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Media Alerts - United States v. Romero-Caspeta - Sixth Circuit
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June 5, 2014
  United States v. Romero-Caspeta - Sixth Circuit
Headline: Under 8 U.S.C. § 1326(a), once an alien has been deported from the United States, it is a felony to reenter the United States at any time without express consent of the Attorney General. Even after the five-year prohibition to apply for reentry lapses, the alien still must obtain consent to lawfully enter the United States.

Area of Law: Criminal law; Immigration law

Issue Presented: Is it a defense to the crime of unlawful reentry to claim that a previously removed alien reentered the United States more than five years after his removal and thus no longer needed express consent of the Attorney General before entering the United States?

Brief Summary: The defendant was charged with the crime of unlawful reentry under 8 U.S.C. § 1326(a). Both the district court and the Sixth Circuit rejected defendant's argument that the requirement that an alien obtain express consent from the Attorney General before reentering the country no longer applies after five years. Considering this issue of first impression, the Sixth Circuit construed 8 U.S.C. § 1182(a)(9)(A)(i), which allows a previously removed alien to apply for a visa five years after removal, to have no effect on §1326.

Significance: A previously removed alien must obtain express consent from the Attorney General before reentering the United States, regardless of the length of time that has passed since removal.

Extended Summary: In 1991, the defendant, a Mexican citizen, was removed from the United States after attempting to enter using another person's border pass. The defendant was deported back to Mexico. The order of removal prohibited the defendant from reentering the United States for a period of five years without prior express consent of the Attorney General. Along with the order of removal, the defendant was given a notice statement warning that, under 8 U.S.C. § 1326, it is a felony for any previously removed alien "to enter, attempt to enter, or be found in the United States without the Attorney General's express consent."

In 2012, the defendant committed a traffic violation in Detroit, Michigan, and was detained by U.S. Immigration and Customs Enforcement agents. Defendant was charged with unlawful reentry under 8 U.S.C. § 1326(a). This required the government to prove that the defendant: (1) was an alien; (2) had been removed from the United States; (3) and re-entered the United States (4) without the consent of the Attorney General.

Defendant moved for acquittal arguing that, once five years had elapsed since his removal, he was no longer required to obtain the advance consent of the Attorney General before reentering the United States. According to the defendant, §1326(a) should be read in conjunction with 8 U.S.C. § 1182(a)(9)(A)(i), which permits a removed alien to obtain a visa after five years. Defendant argued that §1182 implicitly modifies §1326 to end the alien's obligation to obtain the Attorney General's express consent to reenter the United States after five years. The district court disagreed and denied defendant's motion of acquittal.

On appeal, the Sixth Circuit examined previous decisions of the Fourth and Fifth Circuits addressing the same issue, and found their reasoning persuasive. Those decisions clarified that §1182 does not implicitly modify §1326. Under §1182(a)(9)(A)(i), a previously removed alien is categorically inadmissible for the first five years after removal. Under §1182(a)(9)(A)(iii), the alien may seek readmission during that time with the express consent of the Attorney General. But the Sixth Circuit explained that §1182 does not give the removed alien "carte blanche to reenter the United States at his leisure" without the express consent of the Attorney General after the five-year prohibition period. It held, therefore, that §1182 has no effect on §1326, which "continues to articulate all the elements necessary to prove a violation." This includes the requirement that a previously removed alien must obtain the Attorney General's advance consent before reentry, even after the five-year prohibition period in §1182(a)(9)(A)(i) expires.

The Sixth Circuit determined that, in order to have had a defense to prosecution under §1326(a), the defendant was required to obtain express consent of the Attorney General before entering the United States. Because defendant admitted he had not done so, he had no defense as a matter of law.


Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0042p-06.pdf

Panel: Judges Bathelder, Griffin, Bell

Date of Issued Opinion: February 28, 2014

Docket Number: 12-2690

Decided: Affirmed.

Case Alert Author: Chelsey Morgenstern

Counsel: George B. Washington, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, for Appellee.

Author of Opinion: District Judge Bell

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 06/05/2014 12:57 PM     6th Circuit  

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