While entering the U.S. unlawfully is indeed
a crime, the penalty for illegally reentering after a deportation is
far worse. Nevertheless, just as going back and forth across the border may not
be of any concern to some of those facing the possibility of such prosecution,
the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"),
which is the federal appeals court that hears appeals from decisions in
U.S.-District-Court proceedings, as well as petitions for review from
the Board of Immigration Appeals ("BIA") regarding removal proceedings,
conducted within the Western states, seemingly appears to be doing the
same regarding whether prosecution for illegal reentry is permissible
when the underlying removal order was not legally obtained.
I have previously written about
a case
that permitted a prosecution for illegal reentry even though the Ninth Circuit
conceded
in that same case that the underlying removal order was not issued lawfully.
However, just last week the Ninth Circuit separately held that an illegal-reentry
prosecution could not move forward possibly for the very same reason,
i.e., the underlying
removal order was not lawful. The more recent case,
United States v. Garcia-Santana, concerned a woman who had been ordered removed in 2002 without a hearing
because of the determination by the then Immigration and Naturalization
Service that she had been
convicted of a conspiracy offense
that amounted to an Aggravated Felony, thereby rendering her ineligible
for almost all forms of discretionary relief from such removal. The woman
illegally reentered the U.S. in 2009
and was prosecuted for such illegal reentry. In reply to the woman's
persistent requests, the relevant U.S. District Court ruled that because
the underlying removal order was illegally obtained, i.e., the crime for
which the woman was convicted
did not meet all the of elements
of an "Aggravated Felony"
as defined by the U.S. Congress, the prosecution could not move forward.
The Ninth Circuit on appeal agreed with the U.S. District Court's
decision not only because of
the unlawful nature
of the underlying removal order,
as was the situation
in the previous case, but also because of
the woman's being prejudiced
by it,
as was not the situation
in the previous case. Put more simply, a violation in and of itself does
not halt an illegal-reentry prosecution unless the defendant can prove
that s/he would not have been ordered removed anyway absent the violation.
Therefore, determining whether someone specifically may be able to benefit
from this recent decision will require skilled legal analysis.
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