The U.S. Court of Appeals for the Ninth Circuit held the generic definition of “conspiracy” used in the aggravated felony definition requires an overt act in furtherance of the conspiracy, but Nevada’s conspiracy offense does not. This discrepancy between the federal generic definition and the state statute means a conviction under the Nevada conspiracy statute is not a conspiracy type of aggravated felony. United States v. García-Santana, No. 12-10471, slip op. (9th Cir. Feb. 20, 2014) (Alarcón, Berzon, and Zouhary, JJ.). Judge Berzon wrote the panel’s opinion. This case involved a woman [...]
Border Patrol’s “Consequence Delivery System” Casts Doubt on President’s Immigration Priorities
By Geoffrey Boyce On February 11, articles in the New York Times and the Washington Post focused attention on Operation Streamline, the federal program under which as many as 80 unauthorized border crossers may be charged, convicted and sentenced in a hearing lasting as little as half an hour. Those convicted under Streamline face sentences of up to 180 days for “illegal entry,” INA § 275, or 2 to 20 years for “illegal reentry,” INA § 276, depending on whether they have a previous “aggravated felony” conviction in the United States. Readers of crImmigration.com are likely familiar with [...]
5 Cir: You can’t make up constitutional provisions
In a harsh rebuke to roughly thirty-five years of government practice, the U.S. Court of Appeals for the Fifth Circuit exposed the government’s repeated reliance on a non-existing constitutional provision to deny U.S. citizenship claims by children born out of wedlock in México. Saldana Iracheta v. Holder, No. 12-60087, slip op. (5th Cir. September 11, 2013) (Reavley, Elrod, and Graves, JJ.). Judge Graves wrote the panel’s decision. This case involved an individual who was born in México to a U.S. citizen father and Mexican citizen mother who were not married to each other. As an adult, [...]
Critical report on criminalization of migrants
Last week Human Rights Watch released a damning report on the federal government’s sustained effort to use criminal law and procedure to sanction immigration law violations. The report, Turning Migrants into Criminals: The Harmful Impact of U.S. Border Prosecutions (May 2013), documents the many ways in which the criminal justice system has been employed to punish conduct that previously was largely dealt with through the civil immigration system or that didn’t often register on the government’s radar. Though the 83-page report has much to offer, there were a few aspects worth [...]
Report details expanding fed immigration prosecutions
A new Justice Department report provides fascinating details about the federal prosecution of immigration activities. Mark Motivans, U.S. Dept. of Justice, Bureau of Justice Statistics, Federal Justice Statistics Program: Immigration Offenders in the Federal Justice System, 2010 (July 2012). The report was authored by a Justice Department statistician using data from a host of government agencies. It will come as no surprise to crImmigration.com readers that the report found that federal criminal prosecutions of immigration-related activities have soared in recent years. The roughly 52,000 [...]
5 Cir: Failure to investigate plausible derivative citizenship claim is ineffective assistance
The U.S. Court of Appeals for the Fifth Circuit granted an ineffective assistance of counsel claim where the defense attorney failed to investigate a defendant’s plausible derivative citizenship claim. United States v. Juarez, No. 09-20764, slip op. (5th Cir. Feb. 24, 2012) (Reavley, Elrod, and Graves, JJ.). Judge Graves wrote the panel’s opinion. This case involves an individual who was born in México and entered the United States with his mother as a six-year-old. Prior to the defendant’s eighteenth birthday, his mother naturalized. In addition, he married a U.S. citizen prior to turning [...]
10 Cir: Lawful entry can be illegal reentry
The U.S. Court of Appeals for the Tenth Circuit held that an entry that would constitute a lawful entry for purposes of admission was an illegal reentry for purposes of reinstatement of removal. Cordova-Soto v. Holder, No. 10-9569, slip op. (10th Cir. Oct. 17, 2011) (Hartz, Holloway, and Porfilio, JJ.). Judge Holloway wrote the panel’s decision. This case involves an LPR who, pro se, requested and received a stipulated order of removal in which she conceded removability for having been convicted of an aggravated felony among other charges. Cordova-Soto, No. 10-9569, slip op. at 2-3. She was [...]