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Avoiding Prosecution for Illegal Reentry by Attacking the Validity of the Underlying Removal Order

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.