Criminal Defense of Immigrants

Chapter

Chapter 13. Immigration Offenses [Reserved]

Summary Table of Contents

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IMMIGRATION OFFENSES " UNLAWFUL PROCUREMENT OF NATURALIZATION
United States v. Mensah, 737 F.3d 789 (1st Cir. Dec. 16, 2013) (affirming conviction for unlawful procurement of naturalization, in violation of 18 U.S.C. 1425(a), where defendant was under oath when he signed naturalization application, and the government presented sufficient evidence to show that defendant had made a false statement in his naturalization application).

IMMIGRATION OFFENSES - AGGRAVATED IDENTITY THEFT
Flores-Figueroa v. United States, 129 S.Ct. 1886 (May 4, 2009) (in order to convict defendant of aggravated identity theft, under 18 U.S.C. 1028A(a)(1), for "knowingly transfer[ring], possess[ing], or us[ing], without lawful authority, a means of identification of another person," for which a mandatory consecutive two-year sentence must be imposed upon conviction of another listed offense, government must prove that defendant knew that "means of identification" he or she unlawfully transferred, possessed, or used did, in fact, belong to another person: " As a matter of ordinary English grammar, it seems natural to read the statute's word "knowingly" as applying to all the subsequently listed elements of the crime."); abrogating United States v. Mendoza-Gonzalez, 520 F.3d 912, United States v. Hurtado, 508 F.3d 603, and United States v. Montejo, 442 F.3d 213.

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - PROPORTIONALITY OF EXTENT OF DEPARTURE TO ITS JUSTIFICATION
Gall v. United States, 128 S.Ct. 586 (2007) ("the Court of Appeals' rule requiring "proportional" justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)." Therefore, an "extraordinary" justification is not necessary to a sentence half as long as the bottom of the Guidelines range); see United States v. Marron-Garcia, 555 F.3d 1040 (8th Cir. Feb. 26, 2009).

IMMIGRATION OFFENSES - HARBORING ILLEGAL ALIENS - ELEMENTS
United States v. Ye, 588 F.3d 411 (7th Cir. Nov. 17, 2009) (the element of "shield from detection" essentially means "to protect from or to ward off discovery," so an instruction defining "shielding" for the jury as "the use of any means to prevent the detection of illegal aliens in the United States by the Government" is a correct statement of the law, rejecting an argument that the "use of any means" language misstates the law because it is too vague and too broad), citing United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir. Aug. 22, 1977)(8 U.S.C. 1324(a)(1)(A)(iii) only proscribes conduct "tending substantially to facilitate an alien's remaining in the United States illegally. "), quoting United States v. Lopez, 521 F.2d 437, 441 (2d Cir.1975).

BIA

DEPORTABILITY - ALIEN SMUGGLING - CONVICTION FOR AIDING ILLEGAL ENTRY ESTABLISHES ALIEN SMUGGLING CONDUCT BASED DEPORTATION GROUND
Matter of Martinez-Serrano, 25 I. & N. Dec. 151 (BIA 2009) (federal conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers, in violation of 18 U.S.C. 2(a) and 8 U.S.C. 1325(a)(2), establishes that the convicted alien is removable under INA 237(a)(1)(E)(i), 8 U.S.C. 1227(a)(1)(E)(i); alternatively, the facts in the record establish deportability, and the Immigration Judge erred in applying a categorical analysis since INA 237(a)(1)(E)(i) does not require a conviction to sustain removability).

ALIEN SMUGGLING
Matter of Martinez-Serrano, 25 I. & N. Dec. 151 (BIA 2009) ("because the respondent was convicted of aiding and abetting another alien to enter or try to enter the United States in violation of law, it necessarily follows that her conviction established, by clear and convincing evidence, that she is removable under section 237(a)(1)(E)(i)"). http://m1e.net/c?7073444-JPItsdvys.l/E%404859456-pBIctj13ilttw

IMMIGRATION OFFENSES - USING FAKE SSN FOR EMPLOYMENT PURPOSES
The offense of using a fake Social Security Number for employment purposes could constitute a federal felony with a maximum possible sentence of five years. 42 U.S.C. 408.

IMMIGRATION OFFENSES -- ALIEN SMUGGLING - NO EVIDENCE OF INTENT TO HARM
United States v. Torres-Flores, __ F.3d __ (9th Cir. Sept. 4, 2007) (defendant not eligible for sentencing enhancement for creating substantial risk of death or serious bodily injury where defendant transported alien in makeshift compartment in rear part of truck cab, which only presented an incremental increase in risk).

IMMIGRATION OFFENSES - ALIEN SMUGGLING
United States v. Juvenile Male, 528 F.3d 1146 (9th Cir. Jun. 12, 2008) (district court decision finding juvenile delinquency for alien smuggling revered in part where the juvenile was not provided with Juvenile Justice and Delinquency Prevention Act protections under 18 U.S.C. 5033; no exception exists where the juvenile lied about his age at the time of arrest).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - PROOF OF PRIOR CONVICTION
United States v. Garcia-Cardenas, 555 F.3d 1049 (9th Cir. Feb. 17, 2009) (proof of prior conviction resulting in sentence enhancement does not have to be admitted or proven beyond a reasonable doubt), following, Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998).

IMMIGRATION FRAUD - INA 212(a)(6)(C)(i) ONLY REACHES IMMIGRATION FRAUD, NOT EMPLOYMENT FRAUD
As the Foreign Affairs Manual explains: For a misrepresentation to fall within the purview of INA 212(a)(6)(C)(i), it must have been practiced on an official of the U.S. Government, generally speaking, a consular officer or a Department of Homeland Security ("DHS") officer. 9 FAM 40.63, N4.3 (emphasis added). (Ex. A). Likewise, the Board of Immigration Appeals stated that it "is well established that fraud or willful misrepresentation of a material fact in the procurement or attempted procurement of a visa, or other documentation, must be made to an authorized official of the United States Government in order for excludability under section 212(a)(6)(C)(i) of the Act to be found." Matter of Y-G-, 20 I. & N. Dec. 794 (BIA 1994) (emphasis added). A noncitizen who only used his green card in order to work for a private employer should not be subject to inadmissibility under INA 212(a)(6)(C)(i). Thanks to Davorin J. Odrcic

FALSE STATEMENTS - FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
A person who falsely answered "no" to the question on the naturalization and other applications which asks whether the applicant has ever knowingly committed a crime for which s/he has not been indicted, can argue that the question violates the constitutional privilege against self-incrimination, since an answer could provide a link in the chain of evidence necessary for a criminal prosecution for perjury or false statements. E.g., 18 U.S.C. 1001(a)(3), 1015(a). This principle might bar criminal prosecution under that theory, and might also be considered as a defense to a visa fraud allegation based upon that answer.

First Circuit

IMMIGRATION OFFENSES " FALSE STATEMENTS ON NATURALIZATION APPLICATION " ELEMENTS OF THE OFFENSE
United States v. Munyenyezi, ___ F.3d ___, ___, 2015 WL 1323336 (1st Cir. Mar. 25, 2015) (18 U.S.C. 1425(a) requires proof that the naturalized citizen must have misrepresented or concealed some fact, the misrepresentation or concealment must have been willful, the fact must have been material, and the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment. Kungys v. United States, 485 U.S. 759, 767, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988); 18 U.S.C. 1425(b), makes it a crime for a person to knowingly ... procure ... naturalization ... or citizenship that she is not entitled to, including where an applicant is barred from showing good moral character under 8 U.S.C. 1101(f)).

IMMIGRATION OFFENSES " MARRIAGE FRAUD
United States v. Ngige, ___ F.3d ___ (1st Cir. Mar. 17, 2015) (the charge was filed within the five-year statute of limitations, since defendant's submission of a psychological evaluation in support of her Violence Against Women Act (VAWA) petition was properly considered an overt act in furtherance of the conspiracy charged; since the conspiracy's objective was to pay the co-conspirators to help defendant "acquire a change of her immigration status" by "making false representations about her marriage and relationship," the psychological evaluation sought to achieve that goal).

IMMIGRATION OFFENSES"FALSE STATEMENT TO FEDERAL OFFICIAL"UNLAWFULLY OBTAINING NATURALIZATION
United States v. Lang, 672 F.3d 17 (1st Cir. Feb. 16, 2012) (federal convictions of making a material false statement to the DHS in violation of 18 U.S.C. 1001(a)(2), and unlawfully applying for and obtaining naturalization and a certificate of naturalization, in violation of 18 U.S.C. 1425(b), affirmed over objections that admission of N-400 violated defendant's Confrontation Clause rights; and immigration form was inadmissible under public records exception to hearsay rule).

ILLEGAL REENTRY - SENTENCE - REVERSAL WHERE SENTENCE BASED ON FACT NOT SUPPORTED BY THE RECORD
United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. Apr. 9, 2009) (illegal reentry sentence reversed, where district court based the sentence on a "fact" - the assertion that this was the defendant's second illegal entry into the United States - that was not supported by the record, since that constitutes procedural error); Gall v. United States, __ U.S. __, ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007) (procedural errors include "selecting a sentence based on clearly erroneous facts."); United States v. Torres, 541 F.3d 48, 51 (1st Cir.2008) (listing "selecting a sentence based on clearly erroneous facts" as among the "procedural errors amounting to an abuse of discretion" by the sentencing court).

IMMIGRATION OFFENSES - IDENTITY THEFT FOR EMPLOYMENT
United States v. Godin, __ F.3d __, 2008 WL 2780646 (1st Cir. Jul. 18, 2008) ("[T]o obtain a conviction under 1028A(a) (1), the government must prove that the defendant knew that the means of identification transferred, possessed, or used during the commission of an enumerated felony belonged to another person."), following United States v. Villanueva-Sotelo, 515 F.3d 1234, 1236 (D.C.Cir.2008).

Second Circuit

IMMIGRATION OFFENSES " ILLEGAL REENTRY AFTER DEPORTATION " ELEMENTS " DEPORTATION
United States v. Harvey, 746 F.3d 87, 89-90 (2d Cir. Mar. 26, 2014) (per curiam) (federal conviction for illegal reentry after deportation affirmed, over objection that evidence of actual deportation was insufficient to sustain the conviction: a properly executed warrant of deportation, coupled with testimony regarding the deportation procedures followed at that time, is sufficient proof that a defendant was, in fact, physically deported from the United States.); citing United States v. Garcia, 452 F.3d 36, 43"44 (1st Cir.2006); United States v. Bahena"Cardenas, 411 F.3d 1067, 1074"75 (9th Cir.2005).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS -- FOUND-IN
United States v. Macias, 740 F.3d 96 (2d Cir. Jan. 14, 2014) (reversing conviction of being "found in" the United States after having been deported, since defendant was encountered by the authorities only after he had left the United States and sought lawful entry into Canada, was detained there, and then returned to the United States in custody, so he was not initially "found in" the United States, and, when later "found in" the United States, was in the U.S. involuntarily).

IMMIGRATION OFFENSES
United States v. Tureseo, 566 F.3d 77 (2d Cir. May 14, 2009) (court erred in failing to instruct jury that aggravated identity theft conviction required proof that defendant knew the identification belonged to another, real, person), following Flores-Figueroa v. United States, __U.S. __, 129 S.Ct. 1886 (2009).

IMMIGRATION OFFENSES - AGGRAVATED IDENTITY THEFT - ELEMENTS
United States v. Tureseo, 566 F.3d 77 (2d Cir. May 14, 2009) (conviction for identity theft, under 18 U.S.C. 1028A, requires proof that the defendant knew that the means of identity he used falsely to claim United States citizenship belonged to another person, i.e., an actual person), following Flores-Figueroa v. United States, 129 S.Ct. 1886 (May 4, 2009).

IMMIGRATION OFFENSES - ALIEN SMUGGLING - BURDEN OF PROOF
Singh v. Mukasey, 553 F.3d 207 (2d Cir. Jan. 21, 2009) (evidence that petitioner engaged in alien smuggling was not established in this case by clear and convincing evidence; motion to suppress granted given circumstances in which statement was taken, and where interrogating officer failed to inform petitioner of rights and consequences of his statement).

ILLEGAL RE-ENTRY - COLLATERAL ATTACK
United States v. Garcia, 2008 WL 3890167 (E.D.N.Y., Aug. 19, 2008) (successful collateral attack of deportation order where IJ failed to inform noncitizen of possibility of voluntary departure).

