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Why I Represent Individuals Charged with Illegal Reentry

Updated on April 18, 2015

Introduction

It should come as no surprise based on the title of this article, that I am a criminal defense attorney. Prior to beginning law school, I had no desire to become a criminal defense attorney. My father has worked with law enforcement for several years, and I grew up in a very cop-friendly environment. As a youth, I never understood the distrust and flat out rage some people have for law enforcement. I fell into criminal defense out of necessity. I began law school in 2006 and by the time I graduated and passed the California bar exam, the U.S. economy was struggling. There was a glut of attorneys and large law firms across the country were collapsing. I took the first job I could get.

Based in San Diego, California, the U.S. District Court for the Southern District of California has one of the busiest federal courts in the nation. Nearly all of the criminal charges are related in some way to the U.S.– Mexico border. These may involve alien smuggling, drug smuggling, money laundering, firearm offense, but the most common offense is illegal reentry.

The Offense

At its core, illegal reentry is designed to prevent individuals who have been previously deported from the U.S. from returning to the U.S. It is codified in Title 8 U.S. Code Section 1326. This offense varies slightly from illegal entry, which does not require an underlying order of removal from an immigration judge (8 U.S.C. 1325).

A. Elements

Any crime is made up of elements – a checklist of what must be proven before a person can be convicted of that crime. Illegal reentry cases may begin a few different way: being found in the U.S., being caught at the border, etc. However, the basic elements are the same: 1) the defendant was previously ordered deported/removed; 2) the defendant voluntarily entered the U.S.; 3) the defendant knew it was illegal to reenter the U.S.; 4) the defendant was found in the U.S. or attempted to enter the U.S.; and 5) the defendant was not a U.S. citizen at the time of entry/attempted entry into the U.S. See Ninth Circuit Model of Manual Criminal Jury Instructions, Section 9.8.

B. Sentence

Assuming a conviction, the sentences vary widely based upon the defendant’s criminal history. By statute, the maximum penalty for a person with no significant criminal history is two (2) years. If a defendant has three or more misdemeanors involving drugs, crimes against the person or both, or a felony (other than an aggravated felony) the maximum sentence is ten (10) years. Finally, a defendant who has a prior aggravated felony conviction may be sentenced up to twenty (20) years in jail.

By way of background, federal courts rely upon the U.S. Sentencing Guidelines as a guide in determining a sentence. There are several factors that go into determining the correct advisory guideline sentence calculation, including correctly calculating a criminal history score. These are all topics beyond the scope of this article.

The purpose of laying out the sentencing maximums is simply so that there is an understanding that an individual who has previously been deported, who has a “aggravated felony” conviction (a detailed topic also beyond the scope of this article) may go to jail in the U.S. for up to twenty (20) years. By way of contrast, the federal bank robbery laws also impose a twenty years maximum penalty. 18 U.S.C. 2113(a).

The People

One of the most common questions I am asked about being a criminal defense attorney is how I do my job. In other words, how do I sleep at night, knowing that I represent in court bad people. These types of question make numerous assumptions, including that the people I represent are in fact criminals and therefore bad people.

To be perfectly clear, I have and continue to represent in court people that have committed crimes. Not all of the people I represent are “good people.” Some of the people I have represented in the past I would not want as my neighbors. It is easy for society to villainize people that have been arrested, and especially those who have been convicted of crimes.

All crimes are not equal. Presenting a defendant to a jury who is being charged with child sexual molestation is inherently more difficult than present a man who came across the border to be with his family.

By and large there are three main motivations why people who have been deported from the U.S. previously are now returning: 1) this is the only home they know; 2) their family is here; and 3) financial motivation.

During the course of my career, I have represented or assisted in the representation of hundreds of illegal reentry cases. About half of those people speak English. Sometimes, English is the only language they do speak. In the 1980s the Reagan Administration implemented an amnesty program. As a result, several people, including those who were only children in the 80s, became legal permanent residents (green card). Many people went on to naturalize and become U.S. citizens. Occasionally, a client became a permanent resident, later committed a crime, lost permanent resident status and was deported. Some of these people came to the U.S. as children and have no recollection of living in their home country. So the life they have in the U.S. is the only life they have ever known.

As an aside, a common misconception is that legal permanent residents cannot lose their immigration status. I always encourage permanent residents to naturalize. For more on this topic see my firm’s website page on naturalization. (https://www.leifkleven.com/naturalization.html)

Frequently, an individual reenters or attempts to reenter the U.S. to be with his/her family. Regardless of their prior immigration status (if any) many defendants have lived in the U.S. for several years. Many have spouses and children in the U.S. The children are almost always U.S. citizens. After one parent is deported, the family is left with the impossible decision of relocating outside the U.S. or perpetually having one parent live outside the U.S.

Another common motivation why people come to the U.S. is to make money. Obviously a job in the U.S. pays better than a job in Mexico, Guatemala, El Salvador, etc. An adult male can make sufficient money by working in agricultural fields in California or Washington to support himself and send money home. This money may be spent to support his family there or provide for his aging parents medical bills.

None of these motivations excuse breaking the law. Yet, it is understandable why someone would risk imprisonment and even their life to enter the U.S. illegally. In a sentence, that is why I represent individual in illegal reentry cases. These defendants are generally coming to the U.S. to be with their family, provide for their family, or because it is the only life they know.

All crimes are not equal. Presenting a defendant to a jury who is being charged with child sexual molestation is inherently more difficult than present a man who came across the border to be with his family.

Conclusion

Despite being a common federal offense, few criminal defense attorneys hold themselves out to be illegal reentry attorneys. A look in your local yellow pages will show there is no shortage of DUI attorneys.

Defending an illegal reentry charge can be complicated as it requires maneuvering through both the immigration laws and federal criminal defense laws and procedures. In some cases, there may be little that can be done to prevent a conviction. Further, an illegal reentry crimes is a fancy trespassing crime. There is hardly anything sexy about such a case. Yet, it is the type of cases I enjoy defending, because my clients are generally likeable, hardworking, men and women that just want a better life for themselves.

I can sleep at night knowing that a girl will not have to grow up visiting her father in a federal prison.

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