U.S. v. Velasquez Velasquez (11th Cir. 4/21/08)

Per Curiam Anderson, Barkett, Trager (DCt)

A District Court judge sentenced an asylum-seeker to 9 months' imprisonment for entering the US with false documents, because he violated the terms of his supervision by being arrested for driving with a suspended license (b/c he did not pay a $25 fee to reinstate it after a DUI).  The District Court said it was imposing the penalty because he was here without status and would lose at the BIA as he lost with the IJ.  The 11th Cir found that an impermissible reason to increase his sentence.

http://www.ca11.uscourts.gov/opinions/ops/200616637.pdf

District Court sentenced Colombian asylum applicant to jail time based on his refusal to return to Colombia and abandon his asylum claim.  Conviction was for using false documents to enter the US. District Court said ICE wasn't holding him, just because of administrative resources.

   Here, the district court imposed Velasquez's sentence as if it were reviewing (and overturning) the IJ's decision to release Velasquez on bond pending his immigration [*11] proceedings. However, the district court lacks the authority to do so. See 8 U.S.C. § 1226(e) ("No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole."). Reading this record, it is beyond peradventure that the district court sentenced Velasquez based entirely on several improper and unsupported misapprehensions.* * *

   [S]eeking asylum in this country is a legally permissible undertaking recognized by the explicit policy of the United States, and asylum claims are routinely granted. [*14] 4 8 U.S.C. § 1158(a)(1) ("Any alien who is physically present in the United States . . . irrespective of such alien's status, may apply for asylum in accordance with this section . . . ."). Moreover, because oppressive regimes do not easily permit their citizens to leave the country, many escape by using false papers; doing so does not disqualify them from seeking asylum. See Tun v. United States INS, 445 F.3d 554, 568 (2d Cir. 2006) ("presenting false papers cannot by itself serve as the basis for an adverse credibility finding and denial of [an asylum] application").

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