Moriel-Luna entered the United States four times illegally, was arrested, convicted and sentenced each time for commission of various crimes. Each time he was ordered deported after serving his sentence. After his first deportation order he married a U.S. citizen. In his latest appeal of the fourth deportation order, he argued the IJ had failed to inform him after his first deportation hearing of the potential for adjusting his status. The Ninth Circuit remanded to the IJ to determine whether Luna was properly informed of that potential, and if not, whether he had been prejudiced; 244 Fed.Appx. 810 (C.A. 9). On rehearing, the IJ rejected his application because Luna could not adjust his status unless he possessed a visa. He didn’t, and the IJ ordered his deportation. Luna appealed to the Ninth Circuit. After an extensive discussion of immigration law in a case that could have been disposed of in two paragraphs, the Ninth Circuit panel affirmed the IJ order. But in a footnote the court said that one of Luna’s convictions, an assault with a deadly weapon, might not be a federal firearm offense and therefore not a basis for deportation based on his conviction for assault with a deadly weapon. What cost to the public for four illegal entries?: Entering the county four times illegally (Border patrol); arrested after entry for a crime each time (police); four times in custody (Sheriff); four times prosecuted (prosecutor and defense lawyer); court time four times (judge; court staff); four times in prison (prison guards) ; IJ time (two hearings-IJ and staff); Court of Appeal time [twice]) (3 judges and staff).

The angry national debate on immigration legislation concluded without resolution other than Congress funding construction of a fence along the Mexican border. Although the proposed Congressional legislation incited widespread opposition, a parallel debate occurs regularly in federal courts. Unheralded by the media, the Ninth Circuit repeatedly undermines immigration enforcement. Aside from hearing innumerable appeals of cases decided by Immigration Court decisions on applications for cancellation of removal, asylum and the Convention Against Torture, the court hears appeals from U.S. government criminal prosecution and conviction of deported aliens who reenter the United States. At this stage, the full resources of the government are invoked: Judges, prosecutors, defense attorneys, jurors, and appeals. A recent case confirms the exorbitant cost of enforcing immigration law. In U.S. v. Buenaventura Castillo-Basa the record establishes that Basa was originally charged and convicted of multiple crimes, served seven years of a fifteen year sentence and deported. Basa returned again to the United States without permission, was indicted and charged with being a deported alien found in the United States in violation of 8 U.S.C. 1326. Prior to trial, the government conceded it could not find an audio tape of the earlier deportation hearing establishing Basas presence in this country. At the trial, the defendant testified he never appeared before an immigration judge and had no hearing. The jury found Basa not guilty. Shortly thereafter the government located the tape clearly establishing Basa had indeed appeared before the immigration judge at a deportation hearing. To put it bluntly, Basa lied. The prosecution charged Basa with perjury. Basa alleged he could not be re tried based on the Double Jeopardy Clause and the doctrine of collateral estoppel. The district court judge denied his motion and Basa appealed. A three judge panel of the Ninth Circuit split 2-1, the majority holding collateral estoppel barred a trial for perjury. Although Ninth Circuit court rules offer the opportunity for all active judges to order a rehearing, an insufficient number requested a hearing. Five judges dissented; 494 F.3d 1217 (2007). The legal question turned on whether the evidence in the deportation trial contained an issue necessarily decided by the jury verdict of “not guilty”in order to invoke collateral estoppel, i.e., did the jury verdict in the deportation trial foreclose a subsequent prosecution for perjury. Although the argument is bound up in legal analysis, Basa documents the absurdity of federal judges wasting inordinate time and incurring the cost of a jury trial on a perjuring illegal alien while the courts struggle under an overwhelming case load. That an indisputably illegal alien who committed perjury is allowed to escape punishment is indefensible. According to the 2-1 majority of the court, that is unfortunate, but Basa will not be tried for perjury. U.S. v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007) [deportation] U.S. v. Castillo-Basa, 2007 WL 2105093 [perjury] The fact pattern of this case is unusual but prosecutions under 8 U.S.C. 1326 are not; U.S. v. Jorge Enrique Lopez, 2007 WL 2142305 (July 27, 2007)