§ 15.39 (B)
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(B) Aggravated Felonies. Noncitizens with aggravated felony prior convictions are affected in several ways. First, the aggravated felony prior conviction may constitute an element of the criminal offense with which the defendant is charged. Second, the aggravated felony prior may increase the statutory maximum prison sentence that may be imposed upon conviction, or trigger a sentence enhancement, i.e., an increase in the Base Offense Level, under the United States Sentencing Guidelines. Third, certain federal convictions for illegal re-entry themselves constitute aggravated felonies.
Any person who knowingly assists a noncitizen, who is ineligible for admission into the United States because of an aggravated felony conviction, to enter the United States is guilty of a federal felony punishable by a maximum of 10 years in federal prison, and a fine. The existence of the aggravated felony conviction appears to constitute an element of this offense, which must therefore be alleged in the charging paper, and proven to the satisfaction of the finder of fact beyond a reasonable doubt.
 See § 19.22, infra.
 INA § 101(a)(43)(O), 8 U.S.C. § 1101(a)(43)(O).
 INA § 277, 8 U.S.C. § 1327, as amended by the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7346, 102 Stat. 4181, and as amended by the Immigration Act of 1990, Pub. L. No. 101-649, § 543, 104 Stat. 4978.
ILLEGAL RE-ENTRY - DOUBLE JEOPARDY
United States v. Castillo-Basa, __ F.3d __, 2007 WL 570326 (9th Cir. Feb. 26, 2007) (doctrine of collateral estoppel, applied in the criminal double jeopardy context, prevents government from charging illegal entrant with perjury where during the initial illegal re-entry prosecution, the government could not find the taped record of the deportation hearing, but later finds the tape after acquittal; "The Double Jeopardy Clause does not only bar a second prosecution on the same charge of which a defendant has been previously acquitted (or convicted). It also prevents the government from seeking to prosecute a defendant on an issue that has been determined in the defendant's favor in a prior prosecution, regardless of the particular offense involved in the earlier trial.").
ILLEGAL RE-ENTRY - COLLATERAL ATTACK OF REMOVAL ORDER
Debeato v. Atty Gen. U.S., 505 F.3d 231 (3d Cir. Oct. 9, 2007) (defendant must demonstrate underlying removal proceeding was "grossly unjust" in order collaterally to attack underlying order of removal during illegal re-entry prosecution; the fact that INA 212(c) relief was improperly denied on the basis that noncitizen did not have seven years residence, and improperly applying AEDPA aggravated felony bar to case pending on or before April 24, 1996, was not "grossly unjust" because denial of relief was proper under the law as it existed at that time).
ILLEGAL REENTRY - SENTENCE
United States v. Hernandez-Gonzalez, __ F.3d __, 2007 WL 2051096 (3d Cir. July 19, 2007) (date that illegal re-entry offense commences, for purposes of calculating the criminal history score, is the date defendant entered the U.S., not the date that he was found by immigration authorities).
ILLEGAL REENTRY - SUPPRESSION OF IDENTITY INFORMATION FLOWING FROM ILLEGAL ARREST
United States v. Oscar-Torres, 507 F.3d 224 (4th Cir. Nov. 8, 2007) ("After arresting Raul Mesa Oscar-Torres without a warrant as part of a nationwide initiative to apprehend illegal alien gang members, law enforcement officers fingerprinted him and thus obtained his criminal and immigration records. The Government then charged him with one count of illegally reentering the United States following commission of a felony and deportation, in violation of 8 U.S.C.A. 1326(a) and (b)(1) (West 2005 & Supp. 2007). Prior to trial, Oscar-Torres moved to suppress the fingerprint evidence and the records obtained through it as the "fruit" of his illegal arrest. The district court denied the motion, reasoning that this evidence constituted "identity" evidence and therefore could never be suppressed. Oscar-Torres conditionally pled guilty, reserving the right to appeal denial of his suppression motion. We reverse and remand for further proceedings."). NOTE: This case is concerned a Fourth Amendment violation applicable to criminal proceedings, not the much more difficult Fifth Amendment protection.
