Congress explicitly provided that the original effective dates for aggravated felonies should apply in this context.  This means that the offense must have been listed as an aggravated felony under the laws in force at the time the person committed the offense (which has been held to be at the time of illegal re-entry or the time the person is “found” in the United States.).[88]

 

            Consequently, the current IIRAIRA definition of aggravated felony will apply only to persons who enter illegally or are found on or after September 30, 1996.[89]  Before that, the applicable definition of aggravated felony is the one that was in effect at the time of the illegal re-entry.[90]   Defense counsel should check to see exactly which convictions were aggravated felonies at the time that the person made the illegal re-entry or was found in the United States.[91]

 

            If the validity of the deportation order can successfully be attacked, either in immigration court or collaterally district court during the illegal re-entry prosecution, the maximum penalty for the offense drops to six months for simple illegal entry.[92]

 

          Specific intent is not required for the offense of illegal re-entry, and the government need not prove that the noncitizen knew s/he was not entitled to enter the country without permission of the Attorney General.[93] 

[88] IIRAIRA § 321(d), discussing INA § 276(a).

[89] The definition of “aggravated felony,” contained in 8 U.S.C. § 1101(a)(43), has not been changed by Congress since IIRAIRA was signed into law on September 30, 1996.

[90] See, e.g., United States v. Avila-Ramirez, 170 F.3d 277 (2d Cir. March 11, 1999) (vacating sentence enhancement when the defendant had been “found” by the INS in February 1996, and the aggravated felony “sexual abuse of a minor” was not added until September 1996).

[91] See K. Brady, Appendix 9-C for information on past definitions of aggravated felonies.

[92] 8 U.S.C. § 1325.

[93] United States v. Reyna-Tapia, 294 F.3d 1192, 1197 at n.5 (9th Cir. 2002).

Tenth Circuit

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION " COLLATERAL ATTACK POST CONVICTION RELIEF
United States v. Adame-Orozco, ___ F.3d ___, 2010 WL 2220592 (10th Cir. June 4, 2010)(rejecting claim that deportation order was invalid, because it was issued without affording the noncitizen the opportunity to resort to state post-conviction procedures to try to invalidate the conviction that served as the basis for the deportation order, since this did not improperly deprive him of the opportunity for judicial review in his federal deportation proceedings).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION " COLLATERAL ATTACK
United States v. Adame-Orozco, 607 F.3d 647, 2010 WL 2220592 (10th Cir. June 4, 2010)(rejecting claim that deportation order was invalid, because it was issued without affording the noncitizen the opportunity to resort to state post-conviction procedures to try to invalidate the conviction that served as the basis for the deportation order, since this did not improperly deprive him of the opportunity for judicial review in his federal deportation proceedings).