Immigration Criminal Offenses

Published on: February 22, 2021

Use of a fraudulent Order of Supervision violated a federal criminal statute

Ardon Chinchilla was charged in a federal indictment with violating 18 U.S.C. §1546 by using a fraudulent Order of Supervision to obtain a driver’s license from the Florida Department of Highway Safety and Motor Vehicles. Section 1546 makes it a crime to knowingly use or attempt to use a forged or unlawfully obtained document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States. An Order of Supervision is a document issued by the U.S. Immigration & Customs Enforcement (ICE) to aliens unlawfully present in the United States. It authorizes an unlawful alien to be released from custody into the community and to remain living in the United States for an indefinite period of time pending removal. An Order of Supervision may authorize the alien to seek employment in the United States. Florida accepts an Order of Supervision from applicants seeking to obtain a Florida driver’s license as proof of legal presence in the United States.

Chinchilla moved to dismiss the superseding indictment for failure to state an offense under §1546 arguing that the term “authorized stay” means lawful presence in the United States and that no federal statute or regulation expressly identifies an Order of Supervision as evidence of authorized stay in the United States. The district court agreed and dismissed the indictment.

Published on: November 2, 2018

Former Serbian prison camp guard convicted of concealing past in his citizenship application

by The Swartz Law Firm

Mitrovic appealed his conviction for unlawful procurement of naturalization in violation of 18 U.S.C. 1425(b) and 8 U.S.C. 1451(e) that arose from charges against him for concealing from immigration authorities his work as a Serbian prison camp guard. When Mitrovic applied for Unites States citizenship, he stated that he had never persecuted anyone on account of their race, religion, national origin, membership in a particular social group, or political opinion. It was eventually discovered that he served as guard who beat prisoners at the Trnopolje prison camp run by the Serbians during their campaign of ethnic cleansing waged against the Bosniak Muslims and other ethnic groups. The government charged Mitrovic with making false statements in his citizenship application.

Prior to trial, his attorney filed motions to depose witnesses in Bosnia who had been in the Trnopolje prison camp. However, upon his defense team’s arrival in Bosnia, they learned that several witnesses refused to be deposed. Most of the witnesses who refused to be deposed had been in the Trnopolje prison camp for longer than those where sere deposed and had originally told Mitrovic’s defense team that they never saw Mitrovich as a guard at the camp. Upon returning to the United States Mitrovic filed a motion to allow the investigator who interviewed the recalcitrant witnesses to testify to what the witnesses said during their initial interviews: that they had been in the camp for an extended period and never saw Mitrovic. He argued that statements should be excepted from the hearsay rule or alternatively the statements should be admissible because not allowing the statements would deprive Mitrovic of his constitutional right to present a complete defense citing Chambers v. Mississippi.

Published on: December 25, 2017

Conviction for possession of a gun by an illegal alien does not require the alien know his status is unlawful

by The Swartz Law Firm

In U.S. v. Ali Rehaif, the defendant, Rehaif, was a citizen of the United Arab Emirates who was convicted of possessing a firearm and ammunition while illegally or unlawfully in the United States. In his appeals he challenges the jury instruction given by the Florida district court regarding whether he had to know he was unlawfully in the United States.

Rehaif was initially issued a student visa to study mechanical engineering at the Florida Institute of Technology on the condition that he pursue a full course of study. He agreed to this condition upon receiving his student visa. After three semesters he was academically dismissed on December 7, 2014, and one month later on January 21, 2015, the school sent Rehaif an email stating that his immigration status will be terminated on February 5, 2015, unless he transfers out before that date or notifies the school office that he had left the United States. Rehaif did not take any action and on February 23, 2015, the Department of Homeland Security officially terminated his foreign student status.

On December 2, 2015, Rehaif went to a shooting range and purchased a box of ammunition and rented a firearm for one hour. The firearm was manufactured in Austria and imported into the U.S. through Georgia. The ammunition was manufactured in Idaho.

