Articles Tagged with Immigration

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There have not been many decisions from the D.C. Circuit in recent months – criminal or otherwise. But a rare reversal in an unusual coram nobis proceeding is worth mentioning as we swing into those grey winter months.

In an opinion remarkable for its turnaround – announced only 45 days after oral argument – the Circuit concluded that Kerry Newman, a permanent resident alien since 1980, had established one viable ground on which to claim that his defense counsel might have rendered ineffective assistance by providing erroneous advice at sentencing about the potential consequences of a guilty plea to a felony offense. United States v. Newman, _ F.3d _, 2015 U.S. App. LEXIS 1988 (D.C. Cir., Oct. 2, 2015).

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Sometimes I don’t even recognize the Fourth Circuit anymore. They granted a coram nobis writ in a case based on bad immigration advice in United States v. Akinsade.

The Embezzlement at the Bank

Mr. Akinsade worked at a Chevy Chase bank in 1999. He was nineteen years old and was a lawful permanent resident in the United States – he had come here legally from Nigeria.

Mr. Akinsade cashed checks for friends in his neighborhood. He pocketed some of the money.

He then felt guilty and told his boss, who called the FBI. He cooperated with the FBI against his friends.

He was charged with embezzlement by a bank employee.

599375_wigs.jpgThe Lawyer and the Plea

Mr. Akinsade really did not want to be deported. His lawyer worked out a plea for him, and told him that if he plead guilty, he couldn’t be deported.

His lawyer said that since he was only pleading guilty to one offense, he would be unable to be deported. Just like the rule that a husband and a wife can’t be arrested for the same crime, that’s not the law.

He went to court to plead guilty. The district court judge had the following exchange with him:

The Court: [P]eople who are found guilty of felonies, often lose their right to vote, certain professional licenses may be denied them, may not be able to serve on a jury. And I know felons can’t possess firearms.
Certain jobs may be denied you. If you are on parole or probation with another system, that can be affected. Or if you are not a citizen, you could be deported. All of these things could be triggered by being found guilty of a felony. Do you understand that?

Akinsade: Yes, Your Honor.

He was sentenced to one month of community confinement, three years of supervision, a Special Assessment of $100 and restitution of $8,000.

Mr. Akinsade Makes Good

As the Fourth Circuit said,

After serving his sentence, Akinsade attended the University of Maryland where he received a bachelor’s degree in computer science. He later earned a master’s degree from the university, graduating with a 3.9 GPA, and received a fellowship from the National Science Foundation. Akinsade then entered into a leadership program at General Electric Company and moved to upstate New York.

The United States Government Doesn’t Care If Mr. Akinsade Made Good

Nine years after his conviction, Mr. Akinsade was arrested and placed in immigration detention. He was detained for nine months, then charged as a removable alien.

He filed a coram nobis petition based on his lawyer’s Very Bad Advice.

A coram nobis petition is authorized under 28 U.S.C. § 1651. Basically, it lets a court set aside a conviction if the person seeking to set it aside is no longer locked up and is suffering an ill effect of the conviction.

Though, of course, the person still has to have a really good reason to set it aside. The Fourth Circuit explained that,

As a remedy of last resort, the writ of error coram nobis is granted only where an error is “of the most fundamental character” and there exists no other available remedy. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). The writ is narrowly limited to “‘extraordinary’ cases presenting circumstances compelling its use ‘to achieve justice.'” United States v. Denedo, 129 S. Ct. 2213, 2220 (2009) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954)). Thus, the writ provides relief in cases where the error “rendered the proceeding itself irregular and invalid.” United States v.
Addonizio, 442 U.S. 178, 186 (1979) (internal quotation marks and citation omitted) (superseded by statute on other grounds). A petitioner seeking this relief must show that “(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).

The District Court Also Doesn’t Care That Mr. Akinsade Made Good

The government fought the petition every step, and the district court rejected the petition.

Mr. Akinsade argued that if his lawyer had advised him on what the law is, rather than on what he imagined the law to be, but was too lazy to look up or find out, he wouldn’t be getting deported.

The district court said that its questions during the plea colloquy were enough to mean that Mr. Arkinsale knew he could have been deported, regardless of the lawyer’s advice.

The Fourth Circuit disagreed,

in light of the equivocal nature of the admonishment, counsel’s affirmative misadvice that is clearly contrary to law, and the severity of the consequence itself.

Because the district court only told Mr. Arkinsale that he could be deported, but not that he would be, the Fourth Circuit held that the plea colloquy was not sufficiently definite as to override his prior lawyers faulty advice.

The Lawyer Also Didn’t Really Investigate the Facts

Finally, to win, Mr. Arkinsale had to prove that if it weren’t for his lawyer’s advice he would be in a different position.

