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CHALLENGE DETENTION
The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of removal,
deportation, and exclusion and consolidate such review in the court of appeals. The REAL ID Act,
however, did not affect the ongoing availability of habeas corpus to challenge the length or conditions of
immigration detention. Since the REAL ID Act’s enactment on May 11, 2005, the courts of appeals have
uniformly upheld the right to file a habeas corpus petition to challenge the lawfulness of detention.
Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005); DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn.
2006); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604
(E.D. Va. 2006) (assuming without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App.
LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9
(6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006)
(unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443
F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v. Atty.
Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks to AILF Legal Action Center,
Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12, 2007
Medina v. United States, 993 F.2d 499, 503 Moosa v. INS, 171 F.3d
994, 1003 (5th Cir. 1999).
(1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "covers
deportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions."
Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc).
(2) Although the Board of Immigration Appeals disagrees with the court's holding, the decision of the Ninth Circuit that the
EAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of the
Ninth Circuit.
(3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in
conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit. JUDICIAL REVIEW –
JUDICIAL REVIEW – JURISDICTION LIMITATION – QUESTION OF WHAT IJ MAY CONSIDER IN MAKING PSC
DETERMINATION IS NOT DISCRETIONARY DECISION
Morales v. Gonzales, ___ F.3d ___, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (question of what evidence IJ
may consider in making decision whether conviction constitutes PSC is not a discretionary decision,
court jdsn under INA 242 (a)2 (d)).
JUDICIAL REVIEW – PETITION FOR REVIEW – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN
REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily,
irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had
been vacated, even where order vacating conviction did not specify whether the conviction was vacated
on ground of invalidity or solely for rehabilitative or immigration purposes).
JUDICIAL REVIEW – MOTION TO REOPEN – BIA NOT BARRED FROM GRANTING MOTION TO REOPEN
REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL
INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED – REGULATION DOES NOT BAR
CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that
motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA
from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal
order had been vacated; it was not necessary that the conviction be the sole reason for removal).
Koloamatangi, 23 I. & N. Dec. 548d the immigration laws against Savoury. Laches cannot be
asserted to prevent it from doing so.").
1956), where the BIA exercised its discretion to grant § 212(c) relief to an alien
who had lawfully attained permanent resident status and otherwise met the
requirements of that provision. Id. at 276. The special inquiry officer had denied §
212(c) relief because he noted that even if it were granted, the respondent would
still be subject to deportation under a different section of the INA. Id. at 275. In
reversing the denial of § 212(c) relief the BIA explained that once it had “waived”
under § 212(c) a ground of inadmissibility based on a criminal conviction, a
deportation proceeding would not be instituted based on that same criminal
conviction, unless the Attorney General revoked the previous grant of relief. Id.
That is not what happened here.
Deciding
Petitioner‟s nationality claim, no genuine issue of material fact can exist about 7
the claim; otherwise, we must transfer the mater to the district court for resolution. 8 U.S.C. §
1252(b)(5)(A)-(B). A genuine issue of fact does exist about whether INS Officer Finnerty
actually administered a modified oath of allegiance to Sebastian during his preliminary
investigation. This fact, however, is not material: even had Petitioner taken the oath at that time,
it would not satisfy the statutory prerequisite for citizenship that Petitioner take the oath of
allegiance in “open court.”See 8 U.S.C. § 1448(a) (1988).
First Circuit‘s decision in Succar, which held that 8 C.F.R. § 245.1(c)(8), the
regulation that precludes arriving aliens from seeking adjustment
of status in removal proceedings, is invalid. the rationale of Succar
v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), hold that the regulation
promulgated by the Attorney General, 8 C.F.R.
§ 245.1(c)(8), which precludes ―arriving aliens‖ from applying
for adjustment of status in removal proceedings, is invalid
because it is in direct conflict with 8 U.S.C. § 1255(a).4The regulation shows that an alien
paroled under 8U.S.C. § 1182(d) remains an ―arriving alien‖ regardless of her
parole status. The section also creates two exemptions from
the definition of ―arriving alien‖: 1) aliens paroled into the
United States before April 1, 1997, and 2) aliens granted
advance parole. However, a plain reading of the regulation
clearly shows that both exceptions only exempt these aliens
from the definition of ―arriving alien‖ for the purpose of
excluding them from expedited removal proceedings under 8
U.S.C. § 1225(b). Accordingly, Delia, as a parolee, was properly
deemed an ―arriving alien‖ within the meaning of section 1.1 q
Edwards v. INS, 393 F.3d 299. Edwards held that, in cases in which
an alien accrued more than five years‘ imprisonment subsequent to an INS denial of § 212(c)
relief on the erroneous ground that AEDPA‘s amendment or IIRIRA‘s repeal of that statute
applied retroactively, the alien was entitled to ―nunc pro tunc relief‖ because ―agency error
would otherwise result in an alien being deprived of the opportunity to seek [§ 212(c)]
relief.‖ Id. at 310-11.6
Hey, state practitioners, we know you regularly seek conditional discharge sentences in
all the City/Village/Town courts, especially for non-criminal violation offenses, because
of the lack of a term of imprisonment and the lack of supervision that a conditional
discharge affords. We know that conditional discharges are regularly offered by
prosecutors and imposed by state judges as a way to clear massive New York city,
town and village court dockets, and are regularly accepted as a way to quickly resolve a
case and to avoid incarceration. And we know a conditional discharge sentence is one
of the most lenient sentences permissible under New York law.
Statistical evidence confirms that conditional discharge sentences are given in the
overwhelming majority of misdemeanor offenses prosecuted in New York State. (80,000
in the year 2000 and nearly 70,000 in 2001). And, these numbers do not even include
the greater number of defendants who received conditional discharge sentences for
violation/petty offenses! Compare these numbers to those receiving probation - less
than 10,000 in each of the years reported. See Crime and Justice Annual Report 2000
and 2001 at http://criminaljustice.state.
IN THIS ISSUE:
United States V. Ramirez, 421 F.3d 159 (2005) - What State Practitioners Need to
Know About the Hazards of Conditional Discharges
8 U.S.C.
§ 1255; 8 C.F.R. § 245a.2(m)(1); Navarro-Aispura v. INS, 53
F.3d 233 (9th Cir. 1995). The IJ explained that 8 C.F.R.
§ 245a.2(m)(1) contemplates that an alien who obtains
advance parole would be ―readmitted,‖ rather than treated as
a newly-arriving alien applying for admission.7Matter of S-O-S-, 22 I. & N. Dec.
107 (BIA 1998); 8 C.F.R. § 245a.2(m) (2002
JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR
JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION
OF REMOVAL
Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. §
1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding
eligibility for relief for cancellation of removal under 8 U.S.C. § 1229b or for adjustment of status under
8 U.S.C. § 1255(i), because they were based on nondiscretionary grounds).
http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf
JUDICIAL REVIEW – PETITION FOR REVIEW – DEFERENCE – QUESTION WHETHER COURT OF APPEALS
OWES ANY DEFERENCE TO BIA STREAMLINING RUBBER STAMP APPROVAL OF IMMIGRATION JUDGE
DECISION
Ng v. Attorney General, ___ F.3d ___, ___ n.4 (3d Cir. Feb. 7, 2006)(open question whether court of
appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration
Judge's decision: "We have also previously questioned whether a BIA decision is entitled to deference
when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. §
1003.1(e)(4). See Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 ["[I]t would seem to be, at the very least, an
open question as to whether an IJ's decision affirmed through the streamlining process would be
entitled to Chevron deference . . . [D]eferring to the reasoning of an IJ from which the BIA would be free
to depart in other cases would seem highly problematic."); cf. Singh, 383 F.3d at 152 ("[T]he BIA, by
affirming without opinion, gave no considered and authoritative agency-wide interpretation of the
statute . . . .")).
http://caselaw.lp.findlaw.com/data2/circs/3rd/044672p.pdf
JUDICIAL REVIEW – PETITION FOR REVIEW – REAL ID ACT REPEALED ALL JURISDICTIONAL BARS TO
PETITION FOR REVIEW OF FINAL REMOVAL ORDERS EXCEPT THOSE REMAINING IN 8 U.S.C. § 1252
Papageorgiou v. Gonzales, __ F.3d __, 2005 WL 1490454 (3d Cir. June 24, 2005) (agreeing with holding
of Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2005 U.S. App. LEXIS 9912 (9th Cir. 2005)).
In some cases, you may also be able to raise retroactivity concerns based on the length of time
that has passed since the plea. The St Cyr Court stated that there is no single test for assessing
retroactive effect. Thus, while reasonable reliance is one way of establishing a retroactive effect,
retroactivity concerns are also raised when time has passed and the affected individuals have
developed interest in repose. See, e.g., United States v. Carlton, 512 U.S. 26, 37-38 (1994)
(O'Connor, J., concurring) (describing interests of repose in curbing retroactive legislation).
Application of a rule that looks only at the length of domicile at the time of the plea would
violate these interests by allowing for mandatory deportation of persons who may have pled
guilty to an offense a few years after obtaining their lawful permanent residency, but who
attained their seven years of lawful domicile long before the enactment of 1996 laws.
JRAD:
CA3 Extends St. Cyr to All Individuals Convicted of a Pre-IIRAIRA Aggravated Felony
http://www.aila.org/content/default.aspx?docid=21953
The court held that IIRAIRA's repeal of §212(c) cannot be applied retroactively to preclude from
relief otherwise eligible persons convicted of a pre-IIRAIRA aggravated felony, whether by plea
or by trial, because the repeal attached new legal consequences to the conviction and resulting
sentence. (Atkinson v. Att'y Gen. of the U.S., 3/8/07). AILA Doc. No. 07032661
If a noncitizen is held past the 48 hours, or is held on the basis of an illegal "investigatory" hold, s/he can
sue the custodial facility for false imprisonment.
8 C.F.R. § 287.7(a) refers to the purpose of the detainer being ICE seeking custody to “arrest and
remove” because immediate custody by ICE is impracticable. That appears to essentially require an NTA
or ICE warrant of arrest as a basis for the detainer, i.e., just like any other detainer from counties or
states based on an outstanding warrant. In practice, however, the detainer precedes issuance of an NTA
or Warrant of Arrest.
8 C.F.R. § 287.7(b) lists officers able to issue a detainer. 8 C.F.R. § 287.7(b)(8) includes any other
immigration officer needing authority to issue a detainer under INA § 287(d)(3), who is given the
authority to issue a detainer. This seems to imply that the statutory authority for a detainer flows from
INA § 287(d), which is limited to noncitizens arrested for controlled substance violations.
8 C.F.R. § 287.7(c) requires that state and local law enforcement provide records necessary to determine
if issuing detainer/NTA is appropriate. It states “the criminal justice agency requesting such action
(issuing detainer) shall” provide said records. That is, authority flows from § INA 287(d) that a detainer
only issues when requested by the state or local agency under INA § 287(d) – not that ICE decides to
issue a detainer absent a request. 8 C.F.R. § 287.7(d) then allows issuance of the detainer, after a
determination by ICE (based on a request from a state and local agency under INA § 287(d).
GOOD MORAL CHARACTER
Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles:
First, the applicant cannot have a conviction on the list enumerated in INA § 101(f), 8 U.S.C. §
1101(f), during the period for which Good Moral Character must be shown, in order to avoid a
complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR §
316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction
listed on INA § 101(f) committed prior to the beginning of the period during which Good Moral
Character must be shown. This second hurdle is not a complete bar to showing Good Moral
Character. The agency must weigh positive factors against negative factors. Torres-Guzman v.
INS, 804 F.2d 531 (9th Cir. 1986).
JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR
JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION
OF REMOVAL
Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. §
1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding
eligibility for relief for cancellation of removal under 8 U.S.C. § 1229b or for adjustment of status under
8 U.S.C. § 1255(i), because they were based on nondiscretionary grounds).
http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf
CITIZENSHIP
United States citizenship of the respondent can be raised as a defense to removal. Murphy v.
INS, 54 F.3d 605, 610 (9th Cir. 1995). The government bears the heavy burden of proving
alienage through "clear, unequivocal, and convincing evidence." Scales v. INS, 232 F.3d 1159,
1163 (9th Cir. 2000) (quoting Woodby v. INS, 385 U.S. 276, 277 (1966)); see also Lopez-
Urenda v. Ashcroft, 345 F.3d 788, 795 (9th Cir. 2003) (citations omitted); 8 U.S.C. §
1229a(c)(3)(A). As the Ninth Circuit has explained, "[t]his burden of proof is ‗much more than a
mere preponderance of the evidence.‘ The evidence must not leave the issue in doubt." Lim v.
Mitchell, 431 F.2d 197, 199 (1970) (citation omitted); see also Murphy v. INS, 54 F.3d 605, 610
(9th Cir. 1995) (noting that the clear and convincing evidence standard is a "heavier burden than
the preponderance of the evidence standard") (citation omitted). Because a United States
citizen cannot be removed from the country, reliable proof of alienage in a removal proceeding is
constitutionally required. As the Supreme Court has long recognized, "[t]o deport one who . . .
claims to be a citizen[ ] obviously deprives him of liberty, . . . [and] may result also in loss of
both property and life; or of all that makes life worth living." Agosto v. INS, 436 U.S. 748, 753
(1978) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)); cf. Bridges v. Wixon, 326
U.S. 135, 154 (1945) ("[D]eportation . . . visits a great hardship on the individual and deprives
him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be
exercised lest the procedure by which he is deprived of that liberty not meet the essential
standards of fairness."). Thanks to Jennifer C. Chang for this argument.
