Supreme Court Limits Deportation When Client Merely Possessed Small Amount of Marijuana

April 23, 2013 by Paul Kish

Here in Georgia a Defendant was stopped by the police, who thereafter found 1.3 grams of marijuana. Because of our State's relatively harsh drug laws, he was forced to plead guilty to drug distribution, although his lawyers were able to get the conviction expunged if the Defendant successfully completed a period of probation. However, the Defendant was not a U.S. Citizen. Two years later, immigration authorities threw him into custody to begin deportation proceedings. After a fight that took several more years, the United States Supreme Court yesterday held that this man was not automatically subject to deportation. The Supreme Court said that not all marijuana distribution offenses rise to the level of being an "aggravated felony", which in the immigration context means that the person is just about automatically deportable. The case is Moncrieffe v. Holder.

Mr. Moncrieffe is originally from Jamaica, but has legally lived here in the U.S. for many years. His lawyers faced the same dilemma we face when representing aliens accused of crimes, the question of whether a guilty plea might make the person subject to deportation (or "removal" as the term is now called). Like many people, Mr. Moncrieffe seemed ready to accept a deal that called for no jail time and expungement. Little did he know that the feds wanted to kick him out of the country for this relatively minor offense.

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Immigration Consequences of Criminal Convictions: U.S. Supreme Court rules Padilla Not Retroactive

March 5, 2013 by Paul Kish

In Atlanta, and across the country, representing clients in immigration removal proceedings with criminal convictions can be tricky. The recent U.S. Supreme Court decision in Chaidaz v. U.S., _____ U.S. _____ (2013), is bound to make things even trickier. Far too often, we come across the non-citizen client who has already accepted a plea in criminal court without receiving competent advice from his attorney regarding the devastating consequences of deportation.

In 2010, the U.S. Supreme Court recognized this deficiency in Padilla v. Kentucky, 559 U.S. ____ (2010), when it ruled that 6th Amendment protections require criminal defense attorneys to inform non-citizen clients when there is a risk of deportation as a result of a guilty plea. After Padilla, non-citizens who were placed in removal proceedings for their criminal conviction were able to raise specific 6th Amendment challenges through petitions for habeas corpus and other similar post conviction mechanisms.

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Court of Appeals affirms part of case involving plan to smuggle potential baseball players into the U.S. from Cuba

November 7, 2011 by Paul Kish

In a case arising out of south Florida and its proximity with Cuba, the United States Court of Appeals for the Eleventh Circuit recently affirmed parts of a case involving a plan to smuggle potential baseball players into the United States. Besides being an interesting view into the modern methods of stocking a Major League Baseball franchise, the case also contains lessons for lawyers and employers. As we are seeing in our immigration crimes practice, more and more employers run into the danger of a potential federal criminal prosecution whenever the employer communicates with or hires a person from another country.

The case is United States v. Gustavo Dominguez. Mr. Dominguez is a naturalized U.S. citizen who was born in Cuba. Mr. Dominguez has represented numerous Cuban nationals who came to this country and later became professional baseball players. The government's theory was that Dominguez conspired with others who smuggled the potential players into this country, with the goal of later representing the players if and when they were snapped up by a Major League franchise. The players were taken to California where Dominguez got an experienced immigration attorney to help them work through the immigration process. The trip to California and the immigration applications led to charges of transporting illegal aliens and concealing or harboring them in this country.

The jury found Mr. Dominguez guilty of conspiring with and aiding others who smuggled the players into the country. Additionally, the jury held that Dominguez was guilty of helping to transport the Cuban players from Florida to California and also found him guilty of harboring or concealing these same players. The majority of the Court of Appeals Panel reversed the convictions relating to transporting and concealing the players. Basically, the majority held that by taking the players to an attorney Dominguez could not be guilty. Oddly, the majority affirmed the convictions for smuggling these same players.

Judge Tjoflat wrote a spirited dissent. He explained that the trial court's rulings basically required that someone in Mr. Dominguez's situation needed the sophistication of a "Philadelphia lawyer" in order to wade through issues related to people who enter this country from Cuba, related to the "wet foot-dry foot" policies that apply solely to immigrants from this one country. According to Judge Tjoflat, Dominguez should receive a new trial where he can present testimony concerning this policy and his state of mind.

We represent several employers either charged or threatened with indictment for employing persons from other countries who turn out to be here illegally. This case is just the most recent illustration of how federal immigration policy often intersects with the law involving defending a person against a federal criminal prosecution.

