Brian D. Lerner Immigration Attorney Blog

Have an Illegal Reentry? How to get it vacated so you don’t have to go to prison

Question: I had a deportation order years ago. I re-entered the U.S. illegally, got caught and was convicted in U.S. District Court for illegal reentry. I am serving a three year sentence. Is there anything that I can do?

Answer: Actually, there was a great case that just came out of the Ninth Circuit Court of Appeal.The panel vacated a conviction and sentence for illegal reentry after deportation or removal in violation of 18 U.S.C. § 1326 and remanded for the district court to consider whether the defendant was prejudiced by the deprivation of his due process rights in his removal proceeding.

The panel held that the IJ erred when she failed to advise the defendant of the possibility of relief under 8 U.S.C. § 1182(c). The panel explained that § 440(d) of the Antiterrorism and Effective Death Penalty Act was not effective as to proceedings, such as the defendant’s, that had commenced prior to the date of the Act’s enactment.

In addition, the provision of IIRIRA that eliminated relief under § 1182(c) did not apply to aliens, like the defendant, whose proceedings had commenced before the enactment of IIRIRA. The panel vacated the defendant’s conviction and sentence and remanded for the district court to consider whether he was prejudiced by the deprivation of his due process rights in his 1999 removal proceeding. The panel stated that if the defendant was not prejudiced, then the district court could reinstate his conviction and sentence. If the defendant was prejudiced, then the district court must dismiss the indictment.

Question: Does  this mean that I might be able to get out of prison?

Answer: Yes, it would be possible if the proper motions were made to show that your illegal reentry conviction should be vacated due to your due process rights being violated at immigration Court.

Question: I am not the best person in the world and have had some crimes.

Answer: Not to worry. If your due process rights were violated, then regardless of the crimes, your conviction should be vacated. For example, in this 9th Circuit case just entered, that defendant was actually no model citizen either. His name was Guzman. Guzman was born in Mexico, but came to the United States in 1979, when he was about six years old. He became a Legal Permanent Resident (“LPR”) on July 13, 1989. He was far from being a perfect peregrine; rather, he committed numerous crimes and on December 21, 1995, a deportation proceeding was initiated against him. Undeterred, he committed a robbery in California, was convicted of first degree robbery1 on February 14, 1997, and was sentenced to four years’ imprisonment as a result. Because state criminal proceedings necessitated a delay in the deportation proceeding, it was administratively closed in 1997. Guzman served his term, and the deportation proceeding was reopened. On August 12, 1999, the robbery conviction was added to the charges supporting his deportation. On August 25, 1999, the immigration judge (IJ) found that he was deportable as an alien convicted of an aggravated felony (8 U.S.C. § 1227(a)(2)(A)(iii)) and a firearm offense (8 U.S.C. § 1227(a)(2)(C)), and that he was ineligible for discretionary relief based upon his robbery conviction. Guzman waived his right to appeal. He was deported. He then entered illegally three times and ultimately the illegal reentry was set aside.
Thus, it is certainly possible, but you need to have your case properly analyzed – especially the original deportation proceeding to see if there is any possibility of due process violations.

Filed under: Immigration Attorney | Tagged: illegal re-entry, Illegal Reentry, illegal reentry conviction, violation of due process | Leave a comment »