Deportation Immigration Virginia Lawyer Unlawful Illegal Reentry 8 USCS 1326
Deportation Immigration Virginia Lawyer Unlawful Illegal Reentry 8 USCS 1326
United States v. Henry
Facts:
Defendant appealed his conviction in the United States District Court for the Eastern District of Virginia, at Richmond, for unlawful reentry of a deported alien under 8 U.S.C.S. § 1326(a) and (b)(2). Although a jury also convicted defendant of one count of social security fraud and one count of credit card fraud, he did not appeal these convictions.
Deportation Immigration Virginia Lawyer
Issue:
- Whether the defendant’s illegal reentry conviction under 8 U.S.C.S. § 1326(d) should be vacated?
Discussion:
Defendant argued that his illegal reentry conviction under 8 U.S.C.S. § 1326(d) should be vacated as he satisfied the three requirements for a collateral attack of a prior deportation order under § 1326(d); the appellate court agreed. The Immigration and Naturalization Service (INS) did not provide defendant with written notice of the deportation hearing as the statute required, therefore defendant satisfied the first two requirements for a collateral attack under § 1326(d). The U.S. argued that defendant could not meet the exhaustion requirement because he never appealed the immigration judge’s order of deportation to the Bureau of Immigration Affairs within 30 days; however, because the INS never sent defendant written notice of the deportation hearing, defendant did not appear and, thus, was never informed of his right to appeal to seek administrative and judicial review. The INS’s failure to provide notice of the hearing deprived defendant of the opportunity to contest the charges or otherwise seek relief from deportation from the administrative tribunal and, as it was possible defendant would not have been deported, defendant met the fundamental unfairness requirement. The appellate court vacated the illegal reentry conviction and remanded the case to the district court for re-sentencing.
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These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Removal Immigration Virginia Lawyer Citizenship Destination Country
Removal Immigration Virginia Lawyer Citizenship Destination Country
Markham v. Customs Enforcement
Facts:
Petitioner alien was ordered to be removed to Somalia, his country of birth and citizenship. Under 28 U.S.C.S. § 2241, he challenged the choice of Somalia as his destination claiming defendant Government was barred from removing him absent advance consent from Somalia. The United States Court of Appeals for the Fourth Circuit held that 8 U.S.C.S. § 1231(b)(2) did not require acceptance by the destination country. The alien sought certiorari. The alien conceded that he was subject to removal and sought various forms of relief from that determination, but they were denied.
Removal Immigration Virginia Lawyer
Issue:
- Whether the Attorney General was precluded from removing him to Somalia under 8 U.S.C.S. § 1231(b)(2)(E)?
Discussion:
The Court held that with respect to the third step, the Attorney General was directed to move on to the fourth step only if it was impracticable, inadvisable, or impossible to remove the alien to each country described in the third step. The reasons for this interpretation included: (1) an acceptance requirement at the fourth and final step did not create any structural inference that such a requirement must exist at the third; (2) merely because Congress expressly directed the Attorney General to obtain consent when removing an alien to a country with which he lacked ties of citizenship, nativity, previous presence, and so on, it did not implicitly require advance acceptance from countries with which an alien did have such ties; and (3) to infer an absolute rule of acceptance would run counter to deference to the President in matters of foreign affairs.
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Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Deportation Immigration Virginia Lawyer Drug Trafficking Conviction Enhancement
Deportation Immigration Virginia Lawyer Drug Trafficking Conviction Enhancement
United States v. Watson
Facts:
Defendant pled guilty to violating 8 U.S.C.S. § 1326(a) and (b)(2). He appealed his 30-month below-U.S. Sentencing Guidelines (USSG) sentence, arguing that the United States District Court for the District of Virginia erred in making a 16-level increase under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2010), based on a prior drug conviction which had been vacated.
Deportation Immigration Virginia Lawyer
Issue:
- Whether the district court erred in applying enhancement based on defendant’s prior drug-trafficking conviction?
Discussion:
As he did in the district court, defendant relied on the Mejia decision. However, that decision was not helpful, and the weight of circuit authority was contrary to his position. The relevant time for determining whether his prior conviction qualified for enhancement was the date of his deportation rather than the date of his sentencing for illegal reentry. At the time of his deportation in 2008, he had the requisite qualifying felony drug trafficking conviction. Additionally, to the extent that he relied on the Padilla decision, his claim was unsupported by the record, which did not disclose the reason his conviction was vacated. While § 2L1.2, cmt., application n. 1(B)(vii) and n. 14 cross referenced to U.S. Sentencing Guidelines Manual § 4A1.2, they do so only with respect to the meaning of sentence imposed and three or more convictions. The Reinoso decision did not hold, as defendant asserted, that there was in general no distinction between the criminal history calculation and the offense level calculation in applying the USSG. The district court did not err in applying the enhancement based on defendant’s prior drug-trafficking conviction even though it had been vacated. Defendant’s conviction was affirmed.