Tovar-Alvarez v. U.S.Attorney General, ___ F.3d ___, 2005 WL 2561503 (11th Cir. Oct. 13, 2005)
(noncitizen must participate in public citizenship ceremony in order to fully naturalize
In United States v. Robinson, 967 F.3d 287 (9th Cir. 1992), the Ninth Circuit
concluded that under California law a probation order is not a “judgment” when
the imposition of sentence is suspended. See id. at 293. The Ninth Circuit noted
that California law provides: “[W]hen a sentencing court grants probation after
a conviction, it may suspend the imposition of sentence, in which case no
judgment of conviction is rendered, or it may impose sentence and order its
execution to be stayed. In the latter case only, a judgment of conviction is
rendered.” Id. (citing People v.Arguello,381 P.2d 5,6 (Cal.1963)); see also
United States v.Haggerty,85 F.3d 403,406 (8th Cir. 1996) (citing Robinson for
the proposition that a probation order is not a judgment). In Stallings‟s case,
there was no judgment of conviction entered and the appropriate time for
revoking his probation and entering judgment has lapsed. See Cal. Penal Code
§1203.3(a) (“The court shall have authority at any time during the term of
probation to revoke, modify, or change its order of suspension of imposition or
execution of sentence. . . .”); see also In re Perez, 418 P.2d 6, 11 (Cal. 1966) (“If
probation was timely revoked, judgment could be imposed at any time
thereafter.”);
Smith, 90 Cal. Rptr. at 814 (“It is also settled that an order revoking probation,
to be valid, must be made within the period fixed in the order of probation. If
not revoked within that period, the probation terminates automatically on the
last day.”).
Accordingly, no valid judgment has been entered against Stallings and,
therefore , the enhanced sentence imposed in reliance upon the California
conviction was improper.
RELIEF – 212(C) RELIEF – JURY TRIAL BAR
Carranza-de Salinas v. Gonzales, 477 F.3d 200 (5th Cir. Jan. 23, 2007) (noncitizen convicted after jury
trial is eligible for relief under former INA § 212(c), if the noncitizen can affirmatively establish actual,
subjective reliance, i.e., that s/he waited to apply for 212(c) defensively, before an IJ, rather than file
affirmatively with the DD); accord, Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004); Wilson v. Gonzales,
471 F.3d 111 (2d Cir. 2006) (“Restrepo reliance” – or reliance on an affirmative 212(c) possibility--
requires an “individualized showing of reliance” that includes a belief that waiting would improve the
chances of obtaining the waiver based on a stronger case of rehabilitation or other equities); see
Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) (allowing all convicted after jury trial to apply for
212(c) relief). The Carranza argument can be raised in any circuit, and may be especially promising in the
Fourth Circuit. See Olatunji v. Ashcroft, 387 F.3d 383, 389-91 (4th Cir. 2004).
RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF
ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA
Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005)
(noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of
plea in order to be eligible for INA § 212(c) relief under INS v. St. Cyr; following rule that seven
years for domicile for 212(c) stops at time of application for 212(c)). RELIEF – 212(c) –
LEAVING UNITED STATES WHILE 212(c) PENDING
A noncitizen LPR who leaves the United States during removal proceedings does not abandon a
request for INA § 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA
1988), LPR respondent was convicted of possession of marijuana, proceedings commenced and
LPR conceded deportability as charged in a hearing before the IJ, applied for a 212(c) waiver
and the hearing was continued for investigation. Then, the LPR departed the United States for a
temporary visit abroad during the course of the pending deportation proceeding in which he had
applied for 212(c), and returned to the United States. The IJ terminated proceedings and ruled
that the 212(c) waiver application had been abandoned. The BIA held that the IJ erred. The
LPR's departure did not interrupt the proceeding, and it could continue, assuming LPR still was
deportable on same grounds. The INS did not need to start a new proceeding, but could issue
another OSC (NTA) or amend if they chose; and the LPR had not abandoned his application for
212(c).
Thanks to Lory Rosenberg for this information. It should be noted, however, that the noncitizen
might not be admitted (or admissible) to the United States upon return. See INA § 101(a)(13)(C).
On the other hand, this could be a strategy for avoiding Matter of Blake, 23 I. & N. Dec. 722
(BIA 2005) issues.
A respondent who is convicted of criminal possession of a weapon is deportable under section 241(a)(2)(C) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. II 1990); however, such a conviction does not preclude
a finding of admissibility in connection with an application for adjustment of status under section 245(a) of the Act, 8
U.S.C. § 1255(a) (1988), and it may not serve as a ground of deportability if the respondent's status is adjusted to that of
a
lawful permanent resident. Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978), followed. Matter of V-, 1 I&N Dec. 293 (BIA
1942), distinguished.
Gabryelsky, ID#3213
(1) A waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)
(Supp. IV 1992), may be used in conjunction with an application for adjustment of status by an
alien who is deportable for both drug and weapons offenses; thus a lawful permanent resident
alien who has been convicted of a weapons violation is not ineligible to apply for adjustment of
status and may concurrently apply for section 212(c) relief to waive his deportability arising from
his drug conviction.
(2) Under the regulations at 8 C.F.R. § 245.1(e) (1993), an alien may concurrently apply for
adjustment of status and section 212(c) relief.
(3) An applicant for adjustment of status is not precluded from concurrently applying for a waiver
of inadmissibility under section 212(c) of the Act to waive another deportable offense, even
though section 212(c) of the Act would not separately and independently waive all grounds of
deportability.
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY – RETURN TO PRE-ERROR STAGE
OF PROCEEDINGS
Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance
of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the
criminal proceeding).
http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf
POST CON - TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF -
WASHINGTON STATE
Washington v. Littlefair, 112 Wash.App. 749, 51 P.3d 116 (2002) (one-year statute of limitations
to bring collateral attack equitably tolled from date of plea until defendant first discovered
immigration consequences).
TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF - OREGON
Benitez-Chacon v. State of Oregon, 178 Or. App. 352 (2001) (petition for post conviction relief
subject to two year statute of limitations running from date of final judgment).
Non-discretionary actions,
however, and purely legal determinations made by the agency,
remain subject to judicial review. See, e.g., Sepulveda v.
Gonzales, 407 F.3d 59, 63 (2d Cir. 2005)
(―[Section]1252(a)(2)(B) does not bar judicial review of
nondiscretionary, or purely legal, decisions. . . .‖).
Determination of eligibility for adjustment of status –
unlike the granting of adjustment itself – is a purely legal
question and does not implicate agency discretion. The
determination at issue here, whether a prior conviction precludes
eligibility for adjustment of status, was also at issue in
Sepulveda. In that case, the Second Circuit held that statutory
restrictions on the jurisdiction of district courts to hear
challenges to removal orders and other discretionary actions do
not affect the district courts‘ ―jurisdiction to determine whether
g judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ
of coram nobis for a constitutional defect could not serve as basis for order of deportation).
Subsequently set-aside convictions of this type fall outside the text of the new definition because, in
light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's
guilt.")
POST CON RELIEF – APPEAL – WAIVER OF APPEAL IN PLEA AGREEMENT DOES NOT BAR COLLATERAL
ATTACK RAISING ERRORS IN MEANS BY WHICH PLEA AGREEMENT WAS REACHED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov.
18, 2005) (waiver of appeal in plea agreement does not bar collateral attack raising errors in means by
which plea agreement was reached: "'There is no general bar to a waiver of collateral attack rights in a
plea agreement.' Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002)
(citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)). 'However, a waiver of appellate
or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver
has been produced, here, the plea agreement.' Id. (citations omitted). Where, as here, a petitioner
claims a violation of Rule 11 or the ineffectiveness of trial counsel, the Second Circuit has stated that he
is not barred under the terms of the plea agreement from bringing a petition to vacate the conviction
based on the legal shortcomings of the process in which the waiver was obtained. See id. at 196.
Accordingly, the Court will address 'the merits of [the] petition notwithstanding [the petitioner's]
general waiver of the right to collaterally attack his conviction.' Id. at 193; see also Lebron v. United
States, 267 F. Supp.2d 325, 328 (E.D.N.Y. 2003).").
POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA CLAIM NOT BARRED BY FAILURE TO RAISE ON
DIRECT APPEAL
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov.
18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective
counsel grounds for misadvice concerning immigration consequences not barred by failure to raise
issues on direct appeal
POST CON – FEDERAL – CAUSE AND PREJUDICE FOR NOT RAISING GROUNDS ON
DIRECT APPEAL GROUNDS
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404
(E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on
involuntary plea and ineffective counsel grounds for misadvice concerning immigration
consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290
F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the
defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United
States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255
claim regarding the voluntariness of a guilty plea made when the petitioner was not properly
informed that deportation was absolute).
POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS
Isley v. Arizona Dept. of Corr., __ F.3d __ (9th Cir. Sept. 15, 2004) (petition for habeas corpus granted
where state petition for post-conviction relief was pending within the meaning of 28 U.S.C. section
2244(d)(2) and entitled defendant to toll one year statute of limitation period for filing federal post-
conviction relief).
http://caselaw.lp.findlaw.com/data2/circs/9th/0315858p.pdf
POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS – TOLLING – FILING OF STATE POST
CONVICTION RELIEF PETITION
Chavis v. Lemarke, ___ F.3d ___ (9th Cir. Aug. 27, 2004) (district court dismissal of federal habeas corpus
petition as untimely reversed since statute of limitations was tolled due to filing of state habeas
petitions).
http://caselaw.lp.findlaw.com/data2/circs/9th/0117072p.pdf
POST CON RELIEF – HABEAS CORPUS – FEDERAL – REMAND FOR EVIDENTIARY HEARING
Earp v. Ornoski, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (claim of ineffective assistance for failure to
investigate mitigating circumstances merited evidentiary hearing).
POST CON RELIEF – HABEAS – FEDERAL – REVIEW OF STATE CONVICTION PRECLUDED SINCE STATE
PETITION REJECTED BY STATE COURT AS UNTIMELY IS NOT PROPERLY FILED UNDER 28 U.S.C. §
2244(d)(2), AND THEREFORE DOES NOT TOLL THE 1-YEAR AEDPA STATUTE OF LIMITATIONS FOR FILING
A FEDERAL HABEAS CORPUS PETITION
Pace v. DiGuglielmo, ___ U.S. ___, 2005 WL 957194 (April 27, 2005) (federal habeas review of state
conviction precluded since state petition rejected by state court as untimely is not properly filed under
28 U.S.C. § 2244(d)(2), and therefore does not toll the 1-year AEDPA statute of limitations for filing a
federal habeas corpus petition).
http://laws.findlaw.com/us/000/03-9627.html
POST CON RELIEF – FEDERAL -- CORAM NOBIS – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL –
AFFIRMATIVE MISADVICE
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (affirmative misadvice by
defense counsel concerning immigration consequences of disposition of criminal case constitutes
ineffective assistance of counsel where counsel said deportation was not a serious possibility, and in fact
it became a near certainty.
POST CON RELIEF – CORAM NOBIS – NEED TO PETITION FOR CORAM NOBIS DIRECTLY IN FEDERAL
COURT
Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir. June 27, 2005) (district court
did not commit error in failing to consider 28 U.S.C. § 2241 habeas to be a petition for coram nobis,
because this issue had not been raised in the district court and petitioner provided no authority
suggesting that the district court might have a duty to sua sponte raise the issue), distinguishing United
States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005), in which the Ninth Circuit held
that coram nobis relief was available under similar circumstances, because here the petitioner did not
file coram nobis in the district court). The court in Resendiz rejected a claim that the district court should
have sua sponte construed the petition as a petition for coram nobis, instead of habeas corpus:
"Resendiz argues that the district court should not have construed his petition as one under § 2241, but
instead should have construed it as a writ of coram nobis, even though Resendiz never asked the court
to do so. Because Resendiz did not contend below that his petition should be construed as a writ of
coram nobis, and because he provides no authority suggesting that the district court might have a duty
to sua sponte raise the issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp., 953
F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate court will not hear an issue raised for the
first time on appeal."). In footnote 3 to this quotation, the Resendiz court stated: "Our recent decision in
United States v. Kwan, No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which we held that
coram nobis relief was available under similar circumstances, does not affect our decision. Unlike Kwan,
Resendiz did not petition the district court for the writ of coram nobis, but argued instead that the court
should have so construed his habeas petition sua sponte
following Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) ('We construe the intent of Congress's
restoration under the Real ID Act rubric of 'constitutional claims or questions of law' to encompass the
same types of issues that courts traditionally exercised in habeas review over Executive detentions'
The meaning of forgery” in federal law is ambiguous. Congress has never specifically
defined forgery, although it has used the term in numerous statutes outlawing various acts.
