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Saturday, September 13, 2014

Understanding the term "arriving alien"

Be careful not to get your immigration client "no bond" on result of bogus allegations!


Many DHS attorneys (opposing counsel in immigration cases) do a great job, but you still need to be vigilant against your fella not getting bond or access to certain relief because the government incorrectly classifies him as an arriving alien.

The term "arriving alien" is defined in section 8 CFR 1.1(q). It is a clear definition, and you must not let DHS or ICE mis-categorize the alien:
8 CFR 1.1(q):
(q) The term arriving alien means an applicant for admission coming or at- tempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of trans- port. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted ad- vance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for pur- poses of section 235(b)(1)(A)(i) of the Act.

A recent example on a popular listserve we work with should illustrate:

My client entered the USA with a J-1 visa. The TA said that my client is an arriving alien. NTA allegation #3 states that client was admitted as a nonimmigrant exchange visitor for duration of Status. I have been doing research but I can't find it. Would anyone tell me where to find whether or not my client is an "arriving alien".

In this example, the client received a stamp -- "D/S" and entered the country. D/S stands for "duration of status" and indicates that the individual was reviewed by a Customs and Border Patrol officer, and admitted. Per 1 CFR 1.1(q), his is no longer an applicant for admission, and therefore he is not an arriving alien.

Where your client sneaks into the US (entry without inspection or EWI), the rule is that once he has "arrived" and is not detained within 100 miles of the border, he is considered to be within the US and no longer an arriving alien for Court purposes. The 100 miles, by the way, is a rule-of-thumb, not a firm statute.

Do you have a case involving an arriving alien? We'd love to help! Give us a call at 1-800-579-9864. Do not let your case get white washed!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Friday, September 12, 2014

Bruton Doctrine - suppressing co-defendant statements

When a co-defendant squawks – suppressing statements made by the “co-d”.


In criminal defense, it is often the case that more than one person is “nabbed” for the same criminal conduct. In the zeal of the prosecution to charge multiple parties as conspirators and individuals with “constructive” guilt, it is a common problem for the defense to be confronted with statements from one defendant that implicates the other. The proper action is to move to suppress these statements under the Bruton Doctrine.

For example: Frank and Tom are pulled over after being stopped for speeding. The police officer conducting the stop sees one of the two men through an object out the window of the car. It is dark and the windows are tinted. Later, a gun is discovered in the bushes where the car was stopped. The driver, Frank, states that he had the gun, but had given it to Frank when the car was stopped, and it was Frank who throw the weapon from the car. Frank does not make a statement. Both individuals are charged with illegal possession of a firearm, and ammunition. There are no finger prints or DNA evidence recovered on the weapon. Can Tom’s statements be used to convict Frank?

The Bruton Doctrine, named after the Supreme Court case Bruton v. United States, 391 U.S. 123 (1968), was originally aimed at co-conspirators, but subsequently expanded to include co-defendants. The central holding states:
[A]t a joint jury trial, the Confrontation Clause is violated by the admission of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial.

Key elements of the Bruton Doctrine include:
  • There must be at least two defendants.
  • The statements of one defendant must be used against the other.
  • The defendant making the statement must not testify at trial.

The Bruton Doctrine was further refined by subsequent case law limiting the reach of “statements” to testimony by a co-defendant only. See, Johnson v. United States, 17 A.3d 621, 628 (D.C. 2011) where the Court found that statements made by one co-defendant implicating a fellow wrong-doer were not excluded under the Bruton Doctrine because they were not testimony and therefore not subject to the Confrontation Clause.

The next logical question is – what is testimony? If Bruton indicated statements, but current case law limits to testimony, understanding the scope of “testimony” is critical to an effective Bruton argument. In United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004), the Court indicated a statement was testimonial in nature if it “intended to bear testimony against the accused.” Was the statement given for the purposes of convicting the codefendant? In point of fact – the matter is far from clear. While common law has defined testimony, counsel should always file a Bruton motion to suppress co-defendant statements regardless of whether such statements are clearly testimonial in nature or not.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.