The SRIS Law Group Virginia lawyers will do their best to help you with your immigration case. Contact a Virginia lawyer from our firm to discuss your immigration case.
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Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Deportation Immigration Virginia Lawyer Aggravated Felony Unreasonable Sentence
Deportation Immigration Virginia Lawyer Aggravated Felony Unreasonable Sentence
United States v. Jewel
Facts:
Defendant appealed from the U.S. District Court for the Eastern District of Virginia, where he pled guilty to illegal reentry after removal following conviction for an aggravated felony, in violation of 8 U.S.C.S. § 1326(a), and (b)(2) (2006). At sentencing, the district court departed upward from defendant’s initially calculated U.S. Sentencing Guidelines range of 41 months to 51 months, and sentenced him to 65 months’ imprisonment.
Deportation Immigration Virginia Lawyer
Issue:
- Whether the defendant’s sentence was procedurally and substantively unreasonable?
Discussion:
On appeal, defendant argued that his sentence was procedurally and substantively unreasonable. Defendant first argued that the district court’s upward departure by two criminal history categories was not warranted. The district court noted that defendant’s immediate return to the United States after deportation, which occurred following his release from a three-year sentence imposed after his conviction for aggravated sexual battery of a child less than thirteen years of age, was not adequately reflected in the initially calculated U.S. Sentencing Guidelines range. The district court then integrated consideration of the 18 U.S.C.S. § 3553(a) factors and concluded, in defendant’s case, criminal history categories II and III were inadequate to promote respect for the law, provide for deterrence, protect the community, and reflect the nature and circumstance of the offense of conviction. The court held that the sentence was substantively reasonable in light of the seriousness of defendant’s criminal history and the district court’s reasoned analysis of the relevant § 3553(a) factors. The court affirmed the judgment.
The SRIS Law Group Virginia lawyers will do their best to help you with your immigration case. Contact a Virginia lawyer from our firm to discuss your immigration case.
A Virginia lawyer from our firm will talk with you about your immigration case and advise you about your options.
You can count on a lawyer from our firm to try their best to help you obtain the best result possible based on the facts of your case.
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Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Deportation Arlington Virginia Lawyer Padilla Retroactive Application
Deportation Arlington Virginia Lawyer Padilla Retroactive Application
United States v. Zach
Facts:
Defendant filed a 28 U.S.C.S. § 2255 motion seeking to vacate his guilty plea for drug trafficking. He contended that his motion was timely under 28 U.S.C.S. § 2255(f)(3), as the Padilla rule recognized a new right that was retroactively applicable to cases on collateral review. The United States District Court for the Eastern District of Virginia, denied the motion. Defendant appealed.
Deportation Arlington Virginia Lawyer
Issue:
- Whether the district court had improperly denied the defendant’s motion for retroactive application of Padilla rule?
Discussion:
The court determined that insofar as the Padilla rule recognized a new right, the right could not be applied retroactively to cases on collateral review under the principles of Teague. Padilla was not a watershed rule implicating fundamental fairness, such that it served to enhance the accuracy of the fact-finding process. Padilla violations take place only when a defendant has acknowledged guilt and submitted himself to be sentenced accordingly. When such a defendant was surprised at a later date by the initiation of deportation proceedings that were not forecast by defense counsel, the injustice, while real, did not cast doubt on the verity of the defendant’s admission of guilt or the propriety of the sentence imposed pursuant to the plea agreement. 28 U.S.C.S. § 2255(f)(3) did not authorize courts to read between the lines of a prior opinion to discern whether that opinion, by implication, made a new rule retroactively applicable on collateral review. The only way to make a new rule retroactive was through a holding, not through dictum, and Padilla made no such holding. The judgment of the district court was affirmed.
The SRIS Law Group Virginia lawyers will do their best to help you with your immigration case. Contact a Virginia lawyer from our firm to discuss your immigration case.
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Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Removal Arlington Virginia Lawyer Firearm Warrant Possession
Removal Arlington Virginia Lawyer Firearm Warrant Possession
Park Shelter v. United States
Facts:
When police arrived to execute a search warrant for drugs and firearms at defendant’s home, they announced their presence but waited only a short time before turning the knob of the unlocked front door and entering the home. Police discovered large quantities of drugs and a loaded gun. The State conceded that the entry was a violation of the “knock and announce” rule. Defendant was charged under state law with unlawful drug and firearm possession. The state trial court granted defendant’s motion to suppress. The Court of Appeals reversed, finding that violation of the “knock and announce” rule did not require suppression under the Fourth Amendment. Defendant was convicted of drug possession. Certiorari was granted.