In some of these statutes, Congress did not specify the requisite culpable intent. See, e.g.,
18 U.S.C. § 485 (prohibiting forgery of coins or bars in denominations greater than five
cents). In at least twenty other statutes, however, Congress specified that an intent to
defraud is required. In four of those statutes, Congress used the term #147;forgery”
together with the phrase #147;with intent to defraud,” seemingly indicating that the two
need not be joined. See, e.g., 18 U.S.C. § 471 (prohibiting forgery of federal obligations );
18 U.S.C. § 500 (prohibiting forgery of postal service money orders #147;with intent to
defraud”). Thus, in Congress’ view, it may well be [*10] possible to commit #147;forgery”
without #147;fraud,” or at least fraud in the ordinary sense of misrepresentation for
material gain. See United States v. Cowan, 116 F.3d 1360, 1361-63 (10th Cir. 1997) (had
Congress intended to make the intent to defraud an element of 18 U.S.C. § 505, it would
have done so expressly).
POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE
PLEA FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING
State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel ineffective
by failing to file motion in arrest of judgment to challenge guilty plea on grounds that neither
written plea of guilty nor in-court colloquy informed defendant that guilty plea might affect
immigration status; failure to move in arrest of judgment does not bar challenge to guilty plea if
failure to file motion in arrest of judgment resulted from ineffective assistance).
Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district
court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was
ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential
winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during
the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required
by Ohio Rev. Code § 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate,
required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to
decide the ineffective assistance claims on their merits, since ineffective assistance of counsel
constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of
counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to
file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact
prove that he asked his attorney to file a timely appeal and that the attorney failed to do so."). POST
GROUNDS – INVALID PLEA – FOR UNPRESERVED RULE 11 ERRORS, DEFENDANT MUST SHOW HE WOULD
NOT HAVE PLEADED GUILTY
United States v. Benitez, 124 S.Ct. 2333 (June 14, 2004) (to vacate plea on grounds of F.R.Crim.P. 11
errors [as distinguished from "structural errors" or fundamental constitutional errors under Boykin v.
Alabama, to vacate the plea], and no objection was raised in trial court, defendant must establish
reasonable probability that but for error, he would not have pleaded guilty).
http://laws.lp.findlaw.com/us/000/03167.html
INVOLUNTARY PLEA CLAIM BASED ON MISINFORMATION CONCERNING
IMMIGRATION CONSEQUENCES NOT BARRED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404
(E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on
involuntary plea and ineffective counsel grounds for misadvice concerning immigration
consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290
F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the
defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United
States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255
claim regarding the voluntariness of a guilty plea made when the petitioner was not properly
informed that deportation was absolute).
POST CON RELIEF – FEDERAL – GROUNDS – INVALID PLEA – PREJUDICE STANDARD SAME AS FOR IAC
United States v. Monzon, 429 F.3d 1268 (9th Cir. Dec. 7, 2005) (conviction and sentence for possession
of a firearm in furtherance of a drug trafficking crime reversed where the court committed plain error
when it accepted guilty plea in violation of Federal Rule of Criminal Procedure 11, because court failed
to establish a factual basis for believing that the defendant possessed the firearm at least partly for the
purpose of protecting the drugs, where the defendant factually denied that intent during the plea
colloquy, and the error affected defendant’s substantial rights, defined as a reasonable probability of a
different outcome sufficient to undermine confidence in the outcome).
http://caselaw.lp.findlaw.com/data2/circs/9th/0330497p.pdf
The government will not necessarily accept nunc pro tunc orders as issued on the nunc pro
tunc date. E.g., Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000) (nunc pro tunc order that granted
custody to Fierro's father retroactively did not satisfy the custody requirement for automatic
citizenship under 8 U.S.C. § 1432(a)); Matter of Cariaga, 15 I & N Dec. 716 (1976) (no
"retroactive" adoptions for adjustment purposes). But see Allen v. Brown, 953 F. Supp. 199
(N.D. Ohio 1997) (distinguishing "retroactive" adoptions from "nunc pro tunc" adoptions).
Therefore, vacating a conviction, and entering a new plea "nunc pro tunc" will not necessarily
be accepted by the immigration authorities or courts as occurring on the nunc pro tunc date
De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006)
(no due process violation where BIA denied request to grant sua
sponte motion on the basis of recently vacated convictions, allowing
noncitizen to apply for relief, where BIA denied motion on the basis
that it would deny any application for relief as a matter of discretion
because noncitizen, “had previously been convicted of four criminal
offenses, and while three of these had been vacated, none had been
vacated because De Araujo was not guilty of the crimes
committed.”)
Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug.
3, 2006) (noncitizen bears burden of showing conviction was
vacated on a basis of legal invalidity where the order of removal has
already become final, and the noncitizen is making a late motion to
reopen/reconsider in light of the new evidence that the conviction
has been vacated). http://laws.lp.findlaw.com/1st/051895.html
Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug.
3, 2006) (noncitizen bears burden of showing conviction was
vacated on a basis of legal invalidity where the order of removal has
already become final, and the noncitizen is making a late motion to
reopen/reconsider in light of the new evidence that the conviction
has been vacated). http://laws.lp.findlaw.com/1st/051895.html
Johnson v. Ashcroft, __ F.3d __ (2d Cir. Aug. 5, 2004) (INA may not
move to remand case to Immigration Judge in order to lodge
additional grounds of removal based upon information that was
available at the time of the initial proceeding).
http://caselaw.lp.findlaw.com/data2/circs/2nd/032071p.pdf POST
CON RELIEF – VACATUR MUST BE PRESENTED TO IMMIGRATION
COURT TO BE CONSIDERED ON PETITION FOR REVIEW
Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. §
1252(b)(4)(A); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th
Cir. 2003) (en banc) (holding BIA violated noncitizen's right to due
process, in appeal of decision granting suspension of deportation,
when BIA stated it was entirely precluded from considering new
evidence bearing on hardship including evidence that, in the eight
years intervening between immigration judge's decision and
proceedings before BIA, noncitizen's daughter had been diagnosed
with serious medical condition for which treatment was likely
unavailable if noncitizen was deported).
Ninth Circuit
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3,
2006) (BIA acted arbitrarily, irrationally, or contrary to law in
denying motion to reopen removal proceedings after conviction had
been vacated, even where order vacating conviction did not specify
whether the conviction was vacated on ground of invalidity or solely
for rehabilitative or immigration purposes).
Other
Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (3d Cir. March 30,
2005) (180 day time limit filing a motion to reopen removal
proceeding following in order entered in absentia is in nature of
statute of limitations, so as to be subject to equitable tolling)
Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7,
2006) (petition for review of removal order based on two crimes of
moral turpitude, followed by state court orders vacating the two
convictions, dismissed for failure to exhaust administrative remedies
where petitioner did not ask BIA to reopen case in light of the
vacated convictions, but instead petitioned the district court for
habeas and then the court of appeals for review).
http://caselaw.lp.findlaw.com/data2/circs/7th/052697p.pdf
Seventh Circuit
Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not
need judicial permission to reopen a case sua sponte after the filing
of a petition for review).
http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf
Ninth Circuit
2. Prejudice
[6] Salgado-Diaz must also establish prejudice by showing
his rights were violated ―in a manner so as potentially to
affect the outcome of the proceedings.‖ Campos-Sanchez v.
INS, 164 F.3d 448, 450 (9th Cir. 1999) (internal quotations
and citations omitted). Clearly, Salgado-Diaz‘s arrest and
expulsion had a prejudicial impact on his underlying immigration
proceedings. The agents‘ conduct ultimately prevented
him from seeking the type of relief from deportation for
which he was eligible before his arrest and expulsion. Had
petitioner been given an evidentiary hearing, he might have
established that the INS border agents‘ conduct was indeed
unconstitutional either under the Fourth Amendment or as a
matter of due process.
In the case of an alien who is convicted of an offense which makes the alien subject to
deportation, the Attorney General shall begin any deportation proceeding as expeditiously as
not arguing. He is not, for example, asserting that the government‘s conduct in this case rose to
the level of a due process violation. Cf. Singh v. Reno, 182 F.3d 504, 507 (7th Cir. 1999)
(finding that an alien had stated a substantial due process claim where the INS filed an Order to
Show Cause in 1992, but then ―drag[ged] its feet,‖ despite the alien‘s pleas for a hearing, until it
finally held a hearing in late 1996, after the AEDPA had abrogated his right to seek 212(c)
deportable crime, because, in the INS‘s estimation, the alien would be a very strong candidate
for 212(c) relief. Cf. Matter of Gordon, 17 I. & N. Dec. 389, 392 (BIA 1980) (noting that an
INS District Director ―has every right, in fact, a duty, to exercise his prosecutive judgment
whether or not to institute a deportation proceeding against an alien . . . . If, in screening the file
of, and possibly after consultation with, such an alien, it appears to him that a deportation
proceeding would surely result in a grant of section 212(c) relief . . . it would be pointless to
institute an expensive, vexatious, and needless deportation proceeding.‖). Such an alien might
reasonably rely on the INS‘s inaction and decide on that basis to make important commitments
to his residency in the United States (such as by marrying, establishing a business, and losing
ties with his home country) only later to find that, after Congress had eliminated 212(c) relief,
the INS seeks to deport him. Under these circumstances—and where Congress‘s intent as to the
retroactivity of the elimination of 212(c) relief is unclear—an alien might argue with some force
that he has demonstrated the kind of reasonable reliance and settled expectations under
Landgraf, 511 U.S. at 270, that would render the elimination of 212(c) relief impermissibly
In contrast with the various decisions on laches, it seems settled that the government may, in
the appropriate circumstances, be equitably estopped in the immigration context. See, e.g.,
Rojas-Reyes v. INS, 235 F.3d 115, 126 (2d Cir. 2000); Drozd v. INS, 155 F.3d 81, 90 (2d Cir.
1998); Corniel-Rodriguez v. INS, 532 F.2d 301, 307 (2d Cir. 1976) alien‘s reliance on the
continued availability of 212(c) relief. As a result, the diligence of the
Diligence is, by contrast, crucial to the defense of laches. A party claiming this defense
must establish two elements: 1) a lack of diligence by the party against whom the defense is
asserted, and 2) prejudice to the party asserting the defense. Costello, 365 U.S. at 282.
Petitioner cannot establish either element. We find no lack of diligence in the INS‘s decision to
institute deportation proceedings three years before the expiration of Petitioner‘s twenty-year
minimum sentence. If the INS had instituted deportation proceedings immediately after
Petitioner‘s 1982 murder conviction, or at any time until shortly before the expiration of his
minimum term, it might well have been a colossal waste of time. Any number of events might
make his later deportation unnecessary or inappropriate. For example, Petitioner might not
survive until the end of his long prison term. Conditions in the country to which he would be
deported might preclude his immediate deportation upon release, see 8 C.F.R. § 208.17(a)
(providing for deferral of removal under the Convention Against Torture, where it is more likely
than not that the alien will be tortured if deported), thus making the INS‘s resources better used
elsewhere. And, the law with respect to deportation of aliens like Petitioner might change so as
to make deportation impossible or unlikely. See generally Cheryl Shanks, Immigration and the
over the last century). For these and other similar reasons, delay in a case like the one before us,
far from indicating a lack of diligence, suggests common sense on the part of the INS.
Moreover, it is highly unlikely that Petitioner would have received 212(c) relief, given
United States v. Scott, 394 F.3d 111 (2d Cir. January 11, 2005) (district court
erred in denying motion to dismiss indictment on ground that underlying
deportation order was invalid because defendant had been prejudiced during
deportation proceeding by his counsel's ineffective assistance in failing to move
for waiver of deportation under INA § 212(c); entry of underlying deportation
order was "fundamentally unfair" within meaning of 8 U.S.C. § 1326(d))
By analogy to the duties of a prosecutor in a criminal case, the TA has a duty of fairness, not
deportation. It is in the government's interest that a noncitizen who is eligible for relief and
deserving of relief receive relief from deportation. See Berger v. United States, 295 U.S. 78, 88
(1935); ABA Standards Relating to the Prosecution Function.
POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona
court order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence,
for Arizona misdemeanor conviction was illegal since the state at the time of sentence designated
the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a
misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence
illegal on its face, required remand to the BIA to consider the issue in the first instance; issue
could not have been considered earlier, since Arizona court entered 2004 minute entry over six
months after initial BIA decision in this case), citing Velezmoro v. Ashcroft, 362 F.3d 1231,
1233-1234 (9th Cir; 2004) (remanding to BIA to consider in first instance whether petition
continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per
curiam) (remanding "changed circumstances" issue to BIA for "opportunity to address the matter
in the first instance).
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted
arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after
conviction had been vacated, even where order vacating conviction did not specify whether the
conviction was vacated on ground of invalidity or solely for rehabilitative or immigration
purposes).
Ninth Circuit
Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R.
§ 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation
does not apply when criminal conviction that formed a ―key part‖ of the order of removal has
been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d
1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of
deportation based on certain vacated convictions are not legally valid, and thus do not bar
motions to reopen)
1. The BIA Has Jurisdiction to Reopen Proceedings After Deportation if the Conviction
Has Been Vacated
Third Circuit
Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (3d Cir. March 30, 2005) (180 day time
limit filing a motion to reopen removal proceeding following in order entered in absentia is
in nature of statute of limitations, so as to be subject to equitable tolling).
