Prosecuting Criminal Immigration Offenses July 2017 Volume 65 Number 4 In This Issue United States Department of Justice Introduction .......................................................................................................... 1 Executive Office for By Jeff Sessions, Attorney General of the United States United States Attorneys Washington, DC 20530 Prosecuting 8 U.S.C. § 1253(a): When Your Defendant Resists Monty Wilkinson Removal ................................................................................................................. 3 Director By Dominic Rossetti Contributors’ opinions and statements should not be considered an endorsement by EOUSA for any policy, program, or Using the Alien File in the Prosecution of Immigration Crimes ...................... 11 service. By Sebastian Kielmanovich The United States Attorneys’ Bulletin is published pursuant to 28 C.F.R. § 0.22(b). Prosecuting Illegal Reentry Cases Where Evidentiary Documents Are Missing or Incomplete: Everything You Never Wanted to Know The United States Attorneys’ Bulletin is About A-Files and Removal Documents and Were Not Afraid Not to Ask ..... 17 published bi-monthly by the Executive Office for United States By Louie Uhl Attorneys, Office of Legal Education, 1620 Pendleton Street, Prosecuting Human Rights Violators for Naturalization Fraud: Columbia, South Carolina 29201. HRSP Lessons Learned ........................................................................................ 29 Editor By Christina Giffin, Kathleen O'Connor, and Christian K. Tate Chambers Levesque Assistant Editors Becky Catoe-Aikey Brenda S. Mercer Who’s Afraid of Section 922(g)(5)?: Navigating the Criminal, Civil, and Regulatory Foundation of the Statute for a Successful Prosecution ................ 35 Law Clerks Sarah Tate Chambers By Michael A. Lee Emily Godwin Gurbani Saini Brandy Sanderlin ICE Detention and Pretrial Release: How the Federal Circuit Courts Construe the INA and BRA in Immigration Prosecutions................................ 43 Internet Address By Gregory R. Nyhus https://www.justice.gov/usao/resources /united-states-attorneys-bulletins Send article submissions to A Practical Approach to Prosecuting Passport and Visa Fraud Cases ........... 53 Editor, By Matthew Eltringham United States Attorneys’ Bulletin, National Advocacy Center, Office of Legal Education, Material Witness Issues in Alien Smuggling Cases............................................ 69 1620 Pendleton Street, Columbia, SC 29201. By Serra M. Tsethlikai Cite as: 65 U.S. Attorneys’ Bulletin, July (II) 2017 Collateral Attacks Under 8 U.S.C. § 1326(d): A General Overview................. 77 By Erica L. Seger Combatting Transnational Smuggling Organizations: An Introductory Overview................................................................................................................ 85 By Danielle Hickman HSI’s Public Safety Unit: Combatting Immigration Document and Benefit Fraud ..................................................................................................................... 105 By Gregory C. Nevano Stipulated Judicial Removal Orders ................................................................... 111 By Marty D. Ryan and Jonathan S. Needle Prosecuting Criminal Immigration Offenses July 2017 Volume 65 In This Issue . Continued Number 4 B-2 Visitor Visa Fraud: The Investigation and Prosecution of an United States International Business Scheme ............................................................................ 119 Department of Justice By Brian Samuels, Lisa McKeel, and Kevin Hudson Executive Office for United States Attorneys Washington, DC 20530 Notarios and the Unauthorized Practice of Law: A Signature of Fraud .......... 133 By Brea C. Burgie Monty Wilkinson Director Prosecuting Fraudulent Immigrant Smuggling Schemes ................................. 143 Contributors’ opinions and statements should not be considered an endorsement By Angela Scott by EOUSA for any policy, program, or service. The Times They Are A-Changin’: Sentencing in Illegal Reentry Cases and the The United States Attorneys’ Bulletin is published pursuant to November 2016 Amendment to U.S.S.G. § 2L1.2(b)(1) ..................................... 153 28 C.F.R. § 0.22(b). By Christina M. Cabanillas The United States Attorneys’ Bulletin is published bi-monthly by the Note from the Editor ............................................................................................ 