Removal Arlington Virginia Lawyer
Issue:
- Whether violation of the “knock and announce” rule did not require suppression under the Fourth Amendment?
Discussion:
The Court determined that the exclusionary rule was inapplicable and suppression of the evidence was not warranted because, inter alia, (1) violation of the “knock-and-announce” rule did not require the suppression of all evidence found in the search; (2) the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence; (3) the interests that were violated, preventing the Government from seeing or taking evidence described in a warrant, had nothing to do with the seizure of the evidence; and (4) the social costs of applying the exclusionary rule to knock-and-announce violations were considerable, the incentive for such violations was minimal to begin with, and the extant deterrences against them were substantial. The Court affirmed the judgment of the state appellate court.
The SRIS Law Group Virginia lawyers will do their best to help you with your immigration case. Contact a Virginia lawyer from our firm to discuss your immigration case.
A Virginia lawyer from our firm will talk with you about your immigration case and advise you about your options.
You can count on a lawyer from our firm to try their best to help you obtain the best result possible based on the facts of your case.
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Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Deportation Immigration Virginia Lawyer Jurisdiction Malicious Wounding
Deportation Immigration Virginia Lawyer Jurisdiction Malicious Wounding
James v. Commonwealth
Facts:
Defendant challenged his sentence on a charge of malicious wounding in the Circuit Court of York County, Virginia, asserting that the court lacked jurisdiction to enter the sentence after previously vacating his conviction, and that his conviction either violated his right to speedy trial or to be free from double jeopardy, or was predicated upon the Commonwealth’s breach of his plea agreement.
Deportation Immigration Virginia Lawyer
Issue:
- Whether order vacating the guilty plea and suspending his sentence was a final disposition of the matter?
Discussions:
Because defendant was a deportable alien, the court allowed him to withdraw his original guilty plea to a felony. The trial judge agreed to vacate the finding of guilt, suspend imposition of sentence for three years, and ordered three years of supervised probation with special conditions. During the three-year suspension period, defendant was arrested and charged with several new offenses, and for violating the conditions of the prior order. The judge then imposed a sentence, and defendant appealed. First, defendant argued that the order vacating the guilty plea and suspending his sentence was a final disposition of the matter, rendering the subsequent conviction void, but the court ruled that having asked the trial judge to avoid convicting him of a felony, defendant could not assume an inconsistent position by arguing that the judge erred in responding favorably to his request. The trial court had retained jurisdiction over the matter. The court found that double jeopardy and speedy trial rights were not implicated by the sentencing arrangement. The court also rejected an argument that defendant’s brother had been the possessor of a weapon that had been in joint control.
The SRIS Law Group Virginia lawyers will do their best to help you with your immigration case. Contact a Virginia lawyer from our firm to discuss your immigration case.
A Virginia lawyer from our firm will talk with you about your immigration case and advise you about your options.
You can count on a lawyer from our firm to try their best to help you obtain the best result possible based on the facts of your case.
We have client meeting locations in Fairfax County, Prince William, Richmond, Virginia Beach, Fredericksburg & Lynchburg.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Deportation Immigration Virginia Lawyer Asylum Extreme Hardship
Deportation Immigration Virginia Lawyer Asylum Extreme Hardship
Arthur v. US Immigration Service
Facts:
Petitioner sought review of an order from the Board of Immigration Appeals, which denied his motion to reopen and remand his case for consideration of his application for suspension of deportation pursuant to 8 U.S.C.S. § 1254(a)(1).
Deportation Immigration Virginia Lawyer Asylum Extreme Hardship
Issue:
- Whether the Board of Immigration Appeals erred in denying the defendant’s motion to reopen and remand his case for consideration of his application for suspension of deportation pursuant to 8 U.S.C.S. § 1254(a)(1)?
Discussion:
Petitioner was an Ethiopian natural, who had been living in West Germany as a refugee. He entered the United States on a nonimmigrant visitor visa for the purpose of visiting his brothers. He never mentioned that he wanted to live permanently in the United States. He also did not say that he had a health problem. When his pleasure visa expired after six months, he did not leave the country. Instead, he filed an application for asylum based on his fear that he would be persecuted in Ethiopia due to his political views. His asylum application was denied and he was ordered to depart. When he still did not leave, he was charged with deportability. Petitioner conceded his deportability. He filed another asylum application. This time, his asylum application was denied because he had firmly settled in West Germany prior to his visit to the United States. The Board of Immigration Appeals denied petitioner’s motion to reopen his case based on newly discovered evidence. The court found no abuse of discretion where family separation was a problem common to all deported aliens. The court also did not find that petitioner’s health problem or potential persecution established extreme hardship. The court affirmed the denial of petitioner’s motion to reopen and remand his case for consideration of his application for suspension of deportation.
