Immigration Law – Page 16 – Marquette University Law School Faculty Blog

Seventh Circuit Week in Review: Cloak and Dagger

Post author:Michael M. O'Hear
Post published:February 7, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Immigration Law Seventh Circuit

The Seventh Circuit had only one new opinion in a criminal case last week: United States v. Latchin (Nos. 07-4009 & 08-1085). Latchin emigrated from Iraq to the United States in the early 1990’s and became a naturalized U.S. citizen in 1998. However, documents seized by American forces in Baghdad in 2003 revealed that Latchin was in the employ of the Iraqi government. The documents indicated that Latchin had been sent to the U.S. as a sleeper agent for the Saddam Hussein regime. It is not clear whether he ever conducted any covert actitivities once inside the U.S., but, somewhat chillingly, he did manage to obtain a job at O’Hare Airport in Chicago. In any event, once his connections to Saddam were exposed, Latchin was prosecuted for procuring citizenship illegally by making false statements on his naturalization application in violation of 18 U.S.C. § 1425(a). He was convicted and then appealed.

The legal issues on appeal were not nearly so colorful as the underlying facts. Most significantly, the court had to determine what it means to “procure” citizenship through a false statement.

Supreme Court Hears Oral Argument in Nken v. Filip, on Question of Standard of Review for Stays of Removal Pending Appeal

Post author:Jessica E. Slavin
Post published:January 22, 2009
Post category:Federal Law & Legal System Human Rights Immigration Law U.S. Supreme Court

Yesterday the Supreme Court heard the argument in Nken v. Filip (formerly Nken v. Mukasey), which asks whether an alien who seeks a stay of deportation pending appeal must prove by clear and convincing evidence that his deportation is prohibited by law. The majority of courts have held that the ordinary standard for stays pending appeal continues to apply to such stays despite Congress’s enactment in 1996 of legislation providing that “no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law,”8 U.S.C. sec. 1252(f)(2).

The question is especially important in cases like Mr. Nken’s, in which the alien’s underlying claim is that he will suffer severe persecution or even death if returned to his country. If such aliens must demonstrate their right to stay by clear and convincing evidence, i.e., more than a preponderance of the evidence, to obtain a stay, then the expected result would be that some aliens with valid claims would be returned to their home countries and possibly subject to persecution before having the chance to have their appeals decided on the merits.

Seventh Circuit Week in Review, Part II: Piling on the Mandatory Minimums

Post author:Michael M. O'Hear
Post published:January 18, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Immigration Law Seventh Circuit

In addition to the two cases covered in my prior post, the Seventh Circuit had four new sentencing opinions last week. Only one warrants any extended discussion. And that case, United States v. Easter (Nos. 07-2433, 2435, 3118, 3203, 3540 & 3628), actually presented several different issues raised by multiple defendants.

In Easter, several codefendants appealed their sentences for various drug trafficking convictions. One, McKay, challenged the application of a mandatory minimum sentence to him based on the quantity of drugs involved in his offense. The ten-year minimum was applied to McKay because he and his coconspirators were responsible for at least 50 grams of crack or one kilogram of heroin (the actual basis was unclear). McKay’s appeal centered on the fact that, for purposes of calculating his sentence under the federal sentencing guidelines, the district court found him responsible for only 960 grams of heroin and 45-75 grams of crack. However, the Seventh Circuit (in a per curiam decision) noted that the guidelines do not hold defendants responsible for as much of the conduct of their coconspirators as do the mandatory minimum statutes. (For an earlier post on this topic, see here.) Considering the full set of drug sales foreseeably perpetrated by McKay’s coconspirators, the district court could permissibly reach the quantity thresholds for the ten-year prison sentence.