter provision is a sentencing enhancement provision, not a separate crime. Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998). Therefore, there was no necessity (or relevance) in introducing the defendant’s prior felony convictions at trial. Harmless error.

United States v. Chukwura, 101 F.3d 230 (2d Cir. 1996)

The defendant was prosecuted in the Northern District of Georgia, and as part of his sentence, the judge ordered that he be escorted out of the country as part of his term of supervised release. After being escorted out of the country, he attempted to re-enter and was prosecuted under 8 U.S.C. §1326 for attempting to re-enter after being deported. Because he was never “deported” as that term is defined in §1326, he could not be prosecuted under this provision.

United States v. 1982 Ford Pick-up (Mendoza), 873 F.2d 947 (6th Cir. 1989)

A prerequisite to a prosecution under 8 U.S.C. §1324(a)(1)(B), is that defendant have the specific intent to transport the illegal alien to support the alien’s illegal presence in the country. Merely transporting the alien within the country, without that specific intent is not sufficient to sustain a conviction. In this case the evidence was insufficient to support the defendants’ conviction in light of the fact that they took no money from their passengers and did not attempt to conceal their immigration status.

United States v. Jimenez-Marmolejo, 104 F.3d 1083 (9th Cir. 1996)

The defendant challenged his §1326 conviction on the basis that his original deportation was procedurally flawed. This Ninth Circuit agreed. Because the immigration judge failed to obtain a knowing and intelligent waiver of defendant’s right to appeal the deportation decision, the procedure violated his right to due process and could not serve as the predicate for a prosecution for illegal reentry.

United States v. Gomez-Rodriguez, 77 F.3d 1150 (9th Cir. 1996)

8 U.S.C. §1326(b)(2) makes it a crime to re-enter the United States after having been deported and convicted of an aggravated felony. The definition of “aggravated felony” was amended in 1990 to include various crimes of violence. The defendant committed a crime of violence prior to the enactment of the 1990 amendment, at a time when that crime was not included within §1326’s definition of an aggravated felony. Upon re-entering in 1995, the defendant could not be convicted of this offense. This decision was affirmed on rehearing en banc at 96 F.3d 1262 (9th Cir. 1996).

United States v. Nguyen, 73 F.3d 887 (9th Cir. 1995)

8 U.S.C. §1324(a) makes it an offense to bring any alien into the United States other than through a port of entry. The statute contains no explicit mens rea requirement. Nevertheless, the court concluded that Congress intended such a requirement. See Staples v. United States, 114 S.Ct. 1793 (1994); United States v. United States Gypsum Co., 438 U.S. 422 (1978); Morissette v. United States, 342 U.S. 246 (1952). The government must prove that the defendant knew that the individuals he was transporting were aliens and that he off-loaded them at other than a port of entry, intending to violate the law.

United States v. Bahena-Cardenas, 70 F.3d 1071 (9th Cir. 1995)

8 U.S.C. §1326 makes it a crime to attempt to re-enter the country after being previously arrested and deported. The defendant had been the subject of deportation proceedings previously, but was never served with the warrant of arrest and simply left the country voluntarily. When he attempted to re-enter the country, he could not be charged with a §1326 offense. Because he was never served with the arrest warrant the first time, he was not under arrest and this is an essential element of the offense.

United States v. Canals-Jimenez, 943 F.2d 1284 (11th Cir. 1991)

While the evidence would have supported a conviction for entering or attempting to enter the country, the evidence did not support a conviction for “being found in” the country, where the defendant was stopped at the recognized immigration port of entry.