Wednesday, February 26, 2014

Avoiding Prosecution for Illegal Reentry by Attacking the Validity of the Underlying Removal Order

While entering the U.S. unlawfully is indeed a crime, the penalty for illegally reentering after a deportation is far worse. Nevertheless, just as going back and forth across the border may not be of any concern to some of those facing the possibility of such prosecution, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears appeals from decisions in U.S.-District-Court proceedings, as well as petitions for review from the Board of Immigration Appeals ("BIA") regarding removal proceedings, conducted within the Western states, seemingly appears to be doing the same regarding whether prosecution for illegal reentry is permissible when the underlying removal order was not legally obtained.

I have previously written about a case that permitted a prosecution for illegal reentry even though the Ninth Circuit conceded in that same case that the underlying removal order was not issued lawfully. However, just last week the Ninth Circuit separately held that an illegal-reentry prosecution could not move forward possibly for the very same reason, i.e., the underlying removal order was not lawful. The more recent case, United States v. Garcia-Santana, concerned a woman who had been ordered removed in 2002 without a hearing because of the determination by the then Immigration and Naturalization Service that she had been convicted of a conspiracy offense that amounted to an Aggravated Felony, thereby rendering her ineligible for almost all forms of discretionary relief from such removal. The woman illegally reentered the U.S. in 2009 and was prosecuted for such illegal reentry. In reply to the woman's persistent requests, the relevant U.S. District Court ruled that because the underlying removal order was illegally obtained, i.e., the crime for which the woman was convicted did not meet all the of elements of an "Aggravated Felony" as defined by the U.S. Congress, the prosecution could not move forward.

The Ninth Circuit on appeal agreed with the U.S. District Court's decision not only because of the unlawful nature of the underlying removal order, as was the situation in the previous case, but also because of the woman's being prejudiced by it, as was not the situation in the previous case. Put more simply, a violation in and of itself does not halt an illegal-reentry prosecution unless the defendant can prove that s/he would not have been ordered removed anyway absent the violation. Therefore, determining whether someone specifically may be able to benefit from this recent decision will require skilled legal analysis.

Sunday, February 16, 2014

Court Makes It Difficult to Establish Nexus to Protected Ground Based on Imputed Political Opinion

For one to establish eligibility for asylum in the U.S. from their home country, a link, also referred to as a nexus, must be established between a protected ground, i.e., race, religion, national origin, social group, or political opinion, and the very persecution one fears. However, sometimes, a person is persecuted simply because the persecutor, i.e., the government or people whom the government is unwilling or unable to control, believes the person to be of a certain race, religion, national origin, social group, or political opinion despite that actually not being the case. This perception oftentimes is enough to establish eligibility for asylum because the nexus between a protected ground and the persecution has been established. Indeed, one can imagine scenarios involving military sweeps wherein the government merely perceives all of the people within a certain area to be sympathetic to whatever group the military is attempting to target and consequently targeting even those who are not sympathetic to that group simply because of their proximity to that group.

Nevertheless, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review from the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western states including California, Nevada, Arizona, and Washington, made it more difficult last week for asylum applicants to prove the necessary nexus specifically based on perceived, or imputed, political opinion. The case, Garcia-Milian v. Holder, involved a Guatemalan woman who applied for asylum in the U.S. based on her being beaten and raped by military personnel who confronted her regarding the whereabouts of a man, with whom she formerly had a common-law-marital relationship but who unbeknownst to her was a guerrilla. Although the woman was deemed credible, she was denied asylum both by an immigration judge and later on appeal by the BIA because allegedly there was "no evidence to suggest that she was harmed based on any real or imputed political opinion."

The Ninth Circuit agreed, finding that there existed neither any direct evidence showing that the government imputed any political opinion to the woman nor any circumstantial evidence that the woman was attacked based on a perceived political opinion. Although one of the judges of the three-judge panel dissented based on the perceived family-based relationship the woman had with the guerrilla for whom the government was searching, such dissent represented only the minority view. Therefore, a prospective asylum applicant should seek the guidance of a skilled immigration lawyer before attempting to apply for asylum based on a perceived nexus.

Saturday, February 8, 2014

The Immigration Reform Debate Starts to Get Serious

While many of us will be focused for the next two weeks on the Winter Olympics in Sochi, Russia, there's another competition that's starting to heat up: Comprehensive Immigration Reform ("CIR"). At the beginning of the week, President Obama's White House Chief of Staff, Denis McDonough, provided his thoughts on the U.S. Congress's House of Representatives' ongoing debate on CIR:

NBC's Meet the Press, February 2, 2014

The news appeared to be positive given the great deal of animosity between the Democratic-controlled White House and the Republican-controlled House of Representatives. However, later in the week, the Speaker of the House of Representatives, John Boehner, seemed to take the wind out of the sails of the CIR ship:

The Washington Post, February 6, 2014

Based on the Speaker's comments, CIR should be dead for 2014, right? Without any trust between the House of Representatives and the White House, there's simply no chance of CIR being passed, correct?

While some see the ending of a debate, others would see the beginning, a beginning of a negotiation wherein the two sides are establishing their top lines so to speak. Where and when the debate will actually end are still a mystery. In the meantime, foreign nationals and their attorneys will need to continue to utilize the various existing immigration-related options, which as many would attest provide enough of a competition in and of themselves.