Published on: February 9, 2017

Categorical, generic, or modified categorical: It may be confusing but Florida’s burglary of a dwelling offense is not a crime of violence

by The Swartz Law Firm

In this case Garcia Martinez pleaded guilty to reentry after deportation in violation of 8 U.S.C. Sec. 1326(a) and his guidelines sentence was enhanced 16 levels by the district court who found his Florida conviction for second degree burglary of a dwelling, for which he was deported, was a crime of violence. He appealed the district court’s conclusion arguing that the facts of the Florida conviction for burglary of a dwelling as set forth in the presentence report do not qualify for a 16- level increase in his guideline range.

The court of appeals reversed after determining that the Florida statute does not fall under the enumerated offense clause definition for crime of violence under the sentencing guidelines.

The court arrived at this decision by first determining that the generic definition of the enumerated offense of burglary requires the unlawful entry into a building or structure with intent to commit a crime. However, the sentencing guidelines specifies that the offense must be a burglary of a dwelling. This required the court to determine the generic definition of a dwelling. It concluded a generic dwelling is a building or portion thereof, a tent, a mobile home, a vehicle, or other enclosed space which is used or intended for use a s a human habitation.

Published on: March 17, 2015

Hernandez’s counsel provided ineffective immigration assistance

by The Swartz Law Firm

In Rodolfo Hernandez v. USA, This appeal required the court of appeals decide whether the district court abused its discretion when it refused to conduct an evidentiary hearing to determine whether Rodolfo Hernandez’s counsel provided effective assistance when she incorrectly advised him about the immigration consequences of his guilty plea. Hernandez pleaded guilty to one count of conspiring to possess with the intent to distribute at least 1,000 kilograms of substance containing marijuana, and three counts of possession with intent to distribute at least 100 kilograms of a substance containing marijuana. After defendant entered his plea but before his conviction became final, the Supreme Court decided Padilla v. Kentucky. Which held that “counsel must inform her client whether his plea carries a risk of deportation.” He later moved to vacate his sentence based on ineffective assistance of counsel. The district court denied his motion without an evidentiary hearing.

During Hernandez sentencing hearing, his counsel asked the district court to explain the possibility of an immigrant detainer. The district court refused to answer the question because the court had absolutely no control over what Immigration and Customs Enforcement does. The district court sentenced Defendant Hernandez to 120 months of incarceration and five years of supervised release. After the Department of Homeland and Security issued an immigration detainer during his incarceration, Hernandez filed a pro se motion to vacate his sentence were he alleges that his “defense counsel advised him that based on her past experiences, there is a substantial likelihood that he would not be deported from the United States to Cuba”. Also that his “defense counsel advised him that based on her experience, detainers generally not issued for Cuban defendants.” He alleged that, absent counsel’s grossly incorrect advice he would not have entered a plea of guilty but would have instead in proceeding to trial. He later alleged that he has “been in the United States with his family almost his entire life, and therefore, he would not have agreed to plead guilty which will automatically remove him from his family and from a Country he has called home all of his adult life.” The district court denied his motion without an evidentiary hearing because he entered his guilty plea, more than one year before the Supreme Court’s decision in Padilla, and counsel failure to anticipate a change in the law does not constitute ineffective assistance.
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Published on: February 27, 2015

Defendant’s prior conviction does not qualify as a crime of violence.

by The Swartz Law Firm

In U.S. v. Estrada, Defendant Rudy Estrada pled guilty to illegal re-entry after being deported subsequent to an aggravated felony conviction. He now appeals the 48-month sentence imposed by the district court, arguing that the district court erred in applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). This particular enhancement is triggered when, among other things, a defendant has been convicted of a crime of violence prior to his deportation. The district court found that Defendant’s prior conviction was for a crime of violence within the meaning of enhancement.

