The shift in appropriation by the U.S. Department of Homeland Security ("DHS") of removal-related resources toward those who have severe criminal histories appears to have become reality. This shift as well as other nuances relating to U.S. Immigration Law was discussed yesterday by former Secretary of Homeland Security Janet Napolitano:
The federal courts have followed this shift as well, and three recent decisions
show such a path. The U.S. Court of Appeals for the Ninth Circuit ("Ninth
Circuit"), the federal appeals court that hears appeals from decisions
by U.S. District Courts within the Western States as well as petitions
for review from decisions by the Board of Immigration Appeals ("BIA")
regarding removal proceedings conducted within those same Western States, held in
U.S. v. Ruiz-Lopez that a Mexican man could be federally convicted of the crime of
illegal reentry, which requires that the defendant's alienage be proven,
based on a previous sworn statementalleged to have been taken by an Immigration officer. While such statements
are commonly used in removal proceedings before an immigration judge,
it was unclear whether they could be used conclusively to prove alienage
in federal criminal proceedings, which have more restrictive evidentiary rules.
Moreover, in
U.S. v. Gomez, a case about which I have previously written, the Ninth Circuit
threw out its previous decision but nevertheless held once again that a Mexican man's procedurally
defective prior removal
did not prejudice him, thereby permitting him to be convicted of illegal reentry. The decision
shows that egregious errors in the conducting of removal proceedings may
continue to take place without any recourse for the affected foreign national.
Finally, in
Ragasa v. Holder, the Ninth Circuitrejected the claim of a Filipino man convicted of attempted promoting of a dangerous drug
that he was a U.S. citizen by way of his adoption when he was a minor
by two U.S. citizens. The claim was creative in that, for the most part,
U.S. Immigration Law treats lawfully adopted children the same as biological
children provided certain requirements are met and in that biological
children of U.S. citizens are commonly legally U.S. citizens as well regardless
of the location of birth. Despite denying the man's citizenship claim,
the Ninth Circuit nonetheless granted his petition for review and threw
out the man's removal order based on the man's conviction's
not being for an aggravated felony.
Therefore, and in yet another example of what many perceive as the twisted
nature of U.S. Immigration Law, it appears the best strategy for many
individuals convicted of serious crimes is simply to argue that the alleged
crimes really are not that serious.