Illegal Reentry

Sitting en banc, the Ninth Circuit held that the district court erred in dismissing an indictment against a defendant who was charged with illegal reentry after removal. While the defendant’s initial immigration proceedings were initiated based on a defective Notice to Appear, the Court held that this did not deprive the immigration court of subject matter jurisdiction, despite the language of the law setting forth requirements for Notices to Appear, so the prior removal order was valid.

The Eleventh Circuit upheld two defendants’ convictions for bringing Cuban nationals into the United States because the Cuban Adjustment Act and the Wet-Foot/Dry-Foot policy do not give prior official authorization for Cuban nationals to enter, come to, or reside in the United States.

The Tenth Circuit affirmed the trial court’s denial of the defendant’s request to enjoin ICE from removing him once he was granted pretrial release, holding that a defendant’s release under the Bail Reform Act does not preclude ICE from detaining him under its own, independent statutory authority.

The Court held that the defendant could not be removed and later charged with illegal reentry based on a conviction under California law that was broader in defining methamphetamine than the federal law defining methamphetamine.

The Court affirmed the district court’s refusal to instruct the jury on durress, holding that the defendant asserting duress must show either: 1) “a bonafide effort to surrender to law enforcement officials once the alleged duress ends” or 2) “the duress defense elements were satisfied throughout the entirety of his criminal conduct.” The Court rejected the defendant’s argument that he was under duress during the three years he illegally lived in the U.S. due to the belief that he would be deported back to El Salvador, holding that the defendant’s subjective belief was not supported by the record and there was no evidence that his asylum claim would have been denied.