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Many people who are deported for drug crimes do come back to the United States because they need to work or to see a family member. The penalties for unlawful entry after deportation depend primarily on the criminal record of the individual who is being excluded from the United States.
The United States Sentencing Commission though has said that the judge may take into consideration a defendant’s ties to the United States in fashioning a fair sentence. The idea is that if a person has spent a great deal of time in the United States and has family here that the court should consider these circumstances.
This consideration or “departure” is called “cultural assimilation . More specifically federal law provides in Application Note 8 to U.S.S.G. § 2L1.2 :
There may be cases in which a downward departure may be
appropriate on the basis of cultural assimilation. Such a departure
should be considered only in cases where (A) the defendant
formed cultural ties primarily with the United States from having
resided continuously in the United States from childhood, (B)
those cultural ties provided the primary motivation for the defendant’s
illegal reentry or continued presence in the United States,
and (C) such a departure is not likely to increase the risk to the
public from further crimes of the defendant.
In determining whether such a departure is appropriate, the court
should consider, among other things, (1) the age in childhood at
which the defendant began residing continuously in the United
States, (2) whether and for how long the defendant attended
school in the United States, (3) the duration of the defendant’s
continued residence in the United States, (4) the duration of the
defendant’s presence outside the United States, (5) the nature and
extent of the defendant’s familial and cultural ties inside the
United States, and the nature and extent of such ties outside the
United States, (6) the seriousness of the defendant’s criminal history,
and (7) whether the defendant engaged in additional criminal
activity after illegally reentering the United States.
Here in the San Diego border zone, there are many families divided by the United States-Mexico International boundary. At the Law Offices of Russell S. Babcock, we will make sure the judge understands the background of our client and the law which indicates that a person’s cultural assimilation can be taken into consideration.