quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 D. The Immigration “Strike” – Avoiding a conviction that will cause a severe sentence enhancement if the defendant re-enters the U.S. illegally after being deported/removed. Many persons who are deported/removed re-enter the U.S. illegally in order to join family members here or other connections. If the re-entrant is caught at the border, or picked up for any reason once inside, it is very likely that he or she will be prosecuted for a serious federal offense. Illegal re-entry following removal is the number one federal charge brought today, comprising roughly 30% of all new criminal charges brought in federal court nationally. 30 Federal agents troll county jails looking for “foreigners” or persons with Spanish surnames, especially if the person was convicted of certain priors. To assist the defendant, counsel must do two things: ‣ Warn the defendant, before he or she is removed, of the danger of illegal re-entry and the real possibility of doing federal prison time, and ‣ Attempt to avoid conviction of one of the several particular offenses that cause a seriously enhanced sentence for the crime of illegal-re-entry. See below. Two types of prior convictions cause the most serious sentence enhancement for an illegal re-entry charge: conviction of an aggravated felony, and conviction of certain other felony offenses. 31 Federal law employs a complex sentencing system under the “advisory” U.S. Sentencing Guidelines. Guidelines provide for an increase in the length of sentence as levels determined by prior convictions increase. To give a general idea of the seriousness of a prior conviction, consider that the base level for an illegal reentry sentence is eight. That level will be increased between four and sixteen levels for prior convictions. In California prosecutions, a typical sentence for illegal re-entry plus prior is around 30 months in federal prison. See story of “Luis” at the end of this section. Crimes That Mandate an Enhanced Sentence for Illegal Reentry Increase by 16 levels: • Drug trafficking, and the sentence is more that 13 months; • Crime of violence (see definition below); • Firearms offense; • Child pornography offense; • National security of terrorism offense; • Alien smuggling offense. 32 30 When other immigration-related charges are added in, such as simple illegal entry and alien smuggling, immigration crimes constitute over 50% of new criminal charges in federal court. See, e.g., statistics at http://trac.syr.edu/tracreports/bulletins/overall/monthlynov09/fil/. 31 8 USC § 1326; INA § 276. Section 1326(b)(1) penalizes re-entry after “any felony” conviction, which is the section under which the “felony crime of violence” and other offenses discussed here are charged. Section 1326(b)(2) penalizes re-entry after an aggravated felony. 32 U.S. Sentencing Commission Guidelines Manual, USSG § 2L1.2(b)(1)(A)(2004). Immigrant Legal Resource Center N-25
California Quick Reference Chart and Notes February 2010 A crime of violence is defined in the federal sentencing guidelines as including the following felony offenses: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. 33 Note that the USSG “crime of violence” definition used here is not precisely the same as the definition of “crime of violence” under 18 USC §16, used in determining an aggravated felony. Note also that the definition of firearms offense includes felony possession of a firearm and “crime of violence” includes felony statutory rape. Increase by 12 levels: Drug trafficking and the sentence is less than 13 months. Increase by 8 levels: Aggravated felony Increase by 4 levels: • Any other felony; • Three or more misdemeanors that are crimes of violence (see definition above) or drug trafficking offenses. The following example, based on a real case, shows how a conviction for a “violent offense” that is not an aggravated felony will affect a client later charged with illegal reentry. Example: Luis is an undocumented worker who has lived in the U.S. for some years and has two U.S. citizen children. He has no current means of getting lawful immigration status. He has been convicted of his first offense, felony assault, and is sentenced to one month in jail and placed on three years probation. This is not an aggravated felony. Immigration authorities pick up Luis once his jail term is over, and he is removed to Mexico based on his unlawful status. Luis immediately re-enters the United States to return to his family. He is detected by authorities and charged in federal proceedings with illegal re-entry after removal and a prior conviction, not of an aggravated felony, but of a separately defined “felony crime of violence.” While an aggravated felony (e.g., his assault if a one-year sentence had been imposed) would only have rated a sentence increase of 8 levels, under the felony “crime of violence” category he receives an increase of 16 levels. Luis is sentenced to forty-one months of federal prison for the illegal re-entry. 34 33 USSG § 2L1.2, comment (n.1)(B)(iii) (2004). 34 See discussion of similar facts, U.S. v. Pimentel-Flores, 339 F.3d 959 (9 th Cir. 2003). N-26 Immigrant Legal Resource Center
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