In August 2004, Defendant, a Mexican citizen, was convicted in a Florida state court of throwing a deadly missile, in violation of Florida statute § 790.19. Subsequently, Defendant was deported to Mexico, but he later illegally reentered the U.S. he later was arrested on state drug charges, and he thereafter pled guilty in the criminal case that is now before us. Prior to sentencing, the probation office prepares a presentence report that calculated a base offense level of 8, a 16-level enhancement for a previous crime of violence, and a 3-level reduction for acceptance of responsibility. Prior to and during his sentencing gearing, Defendant objected to the 16-level crime of violence enhancement. Defendant argued that this prior Florida statute, § 790.19 conviction did not qualify as a crime of violence under § 2L1.2(b)(1)(C). The commentary for this section of the Guidelines defines “crime of violence” as either being one of the enumerated offenses set out therein or any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another”. Defendant argued that it did not have an element that required the use, attempted use, or threatened use of physical force against another person. Defendant, however, conceded that an 8-level aggravated felony enhancement pursuant to § 2L1.2(b)(1)(C) was appropriate in lieu of the 16-level enhancement.

The court of appeals applies Estrella Case in this saying that Estrella held that a conviction under Florida Statute § 790.19 is not categorically a crime of violence for purposes of application of the 16-level crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii). Estrella also concluded that § 790.19 is a divisible statute and hence use of the modified categorical test is appropriate. To apply the test here, court of appeals examine any Shepard-approved documents to see whether those documents identify the particular mens rea element upon which the prior conviction of the Defendant in this case rested. Charging Defendant with § 790.19, which information charges that Defendant “wantonly or maliciously” threw a deadly missile at an occupied vehicle. As Defendant nolo contendere plea was to an information charging him in the disjunctive with wantonly or maliciously committing a particular act in violation of § 790.19, Court of appeals is likewise unable to determine on which mens rea element Defendant’s conviction was based. For that reason, the Court of Appeals concured with Defendant’s argument and acceptd the government’s concession that the district court erred in concluding that this prior conviction was for a crime-of-violence offense Court of appeals vacate and remand.

Published on: June 17, 2014

Evidence of marriage fraud by three brothers in their bid for citizenship was enough to convict

by The Swartz Law Firm

The defendants in U.S. v. Chahla were three brothers from Syria who were convicted following a jury trial of various federal crimes in connection with their fraudulent marriages and their subsequent attempt to procure citizenship. The three brothers, all of whom resided in Florida, paid three women for a marriage. After their respective marriages, the brothers filed an I-130 petition to sponsor the defendants in their request for lawful permanent resident status (“green card”.) At the same time the brothers filed their own form I-485 application to adjust their status based on marriage to a U.S. citizen. After they were interviewed by immigration officials, the defendants received lawful permanent resident status. Two of brothers up applied for citizenship while the third just applied for his lawful permanent residency. An investigation into their marriage led to these charges.

The defense were indicted and convicted of conspiracy to commit marriage fraud and six counts of unlawful procurement of naturalization pursuant to 18 U.S.C. § 1425. For two of the defendants, the unlawful procurement of naturalization charges was based on false statements made in the application to become a lawful permanent resident and false statements made in the naturalization application. For a third brother the unlawful procurement charges were only based on his original lawful permanent resident application. Two defendants challenged their conviction under 18 USC § 1425 for unlawful procurement of naturalization and citizenship because the counts relied on false statements made in support of the lawful permanent resident application. The defense argued that the conviction should be reversed because § 1425 criminalizes fraudulent procurement of naturalization, but not false statements made in the application to adjust to permanent residents. The court rejected this argument. It found that becoming a lawful permanent resident was a statutory a prerequisite to becoming a naturalized citizen. The defendants’ attempt to become a naturalized citizen was contrary to law to the extent it was based on fraudulently obtained status as a lawful permanent resident. The defendants filed naturalization applications and a reasonable jury could conclude that the defense intended to seek naturalization when they file their fraudulent lawful permanent resident applications.

A third brother was convicted of making a false statement in the naturalization application. The naturalization form asked if the defendant had ever given false or misleading information to any U.S. government official while applying for any immigration benefits. There was overwhelming evidence that the defendant’s marriage was fraudulent, and the answers to these questions provided evidence for the court to conclude sufficient evidence existed to convict this count.