Third Circuit

INADMISSIBILITY " ALIEN SMUGGLING BAR
Parra-Rojas v. Attorney General U.S., ___ F.3d ___, ___, 2014 WL 1230001 (3d Cir. Mar. 26, 2014) (federal conviction of Bringing In or Harboring Aliens for Financial Gain, in violation of INA 274(a)(2)(B)(ii), 8 U.S.C. 1324(a)(2)(B)(ii), did not trigger inadmissibility under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i) (the smuggling bar), which renders an alien inadmissible if he has knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law, because the actual conduct, rather than a conviction, determines this ground of inadmissibility; here, Petitioner had no involvement with the aliens prior to their entry to the United States, did not provide any assistance, financial or otherwise, in their entry, and did not commit any other affirmative act that encouraged, induced, assisted, abetted, or aided the aliens' entry, as required by 1182(a)(6)(E)(i).)

INADMISSIBILITY " ALIEN SMUGGLING BAR " DEFINITION OF ENTRY
Parra-Rojas v. Attorney General U.S., ___ F.3d ___, ___, 2014 WL 1230001 (3d Cir. Mar. 26, 2014) (In the context of immigration law, to enter is a term of art referring to an alien crossing the United States border free from official restraint. United States v. Gonzalez"Torres, 309 F.3d 594, 598 (9th Cir.2002); see also United States v. Rivera"Relle, 333 F.3d 914, 919 (9th Cir.2003). Accordingly, to be held inadmissible for having encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States, 1182(a)(6)(E)(i), an individual must have performed one of these actions with respect to the actual entry of an alien into the United States. See also Tapucu v. Gonzales, 399 F.3d 736, 740 (6th Cir.2005) ([T]he provision ... requires an affirmative and illicit act of assistance in shepherding someone across the border.).).

INADMISSIBILITY " ALIEN SMUGGLING BAR
Parra-Rojas v. Attorney General, 747 F.3d 164 (3d Cir. March 26, 2014) (transporting illegal entrant from one area of the United States to another does not constitute bringing in or harboring for financial gain, under 8 U.S.C. 1324(a)(2)(B)(ii)).

IMMIGRATION OFFENSES " FRAUD
United States v. Kouevi, 698 F.3d 126 (3d Cir. Oct. 24, 2012) (18 U.S.C. 1546(a), includes visa fraud involving authentic immigration documents obtained by fraud).

IMMIGRATION OFFENSES - HARBORING ILLEGAL ALIENS - ELEMENTS - INSUFFICIENCY OF EVIDENCE
United States v. Cuevas-Reyes, 572 F.3d 119 (3d Cir. Jul. 10, 2009) (charge of shielding of illegal aliens in violation of 8 U.S.C. 1324(a)(1)(A)(v)(II) could not be sustained where defendant was assisting illegal entrants to leave the United States without detection; the elements that must be proven are: (1) the alien entered or remained in the United States in violation of the law; (2) the defendant concealed, harbored, or sheltered the alien in the United States; (3) the defendant knew, or recklessly disregarded the fact that the alien entered or remained in the United States in violation of the law; and (4) the defendant's conduct tended to substantially facilitate the alien remaining in the United States).

ILLEGAL REENTRY - ELEMENTS - DEPORTATION ORDER - COLLATERAL ATTACK
Richardson v. United States, 558 F.3d 216 (3d Cir. Mar. 4, 2009) (affirming illegal reentry conviction, where defendant failed to meet his burden of proving that the written waiver of rights in his prior deportation proceeding was invalid).

IMMIGRATION OFFENSES - HARBORING - IMMIGRATION OFFENSES - TRANSPORTING
United States v. Silveus, 542 F.3d 993 (3d Cir. Sept. 9, 2008) (reasonable suspicion supported the initial police stop of defendants which led to the discovery of evidence used against defendant; sufficient evidence existed to support the conviction for transporting, but not for harboring).

Fourth Circuit

IMMIGRATION OFFENSES"IMMIGRATION FRAUD
United States v. Castillo-Pena, 674 F.3d 318 (4th Cir. Mar. 22, 2012) (the "cumulative context" in which noncitizen's statements were made provided a substantial foundation for the jury's conclusion of willful misrepresentation).

IMMIGRATION OFFENSES " ILLEGAL ALIEN IN POSSESSION OF FIREARM
United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. Jan. 19, 2012) (undocumented noncitizen who applied for, and was denied, TPS prior to being found in possession of a firearm could be convicted as a "alien illegally or unlawfully in the United States" in possession of a firearm; leaving open the question of whether an undocumented noncitizen with TPS pending could be convicted under the same statute).

IMMIGRATION OFFENSES - UNDOCUMENTED ALIEN ENTRY INTO MILITARY BASE
United States v. Madrigal-Valadez, 561 F.3d 370 (4th Cir. Apr. 1, 2009) (reversing conviction for unlawful entry into a military base, for a purpose prohibited by law, in violation of 18 U.S.C. 1382, where the evidence was insufficient to demonstrate that defendant had notice of the requirements for entry before he drove onto the military base access road, or notice that entry by an undocumented alien of a military installation is a crime prohibited by federal law).

IMMIGRATION OFFENSES - ILLEGAL ENTRY INTO MILITARY BASE - STATUS OF BEING IN UNITED STATES ILLEGALLY DID NOT RENDER ILLEGAL AN ENTRY INTO MILITARY BASE
United States v. Madrigal-Valadez, 561 F.3d 370, 376 (4th Cir. Apr. 1, 2009) ("Our research has not disclosed any authority that makes the status of being in the United States after entering in violation of [8 U.S.C.] 1325(a) a separate crime. Accordingly, contrary to district court's alternative holding, Madrigal's entry into the Fort Lee access road was not conduct that was prohibited by 1325(a) or 1382.").

POST CON RELIEF - FEDERAL - MOTION TO WITHDRAW GUILTY PLEA - GROUNDS - NEWLY DISCOVERED EVIDENCE OF INNOCENCE
United States v. Thompson-Riviere, 561 F.3d 345 (4th Cir. Mar. 26, 2009) (motion to withdraw guilty plea for illegal entry granted on the ground that defendant newly discovered evidence that defendant was a citizen).

ILLEGAL REENTRY - STATUTE OF LIMITATIONS
United States v. Uribe-Rios, 558 F.3d 347 (4th Cir. Mar. 4, 2009) (affirming illegal reentry conviction, where statute of limitations had not expired, because federal immigration authorities were not aware that defendant was present in the U.S. at the time he alleged that the statute began to run).0

IMMIGRATION OFFENSES - IMMIGRATION FRAUD
United States v. Mir, 525 F.3d 351 (4th Cir. May 6, 2008) (convictions for immigration fraud are affirmed over claim that conversations two witnesses initiated with him at the government's behest violated his Sixth Amendment right to counsel because those conversations occurred after defendant had been indicted on the immigration fraud counts).

Fifth Circuit

DEPORTABILITY " ALIEN SMUGGLING " CONVICTION FOR AIDING IMPROPER ENTRY SUFFICIENT TO ESTABLISH GROUND OF DEPORTATION
Santos-Sanchez v. Holder, 744 F.3d 391 (5th Cir. Mar. 7, 2014) (federal conviction for aiding and abetting improper entry into the U.S., in violation of 8 U.S.C. 1325(a), established deportability under INA 237(a)(1)(E)(i), 8 U.S.C. 1227(a)(1)(E)(i), and conviction documents are sufficient to establish substantial evidence to support the BIA determination of deportability).

IMMIGRATION OFFENSES -- ILLEGAL RE-ENTRY " STATUTE OF LIMITATIONS
United States v. Compian-Torres, 712 F.3d 203 (5th Cir. Mar. 19, 2013) (five-year statute of limitations for illegal reentry begins to run at the time the noncitizen is found in the United States, meaning that the immigration authorities have encountered and know the noncitizen is within the U.S. without admission; encounters by other federal agencies are not sufficient).

IMMIGRATION OFFENSES"ILLEGAL REENTRY"CLAIM TO CITIZENSHIP
United States v. Juarez, 672 F.3d 381 (5th Cir. Feb. 24, 2012) (convictions for illegal reentry, under 8 U.S.C. 1326, and false claim to United States citizenship, under 18 U.S.C. 911, vacated for ineffective assistance of counsel in failing to investigate plausible derivative citizenship claim).

IMMIGRATION OFFENSES"ILLEGAL REENTRY"SENTENCE"FAILURE ADEQUATELY TO EXPLAIN SENTENCE"SENTENCE SUBSTANTIVELY UNREASONABLE
United States v. Camero-Renobato, 670 F.3d 633 (5th Cir. Feb. 8, 2012) (affirming illegal reentry sentence to 71 months in prison, against claims that the district court committed a procedural error when it allegedly failed adequately to explain the chosen sentence and imposed a sentence that is substantively unreasonable because it is greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. 3553(a)); distinguishing United States v. Mondragon"Santiago, 564 F.3d 357, 363 (5th Cir. 2009) (procedural unreasonableness consisted in the inadequacy of sentencing reasons, where the court failed to give any reasons for its sentence beyond a bare recitation of the Guideline's calculation.).

IMMIGRATION OFFENSES"ILLEGAL REENTRY"SENTENCE "SUBSTANTIVE UNREASONABLENESS
United States v. Camero-Renobato, 670 F.3d 633 (5th Cir. Feb. 8, 2012) (per curiam) (Because there is no procedural error, we review the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Gall, 552 U.S. at 51. [A] sentence within a properly calculated Guideline range is presumptively reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); see also Rita, 551 U.S. at 347.).

IMMIGRATION OFFENSES " ALIEN SMUGGLING " EVIDENCE " PROFILE EVIDENCE
United Staters v. Montes-Salas, 669 F.3d 240 (5th Cir. Jan. 26, 2012) (affirming conviction of alien smuggling against claim that trial court erred in admitting improper profile evidence, where border patrol agents testimony had not crossed line separating expert testimony on methods of operation to generic profile evidence in a way that was clear or obvious, as required to be cognizable on plain error review).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " AGGRAVATED FELONY SENTENCE ENHANCEMENT
United States v. Nevares-Bustamante, 669 F.3d 209 (5th Cir. Jan. 25, 2012) (court may not impose illegal reentry sentence enhancement, under U.S.S.G. 2L1.2(b)(1)(A)(ii) (2009), where no removal order was issued or reinstated after the predicate conviction).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - CONSIDERATION OF DEFENDANTS JUDICIAL CONFESSION OF TEXAS OFFENSE OF DELIVERY OF A CONTROLLED SUBSTANCE DID NOT VIOLATE THE MANDATE RULE
United States v. Carales-Villalta, 617 F.3d 342 (5th Cir. Aug. 26, 2010) (illegal reentry sentencing court did not violate the mandate rule when it considered defendants judicial confession to Texas offense of delivery of a controlled substance to enhance sentence).

IMMIGRATION OFFENSES - FALSE STATEMENT TO BORDER PATROL
United States v. Chavira, 614 F.3d 127 (5th Cir. Aug. 6, 2010) (federal conviction for knowingly and willfully making a false statement to a Customs and Border Protection officer is vacated where secondary inspection officer failed to give Miranda warnings before questioning the defendant).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - DEFENDANT COULD NOT DISPUTE THE FACT OF DEPORTATION AFTER ADMITTING IT
United States v. Velasquez-Torres, ___ F.3d ___ (5th Cir. Jun. 21, 2010) (affirming sentence for illegal reentry where defendant admitted the fact of his deportation as stated in the presentence report, and so could not argue that the court improperly relied on that deportation in imposing sentence).

ILLEGAL REENTRY - SENTENCE
United States v. Mondragon-Santiago, ___ F.3d ___, 2009 WL 782894 (5th Cir. Mar. 26, 2009) (district court's error in sentencing defendant under wrong statutory subsection based on erroneous finding that defendant had a prior conviction for an aggravated felony did not affect defendant's substantial rights).

POST CON RELIEF - GROUNDS - CONFRONTATION - IMMIGRATION OFFENSES - ILLEGAL ENTRY
United States v. Tirado-Tirado, __ F.3d __, 2009 WL 711921 (5th Cir. Mar. 19, 2009) (conviction vacated because defendant was deprived of Sixth Amendment right to cross-examine where the government introduced a videotaped deposition of a witness at trial, and there was an insufficient showing that the witness was unavailable).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - ELEMENTS - REMOVAL ORDER ISSUED IN ABSENTIA AFTER DEPARTURE IS SUFFICIENT
United States v. Ramirez-Carcamo, ___ F.3d ___ , 2009 WL 368580 (5th Cir. Feb. 17, 2009) (removal order entered in absentia after noncitizen left the United States prior to a removal proceeding constitutes a removal order sufficient as a predicate for a conviction of illegal reentry after deportation).

