Articles Posted in Immigration

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.

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.”

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.”