Federal Sentencing Law in the Eleventh Circuit: United States Sentencing Commission Issues Summary of Decisions To Assist Federal Practitioners

August 29, 2011 by Carl Lietz

Lawyers that specialize in defending federal criminal cases may be interested to know that the federal sentencing commission recently released a document entitled: "Selected Post-Booker and Guideline Application Decisions for the Eleventh Circuit". According to the Commission, "[t]he document is not a substitute for reading and interpreting the actual Guidelines Manual or researching specific sentencing issues." However, those of you that practice federal criminal law in Georgia, Alabama and Florida will find the document useful, because it does contain helpful "annotations to certain Eleventh Circuit judicial opinions that involve issues related to the federal sentencing guidelines."

I reviewed the document this morning and it is a fairly comprehensive. It not only includes case annotations dealing with many of the more common guideline provisions (including fraud, internet, and immigration offenses), but it also includes several sections that involve general principles of federal sentencing law, such as burden of proof issues, the requirements for sentencing on acquitted conduct, and departures and variances.

The document can be found here and for those of you that practice in other federal circuits, links to similar documents for those other circuits can be found here.

Forey-Quintero: Eleventh Circuit Court of Appeals Holds Defendant Could Be Prosecuted for Being in the US Because His Mother’s Status Did Not Make Him a Derivative Citizen

December 7, 2010 by Kish & Lietz

Last week, the Eleventh Circuit Court of Appeals decided United States v. Forey-Quintero. The Court held that Mr. Forey-Quintero, whose mother became a naturalized U.S. citizen while he was a minor, did not obtain derivative citizenship because he was not a lawful permanent resident before he turned 18.

Mr. Forey-Quintero came to the U.S. on a border crossing card when he was three years old. When he was 9, his mother filed a Petition for Alien Relative for him, but he was accidentally placed on the wrong list for obtaining a visa. When he was 16, his mother was naturalized and he applied for a visa. His application was approved 20 days after his 19th birthday. As such, he resided here permanently as a minor, but was not a “lawful permanent resident.”

Mr. Forey-Quintero later was kicked out of the country, and when he returned to be with his family he was charged with being found in the United States after removal. His attorney, Millie Dunn at the Federal Defenders Program for the Northern District of Georgia, argued that he was a citizen under the derivative citizenship statute. Before 2001, derivative citizenship was governed by Section 321(a) of the Immigration and Nationality Act (INA), which provided that a “child born outside of the United States of alien parents” automatically became a citizen upon the naturalization of the parent having legal custody if the child is or “begins to reside permanently in the United States while under the age of eighteen years.”

The Court held that “reside permanently” requires lawful permanent resident status. In doing so, the court looked to the rules of statutory construction and persuasive authority in similar cases in the Ninth Circuit and Board of Immigration Appeals (BIA). Because this young man had been placed on the wrong list when he was 3 years old, he did not “reside permanently” as a legal resident at the time when his mother became a citizen. As a result, the Courts allowed prosecutors to charge Mr. Forey-Quintero with illegally returning to this country when, if he had been placed on the correct list, he would have had every right to remain here as a derivative citizen.

Criminal defense lawyers must continually challenge both individual statutes and the system in general to help their clients. Although the argument in this case was unsuccessful, we applaud Millie Dunn for her work for Mr. Forey-Quintero.

The Eleventh Circuit’s opinion in this case is available here.

Di Pietro: Federal Court of Appeals in Eleventh Circuit Upholds Criminal Conviction for Arranging Marriages Between Illegal Immigrants and U.S. Citizens

August 31, 2010 by Kish & Lietz

On Friday, the Eleventh Circuit Court of Appeals, where lawyers go when appealing a federal civil or criminal case that comes out of Georgia, Florida, or Alabama, issued its opinion in United States v. Di Pietro. Linsy Di Pietro was convicted of arranging marriages between illegal immigrants and U.S. citizens to help the immigrants obtain permanent legal status. The Court affirmed the district court’s refusal to dismiss the indictment on vagueness and preemption grounds.

Vagueness
Ms. Di Pietro was convicted of aiding and abetting violations of 8 U.S.C. § 1325(c). That federal statute prohibits marriage fraud: knowingly entering “into a marriage for the purpose of evading any provision of the immigration laws.” She argued that, although the statute clearly prohibited her conduct, it is void for vagueness as applied to others. She further argued that the statute implicates the right to marry, and hence the First Amendment, requiring a heightened vagueness standard. The Court rejected her vagueness challenge because “a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to others.” There is no exception for vagueness challenges implicating the First Amendment.

Preemption
In what the Court called a “novel” argument, Ms. Di Pietro also asserted that Florida’s marriage laws, which she said allow such marriages of convenience, preempted the federal statute. Preemption is based upon the Supremacy Clause, providing a basis for invalidating state or local laws when they conflict with laws of the United States. Ms. Di Pietro’s argument “turn[ed] the Supremacy Clause on its head.” State laws cannot trump federal laws, so preemption “does Ms. Di Pietro no good.”

The full opinion is available here.