IMMIGRATION OFFENSES - TRANSPORTING ALIENS - RIGHT TO INDIVIDUALISED DETERMINATION
United States v. Garza, 541 F.3d 290 (5th Cir. Aug. 13, 2008) (sentencing guideline enhancement for creating a substantial risk of death or serious bodily injury to another person is not automatically applicable to any case in which defendant transports illegal aliens; court must make individual determination, apart from co-conspirators, based on the facts of each case).

ILLEGAL REENTRY - SENTENCE - REASONABLENESS
United States v. Rodriguez-Rodriguez, ___ F.3d ___, 2008 WL 2332528 (5th Cir. Jun. 9, 2008) (affirming as reasonable illegal reentry sentence at lower end of guidelines range against abuse-of-discretion challenge).

IMMIGRATION OFFENSES - ALIEN TRANSPORTATION - SENTENCE - SENTENCE NOT UNREASONABLE
United States v. Sanchez-Ramirez, ___ F.3d ___, 2007 WL 2353159 (5th Cir. Aug. 20, 2007) (non-Guideline sentence for conspiring to transport illegal aliens and aiding and abetting in the transportation of the illegal aliens is affirmed over a claim that defendant's sentence was unreasonable).

IMMIGRATION CRIMES - HARBORING ALIENS - EMPLOYMENT
United States v. Shum, __ F.3d __, 2007 WL 2285223 (5th Cir., Aug. 10, 2007) (Federal conviction for conspiracy to conceal, harbor or shield illegal entrants from detection for commercial advantage, in violation of 8 U.S.C. 1324(a)(1)(A)(v)(I), (a)(1)(A)(iii), and (a)(1)(B)(i), affirmed where defendant "substantially facilitated" noncitizens ability to remain in the United States by hiring them and taking steps to conceal their identifies from detection by the government).

IMMIGRATION OFFENSES - IMPORTING ALIEN INTO UNITED STATES FOR IMMORAL PURPOSES
United States v. Clark, 582 F.3d 607 (5th Cir. Sept. 10, 2009) (defendant's conduct in tricking Kenyan national to come to United States upon promise of funding her education, and then attempting to use fear of deportation in order to manipulate her into becoming a sexual plaything came squarely within scope of INA 278, 8 U.S.C. 1328, such that defendant could not complain that statute was impermissibly vague or overbroad).

Lower Courts of Fifth Circuit

IMMIGRATION OFFENSES - FALSE STATEMENT DURING NATURALIZATION INTERVIEW
United States v. Posada-Carriles, 541 F.3d 344 (5th Cir. Aug. 14, 2008) (government's naturalization interview of defendant was not a mere pretext for a criminal investigation, and the government's conduct was therefore not so deceptive and outrageous that it merited dismissal of the indictment, even though interviewer knew noncitizen was not likely eligible for naturalization due to prior criminal activities, and had alerted DHS prior to interview).

ILLEGAL RE-ENTRY - SUFFICIENT EVIDENCE
United States v. Hernandez-Lopez, __ F.Supp.2d __, 2007 WL 2428219 (W.D. Tex. Aug. 23, 2007) (defendant cannot be convicted of illegal re-entry following deportation solely upon his own uncorroborated confession).

Sixth Circuit

ILLEGAL REENTRY - SENTENCE - PROCEDURAL UNREASONABLENESS - LACK OF EXPLANATION OF BASIS FOR OVERRULING DEFENDANT'S OBJECTIONS
United States v. Garcia-Robles, 562 F.3d 763 (6th Cir. Apr. 9, 2009) (reversing and remanding sentence on grounds sentence was procedurally unreasonable because the district court failed to explain its reasons for overruling defendant's timely objections to his sentence).

IMMIGRATION OFFENSES - INVOLUNTARY SERVITUDE
United States v. Djoumessi, 538 F.3d 547 (6th Cir. Aug. 20, 2008) (convictions for involuntary servitude and harboring affirmed over claims that charges violated double jeopardy). HYPERLINK "http://caselaw.lp.findlaw.com/data2/circs/6th/071740p.pdf"

IMMIGRATION CRIMES - DRIVERS LICENSES
United States v. Rivera, 516 F.3d 500 (6th Cir. Feb. 20, 2008) (sentencing guideline at U.S.S.G. 2L2.1 improperly applied to conviction for transporting illegal aliens from New Jersey to Tennessee for the purpose of obtaining driver's licenses where the documents procured were for purposes of allowing noncitizens to drive, rather than for immigration purposes).

Seventh Circuit

IMMIGRATION OFFENSES " ILLEGAL REENTRY " JUDICIAL CONFLICT OF INTEREST
United States v. Lara-Unzueta, 735 F.3d 954, 959 (7th Cir. Nov. 19, 2013) (district judge was not disqualified from ruling on defendants motion to dismiss indictment in illegal reentry case on the grounds that he had served as served as District Counsel for the INS in Chicago during 1997"1998, when the INS was the agency responsible for the defendants deportation proceeding, because he has not served in governmental employment and in such capacity participated as counsel, [or] adviser ... concerning the [current] proceeding or expressed an opinion concerning the merits of the particular case in controversy.); citing 28 U.S.C. 455(b)(3) (emphasis added).

IMMIGRATION OFFENSES " WILLFUL INTERFERENCE WITH FINAL DEPORTATION ORDER
United States v. Laguna, 693 F.3d 727 (7th Cir. Aug. 14, 2012) (federal conviction of willfully interfering with a final deportation order in violation of 8 U.S.C. 1253(a)(1)(B) and (C), for failing to obtain a Polish passport, affirmed over claims that the district court improperly excluded certain exculpatory evidence and deprived him of his constitutional right to assert a complete defense).

IMMIGRATION OFFENSES"HARBORING
United States v. Costello, 666 F.3d 1040 (7th Cir. Jan. 31, 2012) (harboring an alien does not mean merely providing a place to stay).

IMMIGRATION OFFENSES - HARBORING AN ALIEN
United States v. Li, 615 F.3d 752 (7th Cir. Aug. 3, 2010) (federal conviction for harboring an alien affirmed, where inattentiveness could have reflected defendants knowledge or reckless disregard of the two aliens' illegal status; the evidence supports an inference that defendant sought to conceal the aliens' presence; the evidence supported an inference that defendant derived financial advantage from the aliens' illegal status; defendant's challenge to the jury instruction regarding the mens rea required to convict for harboring an alien is waived; and given the potential punishment the district court could have assessed, the forfeiture of defendant's home is not so grossly disproportionate to the gravity of his convictions as to be excessive).

IMMIGRATION OFFENSES - HARBORING ILLEGAL ALIENS - ELEMENTS
United States v. Ye, 588 F.3d 411 (7th Cir. Nov. 17, 2009) ("conceal," "harbor," and "shield from detection" have independent meanings, and thus a conviction can result from committing (or attempting to commit) any one of the three acts."), quoting United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 (5th Cir. 1982) ("Section 1324(a)[(1)(A)(iii)] by its express terms may be violated in any one of several ways-by harboring, or by concealing, or by shielding from detection or by attempting to do any of these."); United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir.1977) ("shield from detection" and "conceal" are not redundant); United States v. de Evans, 531 F.2d 428, 430 n.3 (9th Cir.1976) ( "[H]arbor has a different meaning than conceal.").

IMMIGRATION OFFENSES - ILLEGAL REENTRY - EVIDENCE - IMMIGRATION FILE NOT SUBJECT TO CONFRONTATION OBJECTION
United States v. Burgos, 539 F.3d 641, 2008 WL 3877257 (7th Cir. Aug. 22, 2008) (contents of "A-file" are nontestimonial business records not subject to the requirements of the confrontation clause), citing Crawford v. Washington, HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=WCLP1.0&vr=2.0&DB=780&FindType=Y&SerialNum=2004190005" 541 U.S. 36 (2004) , and Davis v. Washington, HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=WCLP1.0&vr=2.0&DB=780&FindType=Y&SerialNum=2009382784" 547 U.S. 813 (2006) .

IMMIGRATION OFFENSES - HARBORING AN ALIEN - FORCED LABOR
United States v. Calimlim, 538 F.3d 706 (7th Cir. Aug. 18, 2008) (sufficient evidence to convict husband and wife of forced labor and alien harboring for forcing noncitizen to work as housekeeper; statutes of conviction not unconstitutionally vague).

ILLEGAL REENTRY - DEFENSES - STATUTE OF LIMITATIONS - STATUTE COMMENCED WHEN IMMIGRATION AUTHORITIES ACTUALLY DISCOVERED DEFENDANT, NOT WHEN THEY SHOULD HAVE DISCOVERED HIM
United States v. Are, __ F.3d __, 2007 WL 2265118 (7th Cir. Aug. 9, 2007) (five year statute of limitations on prosecution for being found in the United States following removal starts to run on the date the immigration authorities actually discover noncitizens presence, identity, and status or when they arrested him, interrupting his illegal conduct).

Eighth Circuit

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - FAILURE TO CONSIDER COST OF INCARCERATION - FACT OF DEPORTATION
United States v. Molina, 563 F.3d 676 (8th Cir. May 4, 2009) (neither cost of incarceration, nor the fact that the defendant will be deported upon release from federal prison are proper factors to consider in imposing sentence for illegal re-entry).

IMMIGRATION OFFENSES - VISA FRAUD - ELEMENTS
United States v. Elzahabi, 557 F.3d 879 (8th Cir. Mar. 5, 2009) (federal conviction of knowingly possessing and using a fraudulently obtained immigration document in violation of 18 U.S.C. 1546(a), affirmed because evidence was sufficient to support conviction, rejecting claim that prosecution failed to prove that marriage was invalid), following Lutwak v. United States, 344 U.S. 604, 611-612 (Feb. 9, 1953) ("We do not believe that the validity of the marriages is material. No one is being prosecuted for an offense against the marital relation.... [W]hen one of the aliens stated that he was married, and omitted to explain the true nature of his marital relationship, his statement did, and was intended to, carry with it implications of a state of facts which were not in fact true.").

IMMIGRATION OFFENSES - FALSE STATEMENT AND ILLEGAL RE-ENTRY
United States v. McKinzie, 557 F.3d 931 (8th Cir. Mar. 11, 2009) (thirty-month sentence for false statement to a federal officer reasonable when running concurrently with sentence for illegal re-entry).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - PREDICATE CONVICTIONS OBTAINED IN VIOLATION OF THE RIGHT TO COUNSEL MAY COLLATERALLY BE ATTACKED IN FEDERAL SENTENCING PROCEEDINGS
United States v. Reyes-Solano, 543 F.3d 474 (8th Cir. Sept. 26, 2008) ("Deprivation of the constitutional right to counsel is the only ground upon which a prior conviction used to enhance a federal sentence may be collaterally attacked. Custis v. United States, 511 U.S. 485, 487 (1994). Reyes-Solano had the burden to demonstrate by a preponderance of the evidence that his uncounseled convictions were constitutionally invalid. United States v. Stapleton, 316 F.3d 754, 756 (8th Cir.2003). He testified that he does not understand court proceedings in English and was not provided an interpreter in the Mississippi proceedings. But he admitted that he understood the charges to which he pleaded guilty, and he did not testify that he was unaware of his right to counsel or that his waiver of that right was constitutionally infirm. On this record, the district court did not err in ruling that Reyes-Solano failed to prove a deprivation of the right to counsel and in counting these convictions . . . .").

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - UPWARD DEPARTURE NOT ABUSE OF DISCRETION
United States v. Solis-Bermudez, 501 F.3d 882 (8th Cir. Sept. 13, 2007) (district court did not abuse discretion in varying upward from sentencing guidelines and imposing 60 month non-guidelines sentence for illegal re-entry following conviction of an aggravated felony; "In the wake of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences to determine whether the district court abused its discretion by imposing an unreasonable sentence on the defendant. United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, 546 U.S. 913, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). A district court abuses its discretion if (1) [it] fails to consider a relevant factor that should have received significant weight; (2)[it] gives significant weight to an improper or irrelevant factor; or (3)[it] considers only the appropriate factors but in weighing those factors commits a clear error of judgment. Id. at 1004 (internal marks omitted)").