173 Executive Office for United States Attorneys, By K. Tate Chambers Office of Legal Education, 1620 Pendleton Street, Columbia, South Carolina 29201. Editor K. Tate Chambers Assistant Editors Becky Catoe-Aikey Brenda S. Mercer Law Clerks Sarah Tate Chambers Emily Godwin Gurbani Saini Brandy Sanderlin Internet Address https://www.justice.gov/usao/resources /united-states-attorneys-bulletins Send article submissions to Editor, United States Attorneys’ Bulletin, National Advocacy Center, Office of Legal Education, 1620 Pendleton Street, Columbia, SC 29201. Cite as: 65 U.S. Attorneys’ Bulletin, July (II) 2017 Introduction Jeff Sessions Attorney General of the United States One of the Department’s top priorities is criminal immigration enforcement. Enforcement of our immigration laws is not only a fundamental issue of sovereignty but is essential to ensuring public safety for all Americans. To reinforce this priority, I issued a Memorandum to all federal prosecutors on April 11, 2017, advising them of the Department’s charging practices for criminal immigration offenses and directing each United States Attorney’s Office to designate a Border Security Coordinator to oversee the investigation and prosecution of immigration offenses. Federal prosecutors, together with our law enforcement partners, are uniquely qualified to fulfill the Department’s mission of preventing and combatting crime and seeing that, whenever possible, justice is obtained for victims. To that end, the Executive Office for United States Attorneys, Office of Legal Education, has dedicated this issue of the United States Attorneys’ Bulletin to the prosecution of criminal immigration offenses. Subject matter experts from the U.S. Attorney community; the Office of Legal Education; the Criminal Division; the Executive Office for Immigration Review; the Bureau of Alcohol, Tobacco, and Firearms; and our colleagues at the Department of Homeland Security have collaborated to produce a valuable resource that will enable prosecutors and law enforcement to ensure lawfulness in our immigration system. As you know, criminal immigration prosecutions are challenging and oftentimes complicated. The effective investigation and prosecution of criminal immigration offenses requires a thorough familiarity with the Immigration and Nationality Act, the National Firearms Act, the NICS Improvement Amendments Act of 2007, the Controlled Substances Act, and many other statutory provisions pertaining to fraud, human trafficking, national security, and asset forfeiture. Criminal immigration law practitioners are responsible for incorporating a wide variety of legal, forensic, and analytical tools into their investigations and prosecutions. I am grateful that so many of our talented colleagues have dedicated their time and expertise to creating this wide-ranging issue of the United States Attorneys’ Bulletin. Together, we can secure our borders, protect our country from enemies, foreign and domestic, and safeguard the public safety of all Americans. Thank you for all that you do. July (II) 2017 United States Attorneys’ Bulletin 1 Page Intentionally Left Blank 2 United States Attorneys’ Bulletin July (II) 2017 Prosecuting 8 U.S.C. § 1253(a): When Your Defendant Resists Removal Dominic Rossetti Assistant United States Attorney Western District of Louisiana I. Introduction Most of us can recognize 18 U.S.C. § 1343 as the wire fraud statute.1 The same is true for 18 U.S.C. § 922(g)(1) as felon in possession,2 or 8 U.S.C. § 1326 as illegal re-entry.3 These are bread-and-butter charges for federal prosecutors; we see them almost every day. But how many of us can recognize 8 U.S.C. § 1253 for failure to depart?4 Probably not many and with good reason—it takes a rare set of circumstances for this crime to even occur, let alone for it to get charged. Failure to depart makes it a crime for any individual—against whom a valid order of removal is outstanding—to prevent her own departure.5 In other words, once an Immigration Judge (IJ) has ordered someone removed from the United States, this statute criminalizes any action taken by that person that hampers the removal process. In the vast majority of cases, it is nearly impossible for a person to prevent her own removal. Homeland Security Investigations (HSI) removes thousands of people from the United States every year. In 2016, there were 240,255 removals, and more than ninety-five percent of them were removed to just four countries: Mexico, Guatemala, Honduras, and El Salvador.6 In these cases, HSI transports individuals back to their home countries on contract flights or busses. Sometimes, HSI allows these individuals to voluntarily depart and return to their respective home countries on their own accord. These individuals will never get the chance to hamper the removal process. Some removals, however, are more complicated. For example, when HSI removes a person who came to the United States from overseas, it often does so via commercial flight. The United States is simply not removing enough people to small, faraway