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.

On May 24, 2021, the U.S. Supreme Court decided United States v. Palomar-Santiago, No. 20-437, holding that each of the statutory requirements for bringing a collateral attack against a removal order under 8 U.S.C. § 1326(d) is mandatory.In 1998, Refugio Palomar-Santiago was removed from the United States based on a conviction for felony driving under the influence (DUI) after a hearing before an immigration judge. Palomar-Santiago waived his right to appeal.

ul port of entry to the US. A Class B misdemeanor is punishable by up to 180 days in jail and up to a fine of $2000 or both. Illegal reentry under the Texas law in TPC §51.03 is subject to a state jail felony, which is punishable by 180 days to two years in jail and a fine of up to $10,000, or both. The bill authorizes a Texas magistrate or judge to issue an order against someone convicted or charged with an offense under Chapter 51 to be returned to the foreign nation from which the person entered or attempted to enter Texas. Failure to comply with the order is a second-degree felony punishable by up to 20 years in jail.Federal law at 8 USC §1325, which has been in place for almost ten decades, creates a federal misdemeanor regarding an unlawful entry or attempt to enter the US by any alien at any time or place other than that designated by immigration officers. The offense is punishable by up to six months in jail and a fine of not more than $500 for each entry or both. In addition, 8 USC §1326 makes it a felony for an alien who has been denied admission, excluded, deported, or removed or has departed the US while an order of exclusion, deportation, or removal is outstanding, and then enters or attempts to enter the US; or is found in the US; unless the US Attorney General has expressly consented to the reapplication for admission. Based on certain violations prior to such reentry, jail time ranges from not more than two years to 20 years. Of course, federal prosecutions under §§1325 and 1326 are subject to the exercise of prosecutorial discretion. In addition, constitutional challenges have been raised against §1326 due to alleged racist origins of the laws and their disproportionate impact on Hispanic defendants. Note that the statute of limitations for misdemeanors is two years from the action.Are there any enforcement locations exempted under SB 4?Yes. Under Chapter 5B, Article 5B.001 of the Texas Code of Criminal Procedure (CCP), places of religious worship, public or p

After his removal, the Court held in another case that offenses like the DUI conviction are not a removable offense. When Palomar-Santiago later returned to the United States and was indicted on one count of unlawful reentry in violation of 8 U.S.C. §1326(a), he defended against the charge by contending that his earlier removal order was invalid based upon the Court’s subsequent precedent. Section 1326(d) limits the circumstances under which a defendant may bring such a collateral attack to the underlying deportation order to when (1) all administrative remedies were exhausted; (2) the deportation proceedings improperly deprived the individual of the opportunity for judicial review; and 3) the entry of the deportation order was fundamentally unfair.

CBSA officials denied him entry into the country at which time they provided him with an “Allowed to Leave” document which is customarily generated when someone from the U.S. is denied entry into Canada. For some unexplained reason, CBSA officials then placed Vasquez in handcuffs, forcibly returned him to the U.S., and turned him over to U.S. Customs and Border Protection (“CBP”) officials.Vasquez was promptly indicted by a Federal grand jury for being “voluntarily present and found in the United States” in violation of 8 U.S.C. § 1326. Subsection (a) of this statute provides that any “alien who … has been … deported or removed … and thereafter … enters, attempts to enter, or is at any time found in, the United States … shall be fined under Title 18, or imprisoned not more than 2 years, or both.”

peech facially or as applied to the Law Center.Mahanoy Area School District v. B. L., No. 20-255: Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.Sanchez v. Wolf, No. 20-315: Whether, under 8 U.S.C. §1254a(f)(4), a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status under 8 U.S.C. §1255.United States v. Palomar-Santiago, No. 20-437: Whether a defendant charged with unlawful reentry into the United States following removal automatically satisfies all three of the prerequisites for asserting the invalidity of the original removal order as an affirmative defense — 1) if he “demonstrates that” he “exhausted any administrative remedies that may have been available to seek relief against the order,” 8 U.S.C. §1326(d)(1); 2) the removal proceedings “deprived [him] of the opportunity for judicial review,” 8 U.S.C. §1326(d)(2), and 3) “the entry of the order was fundamentally unfair,” 8 U.S.C. §1326(d)(3) — solely by showing that he was removed for a crime that would not be considered a removable offense under current circuit law, even if he cannot independently demonstrate administrative exhaustion or deprivation of the opportunity for judicial review.San Antonio v. Hotels.com, L.P., No. 20-334: Whether, as the Fifth Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Fed. R. App. P. 39(e).Greer v. United States, No. 19-8709: Whether when applying plain-error review based upon an intervening United States Supreme Court decision, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity, or public repu

Last week at the Tenth Circuit:Unlawful reentryA person charged with unlawful reentry may collaterally challenge the prior removal order that rendered reentry unlawful under 8 U.S.C. § 1326(d). But not if that prior removal order was expedited.

However, after oral argument, the Court determined that the indictment under consideration did not, in fact, fail to allege a required element. The defendant was charged with attempted re-entry pursuant to 8 U.S.C. § 1326(a). The indictment did not specifically allege what the “substantial step” was that was a required element of the offense.

This is true if Martinez had previously been deported and thereafter reentered the country illegally. 8 U.S.C. § 1326 would make his mere ongoing presence here a felony. On the other hand, if Martinez entered the country in violation of 8 U.S.C. § 1325 but has not previously been deported, his ongoing presence is not a crime though he is subject to deportation.

In an implicit criticism of the 16-level increase under USSG 2L1.2, the Commission compared a CHC III defendant with no qualifying predicates to a defendant with one 16-level qualifying conviction: "Thus, a CHC III defendant who receives the 16-level enhancement for a predicate conviction will face a guideline range with a minimum term of imprisonment 23 times higher than the minimum applicable to a CHC III defendant with no predicate convictions." Other key findings: (1) the average sentence for illegal reentry offenders was 18 months; (2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); (3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.