FALSE CLAIM TO CITIZENSHIP - EMPLOYMENT IS A "BENEFIT" UNDER THE INA
Kirong v. Mukasey, 529 F.3d 800 (8th Cir. Jun. 20, 2008) (noncitizen who checks on I-9 form that he is a US Citizen or National is seeking a "benefit" under the Act), following Rodriguez v. Mukasey, 519 F.3d 773, 776 (8th Cir.2008).

FALSE CLAIM TO CITIZENSHIP - CITIZEN V. NATIONAL
Kirong v. Mukasey, 529 F.3d 800 (8th Cir. Jun. 20, 2008) (where the record is ambiguous as to whether noncitizen intended to indicate he was a United States citizen or a National by checking "citizen or nation" box on I-9 form, noncitizen has failed to meet his burden to show clearly and beyond doubt that he is not inadmissible to the United States as a noncitizen who has made a false claim to U.S. citizenship).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - UPWARD DEPARTURE NOT ABUSE OF DISCRETION
United States v. Solis-Bermudez, 501 F.3d 882 (8th Cir. Sept. 13, 2007) (district court did not abuse discretion in varying upward from sentencing guidelines and imposing 60 month non-guidelines sentence for illegal re-entry following conviction of an aggravated felony; "In the wake of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences to determine whether the district court abused its discretion by imposing an unreasonable sentence on the defendant. United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, 546 U.S. 913, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). A district court abuses its discretion if (1) [it] fails to consider a relevant factor that should have received significant weight; (2)[it] gives significant weight to an improper or irrelevant factor; or (3)[it] considers only the appropriate factors but in weighing those factors commits a clear error of judgment. Id. at 1004 (internal marks omitted)").

Lower Courts of Eighth Circuit

IMMIGRATION OFFENSES - SOCIAL SECURITY CARD IS NOT AN IDENTIFICATION CARD
United States v. Murillo, ___ F.Supp.2d ___, 2008 WL 697160 (N.D. Iowa Mar. 13, 2008) (a "social security card" does not constitute a "means of identification" within the meaning of 18 U.S.C. 1546(b) and 8 U.S.C. 1324a(b), so the court grants defendant's motion to dismiss Count 3); United States v. Tyson Foods, Inc., 258 F. Supp. 2d 809 (E.D. Tenn. 2003) (a "social security card" is not a "means of identification" within the meaning of 18 U.S.C. 1546(b), even if this creates a "loophole" or appears inconsistent with 18 U.S.C. 1546(a)).

Ninth Circuit

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK " PREJUDICE
United States v. Zamudio, ___ F.3d ___, 2015 WL 162855 (9th Cir. Jan. 14, 2015) (affirming illegal reentry conviction, where defendant failed to meet his burden in collaterally attacking his underlying deportation proceeding: even if the Immigration Judge erred in failing to advise defendant of his ability to apply for relief from removal, defendant suffered no prejudice because if he had obtained relief from removal for his 1994 conviction, he would have been rendered ineligible for relief from removal for his 2000 conviction).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " SENTENCE
United States v. Guerrero-Jasso, ___ F.3d ___, 2014 WL 2180101 (9th Cir. May 27, 2014) (reversing sentence for illegal reentry in violation of 8 U.S.C. 1326, where court impermissibly relied on fact of defendant's removal subsequent to aggravated felony conviction, which was neither admitted by the defendant nor found by a jury beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000))

IMMIGRATION OFFENSES " ALIEN SMUGGLING " SUFFICIENCY OF THE EVIDENCE
United States v. Thum, 749 F.3d 1143 (9th Cir. 2014) (escorting a noncitizen from a fast food restaurant to a nearby vehicle does not constitute encouraging or inducing an alien to reside in the United States, and is not aiding and abetting commission of a crime)

IMMIGRATION OFFENSES " VISA FRAUD STATUTE DOES NOT PROHIBIT MERE POSSESSION OF UNLAWFUL DRIVERS LICENSE
United States v. Lin, 738 F.3d 1082 (9th Cir. Dec. 24, 2013) (federal convictions under 18 U.S.C. 1546(a) for fraud and misuse of visas, permits, and other documents are reversed where 1546(a) does not prohibit the mere possession of an unlawfully obtained drivers license, and the government presented no evidence that defendant possessed any other document covered by the statute).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION ORDER " COLLATERAL ATTACK " ANALYSIS
In United States v. Gomez, 732 F.3d 971 (9th Cir. Oct. 7, 2013), the Ninth Circuit outlined the general analysis used when a defendant collaterally attacks the legal validity of the deportation order used to establish an essential element of the offense of illegal reentry after deportation: When an alien defendant is prosecuted for illegal reentry under 8 U.S.C. 1326, he may not collaterally attack the underlying deportation order unless the alien demonstrates that: (1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. 1326(d); United States v. Gonzalez"Villalobos, 724 F.3d 1125, 1126"27, 1128"32 (9th Cir.2013). An underlying removal order is fundamentally unfair if: (1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. United States v. Ubaldo"Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (alteration in original) (quoting United States v. Zarate"Martinez, 133 F.3d 1194, 1197 (9th Cir.1998)). A defendant can establish the first two prongs of 1326(d) by showing that he was denied judicial review of his removal proceeding in violation of due process. See Reyes"Bonilla, 671 F.3d at 1043; Ubaldo"Figueroa, 364 F.3d at 1049"50. Due process requires that [W]here a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense. United States v. Mendoza"Lopez, 481 U.S. 828, 837"38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (footnote omitted) (citations omitted); see also United States v. Lopez"Vasquez, 1 F.3d 751, 753 (9th Cir.1993). A defendant can also satisfy the first two prongs of 1326(d) by showing that immigration officials in the underlying removal proceeding violated a regulation designed to protect an alien's right to judicial review. See United States v. Barajas"Alvarado, 655 F.3d 1077, 1084"85 (9th Cir.2011), cert. denied, """ U.S. """", 132 S.Ct. 1983, 182 L.Ed.2d 829 (2012). [T]he Supreme Court has ruled that when Congress enacts a procedure, aliens are entitled to it. Id. (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.)); see also United States v. Ramos, 623 F.3d 672, 683 (9th Cir.2010) (It is a well-known maxim that agencies must comply with their own regulations. (quoting Ramon"Sepulveda v. INS, 743 F.2d 1307, 1310 (9th Cir.1984)) (internal quotation marks omitted)). Once a due process or a qualifying regulatory violation has been established, we evaluate the third prong of 1326(d) (that the deportation order was fundamentally unfair) as a prejudice inquiry. See Reyes"Bonilla, 671 F.3d at 1039 (noting that we have long held that a defendant*978 seeking to exclude evidence of a prior removal order in a prosecution for illegal reentry must demonstrate a due process violation and bears the burden of proving prejudice. (quoting United States v. Proa"Tovar, 975 F.2d 592, 595 (9th Cir.1992) (en banc) and citing 8 U.S.C. 1326(d)(3))); see also United States v. Rangel"Gonzales, 617 F.2d 529, 530 (9th Cir.1980) (explaining that for the purposes of a 1326 prosecution we conduct a two-step inquiry to determine if a regulatory violation invalidates an underlying removal order: (1) the regulation itself must serve a purpose of benefit to the alien and (2) the violation must have prejudiced interests of the alien which were protected by the regulation (internal quotation marks omitted)). Id. at 977-978.

REMOVAL " REINSTATEMENT OF REMOVAL " REENTRY WAS ILLEGAL EVEN THOUGH PROCEDURALLY REGULAR
Tamayo-Tamayo v. Holder, 709 F.3d 795 (9th Cir. Feb. 28, 2013) (denying petition for review of reinstatement of 1989 removal order, after illegal reentry, where 1993 removal order did not invalidate original removal order, and procedurally regular, yet substantively illegal, reentry met the requirement in INA 241(a)(5), 8 U.S.C. 1231(a)(5), that he had "reentered the United States illegally," where petitioner tricked the border official into allowing him physically to enter by presenting an invalid alien registration card).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION " COLLATERAL ATTACK " IMMIGRATION JUDGE CORRECTLY INFORMED RESPONDENT HE WAS INELIGIBLE FOR RELIEF UNDER THE LAW EXISTING AT THAT TIME
United States v. Mendoza, 705 F.3d 1012, (9th Cir. Jan. 15, 2013) (Oregon conviction of third degree rape under Or.Rev.Stat. 163.355 (1999) [A person commits the crime of rape in the third degree if the person has sexual intercourse with another person under 16 years of age.], disqualified noncitizen from eligibility for discretionary voluntary departure at time of his removal hearing, so trial courts dismissal of illegal reentry indictment was reversed, because defendant's underlying removal proceeding was consistent with due process where he was correctly informed that he was ineligible for this discretionary relief from removal, under the applicable law at the time of his removal hearing). NOTE: This case applies Ninth Circuit case law on aggravated felony sexual abuse of a minor as is existed before Estrada"Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008), since the IJs order was issued prior to that case.

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION " COLLATERAL ATTACK ON VALIDITY OF DEPORTATION ORDER
United States v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. Jan. 15, 2013) (reversing dismissal of illegal reentry indictment, because defendants underlying removal proceeding was consistent with due process because he was correctly informed that he was ineligible for discretionary relief from removal under the law applicable at the time of his removal hearing).

IMMIGRATION OFFENSES" SENTENCE " RESTITUTION ORDER " COURTS FAILURE TO PROVIDE AN ADEQUATE LEGAL AND FACTUAL BASIS FOR RESTITUTION ORDER
United States v. Xu, 706 F.3d 965, 2013 WL 28392 (9th Cir. Jan. 3, 2013) (the sentences are vacated, and the cases are remanded for resentencing and reconsideration regarding the legal and factual basis for the $482 million restitution order, where the count one convictions are not the result of an improper extraterritorial application of the RICO conspiracy statute because defendants' criminal enterprise involved both bank fraud and immigration fraud centered on stealing money from the Bank of China and traveling freely with that stolen money in the United States; but the district court improperly relied on defendants' foreign conduct to meet requirements in sentencing, and failed to provide an adequate legal and factual basis for the $482 million restitution order).

IMMIGRATION OFFENSES " ILLEGAL RE-ENTRY " EXCULPATORY EVIDENCE
United States v. Muniz-Jaquez, __ F.3d __ (9th Cir. 2013) (conviction for being found in the U.S. after deportation was vacated where District Court erred in excluding potentially exculpatory evidence of U.S. Border Patrol dispatch tapes).

CRIM DEF " IMMIGRATION OFFENSES " ILLEGAL RE-ENTRY " SENTENCE
United States v. Catalan, 701 F.3d 331 (9th Cir. Nov. 19, 2012) (per curiam) (sentence imposed, pursuant to USSG 2L1.2(b)(1), does not include a probation revocation sentence served after the defendant was deported, for purposes of imposing a 16"level illegal reentry sentence enhancement, because the Sentencing Commission recently clarified that a probation revocation sentence served after deportation should not be used to calculate the sentence imposed and the court determined to apply this amendment retroactively).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION ORDER " COLLATERAL ATTACK
United States v. Oseguera-Madrigal, 700 F.3d 1196 (9th Cir. Nov. 19, 2012) (IJ did not violate due process by failing to inform the defendant of the possibility of relief through a waiver of inadmissibility under INA 212(h), 8 U.S.C. 1182(h), where the defendant was plainly ineligible for the waiver because the paraphernalia he was convicted of using was related to cocaine, not marijuana).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " SENTENCE " RAPE OF A CHILD QUALIFIES AS STATUTORY RAPE AN ENUMERATED CRIME OF VIOLENCE UNDER THE GUIDELINES
United States v. Zamorano-Ponce, 699 F.3d 1117 (9th Cir. Nov. 6, 2012) (Washington conviction of "rape of a child in the third degree," in violation of the Revised Code of Washington 9A.44.079, categorically qualifies as "statutory rape," which is enumerated as a crime of violence for the purposes of a 16-level sentencing enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) for the crime of illegal reentry after deportation; statutory rape for this purpose includes, at least, unlawful sexual intercourse with a person under the age of 16 where the actor is four years older than the victim).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " EVIDENCE " CONFRONTATION
United States v. Bustamante, 687 F.3d 1190 (9th Cir. Aug. 7, 2012) (vacating federal convictions for illegal reentry, making a false statement in a passport application, and making a false statement in an application for supplemental security income benefits, a because the introduction into evidence of a document appearing to be a transcription of defendant's birth certificate from the Philippines violated defendants rights under the Confrontation Clause of the Sixth Amendment, and this error was not harmless beyond a reasonable doubt).