As the Supreme Court declared in Woodby, the ties that legal residents develop to the American
communities in which they live and work, should not be lightly severed:
This Court has not closed its eyes to the drastic deprivations that may follow when a resident of
this country is compelled by our Government to forsake all the bonds formed here and go to a
foreign land
by clear, unequivocal, and convincing evidence that the facts
alleged as grounds for deportation are true.” Gameros-
Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989) (citing
Woodby v. INS, 385 U.S. 276, 286 (1966)); see also 8 U.S.C.
§ 1229a(c)(3)(A). “Although we review for reasonable, sub-
stantial, and probative evidence in the record as a whole,” we
affirm only if “the [agency] has successfully carried this
heavy burden of clear, unequivocal, and convincing evi-
dence.” Cortez-Acosta v. INS, 234 F.3d 476, 481 (9th Cir.
2000) (per curiam) (internal citations and quotation marks
omitted); see also Nakamoto v. Ashcroft, 363 F.3d 874, 882
(9th Cir. 2004) (explaining that the court must determine
“whether substantial evidence supports a finding by clear and
convincing evidence”). “Where, as here, the BIA conducts a
de novo review and issues its own decision, rather than adopt-
ing the IJ‟s decision as its own, we review the BIA‟s deci-
sion.” Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir
RES JUD :
The United States Supreme Court has defined the doctrine of collateral estoppel as providing
that “once an issue is actually and necessarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits based on a different cause of action
involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153 (1979).
The Court has applied the doctrine of collateral estoppel in the context of “an administrative
agency…acting in a judicial capacity” as well. United States v. Utah Constr. & Mining Co., 384
U.S. 394, 422 (1966).
Accordingly, circuit courts have given preclusive effect to determinations made by immigration
judges in immigration hearings. See Medina v. INS, 993 F.2d 499, 504 (5th Cir. 1993)
(concluding that a prior determination that petitioner was a citizen precluded subsequent
deportation proceedings, even where the first decision was based on an erroneous factual finding
and understanding of the law); Ramon-Sepulveda v. INS, 824 F.2d 749, 750-51 (9th Cir. 1987)
(holding that the INS was precluded from seeking deportation of petitioner when it failed to
prove that he was an alien in a prior hearing). The fundamental purpose underlying the doctrine
is “that one full opportunity to litigate an issue is sufficient.” Hammer, 195 F.3d at 840
―Laches requires proof of (1) lack of diligence by the party against whom the defense is
asserted, and (2) prejudice to the party asserting the defense.‖ Id. at 282. Dang has not shown a
lack of diligence on the part of the government
When rule providing for relief from void judgments is applicable, relief is not
discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo.
1994
MOTION TO REOPEN – SUA SPONTE
Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need judicial permission to reopen a
case sua sponte after the filing of a petition for review).
http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf
United States v. Jose, ___ F.3d ___ (9th Cir. October 19, 2005) (reversal of a conviction
on a greater offense, coupled with a final conviction on a lesser included offense, does
not preclude retrial of the greater offense when the offenses were charged in the same
indictment and tried together in the same original trial).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410202p.pdf
United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of
conviction, the trial court has jurisdiction to resentence the defendant on all remaining
counts of conviction). Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997);
United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d
531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate
double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v.
United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States v. Morris, 116
F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997);
United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106
F.3d 1170 (4th Cir. 1997).
Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed
counts are not reinstated since defendant did not breach plea agreement), with United
States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (No. 97-5066) (dismissed counts are
reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add
dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106
F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section
2255 petition, the defendant may be placed in exactly the same position in which he
would have been had there been no error in the first instance."), quoting United States
v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir.
2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006)
Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the
U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was
ordered removed in absentia and removed from the United States. He filed a motion to reopen to rescind
the in absentia order based on lack of notice. The IJ denied the motion, concluding that the immigration
court lacked jurisdiction because petitioner was outside of the United States. The BIA affirmed the
dismissal. The Eleventh Circuit found that petitioner‟s motion was governed by 8 C.F.R. §
1003.23(b)(4)(ii), which says that a motion to reopen in absentia proceedings may be made at any time if
the person shows that he or she did not receive notice. This regulation does not bar reopening when the
person has been removed from the United States. The court noted that Patel v. United States AG, 334
F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the BIA‟s
dismissal of a motion to reopen because the person was outside of the United States. Patel, however, did
not involve a motion to reopen to rescind an in absentia order.
POST-CON – MOTION TO REOPEN – SUA SPONTE
De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA
denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing
noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application
for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal
offenses, and while three of these had been vacated, none had been vacated because De Araujo was not
guilty of the crimes committed.”)
4th Amnd.
The stop constituted an egregious violation of his Fourth Amendment rights because race was
the motivating factor. According to Hernandez, the other reasons given by the agents to
justify the stop were insufficient to establish reasonable suspicion under the law.
Abandonment
Alaka claims that the conclusion that she abandoned her permanent
legal resident status is based on legal error, and the Government
argues it is a factual question that we do not have jurisdiction to
review. In this particular context, we agree with the Government.
The basic test for evaluating whether a lawful permanent resident
has abandoned that status by virtue of traveling abroad is “whether
[the petitioner‟s] extended trips outside the United States]constitute
„temporary visits abroad.‟”
Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); see also Moin v.
Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003); Ahmed v.Ashcroft, 286
F.3d 611, 612-13 (2d Cir. 2002). A trip is “temporary” if it is (1)
“relatively short,” or (2) if not short, the petitioner had “a
continuous, uninterrupted intention to return to the United States
during the entirety of his visit.” Singh, 113 F.3d at 1514 (internal
quotation marks and citations omitted). As to intent, “[t]he issue is
not whether the petitioner had the intent to return ultimately, but
the intent to return to the United States within a relatively short
period.” Id.
APPEAL:
EAJA:
Alternatively, he argues that the statute violates the substantive and due process provisions of the
Fifth Amendment of the United States Constitution.
Under the immigration laws, exhaustion of administrative remedies is statutorily required only
on appeals of final orders of removal. 8 U.S.C. § 1252(d)(1).
Exhaustion is not required when a petitioner challenges decisions concerning bond.
Further guidance is found in the case law considering whether the IIRIRA retroactively
eliminated 212(c) discretionary relief.4 ―‗Several courts have concluded that ‗the operative event
for determining whether . . . IIRIRA amendments should apply is the actual commission of the
crime for which the petitioners now face deportation.‘‖ Santos-Gonzalez v. Reno, 93 F. Supp. 2d
286 295 (E.D. N.Y. 2000) (quoting Dunbar v. INS, 64 F. Supp. 2d 47, 54 (D. Conn.1999)); see
also Maria v. McElroy, 68 F. Supp. 2d 206 (E.D. N.Y. 1999).
The Supreme Court has set forth the basic framework for addressing
whether a statute has retroactive application:
When a case implicates a federal statute enacted after the events in suit, the
court’s first task is to determine whether Congress has expressly prescribed
the statute’s proper reach. If Congress has done so, of course, there is no need
to resort to judicial default rules. When, however, the statute contains no such
express command, the court must determine whether the new statute would
have retroactive effect, i.e., whether it would impair rights a party possessed
when he acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions alreadycompleted. If the statute would
operate retroactively, our traditional presumption teaches that it does not
governabsent clear congressional intent favoring such a result.
Matter of Abosi, 24 I&N Dec. 204, Int. Dec. No. 3568 (BIA 2007)
Matter of Abosi, 24 I&N Dec. 204, Int. Dec. No. 3568 (BIA 2007), June 19, 2007: "A returning lawful
permanent resident seeking to overcome a ground of inadmissibility is not required to apply for
adjustment of status in conjunction with a waiver of inadmissibility under section 212(h) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000)."
establishes that:
the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a
visa, entry or adjustment of status (unless the alien is excludable for prostitution under INA §212(a)(2)(D)(i) or INA
§212(a)(2)(D)(ii), in which case the 15 year time period is not required),
1. the admission to the United States of such alien would not be contrary to the national welfare, safety or
security of the United States, and
2. the alien has been rehabilitated.
LOG
FORGERY Matter of Jensen, 10 Canadian Crim. Code MT OUT
I. & N. Dec. 747, 1964 §§ 309(1) and 311
WL 12130 (BIA 1964)
[*1] Appeal from a judgment of the United States District Court for the
Eastern District of New York (Jack B. Weinstein, Judge) granting a writ of
habeas corpus to the petitioner, who had been ordered deported on the basis of a
drug conviction and a conviction for attempted weapons possession. The
District Court held (i) that petitioner is entitled to pursue § 212(c) relief from
deportation because the Immigration and Nationality Technical Corrections Act
of 1994 ("INTCA") § 203(c), Pub. L. No. 103-416, 108 Stat. 4305, 4311 (Oct.
25, 1994), codified at 8 U.S.C. §§ 1182, 1251 (1994), does not operate
retroactively to bar such relief, and (ii) that the Immigration Judge at
petitioner's immigration hearing did not err by failing to recognize that a
combined form of § 212(c) relief from deportation and § 245(a) adjustment of
status known as "Gabryelsky relief" was available. We hold (i) that relief from
deportation under § 212(c) is foreclosed by retroactive application of the
INTCA, and (ii) that petitioner should be afforded the opportunity to pursue
Gabryelsky relief because the Immigration Judge erred by failing to recognize
that such relief was possible. Accordingly, [*2] we grant the writ of habeas
corpus and remand to the District Court with instructions to permit the
petitioner to pursue Gabryelsky relief before an Immigration Judge. Drax v.
Ashcroft, 178 F. Supp. 2d 296, 2001 U.S. Dist. LEXIS 18855 (E.D.N.Y.,
2001).
Natz Appl
The District Court had jurisdiction under 8 U.S.C. § 1421(c) and 28 U.S.C. §
1331. This Court has jurisdiction of the appeal under 28 U.S.C. § 1291. The
scope of our review of a grant of summary judgment is plenary. Fed. Home
Loan Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003).
Because there is no evidence that the INS ever granted Avendano's application
as required by 8 U.S.C. § 1446(d) or that Avendano took an oath of allegiance
in a public ceremony as required by 8 U.S.C. § 1448, he does not qualify as a
naturalized citizen.
Section 1429 of Title 8 did not divest the district court of its jurisdiction.
Jurisdiction stripping statutes are interpreted narrowly.
Bellajaro asked the district court to grant his application for naturalization on
the merits, or alternatively, to declare that he is eligible to naturalize but for the
pendency of removal proceedings.
Title 8 U.S.C. § 1252(g) provides that "no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders." That provision does not bar the injunction proceeding
here, however, because the gravamen of Hovsepian's claim does not arise from
the Attorney General's decision or action [*26] to commence proceedings,
adjudicate cases, or execute removal orders.
Most recently, we held that the consideration of a purely legal question, which
does not challenge the Attorney General's discretionary authority, supports
jurisdiction. Ali v. Ashcroft, 346 F.3d 873, 878-79 (9th Cir. 2003). Although
that holding arose in the context of a habeas petition, while this one does not,
the same principle applies here. The district court may consider a purely legal
question that does not challenge the Attorney General's discretionary authority,
even if the answer to that legal question -- a description of the relevant law --
forms the backdrop against which the Attorney General later will exercise
discretionary authority. Cf. Spencer Enters., Inc. v. United States, 345 F.3d
683, 689-90 (9th Cir. 2003) (holding that the jurisdictional bar in §
1252(a)(2)(B)(ii) applies only to acts over which a statute gives the Attorney
General pure discretion unguided by legal standards or statutory guidelines).
[*10] 6For this reason, and because they say that habeas [*17] review, if still
available after IIRIRA, n7 will come too late to remedy this First Amendment
injury, respondents contend that we must construe § 1252(g) not to bar
constitutional claims.)
See also Magana-Pizano v. INS, 152 F.3d 1213, 1220 (CA9 1998) (elimination of
habeas unconstitutional); Ramallo v. Reno, 325 U.S. App. D.C. 2, 114 F.3d 1210, 1214
(CADC 1997) ( § 1252(g) removes statutory habeas but leaves "constitutional" habeas
The IJ’s “findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
AADC
7. The court of appeals affirmed both the jurisdictional and merits
rulings of the district court. Pet. App. 1a-21a (AADC III).
a. The court held that IIRIRA did not bar the district court from
exercising jurisdiction over respondents' claims. It agreed with the
government that the new Section 1252(g) applied to the instant case.
Pet. App. 7a-8a. The court stated, however, that IIRIRA "would
present serious constitutional problems" if it were construed to
divest the court of jurisdiction over respondents' suit. Id. at 12a. It
explained that the availability of other avenues of review was
uncertain (see id. at 12a-15a), and specifically held that transfer to a
district court under 28 U.S.C. 2347(b)(3) for resolution of factual
issues would not be available in a deportation case. Pet. App. 12a-
14a. The court also stated that in any event "prompt judicial review
of [respondents'] claims was required because violation of
[respondents'] First Amendment interests would amount to
irreparable injury
The specific provision under which an alien was convicted may or may not
be discernible from the record. See Matter of Torres-Varela, supra, at 84-85
(stating that a determination whether a violation of a particular statute is a
crime involving moral turpitude requires an objective analysis of the elements
necessary to secure a conviction under that statute). In such cases, the
conviction will be found to be for a crime involving moral turpitude only if the
full range of the conduct prohibited in the statute supports such a finding. See
Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses
both acts that do and do not involve moral turpitude, a deportability finding
based on that statute cannot be sustained.
