Federal law makes it a crime for an alien to enter the United States after being deported. In this case the defendant was convicted of the Federal offense of reentering the United States after having been deported. In U.S. v. Garcia, The defendant was not charged until 7 years after he came in illegally. The defendant moved to dismiss the charges claiming that the 5 year statute of limitations had expired.
The facts showed as follows:
• The defendant entered the United States illegally • two years after his illegal reentry, he married a United States citizen
• His wife filed an I-130, the first step for aliens seeking a green card
• About 7 years after she filed the I-130, he was indicted for reentry after deportation.
The federal court of appeals court rejected the statute of limitations argument. It found that there was no evidence Immigration and Customs Enforcement (ICE) knew or should have known of his illegal reentry based on the information provided in the I-130. Under the totality of the circumstances, the appellate court could not find the immigration authorities failed to act with reasonable diligence in investigating the defendant’s status to determine he was the person that was deported.
The court of appeals did reduce the defendant’s sentence by rejecting the enhancement for a prior aggravated assault. It found the prior conviction did not fall under the crime of violence definition. The defendant challenged the sentencing court’s 16-level Sentencing Guidelines enhancement resulting from a finding that the defendant’s prior aggravated assault conviction was a crime of violence.
The court of appeals found that the label given to a prior conviction by the state statute is not dispositive of the question whether to prior offense is a crime of violence. Furthermore, the court examined the statute and found a defendant could be convicted of acting recklessly and not intentionally or willfully. With insufficient evidence to show this prior conviction was an aggravated felony, the defendant’s conviction for assault was therefore not a crime of violence.
The Swartz Law Firm has been handling crimes involving immigration laws for many years. If you or a loved one has been accused of and immigration crime the Swartz Law Firm can assist in handling your defense.