Criminal Defense of Immigrants

(D)  Illegal Re-Entry.  The Supreme Court held a prior aggravated felony conviction that triggers an enhanced sentence for illegal re-entry after deportation does not constitute a separate criminal offense, but was instead a sentence enhancement that could be imposed even if the prior conviction was not pleaded or proven at trial.[1] 

However, the courts generally may not use a prior conviction that has been vacated as legally invalid as a basis on which to enhance an illegal re-entry sentence.[171]  The First Circuit has held otherwise.[172]  This decision is badly reasoned, however, since it failed to account for judicial decisions holding that the validity of the deportation order depends on the continued validity of the conviction on which it was based, so that vacating the underlying conviction renders the deportation order unlawful, even where the conviction was vacated after the deportation occurred.[173]  Vacating a conviction undermines the validity of the original deportation order, throwing into doubt the validity of a later illegal re-entry prosecution, especially where the vacatur occurs before the commission of the illegal entry offense. Counsel may seek collaterally to attack the deportation order on this basis in defense of the illegal re-entry charge. Counsel can challenge the underlying deportation collaterally by a motion to dismiss the indictment, asserting the deportation order resulted from a denial of due process of law that prejudiced the noncitizen.[174]

[175] Almendarez-Torres v. United States, 253 U.S. 224 (1998). Compare Jones v. United States, 526 U.S. 227 (1999) (18 U.S.C. § 2119 [car-jacking statute] described the elements of several distinct criminal offenses, rather than mere sentence enhancements).

[171] United States v. Luna-Diaz, 222 F.3d 1 (1st Cir. 2000); United States v. Cisneros-Cabrera, 110 F.3d 746, 748 (10th Cir. 1997).

[172] United States v. Johnstone, 251 F.3d 281 (1st Cir. 2001).

[173] See Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977). See also Matter of Malone, 11 I. & N. Dec. 730 (BIA 1966).

[174] See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); United States v. Alvarado-Delgado, 98 F.3d 492 (9th Cir. 1996).  Exhaustion of administrative remedies must also be shown. United States v. Garza-Sanchez, 217 F.3d 806 (9th Cir. 2000), cert. denied, 531 U.S. 1180 (2001) (waiver of the right to appeal deportation order prevents defendant from attacking the validity of that order in a later prosecution under 8 U.S.C. § 1326).