In previous cases we have held that neither the offender‘s state of mind nor
the resulting level of harm, alone, is determinative of moral turpitude. For
example, in Matter of Sanudo, supra, at 972-73, we found that the alien‘s
California domestic battery offense was not a crime involving moral turpitude
because, despite the intent element of the offense, a conviction required only
The specific provision under which an alien was convicted may or may not
be discernible from the record. See Matter of Torres-Varela, supra, at 84-85
(stating that a determination whether a violation of a particular statute is a
crime involving moral turpitude requires an objective analysis of the elements
necessary to secure a conviction under that statute). In such cases, the
conviction will be found to be for a crime involving moral turpitude only if the
full range of the conduct prohibited in the statute supports such a finding. See
Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses
both acts that do and do not involve moral turpitude, a deportability finding
based on that statute cannot be sustained).
CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A Person Is
Removed William v. Gonzales (4th Cir. Sept. 6, 2007)
Holding: The regulation barring motions to reopen filed after a person departs or is
removed, 8 C.F.R. § 1003.2(d), is invalid because it conflicts with the motion to reopen
statute. The Board of Immigration Appeals has jurisdiction to adjudicate a motion to reopen
filed post-departure
III
[4] The Sulits maintain that the INS violated their due
process rights by seizing their "green cards" without
providing a rescission hearing pursuant to 8 U.S.C. S
1256 and issuing a warrant of deportation despite their
adjustment of status.3 "It is well established that the
Fifth Amendment entitles aliens to due process of law
in deportation proceedings." Reno v. Flores, 507 U.S.
292, 306 (1993).
The INS failed to properly notify the Sulits of its
intent to rescind their adjustment of status, see 8
U.S.C. S 1256, or to conduct a hearing as required by
the INS regulations, see 8 C.F.R. S 246.1, prior to
seizing their "green cards." The INS therefore clearly
failed to follow its own procedural rules to the extent
that it sought to "seize"the Sulits' green cards.
Aliens who obtain adjusted status have a legitimate expectation that their
immigration will be permanent. In Fulgencio v. INS, 573 F.2d 596, 598 (9th
Cir. 1978) They should not remain constantly at risk for deportation because
of preconceived intent, a discretionary factor considered during the
adjustment proceeding.
http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0256.resp.html
The Third Circuit concluded in Bamidele v. INS, 99 F.3d 557 (1996),
that the INS was barred from initiating deportation proceedings
against an alien after the lapse of Section 246(a)'s five-year limitations
period where the grounds for deporting the alien relate solely to the
erroneous grant of an adjustment of status.
The Immigration
Judge's factual findings serve both as a basis and a boundary for our scope of review. See 8 C.F.R.
§ 1003. I(d)(3)(i) (2006) (requiring the Board not to engage in de novo review of facts determined
by an immigration Judge, but to review whether the findings of an Immigration Judge are "clearly
erroneous."). Thus, while our review of the final judgment of an Immigration Judge is under a de
novo standard, the degree to which we may disturb an Immigration Judge's decision is affected
where an Immigration Judge's factual findings are not "clearly erroneous." If an Immigration Judge
has come to factual conclusions which, on the face of the record, are not clearly erroneous, those
factual conclusions serve as a boundary under which we operate in our capacity as an appellate
reviewing body. Thus, a trier's findings of fact establish a foundation under which we then review
legal conclusions at de novo standard. This principle is illustrated in the instant case I do not find
clear error with the Immigration Judge's findings that the respondents' visit would be considered a
temporary visit abroad and that respondent did not intend to abandon her status as a legal perma
anent resident.
Patricia A.
The Supreme Court on several occasions has noted the longstanding principle that
ambiguities in deportation laws should be construed in favor of the alien. See, e.g., INS v.
St. Cyr, 533 U.S. 289, 320 (2001); INS v.Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
First Circuit
POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER
VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD
LEFT THE UNITED STATES
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal
proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. §
1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the
alien ... has departed from the United States after the issuance of the order.”) did not invalidate the
regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on
behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to
his or her departure from the United States.”).
POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL
PROCEEDINGS
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon
which deportability was premised is an appropriate basis for reopening administrative proceedings); De
Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.
2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005).
NOTE: Under the particular facts of this case, it appears that the deportation order may not have
actually been final (see dissent). However, assuming (as the majority did), that the deportation order
was final and therefore the holding of the case does not apply outside the context of late motions to
reopen/reconsider will limit the reach of this otherwise unfortunate decision.
Second Circuit
Seventh Circuit
Eighth Circuit
MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT
UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL PROCEEDINGS
Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by granting DHS motion to
reopen pursuant to 8 C.F.R. § 1003.23(b)(3) because DHS failed to establish that the evidence submitted
with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to
the conclusion of removal proceedings).
Ninth Circuit
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN
REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily,
irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had
been vacated, even where order vacating conviction did not specify whether the conviction was vacated
on ground of invalidity or solely for rehabilitative or immigration purposes).
BIA
Other
When a theft offense has occurred, property has been obtained from its
owner "without consent"; in a fraud scheme, the owner has voluntarily
"surrendered" his property, because of an "intentional perversion of truth,"
or otherwise "acted upon" a false representation to his injury. The key and
controlling distinction between these two crimes is therefore the "consent"
element -- theft occurs without consent, while fraud occurs with consent
that has been unlawfully obtained.
Id. at 282. Under this definition Cal. P.C. §484(a) would be held divisible, since it includes
both fraud and theft offenses. The Third Circuit held that where an offense constitutes both
theft and fraud, it must meet both requirements in order to be an aggravated felony: a year‘s
sentence must be imposed and loss to the victim must be greater than $10,000. Nugent v
Ashcroft, 367 F.3d 162 (3rd Cir. 2004
TAX FRAUD
A plea to a violation of 26 U.S.C. 7206(2) does not constitute an aggravated felony. INA §
101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) ["is described in section 7201 of the Internal Revenue
Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000"]).
See Evangelista v. Ashcroft, 359 F.3d 145, 149-53 (2004); Lee v. Ashcroft, 368 F.3d 218 (2004) (federal
conviction of violating § 7206(a) is not an aggravated felony, since Congress specified only one tax crime
(Section 7201) as an aggravated felony). It may be a crime involving moral turpitude.
Possible alternative dispositions include a plea to a violation of 26 U.S.C. § 7203 (willful failure to file
return supply information, or pay tax), a misdemeanor, and 26 U.S.C. § 7202 (willful failure to collect or
pay over tax), a felony.
A plea to multiple violations of INA § 274A(a)(1)(A), would constitute a "pattern or practice" violation of
INA § 274A(f), 8 U.S.C. 1324a (f), a misdemeanor punishable by a fine of not more than $3,000 for each
alien with respect to whom such a violation occurs, imprisonment for not more than six months for the
entire pattern or practice, or both.
ADJUSTMENT OF STATUS – ADMISSION
Aremu v. DHS, ___ F.3d ___, 2006 WL 1668778 (4th Cir. Jun. 19, 2006) (for
noncitizen previously admitted to the United States, the date of adjustment of
status does not constitute a new “admission” for purposes of determining
whether the noncitizen is deportable for having committed a CMT within five
years of admission, under INA § 237(a)(2)(A)(i)), overruling Matter of Shanu, 23 I.
& N. Dec. 754 (BIA 2005). Note: The court cited Abdelqadar v. Gonzalez, 413 F.3d
F.3d 668 (7th Cir. 2005), and Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004)
as making the same holding, although Shivaraman concerned a noncitizen who
(unlike Shanu), had never fallen out of status, and Abdelqadar was arguably dica.
The Fourth Circuit explicitly stated that the decision did not reach the issue of
whether adjustment of status qualified as an “admission” for a noncitizen who
entered the United States illegally, and was therefore never previously admitted.
See, e.g., Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001); Rosas-
Ramirez, 22 I. & N. Dec. 616 (BIA 1999).
DEPORTABLE BECAUSE INADMISSIBLE AT TIME OF ENTRY OR ADJUSTMENT – COURT MUST LOOK AT
LAW AS IT EXISTED AT TIME OF ENTRY/ADJUSTMENT
Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (to determine whether a
noncitizen is deportable for being inadmissible at entry or adjustment under INA § 237(a)(1)(A), the
court must look to the law as it existed at the time of entry or adjustment, not current law
Jurisdiction We begin by noting that, although the IJ found Kelava removable for being convicted of an
aggravated felony, we are not deprived of jurisdiction to hear his appeal under 8 U.S.C. § 1252(a)(2)(C),
because the BIA chose not to address the aggravated felony conviction in its decision, basing its decision
solely on the terrorist activity charge. We addressed a similar situation in Toro-Romero v. Ashcroft, 382
F.3d 930 (9th Cir. 2004). There, the IJ found Toro Romero removable for having been convicted of a
crime involving moral turpitude and for falsely representing himself as a United States citizen. While §
1252(a)(2)(C) would have prohibited this court's jurisdiction over the moral turpitude removal, the BIA
affirmed Toro-Romero's removal only on the false representation ground, expressly declining to decide
any other issues raised by Toro-Romero on appeal. Id. at 93233. We explained that our review is limited
to the BIA's decision, and the sole ground for the final order of removal was therefore Toro-Romero's
false representation.
The Court then determined whether the application of the statute would result in a retroactive effect.
Id. at 320. The Court noted that a statute has retroactive effect when it "takes away or impairs vested
rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already past." Id. at 321 (internal quotation marks
omitted
Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002), is a particularly relevant
authority for the primacy of the conduct date. There, the Eighth Circuit held that an immigrant
whose illegal conduct pre-dated IIRIRA remained eligible to apply for a discretionary
adjustment of status notwithstanding that the same had been eliminated by IIRIRA.
Medina v. INS, 1 F.3d 312, denying reh'g of 993 F.2d 499 (5th
Cir. 1993), may be viewed without charge at:
http://www.ca5.uscourts.gov/opinions/pub/92/92-5305.CV0.wpd.pdf
(4) Pre & Post IIRAIRA: Res Judicata may not be applicable
in a case where a respondent's initial proceedings were
terminated prior to the passage of IIRAIRA, and the INS served
a second NTA after IIRAIRA, on the basis of legislative additions
to the aggravated felony definition. Unlike the case in Medina,
the INS would not have had an opportunity to charge the
respondent as an aggravated felon in the first instance.
(6) Multiple CIMTs: This does not mean, however, that the
INS cannot use a previously charged conviction in combination
with a new conviction to charge a respondent in a subsequent
NTA with deportability as a noncitizen convicted of multiple
CIMTs. Cf. Matter of Gordon, 20 I. & N. Dec. 52, 56 (BIA 1989)
(CIMT conviction previously waived by 212(c) can be used in
charging respondent with deportability for multiple CIMTs in
combination with subsequent conviction).
Page 17
See also Restatement (Second) of Judgments § 83 cmt.
7
Page 18
18
application of common law principles of preclusion. See, e.g.,
Restatement (Second) of Judgments § 83. Nothing in the statute
or the legislative history – nor any authority of which this Court
is aware – suggests that collateral estoppel should bar
relitigation in proceedings before the federal courts, but not in
proceedings before the agency itself. Accord Hamdan v.
Gonzales, 425 F.3d 1051, 1059-60 (7th Cir. 2005); Santana-
Albarran v. Ashcroft, 393 F.3d 699, 703-04 (6th Cir. 2005);
Medina, 993 F.2d at 503-04; Ramon-Sepulveda, 824 F.2d at
750; Restatement (Second) of Judgments § 83, cited with
approval in Elliott, 478 U.S. at 798 n.6; Charles H. Koch, Jr.,
Administrative Law & Practice § 5.72 (2d ed. 1997); 18 James
Wm. Moore et al., Moore’s Federal Practice–Civil § 132.03[e]
(3d ed. 2001).
Requiring the INS to meet its burden of proof at a single
hearing is consistent with the statutory scheme, as interpreted by
the administering agency, see Fedorenko, 19 I. & N. Dec. at 61,
and will not frustrate the goals of Congress. The “lenient
presumption in favor of administrative estoppel” holds, see
Astoria, 501 U.S. at 108, and the INA will be held to incorporate
common law principles of collateral estoppel.
B.
The question then becomes how the doctrine should be
applied in this case. Courts and commentators have consistently
recognized that collateral estoppel was borne of equity and is
therefore “flexible,” bending to satisfy its underlying purpose in
light of the nature of the proceedings. See Nat’l R.R. Passenger
Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 528 (3d Cir.
If no sentence has been imposed, the defendant does not have a final conviction for
immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a
criminal conviction may not be considered by the immigration authorities until it is
final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed.
1377 (1956) (―Final judgment in a criminal case means sentence.‖) (quoting Berman
v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937)); United
States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992)(citing United States v.
Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not
final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571
(6th Cir. 1975) (―Once a sentencing [on a guilty plea] is completed . . . the conviction
is final for deportation purposes
The doctrine of res judicata proclaims that ―a valid and final judgment precludes a
second suit between the same parties on the same claim or any part thereof.‖ Medina v.
INS, 993 F.2d 499, 503 (5th Cir. 1993); see also Dye v. U.S. Farm Servs. Agency, 129
Fed. Appx. 320, 322 (7th Cir. 2005) (―Res judicata bars suits where there is a final
judgment on the merits; an identity of the issues of the lawsuit; and an identity of the
parties or their privies.‖). Res judicata (as well as the related principle of collateral
estoppel) applies to administrative proceedings such as the adjudication of petitions for
relief in immigration courts. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S.
104, 107-08 (1991); Santana-Albarran v. Ashcroft, 393 F.3d 699, 704 (6th Cir. 2005);
Johnson v. Ashcroft, 378 F.3d 164,
Although section 11366.5(a) and § 856(a)(2) are very similar, they differ in
one important respect: the mens rea requirement for section 11366.5(a) is only
"knowingly," while for § 856(a)(2) it is "knowingly and intentionally."
"Intentionally" and "knowingly" are terms with traditional meanings in criminal
law, and the meanings are different. Cf. Salviejo-Fernandez v. Gonzales, 455
F.3d 1063, 1067 (9th Cir. 2006) (citations omitted)(noting that generally,
"purpose" equates with specific intent, and "knowingly" with general intent).
Indeed,
CIMT CATG Analysis
A categorical analysis requires us to compare the elements of the statute of
conviction with a federal definition of the crime to determine whether conduct
proscribed by the statute is broader than the generic federal definition. Id. In doing
so, we ―cannot examine the underlying facts of the prior offense, but ‗look only to
the fact of conviction and the statutory definition of the prior offense.‘ ‖ United
States v. Corona-Sanchez, 291 F.3d 1201, 1203, 1212-13 (9th Cir. 2002) (enbanc)
(quoting Taylor, 495 U.S. at 602). If the statute of conviction criminalizes conduct
that would not satisfy the federal definition of the crime at issue, then the
conviction does not qualify as a predicate offense under the categorical approach.
Id. at 1203. In short, under the categorical approach, the issue is whether the full
range of conduct encompassed by the statute constitutes a crime of moral turpitude.
See United States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir. 2001). ―[T]o
satisfy the categorical test, even the least egregious conduct . . . must qualify.‖
United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006).
such behavior may be unwise and socially unacceptable to many, but it is not
―inherently base, vile, or depraved,‖ Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.
1996),or accompanied by a ―vicious motive or corrupt mind,‖Michel, 206 F.3d at
263. Nor is it ―so far contrary to the moral law‖ as to ―give rise to moral outrage.‖
Navarro-Lopez, 2007 WL 2713211, *6. In short, the conduct discussed does not
meet the first Fernandez-Ruiz requirement of being an ―act of baseness or
depravity contrary to accepted moral standards.‖Fernandez-Ruiz, 468 F.3d at
1165-66 13600 QUINTERO-SALAZA
[5] If the crime of conviction does not categorically qualifyas a predicate offense
under a federal statute, it still may qualify under a modified categorical analysis.
Corona-Sanchez,291 F.3d at 1203. Under the modified categorical approach we
examine ― ‗documentation or judicially noticeable facts that clearly establish that
the conviction is a predicate conviction‘‖ for removal purposes. Id. (quoting United
States v.Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc)).Under the
modified categorical approach, if ―judicially noticeable facts would allow the
defendant to be convicted of an offense other than that defined as a qualifying
offense,‖ it cannot be used as a basis for removal. Id. (quoting United States v.
Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999)). ―As we have noted
repeatedly, the government has the burden to establish clearly and unequivocally
the conviction was based on all of the elements of a qualifying predicate offense.‖
United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (citing United
States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. 2002); United States v.
Pimentel- Flores, 339 F.3d 959, 968 (9th Cir. 2003); Corona-Sanchez, 291 F.3d at
1211).
[6]Here, the only evidence that the government tendered was the fact of
conviction. Therefore, absent any other judicially noticeable facts,
application of the modified categorical approach does not alter our
analysis.
The Third Circuit in very strong language ordered that immigration judges must allow
someone in deportation proceedings to be heard in their case even if they were slightly
tardy for a hearing. In this case, the government frequently warned someone that she
had to bring witnesses at her next, major hearing. A witness got to her house late so they
set off from home a bit late and got a bit lost driving in downtown Newark, NJ. Her
attorney arrived exactly on time but by the time she got to the courtroom, she was
around 20 minutes late. The IJ had ordered her deported and when she asked the court
staff to get the judge to try to be heard, they refused. They tried to reopen the case and,
depressingly, the IJ refused to reopen it and the BIA upheld the judge's decision on
appeal. The case had to go all the way up to the Third Circuit to do justice and allow her
case to be heard on the merits.
Sadly, this is not the first time someone was ordered deported for arriving slightly late,
the IJ refused to reopen, the BIA affirmed, and a circuit court had to step in and do the
right thing. Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (reopening where 20 minutes
late but IJ was still in the courtroom working on other cases); Alarcon-Chavez v.
Gonzales, 403 F.3d 343 (5th Cir.
2005) (reopening where 20 minutes late and IJ was either still in the courtroom or had
just left and still nearby); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) (reopening
where two hours late due to late arrival of personally-hired interpreter after IJ failed to
get an interpreter at prior court appearance that led the immigrant to think she had to
bring her own interpreter).
The legal rule is that due process rights exist in immigration cases and the IJ and BIA
abused their discretion by refusing to reopen the case for minimal tardiness when the IJ
was either still in the courtroom or had recently left but was still nearby. Especially
when there was no history of the person arriving late in the case.
The Third Circuit used strong language, saying they would "expect nothing less from
immigration judges who sit in this circuit" to reopen such cases and that just like the
Fifth Circuit said in Alarcon-Chavez, immigration judges must "remember they are
appointed, not anointed."
212c blake
gave teeth to the admonition of Judge Learned Hand: “It is well that we
should be free to rid ourselves of those who abuse our hospitality; but it is
more important that the continued enjoyment of that hospitality once granted,
shall not be subject to meaningless and irrational hazards.” DiPasquale v.
Karnuth, 158 F.2d 878, 879 (2d Cir. 1947).
PETITIONERS ARE NOT ELIGIBLE FOR NUNC PRO TUNC RELIEF.
1.
Standard of Review
Although, this Court reviews the BIA‟s legal conclusions de novo, it must defer to the BIA‟s
reasonable interpretations of the INA. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).
When
the BIA has adopted and affirmed an IJ‟s decision, this Court reviews the IJ‟s decision directly.
Selami v. Gonzales, 423 F.3d 621, 624-25 (6th Cir. 2005) (citing Denko v. INS, 351 F.3d 717,
726
(6th Cir. 2003)). This Court need not defer, however, to an IJ‟s interpretation of the INA that
conflicts with BIA precedent. See Rodriguez-Roman v. INS, 98 F.3d 416, 427 (9th Cir. 1996)
(declining to defer to an IJ‟s interpretation of the INA adopted by the BIA in a per curiam
opinion
that conflicted with BIA precedent).
2.
Analysis
1
The IJ incorrectly determined that she did not have the authority to issue a nunc pro tunc
order granting Petitioners a waiver pursuant to the 1993 version of § 212(i). The IJ‟s
interpretation
of the 1996 amendments to the INA as abolishing her authority to issue nunc pro tunc orders for
waivers of inadmissibility was unreasonable in light of BIA case law on nunc pro tunc orders.
Nonetheless, we deny the petition for review because Petitioners are not eligible for a nunc pro
tunc
order granting a waiver of removability pursuant to the 1993 version of § 212(i).
a.
Nunc Pro Tunc Relief
A nunc pro tunc order is an order that has retroactive legal effect. Black‟s Law Dictionary
1097 (7th ed. 1999). The BIA has long used nunc pro tunc orders to remedy the harshness of
United
States immigration laws. Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004) (citing Matter of L, 1
I. & N. Dec. 1 (A.G. 1940); Matter of T, 6 I. & N. Dec. 410, 413 (BIA 1954); Matter of A, 3 I. &
N. Dec. 168, 172-73 (BIA 1948)). Among other uses, the BIA has issued nunc pro tunc orders
to retroactively legalize an alien‟s admission into the United States thereby eliminating the
grounds
for deporting the alien. Matter of L, 1 I. & N. Dec. at 1; Matter of T, 6 I. & N. Dec. at 413-14;
Matter of A, 3 I. & N. Dec. 172-73. For example, in the Matter of T, the BIA issued a nunc pro
tunc order waiving an alien‟s perjury as grounds for deportation, despite the fact that the version
of the INA in effect at the time the BIA issued the order did not authorize such a waiver. Matter
of T, 6I. & N. Dec. at 413-14. The BIA reasoned that the version of the INA in effect when the
alien entered the United States authorized a waiver, and thus that the BIA had the authority to
issue a retroactive order granting waiver based on the former version of the INA. Id.
Although the INA does not explicitly confer the power to issue nunc pro tunc orders on the
BIA, the BIA has interpreted the INA to implicitly confer such power. See Matter of L, 1 I.&.N.
at 5-6. In 1940, the BIA concluded that Congress did not intend for immigration laws to operate
in a “capricious and whimsical fashion,” and that Congress therefore must have intended to
allow the Attorney General to have discretion to correct errors through retroactive orders. Id. The
BIA has held that the power to issue nunc pro tunc orders has survived numerous amendments
of the INA, including amendments that restrict the availability of discretionary waivers. See
Matter of T, 6 I.
Page 7
No. 04-3829
Patel, et al. v. Gonzales
Page 7
& N. Dec. at 413-14 (granting a waiver nunc pro tunc where the petitioner was not eligible for
discretionary relief under the current version of the INA due to an amendment to the INA
restricting the availability of waiver); see also In re Po Shing Yeung, 21 I. & N. Dec. 610, 624
(BIA 1997)(Rosenberg, Board Member, concurring in part and dissenting in part). As explained
by the Second Circuit in Edwards,The BIA has, through much of § 212(c)‟s history, explicitly
deemed it appropriate to award § 212(c)‟s waivers nunc pro tunc. And, despite multiple
amendments and a recodification of the statute, Congress has not expressly countermanded this
long-standing practice. Congressional reenactments, when made in the light of
administrative interpretations of this kind, go a long way to precluding the INS‟s
current contention [that the 1996 restrictions on availability of the § 212(c) waiver
evince a congressional intent to preclude nunc pro tunc grants of § 212(c) waivers
based on the pre-1996 version of § 212(c)].
Edwards, 393 F.3d at 309-10 (internal citations omitted).
Although the BIA has the authority to issue nunc pro tunc orders, it only issues such orders
in two situations: (1) where the only ground of deportability or inadmissibility would thereby be
eliminated; and (2) where the alien would receive a grant of adjustment of status in connection
with the grant of any appropriate waivers. In re Felipe Garcia-Linares, 21 I. & N. Dec. 254, 259
(BIA1996); Matter of Roman, 19 I. & N. Dec. 855, 857 (BIA 1988). In its earlier cases, the BIA
also weighed the equities, including how long the Petitioner had resided in the United States and
whether the Petitioner had family living in the United States. Matter of T, 6 I. & N. Dec. at 413-
14; Matter of A, 3 I. & N. Dec. at 171-72.
Contrary to Respondent‟s assertion, the BIA does not grant nunc pro tunc orders only where
the DHS (formerly the INS) erred causing an alien prejudice. Respondent mistakenly relies on
cases in which federal courts have granted, or ordered the BIA to grant, nunc pro tunc orders,
and not cases in which federal courts have remanded to allow the BIA to determine whether to
grant nunc pro tunc relief. (Resp‟t Br. 24 (citing Edwards, 393 F.3d at 310).) In contrast, BIA
case law indicates that the BIA has authority under the INA to issue nunc pro tunc orders even
where there is no clear agency error. Matter of T, 6 I. & N. Dec. at 413-14; Matter of A, 3 I. & N.
Dec. at 171-72; see also Yeung, 21 I. & N. Dec. at 624 (Rosenberg, Board Member, concurring
in part and dissenting in part). Respondent offers no reason or authority suggesting that the
standard appropriate in federal court is also the standard appropriate for the DHS.
The standard employed by federal courts should not be imposed on the BIA and overrule its
longstanding precedent. It makes persuasive sense that the power of the BIA to enter nunc pro
tuncorders is greater than that of federal courts. Unlike the BIA, Congress did not entrust the
federal courts to implement the INA but rather to insure that the DHS and BIA act within their
statutory authority under the INA. Where there is no agency error, this Court has no reason to be
involved in immigration cases. In contrast, the BIA may reasonably determine that a nunc pro
tunc order is necessary to effectively implement the goals of the INA even where the DHS has
not erred.
Therefore, the authority of the BIA to issue a nunc pro tunc order need not be interpreted to be
identical to that of federal courts in immigration cases.
b.