Mr. Arkinsale’s deportation proceedings were under a provision that applies to folks who were involved in a fraud of more than $10,000. In his criminal case, his lawyer said that if he’d gone to trial, he could have argued that he was only involved in two checks that totaled $8,000, and would have disputed a third check that put him over the $10,000 threshold.

Indeed, his restitution amount was a mere $8,000.

The Fourth Circuit found that was good enough to show that if the lawyer’s advice hadn’t been wrong, things would have been different. The court of appeals granted the coram nobis.

While his lawyer’s bad advice did mean that Mr. Arkinsale spent months in prison when he shouldn’t have, at least he isn’t going to be deported.

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Deanna Costello’s love knew no boundaries. Literally. For years she had a romantic relationship with a man who was not in the United States lawfully. It led to a strong judicial slapdown of the Department of Justice by one of our nation’s leading jurists, in United States v. Costello.

Ms. Costello’s Boyfriend

Ms. Costello lived in Cahokia, Illinois, perhaps five miles from St. Louis. She lived with a man from Mexico for a year ending in July 2003. That time ended when he was arrested on a federal drug charge. He plead guilty and was sent back to Mexico after his prison sentence.

1378507_heart_shaped_flower_petal.jpgIn March of 2006, Ms. Costello picked her boyfriend up at the bus station in St. Louis. She drove him to her house, where they lived until October 2006. Sadly, he was then arrested on new drug charges, and the couple were again separated. As the court of appeals noted, he “was given a stiff prison sentence.”

Ms. Costello was charged with harboring an alien. She went to a stipulated facts trial – basically a trial where she and the government agree what happened, they simply disagree about whether what happened was a crime.

She was convicted. The district court sentenced her to two years probation and a $200 fine.

The Appeal

She appealed. Judge Posner, writing for the Seventh Circuit, reversed, in an opinion as critical of the government as any I’ve read in a very long time.

Judge Posner concluded, basically, that harboring an alien does not include having a person in the country unlawfully as a live-in boyfriend.

Judge Posner started by noting that “[t]here is no evidence that the defendant concealed her boyfriend or shielded him from detection” and that, indeed, since he was arrested at her house several times, it’s more likely that law enforcement would find him if he was there than, say, at a relative’s house.

Or, alternatively,

The defendant in the present case was not trying to encourage or protect or secrete illegal aliens. There is no suggestion that she prefers illegal aliens as boyfriends to legal aliens or citizens. She had a boyfriend who happened to be (as she knew) an illegal alien, and he lived with her for a time.

A Car Ride Is Not Harboring

The district court made much of Ms. Costello having driven the man from the bus station to her house. Judge Posner wasn’t impressed with this fact, noting that

the distance was so short–about six miles–that in a pinch he could have walked. And had he wanted to take public transportation he could have used the St. Louis metro transit system; the price of his ticket would have been $2.75. (That is the price today; it probably was lower in 2006.) There is nothing to suggest that the two of them had prearranged the pickup, or that, had she not picked him up, he would have returned to Mexico. (We don’t know how long he had been in the United States.)

A car ride is not harboring an alien.

Judge Posner spent considerable time considering the meaning of “harboring” in the statute criminalizing harboring an alien. Judge Posner considered the way “harboring” is used, and the breadth of the anti-harboring statute if “harboring” covers Ms. Costello’s conduct.

The Government’s View of Harboring Is Absurd

Judge Posner was concerned that the government’s view of what counts as harboring sweeps lots and lots of conduct into the criminal law. In perhaps the most awkward – yet at the same time still awesome – sentence he’s ever written, Judge Posner asks:

is it likely that Congress intended that parents whose child invites an immigrant classmate who, as they know, is illegally in the country to a sleepover might be branded as criminals even if he didn’t accept the invitation, since the statute criminalizes attempts?

The court of appeals also points out the absurd consequences of the government’s statutory interpretation,

an illegal alien becomes a criminal by having a wife, also an illegal alien, living with him in the United States; if they have children, born abroad and hence illegal aliens also, living with them, then each parent has several counts of criminal harboring, on the government’s interpretation of the statute.

Judge Posner Doesn’t Trust The Government

The government tells us not to worry: we judges can rely on prosecutors to avoid bringing cases at the outer margin of the government’s sweeping definition of “harboring.” But this case is at the outer margin. No doubt it was brought because the Justice Department suspects that the defendant was involved in her boyfriend’s drug dealings, but cannot prove it, so the Department reaches into its deep arsenal (the 4000-plus federal crimes) and finds a crime that she doubtless never heard of that it can pin on her. She was sentenced only to probation and to pay a fine but now has a felony record that will dog her for the rest of her life if she loses this appeal.