The SRIS Law Group Virginia lawyers will do their best to help you with your immigration case. Contact a
Virginia lawyer from our firm to discuss your immigration case.
A Virginia lawyer from our firm will talk with you about your
immigration case and advise you about your options.
You can count on a lawyer from our firm to try their best to help you obtain the best result possible based on the facts of your case.
We have client meeting locations in Fairfax County, Prince William, Richmond, Virginia Beach, Fredericksburg & Lynchburg.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Deportation Immigration Virginia Inconsistent Uncorroborated Testimony Lawyer
Deportation Immigration Virginia Inconsistent Uncorroborated Testimony Lawyer
Justin v. United States
Facts:
Petitioner illegal alien, a native and citizen of El Salvador, applied for asylum under 8 U.S.C.S. § 1158(a). Respondent agency commenced deportation proceedings against him. The alien conceded deportability, renewed his § 1158(a) application, and applied for withholding of deportation under 8 U.S.C.S. § 1253(h)(1). The immigration judge (IJ) and the Board of Immigration Appeals each denied the applications. The alien appealed.
Deportation Immigration Virginia Inconsistent Uncorroborated Testimony Lawyer
Issue:
- Whether the immigration judge (IJ) and the Board of Immigration Appeals erred by denying the defendant’s application for withholding deportation?
Discussion:
The alien was the only witness at a hearing before the IJ, who found the alien incredible in many respects, because his uncorroborated testimony was inconsistent with his asylum application. His application stated the alien did not know who killed his brother, but he testified that a specific group committed the crime. His application stated that he was accused of belonging to a political party, but he testified that he was a member of a political party. The board agreed with the IJ’s credibility findings. The alien contested the findings. The inconsistencies were not minor, however, since the alien’s claims for asylum and withholding of deportation hinged on the murder of his brother and the alien’s political activities. The alien also failed to satisfy the objective standard of the asylum standard because he relied only on his uncorroborated testimony, which the IJ found incredible, and El Salvador’s history of civil and political unrest. But objective evidence indicated that conditions were improving in El Salvador. Since the alien could not establish eligibility for asylum, he could not satisfy the more stringent standard for withholding of deportation. The court affirmed the board’s order denying asylum and withholding of deportation.
The SRIS Law Group Virginia lawyers will do their best to help you with your immigration case. Contact a
Virginia lawyer from our firm to discuss your immigration case.
A Virginia lawyer from our firm will talk with you about your
immigration case and advise you about your options.
You can count on a lawyer from our firm to try their best to help you obtain the best result possible based on the facts of your case.
We have client meeting locations in Fairfax County, Prince William, Richmond, Virginia Beach, Fredericksburg & Lynchburg.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Deportation Immigration Virginia Defects Judicial review Discretionary Lawyer
Deportation Immigration Virginia Defects Judicial review Discretionary Lawyer
United States v. Evan
Facts:
Defendant, a citizen of Spain who resided in the United States as a permanent resident alien, sought review of a decision by the District Court. The district court had denied the alien’s motion to dismiss an indictment filed by plaintiff United States of America (INS) alleging that the alien had reentered the United States after deportation, in violation of 8 U.S.C.S. § 1326.
Deportation Immigration Virginia Defects Judicial review Discretionary Lawyer
Issue:
- Whether the defects in the deportation proceeding effectively precluded defendant’s right to judicial review?
Discussion:
The INS issued a warrant for the alien’s deportation based upon a criminal record that included convictions for several offenses. The alien was deported to Spain but was subsequently found residing in Virginia and was indicted for re-entry after deportation. The alien claimed that his deportation hearing had been fundamentally unfair because he had not intelligently waived his right to judicial review and was not provided a copy of Form I-618 as required by 8 C.F.R. § 242.16(a). The trial court ruled that the deportation hearing was not fundamentally unfair and that the immigration judge had fully advised the alien of his right to counsel and his right to seek discretionary suspension of deportation. The alien pled guilty under an agreement that preserved his right to appeal the denial of his motion to dismiss. The court held that the record was not sufficiently developed on the issue of whether the alien intelligently waived his right to appeal the deportation order. The alien’s claims that he had not intelligently waived his right to counsel and that his right to apply for discretionary suspension of deportation had not been adequately explained to him were meritless. The court remanded the case to the trial court to develop the record regarding whether the alien intelligently waived his right to appeal the deportation order.
The SRIS Law Group Virginia lawyers will do their best to help you with your immigration case. Contact a Virginia lawyer from our firm to discuss your immigration case. A Virginia lawyer from our firm will talk with you about your immigration case and advise you about your options. You can count on a lawyer from our firm to try their best to help you obtain the best result possible based on the facts of your case.
We have client meeting locations in Fairfax County, Prince William, Richmond, Virginia Beach, Fredericksburg & Lynchburg.
Article written by A Sris
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
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