Published on: November 23, 2013

Prior state court sentence was an aggravated felony but dissent disagreed

by The Swartz Law Firm

In U.S. v. Garza-Mendez, the defendant pleaded guilty to the federal crime of reentry after deportation by an aggravated felon in violation of 8 U.S.C. §1326(a). His deportation resulted from a prior conviction under a Georgia-family-violence-battery statute for striking his girlfriend. In that case, he was sentenced to confinement to 12 months, but the state judge gave him credit for 30 hours of time served and permitted him to spend the rest of his sentence on probation. Prior to his sentencing, Garza-Mendez sought clarification of his sentence from the Georgia court and Judge Pamela Smith issued a clarification order stating that Garza-Mendez was sentenced to 12 months of probation with the first 30 hours to be served in custody. The clarification stated that “the court did not sentence Defendant to 12 months of incarceration.” The judge who issued the clarification was not the same judge that sentenced him five years earlier. At his federal sentencing for the reentry offense, Garza-Mendez argued that the clarification order showed that he had not been sentenced to 12 months of imprisonment and that he should not receive an 8-level increase in guidelines under USSG § 2L12(b)(1)(C) for the prior Georgia conviction. The district court denied his objection and gave him the increase. The district judge also denied his request for a variance for cultural assimilation and imposed a reporting requirement from Mexico as a special condition of his supervised release. He appealed the 8-level increase, the denial of cultural assimilation and the reporting requirement.

In this appeal he argued that he should not have an 8-level increase because the sentence was not 12 months of confinement. Under USSG § 2L12(b)(1)(C) a defendant who was previously deported defendant and has a conviction for an aggravated felony is subject to the 8-level increase. An aggravated felony is defined as a crime of violence in which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43). The the majority of this panel disagreed for several reasons. First, it found that the state judge who issued the clarification order was not the sentencing judge. Second, the state judge did nothing more than review Garza-Mendez’s August 30, 2007 sentence to issue the clarification order. Third, the August 30, 2007 sentence was clear that Garza-Mendez’ was sentenced to 12 months of confinement. The court pointed to a prior Eleventh Circuit case, U.S. v. Guzman-Bera, which held that a term of imprisonment includes the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. The court determined that the issue involves interpretation of the sentencing guidelines and a federal judge is in a better position to interpret the effect the state sentence order has on the Garza -Mendez’ federal sentence.

The defendant made a cultural assimilation departure argument pursuant to USSG § 2L1.1 arguing that his parents brought him when he was 7 to the United States, learned English and attended schools in Atlanta. The district court’s reasoned that his poor criminal record, both before and after his deportation, had outweighed the other 3553(a) factors and the court of appeals upheld the district court’s decision.

Published on: July 30, 2013

Out of court statements by an interpreter who translated for an officer interrogating the defendant are testimonial under Crawford v. Washington

by The Swartz Law Firm

In U.S. v. Charles the Eleventh Circuit found that the out-of-court statements by an interpreter to a Custom’s officer interrogating the defendant were testimonial and their admission was in violation of Sixth Amendment right to confront the interpreter as required by the Supreme Court’s decision in Crawford v. Washington. The defendant was convicted of knowingly using a fraudulent travel document, in violation of 18 U.S.C. 1546(a). When Ms. Charles entered the United States, she presented to a Customs and Border Protection officer her Haitian passport and a Form I-512 which provides authorization for persons to travel in an out of the United States while they are in the process of gaining legal immigration status. An inspection of the I-512 revealed that the names on the computer database did not match the name on the document in her possession. She was interrogated by a CBP officer who did not speak Creole but who used an over-the-phone interpreter service under contract with the Department of Homeland Security to communicate with the defendant and conduct his interrogation. The interpreter interpreted from English to Creole and then from Creole to English. At the trial the government did not call the interpreter to testify but presented the testimony of the CBP officer who conducted the interrogation through an interpreter and who told the jury what Charles said through the interpreter. The officer testified that she said that when she started reading the document and noticed the document was illegal because it did not fit her profile.