Down with the Dictionary

In perhaps my favorite section of the opinion (though there are many) Judge Posner criticizes the government’s use of the dictionary –

“Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings A sign in a park that says “Keep off the grass” is not properly interpreted to forbid the grounds crew to cut the grass.

To try to learn how “harboring” is normally used, Judge Posner turned to Google:

a search based on the supposition that the number of hits per term is a rough index of the frequency of its use–reveals the following:

“harboring fugitives”: 50,800 hits “harboring enemies”: 4,730 hits “harboring refugees”: 4,820 hits “harboring victims”: 114 hits “harboring flood victims”: 0 hits “harboring victims of disasters”: 0 hits “harboring victims of persecution”: 0 hits “harboring guests”: 184 hits “harboring friends”: 256 hits (but some involve harboring Quakers–“Friends,” viewed in colonial New England as dangerous heretics)
“harboring Quakers”: 3,870 hits “harboring Jews”: 19,100 hits
It is apparent from these results that “harboring,” as the word is actually used, has a connotation–which “sheltering,” and a fortiori “giving a person a place to stay”–does not, of deliberately safeguarding members of a specified group from the authorities, whether through concealment, movement to a safe location, or physical protection.

Because Ms. Costello was not keeping her boyfriend from the authorities – rather she was just keeping him to herself – she was not harboring. She was merely entertaining.

And entertaining an alien is not against the law.

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Cuba is known for exporting many things, among them cigars, rum, and rumors of Fidel Castro’s death.

The Eleventh Circuit’s opinion in United States v. Dominguez deals with two of Cuba’s most beloved exports: baseball players and asylum seekers.

Wet Foot/Dry Foot

First, a bit of background. As an expression of a reasoned and principled immigration policy, the official position of the United States has been that if someone is trying to leave Cuba and come to the United States, whether or not they are welcome depends on whether they are able to physically make it to U.S. soil.

If a person fleeing Cuba walks up out of the surf onto a United States beach, they are eligible to stay in the country. If the person leaving Cuba is intercepted by the Coast Guard, or Immigration and Customs Enforcement, in the water, they are not allowed to stay. This is called the “Wet Foot/Dry Foot” policy.

This policy has always struck me as the application of the Calvinist idea that the best measure of divine approval of a person is his or her wordly success to immigration policy – we can tell whether you’re worth keeping in the United States by looking at whether you were able to make it here. Sensible or not, this is our country’s policy. Perhaps we just prefer people who don’t require towels.

Gustav Dominguez
Gustavo Dominguez knew this policy. Mr. Dominguez was a professional sports agent who worked with professional baseball players.

baseball in grass.jpgCompetition for baseball talent is tough. Mr. Dominguez was looking for a new way to serve potential clients.

As a result, he worked with another man – Mr. Medina, who had a career in smuggling – to bring five baseball players to the United States from Cuba by boat. One the first try, the Coast Guard shot out the engine of their boat. The players went back to Cuba.

On the second try, the baseball players made it to the Florida Keys. They arrived on dry land in the United States and were dry foot people for purposes of our government’s Wet Foot/Dry Foot policy. The players then traveled to California, where they met an immigration lawyer and played baseball for talent scouts.

Sadly, though three of the players signed minor league contracts, none wound up in the Major Leagues.

Mr. Medina
As the court of appeals opinion describes it,

Medina has lived a life of crime; he has numerous prior convictions for drug trafficking, smuggling, insurance fraud, and money laundering.

As is so often the case, Mr. Medina found himself on the wrong side of a federal investigation. To reduce his time in prison, he shared with federal prosecutors the work he had done with Mr. Dominguez to bring these players to the United States.

The Charges
Mr. Dominguez was charged with smuggling the baseball players into the country, transporting them to avoid immigration officials, and harboring them to avoid detection by the officials.

He went to trial and was convicted of the smuggling, transporting, and harboring crimes under 8 U.S.C. § 1324.

Mr. Dominguez argued that because the U.S. Wet Foot/Dry Foot policy meant that the players would be allowed to stay, he could not be found guilty of smuggling them into the country contrary to immigration law.

The court of appeals disagreed. The court noted that after an amendment, the portion of 8 U.S.C. § 1324 that prohibits smuggling a person into the country,

Section 1324(a)(2) now punishes any person who knowingly brings to the United States an alien while knowing or recklessly disregarding the fact that the alien has not received “prior official authorization to come to, enter, or reside in the United States.” The statute explicitly states the offense occurs “regardless of any official action which may later be taken with respect to such alien.” 8 U.S.C. § 1324(a)(2).

Thus, as the court of appeals held, the immigration status that matters is not the person’s immigration status eventually – even if that status is inevitable – but rather the person’s immigration status at the time he or she is brought into the country.

