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Gradiz v. Gonzales,
No. 06-9534 (10th Cir., June 20, 2007) (Published): Immigration: Although this is an immigration case, it is noteworthy for the purpose of advising clients in criminal cases who may also have immigration issues. Gradiz, from Honduras, had been living in the U.S. illegally since 2003, but married a U.S. citizen and had a child. While his petition for legal residency was pending, he caught a drug case in Wyoming. In the drug case, he plead nolo and received a deferred sentence. Based upon this, the Department of Homeland Security ordered removal on the ground that he had been convicted of an aggravated felony. The Circuit upheld the removal order and the determination that even a nolo plea that resulted in a deferred sentence under state law is still a "conviction" under federal law.
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United States v. Phillips,
No. 07-3135 (10th Cir., October 1, 2008) (Published): Immigration: Phillips was an attorney in Kansas who ran a law firm centered around immigration law (his wife worked there also and was a co-defendant in the case). The accusation was that they had willingly made a false statement to a federal agency in violation of 18 U.S.C. sec. 1001 and eight counts of immigration fraud in violation of 18 U.S.C. sec. 1546(a). The panel REVERSED the immigration fraud convictions based on a statutory construction that excluded the documents at issue. However, all other convictions were affirmed.
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United States v. Hernandez-Noriega,
No. 07-1393 (10th Cir., October 17, 2008) (Published): Immigration: Defendant had been deported but had reentered the U.S. He was found in the U.S. while he was incarcerated on state charges in Colorado. He entered a plea to being a previously deported alien found within the U.S. His sentence was enhanced because "the defendant committed the instant offense while under any criminal justice sentence." He argued this was unfair because his crime was not "committed" while he was locked up and the enhancement should not apply when an alien is involuntarily incarcerated at the time he is found in the U.S. However, the Circuit was unpersuaded and AFFIRMED the enhancements under these facts. The legal rule is that the offense is first committed at the time of reentry and continues to the time when the defendant is arrested for the offense.
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Ochoa v. Bass
2008 OK CR 11 (March 12, 2008): 1. Immigration; 2) Habeas Corpus; State: Judge Bass, in Oklahoma County, sentenced two Spanish-speaking defendants. During the proceedings, Judge Bass questioned Ochoa (and another Petitioner Robles) about their legal presence in the country. As a result of this line of questioning, Judge Bass entered orders committing each Petitioner to the custody of the county sheriff. Judge Bass viewed these orders as his duty under HB 1804 and ordered the Sheriff to contact immigration authorities. The court GRANTED the writs of habeas corpus in this case, holding that once Sheriff Whetsel notified ICE officials about the issue, and ICE filed an "Immigration Detainer--Notice of Action" it had 48-hours to assume custody under 8 C.F.R. sec. 287.7(d). When the 48-hours elapsed, the State had no authority to hold them: "While it may seem inappropriate to release illegal immigrants and thereby indirectly permit them to continue in their illegal status, there is no independent state authority allowing Petitioners' continued state detention. If the federal government fails to apply federal law and take custody of Petitioners within the time limit set by federal regulations, then the state authorities must release Petitioners." NOTE: The Court held that Judge Bass could ask the questions because they are relevant to sentencing; however, the Court stated that a "trial judge probably ought not to ask such questions" and in any event HB 1804 does not require such questions
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