IMMIGRATION OFFENSES"ILLEGAL REENTRY"COLLATERAL ATTACK"INEFFECTIVE ASSISTANCE
United States v. Reyes-Bonilla, 671 F.3d 1036 (9th Cir. Feb. 6, 2012) (noncitizen had to show that he actually had been prejudiced as result of ineffective assistance of counsel by showing that he had plausible claim to relief under Convention Against Torture based on gang violence).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK OF REMOVAL ORDER
United States v. Melendez-Castro, ___ F.3d ___ (9th Cir. Jan. 18, 2012) (reversing illegal reentry conviction where underlying removal order was invalid, because (1) the defendant as a respondent in removal proceedings was not meaningfully advised of his right to seek voluntary departure, in violation of the Due Process Clause of the Fifth Amendment; (2) the defendant's waiver of his right to appeal his removal order was not valid; and (3) the district court did not fully analyze the issue of prejudice, which must be shown for a successful collateral attack).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK
United States v. Rodriguez-Ocampo, 664 F.3d 1275 (9th Cir. Dec. 30, 2011) (reversing sixteen-level illegal reentry sentence enhancement because defendant's waiver of judicial review of removal order was improperly taken).

ILLEGAL RE-ENTRY " DEFINITION OF ARREST " TRAFFIC CITATION NOT AN ARREST
United States v. Leal-Felix, __ F.3d __, 2011 WL 5966202 (9th Cir. Nov. 30, 2011) (a citation for a traffic violation is not an arrest for purposes of the illegal re-entry sentencing guidelines, at U.S.S.G. 4A1.2(a)(2); For the purpose of the Sentencing Guidelines, an arrest is a formal arrest. A formal arrest may be indicated by informing the suspect that he is under arrest, transporting the suspect to the police station, and/or booking the suspect into jail. (footnotes omitted)).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION ORDER " COLLATERAL ATTACK " PREJUDICE
United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir. Aug. 24, 2011) (defendant failed to show prejudice from the alleged procedural flaws in the proceedings that resulted in the order of removal, for purposes of collaterally attacking the deportation order as an element of illegal reentry after deportation in violation of 8 U.S.C. 1326(b)(2)).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ALIENAGE
United States v. Marguet-Pillado, 648 F.3d 1001 (9th Cir. Aug. 12, 2011) (It is well-established that, by the statute's plain terms, alienage is a core element of the 1326 offense. . . . As such, the government must prove alienage beyond a reasonable doubt, and a defendant is entitled to have the jury determine that question at trial.) (citations and quotation marks omitted); quoting United States v. Sandoval"Gonzalez, 642 F.3d 717, 722 (9th Cir.2011); see also United States v. Smith"Baltiher, 424 F.3d 913, 921 (9th Cir.2005).

IMMIGRATION OFFENSES " HARBORING ALIEN FOR FINANCIAL GAIN " ELEMENTS
United States v. Dann, ___F.3d ___, 2011 WL 2937944 (9th Cir. Jul. 22, 2011) (affirming conviction for harboring an alien for financial gain with sentencing enhancements, as supported by sufficient evidence).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK
United States v. Gonzalez-Melchor, 648 F.3d 959 (9th Cir. Jul. 8, 2011) (reversing conviction for illegal reentry after deportation, under 8 U.S.C. 1326, on grounds deportation order was invalid because immigration judge failed adequately to advise defendant of his ability to apply for voluntary departure).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " EVIDENCE " BORDER PATROL AGENT PROVIDES FOUNDATION " EVIDENCE OF SEARCH OF COMPUTER DATABASE ADMISSIBLE DESPITE BEST EVIDENCE RULE
United States v. Diaz-Lopez, 625 F.3d 1198 (9th Cir. Nov. 9, 2010) (affirming illegal reentry conviction, over claims that a border patrol agent's testimony laid an insufficient foundation for the evidence against defendant to be admissible, and testimony that a search of a computer database revealed no record of a matter did not violate the best evidence rule when it was offered without the production of an "original" printout showing the search results).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " PREJUDICE
United States v. Ramos, 623 F.3d 672, 2010 WL 3720208 (9th Cir. Sept. 24, 2010) (stipulated removal, under 8 C.F.R. 1003.25, violated due process where noncitizen was not informed of right to appeal in a language the noncitizen could understand and failure to obtain proper waiver of counsel also violated Fifth Amendment rights; however, no prejudice was shown for purposes of challenging illegal re-entry conviction by challenging underlying removal since noncitizen was ineligible for any form of relief).

IMMIGRATION OFFENSES - AGGRAVATED IDENTITY THEFT
United States v. Maciel-Alcala, 598 F.3d 1239 (9th Cir. Mar. 25, 2010) (federal aggravated identity theft statute, 18 U.S.C. 1028A, requires that the government prove that defendant knew that the victim was a real person, living or deceased, when he procured a passport using the victim's birth certificate).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK
United States v. Arias-Ordonez, ___ F.3d ___, 2010 WL 761088 (9th Cir. Mar. 8, 2010) (affirming trial court's order dismissing illegal reentry prosecution, on grounds immigration court misinformed noncitizen concerning eligibility for relief from removal in violation of due process by informing him that he had no administrative remedies and he was never told that he had a right to reopen to seek voluntary departure; order to report for removal prejudiced defendant; and valid reinstatements of invalid removal order provided no independent basis for charge of reentry after removal).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - ELEMENTS - OFFICIAL RESTRAINT DOCTRINE
United States v. Ambriz-Ambriz, 586 F.3d 719 (9th Cir. Nov. 10, 2009) (illegal entrant was "found in" the United States upon being stopped at a port of entry while trying to leave the United States; "official restraint doctrine" stating that noncitizens stopped at a border trying to enter the United States have not been "found" in the U.S. for purposes of convicting under 8 U.S.C. 1326, is inapplicable to persons attempting to leave the United States).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - ELEMENTS - ALIENAGE - EVIDENCE
United States v. Garcia-Villegas, 575 F.3d 949 (9th Cir. Aug. 4, 2009) (federal conviction for illegally attempting to enter the United States is affirmed where defendant's admission of alienage was sufficiently corroborated by the testimony of witnesses who observed him climbing over the border fences from Mexico).

ILLEGAL REENTRY - ELEMENTS - SUFFICIENCY OF CHARGE - INDICTMENT NEED NOT ALLEGE DATE OF CONVICTION, ONLY DATE OF REMOVAL; COURT RATHER THAN JURY CAN DETERMINE DATE OF CONVICTION
United States v. Mendoza-Zaragoza, 567 F.3d 431 (9th Cir. May 27, 2009) (illegal-reentry indictment held sufficient to warrant an increased maximum sentence under 8 U.S.C. 1326(b)(2) triggered by removal after suffering an aggravated felony conviction if it specifies the date of the prior removal, even though it does not specify the date of the prior conviction; although the date of the removal is the only fact "[o]ther than the fact of a prior conviction ... that increases the penalty for [the] crime beyond the prescribed statutory maximum" of two years, Apprendi, 530 U.S. at 490, the district court, rather than the jury, may properly determine whether the prior felony conviction predated the defendant's removal).

IMMIGRATION OFFENSES - FALSE STATEMENT SENTENCE AFFIRMED WHERE NONCITIZEN HAD ILLEGALLY RE-ENTERED U.S.
United States v. Gutierrez-Sanchez, 559 F.3d 1088 (9th Cir. Mar. 23, 2009) (defendant's sentence for making a false statement to a federal official is affirmed where defendant admitted to facts that established a more serious offense - illegal re-entry following removal).

IMMIGRATION OFFENSES - VISA FRAUD - ELEMENTS
United States v. Krstic, ___ F.3d ___ (9th Cir. Mar. 10, 2009) (8 U.S.C. 1546(a) does not require proof of an already forged, counterfeited, altered, or falsely made immigration document).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - NO IMPROPER DOUBLE COUNTING TO USE PRIOR CONVICTION BOTH TO ENHANCE SENTENCE AND ALSO TO CALCULATE CRIMINAL HISTORY SCORE
United States v. Garcia-Cardenas, 555 F.3d 1049 (9th Cir. Feb. 17, 2009) (no error in using prior conviction both to enhance sentence for illegal reentry after deportation, and in calculating criminal history score; this did not constitute impermissible double counting).

CRIM DEF - IMMIGRATION OFFENSES - ILLEGAL REENTRY - NO INTERLOCUTORY APPEAL TO DETERMINE WHETHER PRIOR CONVICTION CONSTITUTES AGGRAVATED FELONY TO AID DEFENDANT IN PLEA BARGAINING
United States v. Romero-Ochoa, 554 F.3d 833 (9th Cir. Feb. 5, 2009) (court of appeal lacks jurisdiction over an interlocutory appeal to determine whether defendant's prior conviction constitutes an aggravated felony, even though he requests a decision to allow him to make an intelligent decision as to plea bargaining when charged with illegal reentry after deportation, since an aggravated felony would trigger a 16-level sentence enhancement).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - CRIMINAL HISTORY REPORT - RELIABILITY
United States v. Alvarado-Martinez, 556 F.3d 732 (9th Cir. Feb. 5, 2009) (no abuse of discretion for district court to conclude that defendant's criminal history report was sufficiently reliable on which to base sentence calculation finding that defendant committed four prior misdemeanors).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK
Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. Dec. 4, 2008) (Immigration Judge has no duty to inform a respondent of his right to apply for asylum, withholding of removal or relief under the convention against torture unless the respondent specifically and affirmatively expresses a fear of return to his country of origin).

IMMIGRATION OFFENSES - AGGRAVATED IDENTITY THEFT
United States v. Blixt, 548 F.3d 882 (9th Cir. Nov. 26, 2008) (forging another's signature constitutes the use of that person's name and thus qualifies as a "means of identification" under 18 U.S.C. 1028A).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - COLLATERAL ATTACK
United States v. Medina-Avila, ___ F.Supp.2d ___, 2008 WL 4446693 (D.Ariz. Sept. 30, 2008) (illegal reentry indictment dismissed, on grounds the underlying deportation order was legally invalid, because the immigration judge erroneously failed to advise the noncitizen that he was eligible for a waiver of deportability under INA 212(c), which rendered the removal proceedings fundamentally unfair).

IMMIGRATION OFFENSES - ALIEN SMUGGLING
United States v. Lopez-Martinez, 543 F.3d 509 (9th Cir. Sept. 10, 2008) (aiding and abetting bringing noncitizens to the United States "for profit" requires that the principles, not the necessarily defendant, acted for profit).

IMMIGRATION OFFENSES -- ALIEN SMUGGLING - NO EVIDENCE OF INTENT TO HARM
United States v. Torres-Flores, __ F.3d __ (9th Cir. Sept. 4, 2007) (defendant not eligible for sentencing enhancement for creating substantial risk of death or serious bodily injury where defendant transported alien in makeshift compartment in rear part of truck cab, which only presented an incremental increase in risk).

IMMIGRATION OFFENSES - ALIEN SMUGGLING
United States v. Singh, 532 F.3d 1053 (9th Cir. Jul. 17, 2008) (conviction for aiding and abetting alien smuggling, in violation of 8 U.S.C. 1324(a)(2)(B)(ii), affirmed where defendant transported noncitizens only within the United States, but evidence showed the defendant made arrangements, prior to the noncitizens crossing the border, to assist).

IMMIGRATION OFFENSES - IDENTITY THEFT
United States v. Miranda-Lopez, 532 F.3d 1034 (9th Cir. Jul. 17, 2008) (aggravated identity theft, under 18 U.S.C. 1028A(a)(1), requires proof among other things that defendant knew the means of identification belonged to another person; it is not enough to prove only that the defendant knew he was using a false document).

IMMIGRATION OFFENSES - TRAFFICKING FOR SEX
United States v. Byun, 530 F.3d 1139 (9th Cir. Jul. 1, 2008) (federal conviction for importation of a noncitizen for purposes of prostitution, in violation of 8 U.S.C. 1328, where the plea agreement indicates that the victim was a minor, requires the defendant register as a sex offender under 42 U.S.C. 16911).