As Applied in This Case
Here, the IJ incorrectly assumed that she did not have the authority to issue a nunc pro tunc
order granting Petitioners a discretionary waiver pursuant to the 1993 version of the INA. The IJ
reasoned that the 1996 amendments to the INA eliminated § 212(i) waivers for parents of United
States citizens, and thereby also eliminated the DHS‟s authority to issue nunc pro tunc orders
Page 8
No. 04-3829
Patel, et al. v. Gonzales
Page 8
granting such waivers. Although the IJ‟s reasoning has facial appeal, it is unreasonable because it
conflicts with BIA precedent. Rodriguez-Roman, 98 F.3d at 427 (declining to defer to IJ and
BIA
decisions in conflict with BIA precedent). Therefore, this Court will not defer to the IJ‟s
interpretation of the INA and will instead follow the long-standing interpretation of the INA
articulated by the BIA. As noted above, the BIA has interpreted amendments to the INA
restricting the availability of discretionary waivers of deportation not to eliminate its authority to
issue nunc pro tunc orders granting such waivers. See Matter of T, 6 I. & N. Dec. at 413; see
also Edwards, 393 F.3d 299. Thus, the DHS has the authority to issue nunc pro tunc orders
granting waivers under the pre-1996 version of the INA even though Congress has eliminated
such waivers. See id.
Nonetheless, this Court will not grant the petition for review. Although the IJ has the
authority to issue nunc pro tunc orders granting waiver under the 1993 version of the INA, and
such relief would eliminate the sole grounds for removing Petitioners, Petitioners are not eligible
for such relief. When Petitioners entered the United States in 1993, their son, Sanjay Herat, was
not yet a United States citizen. Consequently, in 1993, Petitioners were not eligible for a
discretionary waiver under the 1993 version of § 212(i). Thus, the IJ does not have the authority
to grant such relief under the 1993 version of § 212(i). See Matter of T, 6 I. & N. Dec. at 413
(granting a discretionary waiver nunc pro tunc to an alien who qualified for the waiver at his
time of entry).
III.
CONCLUSION
For the reasons set forth above, we DENY the petition for review.
RELIEF – LPR CANCELLATION – CONTINUOUS PRESENCE – NEW PERIOD STARTS WITH ADMISSION AFTER
COMMISSION OF OFFENSE
Okeke v. Gonzales, ___ F.3d ___ (3d Cir. May 18, 2005) (new period of continuous physical presence in
the United States begins with lawful reentry to the United States after commission of an offense).
http://caselaw.lp.findlaw.com/data2/circs/3rd/031831p.pdf
Sinotes-Cruz v. Gonzalez, 468 F.3d 1190 (9th Cir. Nov. 2006) (permanent stop time rule for
cancellation of removal cannot be applied retroactively to convictions occurring prior to the effective
date of IIRAIRA, therefore allowing a person to apply for cancellation despite a conviction of a crime of
moral turpitude that occurred during the first seven years of physical presence).
NOTE: The court here engaged in no analysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), or
Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), which specifically prohibit the Government from
starting removal proceedings based upon convictions occurring prior to adjustment when the
Government was aware of those convictions at the time of adjustment and either granted a waiver
(Rafipour), or no waiver was needed since the convictions triggered deportation, but not inadmissibility
(Rainford). The noncitizen in this case had 21 total convictions, and had been involved in litigating pro se
for a number of years at all court levels.
JUDICIAL REVIEW – MOTION TO REOPEN – BIA NOT BARRED FROM GRANTING MOTION TO REOPEN
REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL
INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED – REGULATION DOES NOT BAR
CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that
motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA
from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal
order had been vacated; it was not necessary that the conviction be the sole reason for removal
Here, Madu does not challenge the INS‘s exercise of discretion. Rather, he brings a
constitutional challenge to his detention and impending removal. See Pet. for Writ of
Habeas Corpus at ¶ 21 (alleging that the ―detention and imminent deportation of
Petitioner are denials of his substantive right to due process . . . .‖). Accordingly, section
1252(g) does not apply
Third Circuit
RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY
OF VOLUNTARY DEPARTURE PERIOD
Obale v. Attorney General, 453 F.3d 151 (3d Cir. 2006) (courts may stay voluntary departure
period).
RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY OF VOLUNTARY
DEPARTURE PERIOD
For more information about stays of voluntary departure during court of appeals review and an
overview of the case law in other courts, see AILF’s Practice Advisory, Protecting Voluntary Departure
Period During Court of Appeals Review (October 25, 2005) available at
http://www.ailf.org/lac/lac_pa_chrono.shtml.
RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF ACCRUAL OF SEVEN YEARS
DOMICILE BY TIME OF GUILTY PLEA
Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005) (noncitizen alien
need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible
for INA § 212(c) relief under INS v. St. Cyr; following rule that seven years for domicile for 212(c) stops at
time of application for 212(c)).
RELIEF – 212(C) RELIEF – LAWFUL DOMICILE – UNREVOKED DOMICILE = LAWFUL
DOMICILE EVEN IF LPR WOULD NOT HAVE BEEN GRANTED IF CRIMINAL HISTORY HAD BEEN
KNOWN
While a noncitizen must be a lawful permanent resident to obtain a waiver under
INA § 212(c), and LPR status obtained through fraud is insufficient, it is possible to
argue that a noncitizen who obtained LPR status though amnesty legalization,
even though s/he was not technically qualified because of a criminal offense
committed while s/he was a temporary resident, should still be considered an LPR
for 212(c) purposes, since the adjustment was automatic (and therefore no fraud
could have occurred), and the failure of the INS to rescind the temporary status
prior to adjustment bars the INS from denying that they are lawful permanent
residents now. But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005).
If the government mistakenly granted lawful temporary residence to your client,
the government's remedy was to terminate the LTR status. See INA sec.
245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec. 216(BIA 1990). Having failed to
terminate, your client is a resident. See INA sec. 246; Matter of Belenzo, 17 I. & N.
Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status granted
under sec.245 or 249). Under the rescission cases and statute, the U.S. can
rescind at any time if a noncitizen received LPR status by fraud. After having LPR
status for five years the government can't rescind in the absence of fraud. Even if
a noncitizen gets LPR status by fraud, she or he can still apply for 212(c) if she or
he gets a 237(a)(1)(H) waiver to forgive the fraud. Matter of Sosa-Hernandez, 20 I.
& N. Dec. 758 (1993). See also Perez-Enriquez v. Gonzales, 411 F3rd 1079 (9th Cir
2005). Thanks to Dan Kesselbrenner
In this case, a noncitizen sought to reopen his removal order to apply for cancellation of removal
for permanent residents, cancellation for non-permanent residents, and voluntary departure. The
BIA held that the respondent was ineligible for cancellation for permanent residents because he
was never ―lawfully admitted for permanent residence‖ because he acquired his resident status
through fraud.
If the respondent in this case had been a spouse, parent, son, or daughter of a United States
citizen or lawful permanent resident then he could have filed a waiver under INA section
237(a)(1)(H), which would have made his admission lawful as of the date he acquired it, and
allowed him to apply for cancellation of removal for permanent residents. See Matter of Sosa-
Hernandez, 20 I&N 758 (BIA 1993) (holding that a noncitizen could file a fraud waiver under
former INA § 241(f), which would make her admission lawful as of the date she acquired it
enabling her to apply for a 212(c) waiver).
NON published BIA=NON precedent=NON binding
An unpublished Board decision does not have a binding effect and does not create a rule of law.
Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1991).
“Decisions which the Board does not designate as precedents are not binding on the Service or the
immigration judges in cases involving the same or similar issues.” Hernandez v. Ashcroft, 345 F.3d
824, 839 n.13 (9th Cir. 2003). “A survey of unpublished BIA decisions shows that they are
treated as limited to their facts. They do not serve as authority for later proceedings involving the
same issues, nor do they make new law.” Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993);
cf. Mead, 533 U.S. at 233 (holding that because agency decision binds only the parties and “stops
short of third parties” it lacks lawmaking power). The Board‟s unpublished decisions, like this
court‟s memorandum dispositions, are “more or less, a letter from the court to parties familiar with
the facts, announcing the result and essential rationale of the court‟s decision.” Hart, 266 F.3d at
1178. They lack, by design, the reasoned and considered indicia required to provide guidance on
important questions of law. An unpublished Board opinion is not an authoritative source of the
agency‟s interpretation of the law. Under the Chevron doctrine, only authoritative agency
interpretations are afforded deference. Mead, 533 U.S. at 226-27. Accordingly, the unpublished
Board opinions referred to by the court in its February 16, 2006 order do not provide an
interpretation of the statute
http://72.14.205.104/search?q=cache:R0zRwB22HEoJ:ilgrp.com/docs/03-
70244%2520Perez%2520Enriquez%2520Amicus.pdf+Matter+of+Medrano&hl=en&ct=clnk&cd=2
&gl=us
Matter of Virk
http://bulk.resource.org/courts.gov/c/F3/295/295.F3d.
1055.01-70055.html
Thus, an alien who, like Virk, obtains permanent resident status through a fraudulent marriage,
but subsequently marries a citizen or lawful permanent resident, can be forgiven the fraud and
maintain lawful permanent resident status through a § 241(f) waiver of deportation
Matter of Manchisi, 12 I. & N. Dec. 132, 137, 1967 WL 13978 (BIA 1967), overruled on other
grounds by Matter of Diniz, 15 I. & N. Dec. 447, 1975 WL 31546 (BIA 1975), rev'd by Matter of
Da Lomba, 16 I. & N. Dec. 616, 1978 WL 36481 (BIA 1978); see also Matter of Da Lomba, 16 I. &
N. Dec. 616, 620, 1978 WL 36481 (BIA 1978) (where alien entered the country with a visa from a
fraudulent marriage, and then entered into a bona fide marriage, the BIA held that "when an
alien is found deportable on the charge arising out of [the fraudulent marriage], section 241(f)
can save him deportation."); Matter of Sosa-Hernandez, 20 I. & N. Dec. 758, 761, 1993 WL
495143 (BIA 1993) (quoting Manchisi, 12 I. & N. Dec. at 137). The BIA has recognized that the
INS has incorporated into its Operations Instructions the policy that "an alien who qualifies as a
nondeportable alien under the authority of section 241(f) `is thereby cleared of the illegality
which attached to the visa and to the entry, and is considered as an alien lawfully admitted for
permanent residence.'" Sosa-Hernandez, 20 I. & N. Dec. at 762(quoting Immigration and
Naturalization Service Operations Instructions 318.5).
NATIONAL CLAIM
at his 1998 naturalization interview, he swore allegiance to the United States and signed an oath
declaration form
Matter of Cruz , 15 I. & N. Dec. 236, 237 (BIA 1975). The BIA held that "prima facie eligibility may be
established by an affirmative communication from the Service [USCIS] or by a declaration of a court that
the alien would be eligible for naturalization but for the pendency of the deportation proceedings. . . ."
Id. (emphasis added).
RELIEF – NATURALIZATION
Okafor v. Gonzales, 456 F.3d 531 (5th Cir. Jul. 18, 2006) (signing oath insufficient to confer
citizenship; it is necessary to participate in public ceremony pledging allegiance to the United
States and renouncing all former allegiances to foreign states and sovereignties).
Circumstances are sufficiently unusual that justice demands his WAIVER be given
retroactive effect.
See, e.g., Apokarina v. Ashcroft, 93 Fed Appx. 469, 471-72, 2004 WL 742286 (3dCir. 2004)
(reversing and remanding district court‟s dismissal of petition) (unpublished decision);
Dominguez v.Ashcroft, 2004WL 2632916, at *1 (D. Or. Nov 18, 2004)(reserving decision
pending completion of removal proceeding against petitioner);Saad, 2004 WL 1359165, at **1-2
(considering mer-its of the application, but finding applicant otherwise ineligible for citizen-
ship); Ngwana v. Attorney General ofthe United States, 40 F. Supp.2d 319, 322 (D. Md. 1999)
(holding INA § 318 limits only Attorney General and does not bar judicial review); Gatcliffe v.
Reno, 23 F. Supp.2d 581, 584 (D.VI)
Because the court lacks jurisdiction over plaintiff’s
claims, the court will not inquire into defendants motion to
dismiss for failure to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
As opposed to DISMISSED for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1).
Bellajero
merits of his application for naturalization, a finding of eligibility for
naturalization, and an order granting his naturalization application or
alternatively, a declaration that he is eligible to naturalize but for the pending
removal proceedings.
Bellajaro's remaining argument is that triable issues of fact exist which preclude
summary judgment, but they have to do with whether he is of good moral
character ? not whether the INS correctly denied his naturalization application on
the ground that removal proceedings are pending.
Grewal v. Ashcroft, 301 F.Supp.2d 692, 696 (N.D.Ohio 2004) (noting that to divest
district courts of jurisdiction is particularly problematic when the removal
proceeding was initiated after the alien's application for naturalization was denied
and he had filed a petition for review in the district court); Ngwana v. Attorney
Gen. of the United States, 40 F.Supp.2d 319, 321 (D.Md.1999) (recognizing district
court jurisdiction to review a merits-based denial of an application); Gatcliffe v.