For that reason, the Wet Foot/Dry Foot policy does not allow a person in the United States to, as it were, help dry the feet of someone coming from Cuba. If you’re going to make it here, you’ve got to make it here without help.

Harboring and Transporting
Mr. Dominguez, though, fared much better on his harboring and transporting charges.

Because he brought the players to an immigration lawyer quickly and had them openly auditioning with baseball talent scouts, the court of appeals thought that he simply could not be thought to be secretly transporting or harboring these men from immigration officials.

As the appellate court noted,

the players lived freely and openly. They played baseball, went out with friends, ate at restaurants, and watched professional baseball games. On November 12, 2004, the players were “showcased” in front of scouts from almost every Major League team.
Based on this evidence, a reasonable jury could not find beyond a reasonable doubt that Dominguez transported the Cuban players from Miami to Los Angeles in order to further their illegal status.

Mr. Dominguez’s convictions for transporting and harboring the baseball players were reversed and the case was sent back for resentencing.

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If you come to the United States from another country, and you aren’t really here with permission (that is, you come in violation of U.S. Immigration law), and you’re sent back to your home country, but then decide to come back to the United States, odds are you have committed the federal crime of illegal reentry. This is a violation of 8 U.S.C. S 1326(a). The crime is commonly called illegal reentry.

This crime gets committed a lot. And it gets prosecuted in any place where a person who has returned to the country after a prior deportation is discovered. Illegal reentry can be prosecuted in Texas, and it can be prosecuted in Iowa.

(though, as an aside, there’s a much larger population of recent immigrants in Iowa than you might think. My hometown of Perry Iowa, for example now has a very good Mexican restaurant. Iowa is trying to respond to these new Iowans in what I think of as a characteristically kind and reasonable way.)

Border districts have many more illegal reentry cases than they can reasonably address. In order to encourage people to plead guilty quickly, so these courts can dispose of these cases, many federal prosecutors on the border set up “Fast Track” programs. Though these programs have now spread beyond the border – Nebraska has one, for example.

Fast Track programs let people get a much lower sentence if they plead guilty quickly, agree to a statement of facts offered by the government, and give up certain rights.

A Very Different Kind of Fast Track

Generally, Fast Track programs are only available to people caught along the border. Folks charged with illegal reentry in other parts of the country have cried foul. If you’re caught in Maryland, which does not have a Fast Track program, why should you serve longer than if you’re caught in Texas, simply because of a program to manage the court’s docket. That doesn’t seem like justice.

The federal law that governs sentencing factors, 18 U.S.C. S 3553, even tells judges, in subsection (a)(6), that they should avoid treating people accused of the same crime with the same criminal history differently.

How to handle this, though, is a massive problem. The Seventh Circuit has rolled-up its sleeves to work on it though, in three cases consolidated in its opinion in United States v. Ramirez. And, to be clear, Sentencing Law & Policy beat me to the punch. Check out Berman’s coverage here.

The Seventh Circuit held that:

a defendant claiming entitlement to a lower sentence because of a perceived fast-track “disparity” must promptly plead guilty, agree to the factual basis proffered by the government, execute an enforceable waiver of specific rights before or during the plea colloquy, establish that he would receive a fast-track sentence in at least one district offering the program, and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well as a candid assessment of the number of programs for which he would not qualify. Unless the defendant complies with each of these steps, the sentencing court will be free to reject the argument without comment.

The court was troubled by how much other districts vary in the way they give a reduction for participation in a fast track program. To be sure, that’s troubling, though I tend to think it’s troubling more as a matter of national policy than of being too lenient to someone who is going to spend four years or so in one of our federal prisons.

If Nebraska gives two levels off of the sentencing guidelines, and Texas gives six, should a defendant in Illinois get two levels off or four under a disparity argument, if they meet all the requirements of both Texas and Nebraska? What should happen, of course, is that in Nebraska, defense counsel should start making Fast Track disparity arguments relative to Texas, so that, later, the Illinois case should look to Texas instead of Nebraska.

Which raises another interesting point – judicial districts vary by their adherence to the guidelines. Are those cognizable as a 3553(a)(6) argument? They should be, of course, but I could see how a defense lawyer would be skeptical to make it – the judge you’re trying to convince is the same one you’re saying is outside of the mainstream of harshness.

Back to Ramirez, the court did note that proving that any individual defendant should have been eligible for fast track, and how much, is complicated and will be difficult work. They are absolutely right about that.

The court affirmed the sentences in the case, but modified the sentence of one of the defendants to clarify that he is not required to participate in the Inmate Financial Responsibility Program. That is perhaps not the most significant defense win.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.