ILLEGAL REENTRY - SENTENCE - CONSIDERATION OF CRIMINAL CONVICTION TO IMPOSE REASONABLE SENTENCE DESPITE THE FACT IT DID NOT QUALIFY UNDER GUIDELINES
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (district court may properly consider in sentence a North Carolina conviction of conspiring "to commit the felony of trafficking by transporting 100 pounds or more but less than 2000 pounds of marijuana", even though it did not qualify as a "drug trafficking offense" for Guidelines purposes); following United States v. Smith, 440 F.3d 704, 709 (5th Cir. February 17, 2006)("[a] defendant's criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence."); United States v. Tzep-Mejia, 461 F.3d 522, 526-28 (5th Cir.2006) (upholding an upward variance in a non-Guidelines sentence for a past conviction without regard to whether the prior offense "technically" qualified as a crime of violence under USSG 2L1.2(b)(1)(A)(ii)).
ILLEGAL RE-ENTRY - EX POST FACTO APPLICATION OF SENTENCING GUIDELINES
United States v. Rodarte-Vasquez,488 F.3d 316 (5th Cir. May 23, 2007) (defendants' sentences following conviction for illegally re-entering the United States in 2002 are vacated where application of the 2003 Sentencing Guidelines, as opposed to the 2002, constituted an ex post facto violation).
ILLEGAL RE-ENTRY - EX POST FACTO APPLICATION OF SENTENCING GUIDELINES
United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. May 23, 2007) (defendants' sentences following conviction for illegally re-entering the United States in 2002 are vacated where application of the 2003 Sentencing Guidelines, as opposed to the 2002, constituted an ex post facto violation).
ILLEGAL RE-ENTRY - STATUTE OF LIMITATIONS
United States v. Gunera, __ F.3d __, 2007 WL 456732 (5th Cir. Feb. 13, 2007) (where the defendant was "found" in the United States more than five years following the defendants unlawful re-entry, indictment was barred by statute of limitations).
Lower Courts of Fifth Circuit
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).
ILLEGAL REENTRY - COLLATERAL ATTACK
United States v. De Horta Garcia, 519 F.3d 658 (7th Cir. Mar. 13, 2008) (conviction for illegal re-entry affirmed over defendant's challenge to the denial of his right to seek a discretionary waiver of deportation during his original deportation hearing where he defendant is barred from collateral attack on deportation order since alleged violation did not render the deportation order fundamentally unfair).
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).
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).
ILLEGAL REENTRY - INDICTMENT ERROR BY FAILING TO ALLEGE THAT REMOVAL OCCURRED AFTER QUALIFYING CONVICTION - HARMLESS ERROR
United States v. Calderon-Segura, 512 F.3d 1104 (9th Cir. Jan. 9 2008) ("Under Salazar-Lopez, in order for a defendant to be eligible for an enhanced statutory maximum under [8 U.S.C.] 1326(b), the indictment must allege, in addition to the facts of prior removal and subsequent reentry, either the date of the prior removal or that it occurred after a qualifying prior conviction. Id. at 752. Yet the one count indictment against Calderon-Segura included no such allegation. But the error was harmless on these facts, since defendant made no factual attack on the factual applicability of the sentence enhancement and the record is not too indeterminate to decide what the grand jury would have decided if the record had been placed before it."), following United States v. Salazar-Lopez, 506 F.3d 748, 752 (9th Cir. 2007).
ILLEGAL RE-ENTRY - PROOF OF PRIOR CONVICTION AND REMOVAL
United States v. Salazar-Lopez, __ F.3d __, 2007 WL 3085906 (9th Cir. Oct. 24, 2007 ) (under Apprendi, dates of prior criminal convictions and removal from the United States must be alleged in the indictment and proven to a jury in order to subject defendant to enhanced sentence under 8 U.S.C. 1326(b)).
ILLEGAL REENTRY - ELEMENTS - PRIOR DEPORTATION
United States v. Diaz-Luevano, ___ F.3d ___, 2007 WL 2044256 (9th Cir. Jul. 18, 2007) (prior physical removal remains one of the bases for sentence enhancement under 8 U.S.C. 1326 and United States Sentencing Guideline 2L1.2; Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc), does not overrule United States v. Luna-Madellaga, 315 F.3d 1224 (9th Cir. 2003)).
ILLEGAL REENTRY - SENTENCE - EQUAL PROTECTION - 16-LEVEL ENHANCEMENT FOR ILLEGAL REENTRY DID NOT VIOLATE EQUAL PROTECTION ALTHOUGH SAME PRIORS WOULD HAVE CAUSED SMALLER ENHANCEMENT IF DEFENDANT HAD BEEN CONVICTED OF DIFFERENT OFFENSE
United States v. Ruiz-Chairez, 493 F.3d 1089 (9th Cir. July 6, 2007) (enhanced sentence for illegal reentry after deportation affirmed over an equal protection challenge, since Sentencing Commission did not act arbitrarily in treating one convicted of this offense more severely than a felon who is convicted of a different crime and has the same priors for enhancement purposes).
ILLEGAL REENTRY - SENTENCE - AGGRAVATED FELONY CONVICTIONS TRIGGER SENTENCE ENHANCEMENT REGARDLESS OF DATE OF CONVICTION
United States v. Olmos-Esparza, 484 F.3d 1111 (9th Cir. April 24, 2007) (district court did not err by considering convictions from 1972 and 1976 in calculating illegal reentry sentencing enhancements under USSG 2L1.2), (USSG 2L1.2 contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements); accord, United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006), petition for cert. filed November 22, 2006 (No. 06-7990); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1312-13 (11th Cir.), cert. denied, 126 S.Ct. 457 (2005).
ILLEGAL RE-ENTRY SENTENCING - CATEGORICAL ANALYSIS
United States v. Almazan-Becerra, ___ F.3d ___, ___, 2007 WL 926486 (9th Cir. March 29, 2007) (applying categorical analysis to illegal re-entry sentencing context to determine whether conviction triggers sentence enhancement).
Lower Courts of Ninth Circuit
ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - IJ FAILURE TO ADVISE OF RELIEF
United States v. Lopez-Menera, ___ F.Supp. __ (N.D.Cal. Feb. 13, 2008) ("Because the IJ's failure to inform defendant of his eligibility for voluntary departure violated his due process rights, and because this violation caused defendant prejudice, the underlying order of deportation cannot be used as an element of a conviction under 1326.").
OVERVIEW - ILLEGAL RE-ENTRY
United States v. Garcia-Espana, ___ F.Supp.2d ___, 2007 U.S. Dist. LEXIS 15696 (E.D. Wash. March 6, 2007) (defendant may not be convicted of illegal reentry after deportation, where INS erred in concluding that he was deportable because of his vehicular homicide conviction, which in turn, invalidated his deportation order, which violated his due process rights and therefore cannot serve as a predicate element of his 1326 conviction).
OVERVIEW - ILLEGAL RE-ENTRY - COLLATERAL ATTACK
United States v. Lopez-Hernandez, __ F.Supp.2d __ (N.D. Cal. Feb. 23, 2007) ("[T]o collaterally attack his 1997 deportation proceeding, Lopez-Hernandez must demonstrate: (1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair.")
OVERVIEW - ILLEGAL RE-ENTRY - COLLATERAL ATTACK
United States v. Lopez-Hernandez, __ F.Supp.2d __ (N.D. Cal. Feb. 23, 2007) (motion to allow collateral attack of immigration proceedings in prosecution for illegal re-entry granted where defendant demonstrated that immigration proceeding was improper where IJ failed to inform defendant [post-IIRAIRA, pre-St. Cyr] that he could apply for relief under former INA 212(c)).
ILLEGAL REENTRY - SENTENCING - DISMISSED PRIORS
United States v. Chavez-Calderon, __ F.3d __, 2007 WL 2171363(10th Cir. Jul. 30, 2007) (district court was within its discretion in considering dismissed domestic violence charge and unprosecuted violations of stay-away orders in sentencing for illegal re-entry).
CRIMINAL DEFENSE - IMMIGRATION OFFENSES
R. McWhirter, Defending the Crime of Illegal Entry and Reentry, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 555 (2d ed. 2007).
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