(B)  Safe Havens Specific to This Category. 

            (1)  Illegal Entry Record Fails to Establish Prior Deportation.  A violation of INA § 275(a), 8 U.S.C. § 1325(a) is committed by a noncitizen “who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by willfully false or misleading representation or the willful concealment of a material fact . . . .”  A first conviction of this offense is a misdemeanor with a six-month maximum, and a second conviction of this offense is a felony punishable by up to two years’ imprisonment.[682]

 

            The record of conviction for a violation of INA § 275(a), 8 U.S.C. § 1325(a) will not establish the existence of a prior deportation for an aggravated felony, since the prior deportation does not constitute an element of the illegal entry misdemeanor offense, and the immigration and federal courts are limited to examining the record of conviction in determining whether an offense constitutes an aggravated felony conviction.[683]

 

            (2)  Illegal Re-Entry Record of Conviction Fails to Establish Prior Deportation.   A noncitizen may be convicted of an offense “described in § . . . 276 [8 U.S.C. § 1326]” under a variety of circumstances.  8 U.S.C. § 1326(a) provides in pertinent part:

 

any alien who:

 

1.   has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

 

2.   enters, attempts to enter, or is at any time found in, the United States, unless [the Attorney General has expressly consented or the noncitizen establishes no such consent was required]

 

shall be fined under Title 18 or imprisoned not more than 2 years, or both.

            Thus, this is a divisible statute.  Some noncitizens may violate it by returning after having been denied admission; others after deportation.  Removal is considered equivalent to deportation for this purpose.         Although the aggravated felony statute provides that the noncitizen must have been previously “deported” under certain circumstances, this applies to one who was similarly “removed” under the post-1996 changes in immigration terminology.[684]

 

            The aggravated felony ground is limited to those convicted of a violation of this statute only if “previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph . . . .”[685]  Therefore, noncitizens convicted of a violation of this statute by returning illegally after having been denied admission have not been convicted of an aggravated felony.

 

            (3)  Prior Deportation Was Not For An Aggravated Felony Other Than Under Subdivision (O).  Similarly, those who violate the statute by illegal re-entry after deportation or removal are considered aggravated felons only if the prior deportation was “for an offense described in another subparagraph of this paragraph . . . .”[686]  This would exclude those previously deported on account of an illegal entry or re-entry conviction, because those offenses are not “described in another subparagraph of this paragraph . . . .”[687] — they are described in the same subparagraph.  It would also exclude those previously deported for some reason other than an aggravated felony conviction; for example, those deported for any other ground of deportation, such as crime of moral turpitude, controlled substances or firearms conviction, entry without inspection, for lack of documents, for overstaying a visa, etc.  Counsel should check the order to show cause, or notice to appear (the charging documents in immigration court), as well as the deportation or removal order itself, to determine whether the order of removability or deportability meets the statutory test.

            (4)  Record of Conviction Does Not Establish Prior Deportation Was “For” A Specified Aggravated Felony.  Only those convicted of violating these statutes who were previously deported for an aggravated felony conviction other than illegal entry or re-entry under INA § § 275(a) or 276, 8 U.S.C. § § 1325(a) or 1326 would be considered aggravated felons under this theory.  Therefore, the record of conviction of the subject illegal re-entry conviction must be examined carefully to determine whether it establishes all the elements required for the subject conviction to be considered an aggravated felony conviction.  The statute is a divisible statute, so the divisible statute analysis applies.

            Counsel representing noncitizens on illegal re-entry charges should attempt to make sure the record of conviction does not establish that the defendant was previously deported “for” an aggravated felony conviction.  This should not be too difficult, since the law is clear that to be subject to the enhanced criminal penalties,[688] the noncitizen need not have been deported on account of the aggravated felony prior, merely deported after suffering the aggravated felony conviction.[689]  Therefore, it is unlikely that the record of conviction and punishment under INA § 276(b)(2), 8 U.S.C. § 1326(b)(2) will establish the elements necessary to conclude that the subject conviction itself constitutes an aggravated felony conviction under INA § 101(a)(43)(0), 8 U.S.C. § 1101(a)(43)(0).

[682] INA § 275(a), 8 U.S.C. § 1325(a).

[683] Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999).

[684] United States v. Pantin, 155 F.3d 91 (2d Cir. 1998).

[685] Ibid.  (emphasis supplied).

[686] Ibid.

[687] Ibid. (emphasis supplied).

[688] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2) (illegal re-entry after deportation after aggravated felony conviction).

[689] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

First Circuit

ILLEGAL REENTRY - SENTENCE - COURT OF APPEAL LACKED JURISDICTION TO REVIEW CLAIM THAT DISTRICT JUDGE ERRED IN FAILING TO DEPART DOWNWARD BASED ON CULTURAL ASSIMILATION
United States v. Melendez-Torres, ___ F.3d ___, 2005 WL 2037351 (1st Cir. August 25, 2005) (court of appeal lacked jurisdiction to review claim that district judge erred in failing to depart downward based on cultural assimilation).

Lower Courts of Second Circuit

ILLEGAL REENTRY - DEFECT IN UNDERLYING REMOVAL
United States v. Duncan, ___ F.Supp.3d ___, 2005 U.S. Dist. LEXIS 24292 (D.Conn. October 17, 2005) (court granted defendant's motion to dismiss illegal reentry indictment on grounds immigration court's entry of removal order without substantive review of claim of derivative citizenship violated due process: "Due process requires that 'where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.' Mendoza-Lopez, 481 U.S. at 838. While not expressing any ultimate opinion on the merits of Duncan's claim, the Court finds that he is entitled to further and more complete review of that claim before his removal may be used against him in an indictment under 8 U.S.C. 1326.").

Eighth Circuit

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK
United States v. Rodriguez, ___ F.3d ___, 2005 WL 2036247 (8th Cir. Aug. 25, 2005) (waiver of appeal in immigration court of prior deportation order by defendant was not rendered unknowing and unintelligent based upon immigration judge's incorrect prediction of whether the appellate court would consider underlying drunk driving offense to be an aggravated felony for immigration law purposes, so defendant could not collaterally attack validity of prior deportation order as a defense to illegal reentry prosecution).

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK ON VALIDITY OF DEPORTATION ORDER
United States v. Rodriguez, __ F.3d __ (8th Cir. Aug. 25, 2005) (Defendant may not collaterally attack a prior deportation order since he knowingly waived his right to appeal the immigration judge's decision and was not deprived of a right to judicial review).
http://caselaw.lp.findlaw.com/data2/circs/8th/044178p.pdf

Ninth Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS - DEFENDANT WHO PAYS LOSS DOWN UNDER $10,000 HAS NOT AVOIDED A LOSS AMOUNT SUFFICIENT TO CONSTITUTE AN AGGRAVATED FELONY
Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. May 29, 2007) (noncitizen who pleads guilty to fraud in misappropriating more than $10,000 but later repays the entire loss, so the victims have been made whole, has not "paid down" the "loss to the victims" below the statutory threshold so that her offense no longer qualifies as an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).