Eleventh Circuit Finds Prosecutors May Not Argue Defendant Is Alien After Previous Acquittal – U.S. v. Valdiviez-Garza

February 15, 2012 by David S. Seltzer

As a Miami immigration crimes defense lawyer, I was interested to read an appellate decision with a relatively rare victory for the defendant. In United States v. Emiliano Valdiviez-Garza, Valdiviez-Garza appealed his indictment for illegal reentry by an alien who had already been removed. Valdiviez-Garza had successfully defended himself against the same or similar charges in an earlier case, by arguing that he may be a citizen through his father. Because he was not convicted in that trial, he argued that the government was estopped from attempting again to argue that he is an alien. And without that element, the Eleventh U.S. Circuit Court of Appeals noted, there is no crime at issue. The court ultimately decided Valdiviez-Garza was right, saying the valid and final judgment in that case precludes rearguing the issue now.

Valdiviez-Garza’s first illegal entry trial was in 2009. At that trial, he did not dispute the three elements of the crime other than alien status: That he had been removed, but later found in the U.S. without express federal permission. The focus of the trial was on his citizenship, and even the prosecution agreed that there was no cause to convict if Valdiviez-Garza was shown to be a citizen. During testimony, his attorney called an Immigration and Customs Enforcement agent to testify that Valdiviez-Garza’s father’s birth certificate listed Texas as his (the father’s) birthplace. Though Valdiviez-Garza was born abroad, his attorney said, he can still derive U.S. citizenship through that connection. Jury instructions echoed this, adding that in order for a child to be a citizen, the citizen parent must have been physically present in the United States for at least ten years, at least half of them when the parent was older than 14 years old. The jury voted to acquit.

In its opinion, the Eleventh Circuit concluded from the record that the 2009 jury had reasonable doubt as to whether Valdiviez-Garza was an alien. That reasonable doubt is enough to estop the government from making the same argument this time around, it found. Once a fact has been decided by a valid and final judgment, the same parties may not litigate it again in the future, the court said. Thus, the federal government is collaterally estopped from making the argument that Valdiviez-Garza is an alien ineligible for reentry. And because status as an alien is one of the four essential elements of the crime of illegal reentry, the Eleventh said, the government cannot prove its case without arguing that he is an alien. Thus, the district court should have dismissed his indictment, the Eleventh found, and reversed and remanded with instructions to dismiss.

As a Fort Lauderdale criminal defense lawyer, I’m pleased to see this victory for someone caught in the machine that is immigration law. Unlike in other areas of criminal law, there is no right to a public defender in immigration law; defendants must pay for their own lawyers or do without. Because many immigrants come to the United States for economic reasons, some are shut out from immigration appeals for economic reasons; others may not realize they have rights because they come from a country where court proceedings are not usual or not fair. Nonetheless, having an attorney to speak for you can make a big difference in an immigration case (or any other criminal case), in part because a South Florida immigration defense lawyer will simply understand the legal factors better.

If you or someone you love is facing criminal charges related to immigration, or removal or deportation proceedings, don’t wait to call Seltzer Law, P.A., to discuss your rights and your legal options. For a free consultation, you can reach us through our website or call 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

New Immigration Enforcement Leads to 2,900 Arrests of Immigrants With Serious Criminal Charges

South Florida Immigrants Should Be Careful After Immigration Enforcement Announcement

Seltzer Law, P.A. Fights for Clients’ Right to Change Pleas and Stay in the United States