NINTH CIRCUIT: NO MATCH LETTER NOT "CONSTRUCTIVE KNOWLEDGE;" DOES NOT RESOLVE CHALLENGE TO SAFE HARBOR RULE
The Social Security Administrations no-match letter and the employees failure to meet a short deadline to resolve the discrepancy did not put the employer on constructive notice that it was employing undocumented workers, the Ninth Circuit held. See Aramark Facility Services v. SEIU, No. 06-56662, 2008 U.S. App. LEXIS 12704 (9th Cir. Jun. 16, 2008). Importantly, the events that gave rise to this case took place in 2003, prior to DHS promulgation of the new rule regarding no-match letters and the safe harbor procedures ("safe harbor regulations"), 72 Fed. Reg. 45611 (Aug. 15, 2007), and the proposed amendments to this rule, 73 Fed. Reg. 15944 (Mar. 26, 2008).

Read more about the case at http://www.ailf.org/lac/clearinghouse_otherissues.shtml#aflcio.

IMMIGRATION OFFENSES - ALIEN SMUGGLING
United States v. Juvenile Male, 528 F.3d 1146 (9th Cir. Jun. 12, 2008) (district court decision finding juvenile delinquency for alien smuggling revered in part where the juvenile was not provided with Juvenile Justice and Delinquency Prevention Act protections under 18 U.S.C. 5033; no exception exists where the juvenile lied about his age at the time of arrest).

ILLEGAL REENTRY - DEFENSES - DURESS DEFENSE
United States v. Vasquez-Landaver, 527 F.3d 798 (9th Cir. May 21, 2008) (because defendant failed to make a prima facie showing of an immediate threat, the district court properly prevented him from introducing any evidence on a duress defense and properly declined to instruct the jury on that defense).

IMMIGRATION OFFENSES -- ALIEN SMUGGLING - NO EVIDENCE OF INTENT TO HARM
United States v. Torres-Flores, __ F.3d __ (9th Cir. Sept. 4, 2007) (defendant not eligible for sentencing enhancement for creating substantial risk of death or serious bodily injury where defendant transported alien in makeshift compartment in rear part of truck cab, which only presented an incremental increase in risk).

IMMIGRATION OFFENSES - ILLEGAL REENTRY - STATUTE OF LIMITATIONS
United States v. Hernandez, 189 F.3d 785, 791 (9th Cir. 1999) ("The offense of being found in the United States ends when an alien is discovered and identified by the immigration authorities. We conclude that the crime is completed at that point not only for statute of limitations and Sentencing Guidelines purposes, but also for venue.").

IMMIGRATION OFFENSES " UNLAWFUL ENTRY " OFFENSE COMPLETE UPON ENTRY AND IS NOT A CONTINUING OFFENSE
United States v. Rincon-Jimenez, 595 F.2d 1192, 1193"94 (9th Cir. 1979) (offense of unlawful entry, in violation of 8 U.S.C. 1325, is completed upon entry to the United States and therefore is not a continuing offense, and therefore five-year statute of limitations, 18 U.S.C. 3282, applied where noncitizen had been present in the United States for more than nine years after entry).

Lower Courts of Ninth Circuit

IMMIGRATION OFFENSES - POSSESSION OF FALSE ALIEN REGISTRATION RECEIPT CARD - ELEMENTS
United States v. Krstic, 2007 WL 4303759 (D. Ore. Dec. 10, 2007) (dismissing indictment charging possession of false alien registration receipt card for failure to allege that the defendant knew it was false: "The Court, therefore, concludes under these circumstances that [8 U.S.C.] 1546(a), paragraph one, criminalizes possession of a knowingly forged, counterfeited, altered, or falsely made alien registration receipt card that was also knowingly procured by means of a false claim or statement. Because the Superseding Indictment does not include an allegation that Defendant's alien registration receipt card was knowingly forged, counterfeited, altered, or falsely made, the Court concludes the Superseding Indictment does not allege an offense subject to prosecution under 1546(a), paragraph one.").

Tenth Circuit

IMMIGRATION OFFENSES"ILLEGAL REENTRY"SENTENCE"SENTENCE MUST BE BASED ON FACTS THAT EXISTED AT THE TIME OF THE ILLEGAL REENTRY OFFENSE
United States v. Rosales-Garcia, 667 F.3d 1348 (10th Cir. Feb. 7, 2012) (the 16"level enhancement in USSG 2L1.2(b)(1)(A) does not apply to a defendant whose later probation-violation sentence for an earlier drug trafficking felony was made longer than 13 months after the defendant was deported and committed the base offense of illegal reentry); see United States v. Lopez, 634 F.3d 948 (7th Cir.2011); United States v. Bustillos-Pena, 612 F.3d 863, 869 (5th Cir.2010) (relying on the rule of lenity and concluding that it is error to implement the sixteen-level enhancement in analogous factual circumstances); United States v. Lopez, 634 F.3d 948, 950 (7th Cir.2011) (We hold that [the defendant's] later sentence on probation revocation after his deportation and reentry should not count under section 2L1.2(b)(1)(A)(i).), and United States v. Guzman-Bera, 216 F.3d 1019, 1021 (11th Cir.2000) (applying an earlier version of 2L1.2(b)(1)(A) when determining whether the defendant had committed an aggravated felony and concluding that a post-deportation and - illegal reentry sentence lengthening should not have been used for enhancement purposes under U.S.S.G. 2L1.2(b)(1)(A)); but see United States v. Compres-Paulino, 393 F.3d 116, 118 (2d Cir.2004) (per curiam) (holding that the defendant illegally reentered the United States after having been convicted of a drug trafficking offense for which the sentence imposed exceeded 13 months in analogous factual circumstances) (internal quotations omitted); see also United States v. Jimenez, 258 F.3d 1120, 1126"27 (9th Cir.2001) (stating in dictum that the presence vel non of an aggravated felony for purposes of 2L1.2 turns on whether the statutory elements of such a felony were met prior to ... deportation and reentry).

IMMIGRATION OFFENSES " ALIEN SMUGGLING " SUFFICIENCY OF EVIDENCE
United States v. Noriega-Perez, ___ F.3d ___, 2012 WL 289221 (10th Cir. Feb. 1, 2012) (affirming alien-smuggling conviction where strong circumstantial evidence presented at trial sufficed for the jury to find beyond a reasonable doubt that non-testifying material witnesses were illegal aliens, and that sufficient specific evidence linked defendant to intentionally aiding the cross-border transportation of the named material witnesses before they were dropped off in the United States).

IMMIGRATION OFFENSES"ILLEGAL REENTRY"PROCEDURALLY LAWFUL ENTRY CAN CONSTITUTE ILLEGAL REENTRY IF DONE WITHOUT PERMISSION
Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. Oct. 17, 2011) (lawful entry as inspected backseat taxi passenger of previously deported person, without seeking the Attorney Generals permission to reapply for admission as she was required to do, under INA 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii), constituted unlawful entry into the United States, under 8 C.F.R. 241.8(a)); following Lorenzo v. Mukasey, 508 F.3d 1278, 1283 (10th Cir. 2007) (an individual who had previously been removed was precluded from gaining lawful admission to the United Stateswithout obtaining authorization to do so from the Attorney General.); distinguishing Matter of Quilantan, 25 I&N Dec. 285, 289 (BIA 2010) (the lawful entry requirement of admitted, under INA 101(a)(13)(A), 8 U.S.C. 1101(a)(13)(A), refers only to procedural regularity.).

Eleventh Circuit

IMMIGRATION OFFENSES " ILLEGAL REENTRY AFTER AGGRAVATED FELONY " DEFENDANT CANNOT PLEAD GUILTY BUT PRESERVE RIGHT TO CHALLENGE CHARACTERIZATION OF PRIOR CONVICTION AS AGGRAVATED FELONY AT SENTENCE OR ON APPEAL
United States v. Garcia-Sandobal, 703 F.3d 1278, 2013 WL 28255 (11th Cir. Jan. 3, 2013) (although defendant initially object[ed] to the characterization of his prior conviction as an aggravated felony, and purported to preserve a right to challenge the classification of his prior conviction at sentence, but later unequivocally pleaded guilty to a violation of 18 U.S.C. 1326(b)(2) and agreed that he had been removed following a conviction for an aggravated felony; Eleventh Circuit held that a defendant cannot plead guilty but preserve this challenge); see United States v. Bennett, 472 F.3d 825, 833 (11th Cir. 2006) (court explained that Bennett's guilty plea included an admission to his having three prior violent felony convictions, and explained that [t]his alone authorized the district court to sentence Bennett as an armed career criminal under 924(e).).

IMMIGRATION OFFENSES " ALIEN SMUGGLING " ELEMENTS
United States v. Kendrick, 682 F.3d 974, *984 (11th Cir. Jun. 1, 2012) (elements of federal offense knowingly bringing or attempting to bring an alien into the United States for the purpose of commercial advantage and private financial gain, in violation of 8 U.S.C. 1324(a)(2)(B)(ii) are as follows: the defendant: (1) knowingly brought an alien into the United States; (2) knew or recklessly disregarded the fact that the alien had not received prior official authorization to come to or enter the United States; and (3) participated in the smuggling for the purpose of commercial advantage or private financial gain. United States v. Dominguez, 661 F.3d 1051, 1063"64, 1066 (11th Cir.2011); see also 8 U.S.C. 1324(a)(2)(B)(ii). [Footnote omitted.] As for the first two elements, a specific intent to violate the law is not required, and the defendant need not know that the act is illegal or wrong. Dominguez, 661 F.3d at 1068"69. Rather, knowingly merely requires proof of knowledge of the facts that constitute the offense. Id. at 1068 (quotation omitted). To act with reckless disregard means to be aware of, but consciously and carelessly ignore, facts and circumstances clearly indicating that the person transported was an alien who had entered or remained in the United States in violation of law. United States v. Perez, 443 F.3d 772, 781 (11th Cir.2006) (emphasis omitted). As for the third element, there need not be evidence of actual payment or even an agreement to pay; rather, it is sufficient if the defendant acted for the purpose of financial gain. Dominguez, 661 F.3d at 1066.).

IMMIGRATION OFFENSES"ILLEGAL REENTRY"COLLATERAL ESTOPPEL
United States v. Valdiviez-Garza, 669 F.3d 1199 (11th Cir. Feb. 6, 2012) (Government is collaterally estopped from attempting to establish alienage because a jury, in a re-entry case, found against the Government); see United States v. Bennett, 836 F.2d 1314, 1316 (11th Cir.1984) (barring prosecution completely if fact necessarily determined in former trial is essential element for conviction in present proceeding).

IMMIGRATION OFFENSES"ILLEGAL REENTRY"ELEMENTS
United States v. Valdiviez-Garza, 669 F.3d 1199 (11th Cir. Feb. 6, 2012) (To convict on this charge the Government has to establish beyond a reasonable doubt that Valdiviez-Garza: (1) was an alien at the time of the offense; (2) who had previously been removed or deported; (3) and had reentered the United States after removal; (4) without having received the express consent of the Attorney General.).

IMMIGRATION OFFENSES - AIDING ALIENS TO ENTER U.S. ILLEGALLY
United States v. DiPietro, ___ F.3d ___ (11th Cir. Aug. 27, 2010) (person to whom 8 U.S.C. 1325(c) applies may not attack the statute on the ground it impliedly covers others in an unconstitutional fashion).

IMMIGRATION OFFENSES - ENCOURAGING ALIENS TO ENTER THE U.S. IN VIOLATION OF LAW
United States v. Zaldivar, 615 F.3d 1346 (11th Cir. Aug. 24, 2010) (sentence enhancement under U.S.S.G. 2L1.1(b)(7), where death of smuggled alien is reasonably foreseeable applies where defendant could have foreseen possibility of death when escaping coast guard at high speed without lights).

IMMIGRATION OFFENSES - ALIEN SMUGGLING - ELEMENTS - EVIDENCE - FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
United States v. Garcia-Cordero, ___ F.3d ___ (11th Cir. Jun. 30, 2010) (affirming federal convictions for alien smuggling, because the "bring and present" requirement of INA 274, 8 U.S.C. 1324(a)(2)(B)(iii), did not violate the Fifth Amendment privilege against self-incrimination).

ALIEN SMUGGLING
Edwards v. Prime Inc., 602 F.3d 1276 (11th Cir. Apr. 9, 2010) (defendant, Ruths Steak House, encouraged or induced an alien to reside in the United States, and either knew or recklessly disregarded the fact that the alien's residence here was illegal, in violation of 18 U.S.C. 1324(a)(1)(A)(iv)).

IMMIGRATION OFFENSES - ENCOURAGING ILLEGAL ENTRY - ELEMENTS
United States v. Lopez, 590 F.3d 1238 (11th Cir. Dec. 22, 2009) (the term "encourage" in statute criminalizing encouraging and inducing an alien to enter the United States illegally included helping alien).

