Archive | deportation

Friday, September 22nd, 2023

A Panel of the Second Circuit holds (over a dissent) that a non-citizen is removable for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed” — under 8 U.S.C. § 1227(a)(2)(A)(i) — even though New York subsequently reduced the maximum sentence for Class A misdemeanors from one year to “364 days” and made the change retroactive. Vasquez v. Garland, No. 21-6380, __ F.4th ____ (2d Cir. Sept. 13, 2023) (C.J.J.’s Jacobs and Chin; C.J.J. Robinson dissenting).

I. Background

Under 8 U.S.C. § 1227(a)(2)(A)(i) —  which is Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”) — a non-citizen “is deportable” if “convicted of a crime of moral turpitude” (committed within a specified period “after the date of admission”) “for which a sentence of one year or longer may be imposed.” (emphasis added).

“Peguero Vasquez . . . was admitted to the United States as a permanent resident in 2012.” See Opinion (“Op”) at 5. In 2017, he pleaded guilty to the New York offense of criminal possession of a forged instrument in the third degree, a Class A misdemeanor, because of “his use of a fraudulent license plate.” Op at 3-5; see N.Y. Penal Law  § 170.20.

But “[i]n 2019, the New York legislature reduced the maximum possible sentence for Class A misdemeanors … (including the forged instrument offense to which Peguero Vasquez pleaded …

Posted by
Categories: deportation

Posted By
Categories: deportation

Continue Reading
Tuesday, May 25th, 2021

The Supreme Court throws a wrench into § 1326(d) motions in the Second Circuit

In United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), Justice Sotomayor ruled for a unanimous Court that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — because the immigration judge (IJ) mistakenly told him that he was removable as an aggravated felon due to his DUI conviction (this became error six years later in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a § 16(b) “crime of violence” and thus not an “aggravated felony”) – does not suffice to dismiss a reentry indictment. The decision overrules Ninth Circuit law holding that “defendants are ‘excused from proving the first two requirements’ of § 1326(d) [– noncitizen defendants must show that they exhausted administrative remedies and …


Posted By
Categories: aggravated felony, crime of violence, deportation

Continue Reading
Friday, January 27th, 2017

Jan. 25 Executive Order and Federal Defense of Immigrants

President Trump’s executive order titled “Enhancing Public Safety in the Interior of the United States,” signed on Jan. 25, may have significant impacts on non-citizens with open federal criminal cases in the relatively near term.  The order is only two days old and does not explicitly withdraw existing agency guidance on most issues it addresses, so it is not clear how soon DHS or DOJ will issue revised guidance to field offices regarding implementation. But federal criminal practitioners should be aware of several aspects of this order that may alter the landscape for noncitizen defendants and should closely monitor their implementation:

1) Some federal defendants who would not have been ICE enforcement priorities before may now be high priorities for removal even pre-conviction.  Obama’s DHS Secretary Jeh Johnson issued a 3-tiered system of ICE enforcement priorities in late 2014.  Once those took effect in 2015, 98 to 99% of all …

Posted by
Categories: deportation

Posted By
Categories: deportation

Continue Reading