Does Death Matter? Not Always in Immigration Law

By David North, January 19, 2016

Does death matter?

One might think that it always matters, but here's a grisly case involving an illegal alien where the courts have ruled that death does not count.

The alien is Eusebio Varible-Gaspar, and according to the decision of the Fifth Circuit, he "[A]ppeals the 57-month sentence imposed in connection with his conviction for illegal reentry after deportation. ... [he] argues that the [prior state court] conviction does not qualify as a forcible sex offense because a corpse cannot be forced or coerced into sex."

The court of appeals decided that even though the woman involved was dead at the time, what the alien did was "a crime of violence" and that he should go to jail, as the district court had ordered. One is tempted to quote Christopher Marlowe"s "Jew of Malta" at this point:

Thou hast committed—
Fornication: but that was in another country,
And besides, the wench is dead.

Except it happened in this country.

In this instance, the judicial treatment of death happened to coincide with enforcement of immigration law — the multiple convict (at least two illegal entries and the sex act) was sent to a federal jail and upon release, he probably will be deported again.

But definitions of the significance of death can run the other way, in that they can facilitate the continued legal presence of an alien who might otherwise be found to be in illegal status.

As we noted previously in comments on a proposed set of DHS regulations, the government is taking the position that an otherwise illegal alien can successfully secure a waiver of his illegal status if his deportation would have caused an extreme hardship to a citizen (a one-time spouse) — even in cases where the citizen involved is dead.

In that instance the "death does not matter" posture facilitates illegal immigration.


I am grateful to the EB-5 consultant Joe Whalen for reprinting the court's decision.