IMMIGRATION OFFENSES - AGGRAVATED IDENTITY THEFT
United States v. Gomez, 580 F.3d 1229 (11th Cir. Aug. 28, 2009) (conviction vacated in light of Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009) (18 U.S.C. 1028A(a)(1) proof that defendant knew means of identification belonged to another)).

IMMIGRATION OFFENSES - ALIEN SMUGGLING - ELEMENTS - LACK OF PRIOR AUTHORIZATION TO ENTER UNITED STATES
United States v. Gari, 572 F.3d 1352 (11th Cir. Jun. 30, 2009) (government must establish that defendant lacked prior authorization to enter the U.S. legally).

ILLEGAL REENTRY - SENTENCE - CRIME OF VIOLENCE
United States v. Gonzalez, F.3d 1319 (11th Cir. Dec. 12, 2008) (16 level increase on sentencing for illegal re-entry warranted because robbery conviction was a crime of violence for sentencing purposes, even though it was not an "aggravated felony" crime of violence).

DC Circuit

IMMIGRATION OFFENSES " ILLEGAL REENTRY " SENTENCE
United States v. Ventura, ___ F.3d ___, 2011 WL 2600680 (D.C.Cir. Jul.1, 2011) (district court did not err in relying on the statement of facts during a plea colloquy of a prior conviction in imposing a sentence above the guidelines range, on the basis of the factors articulated in 18 U.S.C. 3553(a): If a sentencing court may find facts related to acquitted or untried conduct, a fortiori it may find facts charged in an indictment to which a defendant pleaded nolo contendere.); cf. United States v. Dorcely, 454 F.3d 366, 372"73 (D.C.Cir.2006); Booker, 543 U.S. at 251; 18 U.S.C. 3661 (No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.).

CRIMDEF - IMMIGRATION CRIMES - IDENTITY THEFT
United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. Feb. 15, 2008) (federal aggravated identity theft statute, which provided that "[w]hoever ... knowingly ... uses, without lawful authority, a means of identification of another person shall ... be sentenced to a term of imprisonment of 2 years," requires proof that defendant knew that means of identification belonged to someone else).

Other

IMMIGRATION OFFENSES " FEDERAL LAW PREEMPTS STATE IDENTITY FRAUD PROSECUTIONS RELATED TO FEDERAL I-9 FORMS
State v. Reynua, State of Minnesota, Mower County District Court (Jul. 23, 2012) (File No. 50-CR-09-1811) (unpublished) (admission of an I-9 form in a state forgery prosecution was reversible error); on remand after State v. Reynua, 807 N.W.2d 473 (Minn. App. 2011), review granted, revd in part and remanded (Minn. Feb. 28, 2012) (8 U.S.C. 1324a(b)(5) means what it says -- that other than specified federal prosecutions, the I-9 form and appended documents may not be used to establish a state crime).

STATISTICS " FEDERAL IMMIGRATION-RELATED PROSECUTIONS
55% of federal criminal prosecutions in April, 2011, were immigration-related; judicial emergency in Arizona declared. More than half of all federal prosecutions lodged in April 2011 were for immigration-related offenses, reported the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. TRAC, Prosecutions for April 2011 (Jul. 19, 2011). According to data obtained through Freedom of Information Act (FOIA) requests from the Department of Justice, federal prosecutors brought 15,173 new cases nationwide in April. Of these, a full 55.4% were related to immigration activities. TRAC, Prosecutions for April 2011. The leading immigration offense was unlawful entry, INA 275, 8 U.S.C. 1325. TRAC, Immigration Prosecutions for April 2011 (Jul.19, 2011). These statistics and similar data from recent months take on a different level of significance in light of the Ninth Circuits declaration of a judicial emergency in Arizona. In Re Approval of the Judicial Emergency Declared in the District of Arizona, 2011 U.S. App. LEXIS 4491 (9th Cir. March 2, 2011). The Ninth Circuit Judicial Conference, comprised of six judges from the Ninth Circuit Court of Appeals and five from the district courts within the Ninth Circuit, extended a temporary emergency declaration until February 19, 2002. A judicial emergency suspends the time limits imposed by the Speed Trial Act. Much of the courts reasoning for recognizing a judicial emergency stems from the increase in immigration-related prosecutions in Arizona. In recent years, thanks to a DHS program called Operation Streamline, the United States Attorney's Office in Tucson has doubled its number of prosecutors and empaneled a third grand jury in January 2011. Presently, Tucson division magistrate judges hear 70 Operation Streamline cases per workday. In Re Approval of the Judicial Emergency, 2011 U.S. App. LEXIS 4491 *12, *13. While the Border Patrol and U.S. Attorneys Office have received extra funding to prosecute immigration offenses, the federal courts have not. I n Re Approval of the Judicial Emergency, 2011 U.S. App. LEXIS 4491 *14. Tragically, the late Chief Justice of the U.S. District Court for the District of Arizona, John Roll, was killed while attending Representative Gabrielle Giffords public event in Tucson to speak with her about the courts insufficient resources. In Re Approval of the Judicial Emergency, 2011 U.S. App. LEXIS 4491 *21.

ILLEGAL RE-ENTRY " EVIDENCE " SUPPRESSION OF PRIOR UNLAWFUL REMOVALS
United States v. Segundo, __ F.Supp.3d __ (S.D. Tex. Nov. 16, 2010) ("Mr. Gonzalez Segundo's May 13, 2003 reinstatement order was based upon his April 1, 2002 removal order. He has successfully shown that the April 1, 2002 removal order was the result of a proceeding that violated his rights to procedural due process and eliminated his rights to judicial review. The reinstatement proceeding in May 2003 did not permit Mr. Gonzalez Segundo the opportunity to obtain any review, administrative or judicial, of the underlying deportation order. 8 U.S.C. 1231(a)(5); Ojeda-Terrazas, 290 F.3d at 295. Therefore, neither the April 1, 2002 removal order nor the May 13, 2003 reinstatement order premised upon it may be used to establish the element of prior deportation or removal from the United States for a 1326 criminal offense.; motion to suppress evidence of prior removals granted).

IMMIGRATION OFFENSES " SOCIAL SECURITY CARD IS NOT AN IDENTIFICATION CARD
United States v. Murillo, ___ F.Supp.2d ___, 2008 WL 697160 (N.D. Iowa Mar. 13, 2008) (a "social security card" does not constitute a "means of identification" within the meaning of 18 U.S.C. 1546(b) and 8 U.S.C. 1324a(b)); United States v. Tyson Foods, Inc., 258 F. Supp. 2d 809 (E.D. Tenn. 2003) (a "social security card" is not a "means of identification" within the meaning of 18 U.S.C. 1546(b), even if this creates a "loophole" or appears inconsistent with 18 U.S.C. 1546(a)).

ILLEGAL ENTRY - ARIZONA - SENTENCES
- Noncitizen with no criminal history and no deportations/removals generally gets a time served sentence. - Those with criminal history, but no deport/removal face more time - typically 5-30 days depending upon the prior. - Those with a prior deport/removal are charged with 1325 (petty) and 1326 (felony). If they take the 1325 plea agreement with its stipulated sentence, the 1326 is dismissed. The parties agree to waive the PSR. One removal/deport typically gets 30 days. A second removal/deport 60 days etc. If there is criminal history and a deport/removal the sentences may be higher than for those without criminal history. Thanks to Deirdre M. Mokos, Assistant Federal Public Defender, Tucson, Arizona

IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - GUIDELINES - DOWNWARD DEPARTURE
From the FPD Sentencing Resource Project: The Sentencing Resource Project has not yet completed a paper deconstructing 2L1.2 (Illegal Reentry), but here is a brief passage regarding the Commissions policy and practice relating to departure rates and public comment that may be useful to you to show that the guideline is not based on past practice or empirical evidence and results in sentences that are greater than necessary to achieve the purposes of 3553(a).
* * *

In fiscal year 2001, the rate of downward departure in immigration offenses was 35.6% and accounted for one-third of all downward departures. Downward Departures, at 38, 41-42. This prompted the Commission to amend 2L1.2 to provide graduated enhancements based on the prior conviction in an effort to reduce the rate of downward departures. Id. at 16-17. At the time, the Commission explained that the amendment "responds to concerns raised by a number of judges, probation officers, and defense attorneys . . . that 2L1.2 sometimes results in disproportionate penalties because of the 16-level enhancement" and that the "criminal justice system has been addressing this inequity on an ad hoc basis in such cases by increased use of departures." See USSG, App. C, Amend. 632 (Nov. 1, 2001).

However, the Commissions action in 2001 has not operated to reduce the rate of downward departure for illegal reentry, which remain as high as ever. In 2006, based on motions by the government and determinations by the courts, 36.5% of sentences imposed for illegal reentry were lower than the advisory guideline range, not including sentences reduced for substantial assistance under 5K1.1. See USSC, 2006 Sourcebook of Federal Sentencing Statistics, tbl. 28 (2006); see also USSC, 2007 Sourcebook of Federal Sentencing Statistics, tbl. 28 (2007) (showing below-guidelines sentences in 40% of illegal reentry cases). The trend continues in the wake of Gall and Kimbrough. See USSC, Preliminary Post-Kimbrough/Gall Data Report, tbl. 4 (July 2008) (showing below-guideline sentences in 38.4% of illegal reentry cases).

In addition, the Commission receives consistent public comment expressing concerns that the guideline penalties for illegal reentry are too high. See, e.g., Letter from Jon Sands to Hon. Ricardo Hinojosa, Re: Comments on Proposed Amendments, at 2-3 (Mar. 6, 2008); Letter from Jon Sands to Hon. Ricardo Hinojosa, Re: Proposed Priorities for 2007-2008, at 19 (July 9, 2007); Letter from Jon Sands to Hon. Ricardo Hinojosa, Re: Proposed Amendments Relating to Immigration at 3-4 (Mar. 2, 2007); Testimony of Jon Sands and Reuben Cahn before the U.S. Sentencing Commission Re: Proposed Immigration Amendments, San Diego, California (Mar. 6, 2006). [All documents available at HYPERLINK "http://www.fd.org/pub_SentenceLetters.htm" http://www.fd.org/pub_SentenceLetters.htm]

By the Commissions own analysis and practice, the high rate of downward departure under 2L1.2 indicates that the guideline does not adequately reflect the considerations before the courts in illegal reentry cases and should be amended to allow the courts to impose lower sentences that are within the guidelines, which would have the desired effect of reducing the rate of downward departure. Until then, the actual sentences imposed for illegal reentry offenses, including the widespread use of government-sponsored downward departures, demonstrate that the current guideline is greater than necessary to achieve the goals of sentencing under 3553(a)(2).

IMMIGRATION OFFENSE - POSTVILLE AGGRAVATED IDENTITY THEFT - MENTAL ELEMENT - CIRCUIT SPLIT COURTS SPLIT ON WHETHER AGGRAVATED IDENTIFY THEFT REQUIRES KNOWLEDGE THAT ID BELONGED TO ANOTHER PERSON
In a development of heightened relevance because of recent immigration raids and prosecutions, several courts of appeals have interpreted the aggravated identity theft statute, 18 U.S.C. 1028A. Subsection (a)(1) of the statute says "Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment for such felony, be sentenced to a term of imprisonment of 2 years." The courts are divided about whether the knowledge requirement extends to the "of another person" element of the offense. In other words, does the government have to prove that a defendant knew that the means of identification he or she transferred, possessed or used belonged to another actual person or is it enough for the defendant to know that he or she used a false document? Section 1028A has come under closer scrutiny over the past few months following the ICE raid in Postville, Iowa, where hundreds of workers were charged with aggravated identify theft. Currently, six circuits have issued precedent decisions addressing the knowledge requirement. At least two other courts currently are considering the issue. Also, there are at least two pending petitions for certiorari asking the Supreme Court to consider the issue, see United States v. Mendoza-Gonzalez (cited below) and United States v. Flores-Figueroa, No. 07-2871 (8th Cir. April 23, 2008) petition for cert. filed (U.S. July 22, 2008) (08-108).