On appeal the defendant argued that her Confrontation Clause rights were violated by the admission of the CBP officer’s in-court testimony about the interpreter’s out-of-court statements without an opportunity to cross examine the interpreter. The defendant did not have a chance to cross examine the interpreter regarding the meaning any of Charles’ statements or the specific words she used. When the interpreter told the CBP officer that the defendant knew the form was illegal, the defendant could not cross examination about what actual words Charles used in Creole and whether the words she used could have had some other meaning.

The 11th Circuit reviewed this for plain error because the defendant did not object during the trial to the CBP officer’s testimony was a violation of the 6th Amendment. Under plain error standard the court of appeals cannot correct an error not raised at trial unless: (1) there was error, (2) the error was plain, (3) it affected the defendant’s substantial rights, and (4) the court determines the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Analyzing the statements by the interpreter in light of the Supreme Court’s decision in Crawford v. Washington, the court determined that the interpreter’s statements were testimonial. The 11th Circuit determined that the defendant had a Sixth Amendment right to confront the interpreter who was the out of court declarant whose testimony the government sought to introduce through the CBP officer. However, the court of appeals found no plain error because there was no binding circuit precedent or Supreme Court precedent clearly articulating this rule, that the declarant of the statements testified to by the CBP officer is the language interpreter.

Published on: June 22, 2013

For purposes of the statute of limitations, a fraudulent marriage for immigration benefits is committed on the date of the marriage

by The Swartz Law Firm

In U.S. v. Rojas, the defendant and his wife were indicted and convicted of marriage fraud, in violations of 8 U.S.C. § 1325(c). On this appeal, Rojas challenged his conviction arguing that the indictment fell outside the five-year statute of limitations. Specifically, he argued that statute of limitations for his offense began to run on the date of his marriage. The court of appeals agreed and concluded that the date that the crime of marriage fraud is complete is the date of the marriage. For this reason the indictment was time barred.

After the defendants were married, Rojas’ wife sent U. S. Immigration and Customs Enforcement (I.C.E.) an application to apply for Permanent Residence Status. The wife was an Argentinian citizen who had overstayed her visa. Rojas was a U.S. citizen. The application included a copy of their marriage certificate showing they were married April 23, 2007. During the interview conducted by immigration, certain discrepancies arose in their documentation and their answers. When the investigators confronted them with suspicions of marriage fraud they both admitted that the marriage was entered into to help the wife obtain her U.S. residency. The government indicted the defendants on April 27, 2012, and a motion to dismiss the indictment was filed in the district court.

Under § 1325(c), marriage fraud is committed by any individual that enters a marriage for the purpose of evading a provision of the immigration laws. The statute of limitations provision states that no person shall be prosecuted for any offense unless the indictment is returned within five years after the offense is committed. The statute of limitations begins to run when the crime is complete. The 11th Circuit’s interpretation of the language of the marriage fraud statute elements showed that the elements require that 1) the defendant enter into the marriage and 2) for the purpose of evading any provision of the immigration law. The court found the defendants did in fact enter into the marriage for that purpose. While the application for immigration benefits may serve as the circumstantial evidence of the unlawful purpose of the marriage, the plain language of the marriage fraud statute does not require a defendant to take the additional step for filing for immigration benefits in order for the crime to be complete. The 11th Circuit rejected the government’s arguments that the crime was not complete and the statute of limitations did not begin to run until the defendants were interviewed by immigration officials on August 24 2009, at which time they became aware of the fraud. The 11th Circuit disagreed with the government’s argument that the offense was a continuing crime. A continuing crime continues to be perpetrated and extends the statute of limitations. The 11th Circuit concluded that offenses should not be considered continuing offenses unless the specific language compels that conclusion. The fact that the offense uses the explicit language “enter into” means the offense occurs on the date the marriage takes place.