Case Story: Winning the First Federal Illegal Reentry Case of Its Kind

DISCLAIMER:

CASE RESULTS DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.

Imagine your family member is charged with a crime. You’d want their lawyer to do everything possible to help them get the best outcome, wouldn’t you? And you’d want that even if your relative had made mistakes in the past and maybe wasn’t especially likable, right? 

Of course you would.

We all would.

Because no matter what, we want the best for those we love. And that’s particularly true when they’re facing the real possibility of having to go to prison.

Well that’s what this case is about — turning over every stone in an attempt to help a client that wasn’t likable and by society’s standards “didn’t deserve help”.

The Charge

Our client was Cuban and was charged with coming back into the United States illegally. While that sounds simple enough, it’s actually pretty complicated.

In the beginning, our client came to the United States legally. He fled from Cuba and was given special permission to stay here as a refugee. While he was here, however, he unfortunately began to make bad decisions. As these decisions piled up, he was eventually convicted of various crimes.

Eventually, his permission to be in the United States was revoked because of these criminal convictions and he was scheduled to be sent back to Cuba. The problem, however, was that for political reasons Cuba wouldn’t take him.

So he was a man without a country. The United States didn’t want him. Cuba didn’t want him. Nobody wanted him. But since he couldn’t get back to Cuba, the United States had to keep him. 

Now federal law states that if a person’s home country won’t take them, that person eventually has to be released back into society. That’s what happened here.

But when my client was released, he didn’t learn his lesson, and kept committing crimes. And each time that would happen, he would be arrested, the government would try to send him back to Cuba, it wouldn’t work, and he would eventually be released again.

This game of catch-and-release continued for years until the client was finally fed up and tried to leave the United States on his own. His plan was to go to Canada and try to get back to Cuba from there. Since Canada was on better terms with Cuba politically, he thought this was his best chance.

The problem was when he got to Canada, instead of staying out for trouble and simply trying to go home to Cuba, he allegedly committed another crime. Not wanting to face the charges, the client came back to the United States to avoid prosecution.

By doing that, a new wrinkle emerged.

Before, despite the government’s best efforts, my client had never been taken out of the United States. They tried numerous times, but had always failed.

Now, however, my client had left the United States on his own by going to Canada. And under federal law, that meant he had “self-deported.” So when he came back to the United States from Canada, he didn’t have legal permission to do so. That reentry was now illegal.

And this is exactly what the government was waiting for. Because the punishment for coming back into the United States illegally is stiff, especially for someone with our client’s lengthy criminal history.

The game of catch-and-release was over. The client was destined to spend years in federal prison. Everyone thought his goose was cooked.

But we had an idea.

The Defense

In order to understand our idea, you have to understand that we’re legal junkies. We love the law. Case in point — when Mr. DeKrey drives places, he listens to oral arguments of old Supreme Court cases.

Nerdy, we know.

But it was during one of these oral arguments that he heard something that got him thinking. He was listening to a case called Pereira and it was about immigration law. Basically, the case was about the procedure the government had to take in order to legally deport someone. 

In the case, the government had failed to follow the proper procedure. As a result, the Supreme Court held that the person the government was trying to deport could no longer be deported.

This got us thinking.

We knew the government had tried to deport our client. And we also knew that one of the things the government had to prove to convict our client of reentering the country illegally was that they had followed the proper procedure when they had tried to deport the client (remember it was ultimately unsuccessful because of the whole Cuba-United States diplomatic issue).

So if the government hadn’t followed the proper procedure when they tried to deport our client, then like in Pereira, the client’s attempted deportation would be illegal. And if his attempted deportation was illegal, then he couldn’t be charged with the crime of reentering the country illegally.

Sounds good, right? 

Well there was still one problem.

Pereira was a case in immigration court and our client was charged in criminal court. So, we were going to have to try convince a judge to apply an immigration court rule to criminal court.

That’s rare.

And when Mr. DeKrey tried it, he was one of the first attorneys in the United States to do so. 

We explained it to our client this way — we were Luke Skywalker and this was our one shot at the Death Star.

The outcome

After Mr. DeKrey filed his motion saying why the case should be dismissed, and the government filed their motion saying why it shouldn’t, it was up to the judge to decide who was right.

And so we waited. And waited. And waited some more.

Then one day, seemingly out of nowhere, the judge issued his decision.

Shockingly, he sided with us.

Here’s what he said:

Our client’s deportation process was not proper and so his deportation order (the document that allows the government to send a person back to their home country) was illegal. Since it was illegal, the government couldn’t use it to try to charge our client with the crime of illegally reentering the United States.

While the government wants Pereira to apply only in the immigration context, a careful reading of the Supreme Court’s opinion in Pereira shows the Court “did not limit its analysis” to the immigration context. Thus, it can and does also apply in the criminal context.

Translation: The government didn’t follow the proper deportation procedures so our client couldn’t be charged with any crime where a proper deportation is an element of the crime.

The Takeaway

Did our client deserve to get off scot-free? Perhaps not.

But does the government need to follow the rules before it gets to put a person in prison? Yes, absolutely.

Moreover, winning this case makes something called “case law,” which basically just means something that other people who are charged with this crime can point to in order to also try to go free.

And so other people who don’t have the same criminal history as my client can now use this legal argument in their cases. And maybe that person is a family man, who works two jobs, has kids at home, and is only in the country illegally to provide for his family.

If that’s the case, then helping our client in order to help other, arguably more deserving people is 100% worth it.

Finally, we go back to what we said at the beginning of this story — and that’s the idea that everyone deserves a good lawyer who helps them as much as possible. We could have thought to ourselves, “this client seems like a bad guy, he’s committed all these crimes, maybe we will just phone this one in”.

Nobody will be upset because nobody thinks he deserves any more chances anyway.

But it’s not our job to make that call. Our job is to turn over every stone and help every person no matter what.

Here, we did just that and we won.

We blew up the Death Star.