Decisions Requiring Knowledge
United States v. Godin, 534 F.3d 51, 2008 U.S. App. LEXIS 15301 (1st Cir. July 18, 2008); United States v. Miranda-Lopez, 532 F.3d 1034, 2008 U.S. App. LEXIS 15200 (9th Cir. July 17, 2008); United States v. Villanueva-Stelo, 515 F.3d 1234 (D.C. Cir. 2008)

Decisions Not Requiring Knowledge
United States v. Mendoza-Gonzalez, 520 F.3d 912 (8th Cir. 2008), petition for cert. filed (U.S. July 15, 2008) (08-5316); United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007); United States v. Montejo, 442 F.3d 213 (4th Cir. 2006)

Pending Circuit Court Cases
United States v. Chavez-Quintana, 07-3323 (10th Cir. filed Nov. 6, 2007) (argument scheduled for Sept. 23, 2008); United States v. Tureseo, 07-2933 (2d Cir. filed July 9, 2007) (argued June 23, 2008)

IMMIGRATION OFFENSES - ILLEGAL REENTRY - ELEMENTS - COLLATERAL ATTACK

Under well established Supreme Court precedent and by statute, Defendant may collaterally attack his removal order. United States v. Mendoza-Lopez, 481 U.S. 828 (1987); 8 U.S.C. 1326(d). In Mendoza-Lopez, two defendants challenged their 1326 indictments because the immigration judge overseeing the defendants' deportation (removal) proceedings failed to inform the defendants of their right to relief from deportation and accepted unconsidered waivers of appeal. In reviewing the defendants' challenge to their removal order, the Supreme Court held that due process required that persons accused of illegal reentry be afforded the opportunity to challenge their removal/deportation orders in their criminal proceedings because "where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." Id. at 838. The Court concluded that both defects in the defendants' deportation proceedings, that is the misinformation provided by the immigration judge regarding the defendants' eligibility for relief from deportation and their unconsidered waivers of the right to appeal, constituted due process violations because separately each violation "amounted to a complete deprivation of judicial review" of their deportability. Id. at 840 ("If the violation of respondents' rights that took place in this case amounted to a complete deprivation of judicial review of the determination [of deportability], that determination may not be used to enhance the penalty for an unlawful entry under 1326.").

Subsequently, the Fifth Circuit interpreted Mendoza-Lopez to require defendants challenging their deportation (removal) orders in 1326 prosecutions to establish the following: "1) the prior hearing was 'fundamentally unfair;' 2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and 3) the procedural deficiencies caused the alien actual prejudice." U.S. v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003). Prejudice is established where the defendant can show that "there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported." Id. If the noncitizen was removable but, as a result of the INS' errors, the proceeding would have yielded different results, the removal order is not valid for purposes of 1326. Id. ("if the defendant was legally deportable and, despite the INS' errors, the proceeding 'could not have yielded a different result,' the deportation is valid for purposes of section 1326."). Thanks to Javier Maldonado.

IMMIGRATION OFFENSES - DHS RAID RESOURCES
Resources on dealing is raids by the DHS are available on AILA InfoNet at: www.aila.org/raids

IMMIGRATION OFFENSES - DATABASE OF STATE IMMIGRATION LEGISLATION
"State Responses to Immigration is a free, searchable data tool designed to generate information about all immigration-related bills and resolutions introduced in state legislatures." http://www.migrationinformation.org/datahub/statelaws.cfm

GOOD MORAL CHARACTER - USE OF FALSE SOCIAL SECURITY CARD
Counsel can argue that use of a false social security card does not evidence a lack of good moral character. See Matter of K, 3 I. & N. Dec. 69 (BIA 1947) (noncitizen admitted committing perjury before a Board of Special Inquiry in February 1931, when he was not yet 18 years of age; he could not have been treated and tried as a juvenile delinquent after the effective date of the Federal Juvenile Delinquency Act (June 16, 1938), when he was over 24 years of age and the statute of limitations had already run on the violation; it would be unrealistic to apply the above 1938 act retroactively to cover the violation of the Federal perjury statute so that it should be regarded as a juvenile delinquency rather than as perjury). Thanks to Lisa Brodyaga.

CRIM DEF - UNITED STATES SENTENCE GUIDELINES MANUAL ONLINE
http://www.ussc.gov/2007guid/TABCON07.html

IMMIGRATION OFFENSES - NEW AFM CHAPTER
AFM revision: Section 212 (a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators Section 212 (a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, Revisions to Adjudicator's Field Manual (AFM) to Include a New Chapter 40.6 (AFM Update AD07- 18); USCIS, Mar. 3, 2009: "This memorandum provides guidance, through the creation of a new chapter 40.6 of the Adjudicator's Field Manual (AFM), regarding the interpretation of the grounds of inadmissibility contained in section 212(a) (6) of the Immigration and Nationality Act (the Act), addressing illegal entrants and immigration violators." http://www.uscis.gov/files/nativedocuments/section212_a_6_immi_natl_act_illegal_violators.pdf

IMMIGRATION OFFENSES - STATUTE OF LIMITATIONS
There is a default 5-year statute of limitations for prosecuting a federal offense. 18 U.S.C. 3282(a). However, this statute of limitations does not apply to many immigration offenses because the offenses are seen as continuing beyond the initial date of action. For example, in United States v. Krstic, 558 F.3d 1010 (9th Cir. March 10, 2009), the Ninth Circuit held that the crime of possessing an authentic immigration document obtained by means of a false statement was a possessory offense, rather than a false statement offense. 18 U.S.C. 1546(a). As a possessory offense, it was a continuing offense and the statute of limitations began to run only when federal agents seized the authentic immigration document.

IMMIGRATION OFFENSES - STATE - FEDERAL LAW PREEMPTS STATE PROSECUTION FOR PERJURY ON FEDERAL FORM
INA 274A(h)(2); see also 274A(b)(5), which bars use of the I-9 form in a state proceeding.

FALSE STATEMENTS - FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
A person who falsely answered "no" to the question on the naturalization and other applications which asks whether the applicant has ever knowingly committed a crime for which s/he has not been indicted, can argue that the question violates the constitutional privilege against self-incrimination, since an answer could provide a link in the chain of evidence necessary for a criminal prosecution for perjury or false statements. E.g., 18 U.S.C. 1001(a)(3), 1015(a). This principle might bar criminal prosecution under that theory, and might also be considered as a defense to a visa fraud allegation based upon that answer.

ARTICLE " POST CON RELIEF " FEDERAL PREEMPTION " STATE FORGERY AND PERJURY PROSECUTIONS CANNOT BE BASED ON EVIDENCE OF FALSE STATEMENTS ON FEDERAL I-9 EMPLOYMENT ELIGIBILITY FORMS
Federal immigration law provides penalties for false statements on federal employment eligibility form I-9. Federal law pre-empts state law on this issue. See State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011) (Immigration Reform and Control Act, INA 274A, 8 U.S.C. 1324a (2006), preempts state prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification). Therefore, evidence of false statements on I-9 forms cannot be used in state criminal cases to prosecute defendants for forgery or perjury, because federal statutes pre-empt state legislation on this point. For example, in State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011), the Minnesota Court of Appeals held that 8 U.S.C. 1324a (2006) preempts state criminal prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification. The court reasoned: Whether federal law preempts state prosecution is a question of law subject to de novo review. See Thul v. State, 657 N.W.2d 611, 618 (Minn. App. 2003), review denied (Minn. May 28, 2003). . . . The I-9 form was developed by the United States Attorney General in compliance with IRCA. See 8 U.S.C. 1324a(b)(1)(A) (requiring attestation by employer of eligibility verification on a form designated or established by the Attorney General by regulation); 8 C.F.R. 274a.2(a) (2005) (noting I-9s designation as the form to be used in employment-eligibility verification system). The I-9 form is entitled Employment Eligibility Verification. On it, Reynua provided the name of Laura Romero, along with a social security number and an address, and submitted in support the Minnesota identification card in Romeros name and a social security card, also in Romeros name. On the form, she checked the box indicating that she is a citizen of the United States. IRCA provides that [a] form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of title 18. 8 U.S.C. 1324a(b)(5). The state concedes that this provision of IRCA is broad enough to prohibit even use of the I-9 form in a state prosecution for perjury. We agree, given the congressional intent that is evident in this and other provisions in IRCA to preempt the area of employment-related verification of immigration status. IRCA provides that the employment-eligibility verification system may not be used for law enforcement purposes, other than for enforcement of this chapter or the federal perjury and false-statement provisions also referenced in section 1324a(b)(5). 8 U.S.C. 1324a(d)(2)(F). There is also an express provision preempting state laws imposing sanctions upon those who employ, or recruit or refer unauthorized aliens. 8 U.S.C. 1324a(h)(2). This provision clearly does not apply to the prosecution of an applicant for employment, such as Reynua. But it is further evidence of a general congressional intent to preempt state legislation in the area. The United States Supreme Court recently addressed the preemptive effect of IRCA, holding that the law did not preempt Arizonas unauthorized-alien employment law. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1973 (2011). In dissent, Justice Sotomayor stated that [u]se of the I-9 form is thus limited to federal proceedings, as the majority acknowledges. Id. at 2001. In its opinion, the majority rejected the argument that the Arizona law required an employer to use the I-9 form in order to later claim an affirmative defense. Id. at 1982 n.9. Thus, the majority considered the preemptive effect of section 1324a(b)(5) with respect to sanctions on employers for employing illegal aliens. The Supreme Court in Whiting was addressing the express preemption of state laws sanctioning employers, and, specifically, the exemption within that preemption provision allowing for state licensing laws. See id. at 1977-78. The Whiting Court was not dealing with federal immigration provisions directed at unauthorized aliens, or employment applicants, but rather an express reservation to the states of licensing provisions directed at employers. See id. at 1987. The Courts opinion does not hold that IRCA lacks a general preemptive intent, and specifically notes the ways in which the state statute at issue conformed to federal law. See id. Thus, there is nothing in the Whiting opinion inconsistent with our conclusion that use of the I-9 form in a state perjury prosecution is preempted by IRCA. A state law is preempted if the state law obstructs the accomplishment of the full purposes and objectives of the federal legislation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S. Ct. 615, 621 (1984). IRCA largely targets employers for the sanctions it imposes. Only the federal perjury and false-statement provisions referenced in section 1324a(b)(5) are aimed at the employee. See United States v. Arizona, 641 F.3d 339, 358 (9th Cir. 2011). But those federal statutes would be enforced by federal authorities, not local prosecutors in 50 different states. And, as the Ninth Circuit noted in United States v. Arizona, the federal act evidences Congress intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Id. at 352. The enforcement of Minnesotas perjury statute is not subject to that direction and supervision. Moreover, state perjury prosecutions could shift the illegal-immigration enforcement focus from the employer to the employee. Thus, a Minnesota perjury prosecution for false statements on the I-9 form would tend to obstruct the full purposes and objectives of IRCA. The same analysis does not apply to the simple-forgery charge based on the use of the Minnesota identification card. Here, we follow the general principle that [w]hen federal laws do preempt conflicting state laws, the state laws are preempted only to the extent that they are in conflict with federal law. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 11 (Minn. 2002). IRCA bars use of the I-9 form and any information contained in or appended to such form for purposes other than enforcement of the federal immigration statute and the federal perjury and false-statement provisions. 8 U.S.C. 1324a(b)(5). But we cannot read this provision so broadly as to preempt a state from enforcing its laws relating to its own identification documents. We conclude that the state, for example, is not barred from prosecuting the crime of display or possession of a fictitious or fraudulently altered Minnesota identification card, Minn. Stat. 171.22, subd. 1(2), merely because that card has been presented in support of an I-9 federal employment-eligibility verification form. There is a general presumption that the historic police powers of the State are not superseded by federal legislation unless that was the clear and manifest purpose of Congress. Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quotation omitted). Section 1324a(b)(5) prohibits non-federal use of information appended to the I-9 form. That language does not exhibit a clear and manifest purpose to bar enforcement of state laws pertaining to state identification cards. It would be a significant limitation on state powers to preempt prosecution of state laws prohibiting falsification of state issued identification cards, let alone to prohibit all use of such cards merely because they are also used to support the federal employment-verification application. See generally Minn. Stat. 609.63, subd. 1(1) (prohibiting use of false writing for identification), .652, subd. 2 (prohibiting various acts in creating false identification cards for profit) (2010). (Id. at ___.) The same reasoning " based on nationwide federal law " would also require the same result in California criminal cases.

IMMIGRATION OFFENSES " FEDERAL LAW BARS STATE PROSECUTION FOR PERJURY OR FORGERY RELATING TO I-9 FORM
State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011) (Immigration Reform and Control Act, INA 274A, 8 U.S.C. 1324a (2006), preempts state prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification).