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Should defense lawyer have consulted Kurzban’s Immigration Law Sourcebook?

On Behalf of | Feb 29, 2012 | Family Visas |

The U.S. Court of Appeals for the Fifth Circuit recently turned to Florida immigration attorney Ira Kurzban’s “Immigration Law Sourcebook” in interpreting derivative citizenship as a defense to a federal crime. The case involved a man who sought to challenge his convictions of two federal charges because his criminal defense attorney failed to raise the man’s derivative U.S. citizenship as a defense to the alleged crimes based upon allegations that the man had lied about being a U.S. citizen on an application to purchase a firearm.

In 1989, a woman immigrated to the United States from Mexico. She brought her son, who was roughly 7-years-old with her to build a new life in the United States. The woman filed paperwork, including an I-130 Petition on behalf of her son. The petition for her son was never ruled upon, but the woman herself eventually became a naturalized citizen.

In 1999, the woman’s son married a U.S. Citizen. He sought to adjust his status in January 2001 and his citizen wife filed an I-130 Petition for Alien Relative on her husband’s behalf. An I-130 is one step of the family visa process that a citizen must go through to establish the relationship of an immigrant relative. In August, 2002, the young man had a brush with the law and was convicted of a drug crime. After he served his sentence, he was deported to Mexico.

The man had “lived ‘permanently’ in the United States from 1989-2002,” the appellate decision states. He began to reside in the U.S. when he was a minor and his mother was naturalized when the young man was 16-years-old.

He tried to buy a firearm in 2005 and represented that he was a U.S. Citizen. His criminal defense attorney allowed the man to plead guilty to criminal charges that were based upon the man’s representation that he was a U.S. Citizen.

The man sought to challenge his convictions under the Sixth Amendment, telling the court that his defense attorney was ineffective in failing to raise the defense and therefore the defendant should be able to withdraw his guilty pleas. He did not know that the derivative citizenship defense may have been available. The federal appellate court agreed and remanded the criminal case back to the trial level.

The federal appellate court cited federal law, section 1432(a)(5), and indicated that no other Fifth Circuit case had interpreted that section of the statute. The court then declined to interpret the statute, and instead turned to Ira Kurzban’s Immigration Law Sourcebook. The court relied on Kurzban’s interpretation of the statute in ruling on the case.

The court concluded that the criminal defense attorney had “failed to investigate the facts or law necessary to make an informed and competent decision regarding [the defendant’s] citizenship defense.” The court also reasoned that any reasonable investigation would have led to legal sources on the subject, including Kurzbans’ Immigration Law Sourcebook.

The appellate decision, U.S. v. Juarez in the U.S. Court of Appeals for the Fifth Circuit, was handed down earlier this week.

Source: U.S. Court of Appeals for the Fifth Circuit, “United States v. Juarez No. 09-20764,” Feb. 24, 2012