358 F. Supp. 3d 157
D.D.C.2019Background
- Defendant, a Chinese citizen, was removed in July 1999 after being found inadmissible for fraud/misrepresentation and later was found in the U.S. without permission to reenter.
- Charged on April 19, 2018 with illegal reentry in violation of 8 U.S.C. § 1326.
- Defendant filed (and says has a pending) an I-601A provisional unlawful presence waiver after reentering.
- Defendant received a Notice stating a 5-year bar under INA § 212(a)(9) and that he must obtain Attorney General permission to reenter during that bar; defendant argues that the 5-year statement means he was not barred when he returned about seven years later.
- Government moved to exclude mention of the I-601A, arguments challenging the validity of the 1999 removal order, and broader attacks on immigration laws or policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance of I-601A waiver | Exclude it as irrelevant to illegal-reentry elements | I-601A (pending or obtained) shows permission or mitigates culpability | Court: Excluded — I-601A does not equal Attorney General's advance consent and is irrelevant under Fed. R. Evid. 401 |
| Meaning/effect of 1999 removal notice and 5-year bar | Exclude arguments that the notice’s 5-year language negates illegality of later reentry | Defendant: Notice limited reentry bar to 5 years so later return (~7 years) was lawful | Court: Notice is misleading but statutory framework (8 U.S.C. § 1326) still makes reentry without AG consent unlawful; defendant’s argument rejected |
| Challenge to statute/claim for dismissal (scope of AG consent requirement) | Prosecutor: §1326 criminalizes reentry without AG consent; §1326(b) only adds penalties | Defendant: Only aliens removed for terrorism need AG approval; move to dismiss | Court: Motion to dismiss denied — §1326(a) applies broadly and §1326(b) only enhances penalties for certain removals |
Key Cases Cited
- United States v. Romero-Caspeta, 744 F.3d 405 (6th Cir. 2014) ( §1326 elements include requirement of advance AG consent )
- United States v. Joya-Martinez, 947 F.2d 1141 (4th Cir. 1991) (discussion that AG consent is required for reentry after removal)
- United States v. Bernal-Gallegos, 726 F.2d 187 (5th Cir. 1984) (distinguishing civil visa statutes from criminal §1326)