Reno, 23 F.Supp.2d 581, 582-83 (D.Vi.1998) (same)
8 U.S.C. § 1429 states in relevant part that “no person shall be naturalized against
whom there is outstanding a final finding of deportability pursuant to a warrant of arrest
issued under the provision of this or any other Act; and no application for naturalization
shall be considered by the Attorney General if there is pending against the applicant a
removal proceeding pursuant to a warrant of arrest issued under the provisions of this or
any other Act.”
NATIONAL
he signed the affidavit of allegiance to the United States that is part of the citizenship application.
http://www.ailf.org/lac/clearinghouse_brandx.shtml
Affirmative Misconduct
As the Supreme Court has often emphasized, deportation is a drastic measure that may inflict "the equivalent
of banishment or exile," Barber v. Gonzales, 347 U.S. 637, 642-43, 74 S.Ct. 822, 825, 98 L.Ed. 1009; Fong
Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948); Delgadillo v. Carmichael, 332 U.S. 388,
391, 68 S.Ct. 10, 92 L.Ed. 17 (1947), and " result in the loss 'of all that makes life worth living.' " Bridges v.
Wixon,326 U.S. 135, 147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945). When such serious injury may be
caused by INS decisions, its officials must be held to the highest standards in the diligent performance of their
duties. Here, their duty was clear. Unlike the immigrants in Santiago, who had no right to enter the United
States when they did, Yoo had an absolute right to a labor certification under the INS's own regulation. INS
officials, by their affirmative inaction, deprived petitioner of that right without justification. We have stated that "a
person might sustain such a profound and unconscionable injury in reliance on (an official's) action as to
require, in accordance with any sense of justice and fair play, that (he) not be allowed to inflict the injury."
Schuster v. CIR, 312 F.2d 311, 317 (9th Cir. 1962). Justice and fair play can only be achieved in this case by
holding, as we do, that the Government is estopped from denying petitioner the benefit of pre-certification in
seeking an adjustment of his status under 8 U.S.C. § 1255.
By its maneuvers here, the INS has ensnared petitioner in a "Catch-22" predicament; the Service's conduct is
analogous to the entrapment of a criminal defendant and, as such, cannot be countenanced.
Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir.2001) (en banc) (holding negligently provided
misinformation an alien received from an INS officer could not serve as the basis for equitable estoppel,
because the alien must show the INS engaged in "affirmative misconduct," defined as a "deliberate lie" or "a
pattern of false promises")
A court of appeals does not have the authority to determine the weight to afford to each factor. Id. This court
will uphold a denial by the BIA unless it was made without a rational explanation, it inexplicably departed from
established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular
race or group. Bal v. Moyer, 883 F.2d 45, 46 (7th Cir.1989).
B) conditional parole.
8 U.S.C. � 1226(a).(13)
The plaintiffs argue that, pursuant to Mathews v. Eldridge, 424 U.S. 319, 334 (1976), due process requires
the INS to provide an LPR with notice of his right to parole within the United States (14) and with a parole
hearing before the Attorney General decides how to exercise her discretion. Congress, however, has
denied the district court jurisdiction to adjudicate deprivations of the plaintiffs' statutory and
constitutional rights to parole.(15)
The plaintiffs respond that the Attorney General's parole authority at issue in this case is found not in 8
U.S.C. � 1226, but instead in 8 U.S.C. � 1225(b)(2)(C). Therefore, they argue, the bar on judicial review
contained in � 1226(e), which applies only to "this section," does not bar this suit. But � 1225(b)(2)(C)
only authorizes the Attorney General to return an applicant for admission to Mexico pending the exclusion
proceedings. It is � 1226(a), by contrast, that authorizes her to grant parole within the United States to an
LPR subject to removal proceedings.
Consequently, an alien's LPR status includes elements of liberty and property rights of which he cannot be
deprived without due process of law. For example, the right to seek and engage in employment, to travel,
and to qualify for other benefits and entitlements are attributes or inherent characteristics of LPR status.
Therefore, the government cannot deprive an LPR of these rights or entitlements or significantly damage
them without first affording the LPR due process of law guaranteed by the Fifth Amendment. For instance,
the INS and other government agents may not, without affording an LPR such due process of law, (1)
confiscate his green card without providing him a reasonably adequate substitute document that will
afford him equal access to all attributes of LPR status or (2) deny an LPR readmission. Of course, an LPR
can be investigated, arrested, or prosecuted for a crime just as any other alien or citizen. But an LPR
cannot be deprived of any of the attendant rights of his status without due process of law, because the
Due Process clause of Fifth Amendment does not acknowledge any distinction between citizens and
resident aliens. See Galvan v. Press, 347 U.S. 522 (1954) ("[Because] an alien who legally became part of
the American community ... is a 'person,' [he] has the same protection for his life, liberty and property
under the Due Process Clause as is afforded to a citizen."); Bridges, 326 U.S. at 161 (Murphy, J.,
concurring) ("None of these provisions acknowledges any distinction between citizens and resident
aliens.").
http://caselaw.lp.findlaw.com/cgi-
bin/getcase.pl?court=5th&navby=case&no=9940122cv0
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=docket&no=04a0149p
ZAYED V US :
Adopting the approach to statutory interpretation urged upon it by the government — an approach
pioneered by the Supreme Court in Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) —
the district court elected to follow what it saw as the true intent of Congress without necessarily
adhering to the letter of the statutory language. The petition for review was dismissed without
prejudice, as we have said, and Ms. Zayed has filed a timely appeal
I think the court has the power to order the AG to Grant my natz application if the court found that CIS
erred in : 1- reopening the application based on new derogatory info.Eventhough the NTA has not been
filed with the immig court, I was not technically in removal proceedings yet. According to 8 cfr 1239.1(a)
Saba-Bakare contends that the district court has jurisdiction over this
action and consequently over his request that it declare him prima facie
eligible for naturalization and/or review the USCIS’s determination that he is
not prima facie eligible for naturalization.
POST CON RELIEF – SENTENCE – VACATION OR REDUCTION OF SENTENCE IS EFFECTIVE FOR
IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S REASONS FOR GRANTING IT
Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to modify or reduce a
criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the
Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for
purposes of the immigration law without regard to the trial court's reasons for effecting the
modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing
Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th
Cir. 2006).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3522.pdf
First Circuit
POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER
VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD
LEFT THE UNITED STATES
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal
proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. §
1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the
alien ... has departed from the United States after the issuance of the order.”) did not invalidate the
regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on
behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to
his or her departure from the United States.”).
POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL
PROCEEDINGS
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon
which deportability was premised is an appropriate basis for reopening administrative proceedings); De
Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.
2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005).
Second Circuit
Fourth Circuit
Seventh Circuit
Eighth Circuit
MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT
UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL PROCEEDINGS
Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by granting DHS motion to
reopen pursuant to 8 C.F.R. § 1003.23(b)(3) because DHS failed to establish that the evidence submitted
with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to
the conclusion of removal proceedings).
Ninth Circuit
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN
REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily,
irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had
been vacated, even where order vacating conviction did not specify whether the conviction was vacated
on ground of invalidity or solely for rehabilitative or immigration purposes).
Eleventh Circuit
BIA
Other
POST CON RELIEF – STATE REHABILITATIVE RELIEF – WYOMING DEFERRED ENTRY OF PLEA AND
SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT
Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and
sentence, under Wyo. Stat. § 7-13-301 (“Without entering a judgment of guilt or conviction, *the court
may] defer further proceedings and place the person on probation for a term not to exceed five (5)
years.”), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. § 3607, for
purposes of avoiding a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration
purposes.
POST CONVICTION RELIEF
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§ 10.1 I. Introduction
Other
First Circuit
Third Circuit
Other
First Circuit
Ninth Circuit
POST CON RELIEF – AFTER VACATUR, CRIMINAL COURT CAN RESENTENCE
ON REMAINING COUNTS
United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one
count of conviction, the trial court has jurisdiction to resentence the
defendant on all remaining counts of conviction). Accord, United States v.
Harrison, 113 F.3d 135 (8th Cir. 1997); United States v. Davis, 112 F.3d 118
(3d Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), cert.
denied, 117 S. Ct. 1861 (1997) (resentencing does not violate double
jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille
v. United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States
v. Morris, 116 F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d
734 (8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997);
United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997).
Tenth Circuit
Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005). The court
indicated the record before it was susceptible to two inferences: (a) that
the felony conviction had been reduced to a misdemeanor, on the basis of
an error in the original proceedings, so that it would no longer constitute a
felony for immigration purposes, or (b) that the conviction had been
reduced solely on the basis of considerations that arose after the
conviction first came into existence, such as rehabilition or to avoid
immigration consequences, and would therefore still constitute a felony
for immigration purposes. The court concluded:
Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132 (10th Cir. Feb. 2, 2005)
(footnote omitted). Therefore, the court granted the petition for review,
reversed directing the BIA’s decision, and vacated the order for petitioner’s
removal. The Eleventh Circuit had previously applied the same standard
to rule evidence of a conviction was insufficient to establish a firearms
conviction ground of deportation. Adefemi v. Ashcroft, 358 F.3d 828 (11th
Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d
1269 (11th Cir. June 30, 2003) (BIA could not reasonably have concluded
that government showed by clear and convincing evidence that noncitizen
had been convicted of firearms offense, so as to be ineligible for 212(c)
relief from deportation, where only evidence offered by government was
traffic ticket that alleged unlawful possession of firearm, but contained
many unfilled blanks, failed to specify basis for fine imposed, and did not
explicitly indicate fact of conviction, offense of conviction, or charge to
which alien might have pled guilty). The INS had relied exclusively on a
single piece of evidence in support of its charge that Adefemi was
deportable on the basis of a firearms conviction. This was a two-sided,
preprinted document that would be colloquially termed a traffic "ticket."
On the front appears a uniform citation form used to charge drivers with
moving violations. On the reverse is boilerplate language for use in
recording several types of action taken in the City Court of Atlanta, such as
the receipt of a plea or the imposition of sentence.
Adefemi v. Ashcroft, 358 F.3d 828, 835-837 (11th Cir. Jan. 29, 2004),
vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June
30, 2003). The court therefore reversed the decision of the BIA and
remanded the case for further proceedings consistent with its opinion.
The Seventh Circuit, as well, had applied this standard to the question of
proof of a conviction to justify deportation.
Dashto v. INS, 59 F.3d 697, 701 (7th Cir. 1995) (certificate of conviction
that noncitizen had used handgun was not satisfactory proof of weapons
charge for purposes of finding him ineligible for discretionary relief, since it
was nothing more than clerk of court’s representation on what underlying
court records reveal about nature of conviction, and there was no court
record which confirmed that noncitizen had in fact used handgun in
connection with armed robbery to which he pled guilty). Because the
consequences of deportation are so harsh, the government must bear the
burden of showing deportability by clear, convincing and unequivocal
evidence before removal will be ordered.
Other
First Circuit
Second Circuit
Third Circuit
Fifth Circuit
Ninth Circuit
BIA
First Circuit
Third Circuit
The court should grant a petition for rehearing and eliminate this
italicized language. This issue was not before the court in Pinho. The
italicized language is therefore dictum. R.A.V. v. City of St. Paul, 112 S.Ct.
2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all
traditions of our jurisprudence to consider the law on [a] point conclusively
resolved by broad language in cases where the issue was not presented or
even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir.
1992) (precedent not controlling on issue not presented to prior panel),
cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner,
952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d
1355 (9th Cir. 1995).)
Sixth Circuit
Other
Second Circuit
Fifth Circuit
Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – COMITY AND RESPECT FOR STATE
COURTS' DECISIONS – FULL FAITH AND CREDIT
The Ninth Circuit has recognized that a proper respect for state and federal
courts requires that their orders be considered valid and effective, unless
they can be shown to be otherwise. Rashtabadi v. INS, 23 F.3d 1562, 1569
(9th Cir. 1994). In Rashtabadi, the Ninth Circuit acknowledged what the
United States Supreme Court stated well more than a century ago:
"There is no principle of law better settled, than that every act of a court of
competent jurisdiction shall be presumed to have been rightly done, till the
contrary appears; and this rule applies as well to every judgment or decree,
rendered in the various stages of their proceedings, from the initiation to
their completion, as to their adjudication that the plaintiff has a right of
action. Every matter adjudicated, becomes a part of their record; which
thenceforth proves itself, without referring to the evidence on which it has
been adjudged."
Id. (quoting Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed 490
(1836) (quotation in original, supporting citations omitted). "Principles of
comity, finality and economy all militate in favor of placing the burden of
attacking court judgments and orders on the party who seeks to upset
them." Id. The Board itself has acknowledged and applied these same
principles. See Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000)
(rejecting the INS's argument that the Board should go behind a state court
vacatur of judgment to determine whether it was entered for purposes of
avoiding removal, according full faith and credit to the state court
judgment, and relying on 28 U.S.C. § 1738, which requires federal courts to
accord full faith and credit to state court judgments). At least where a
substantive defect must be found to support a vacatur, Matter of
Pickering, 23 I&N Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales,
465 F.3d 263 (6th Cir. 2006) does not require a different result.
BIA
Note: It is unclear from the facts of this case whether the noncitizen was
charged with inadmissibility or deportability. Therefore it is unclear who
bore the original burden of proof. The BIA specifically distinguishes this
situation from that when a noncitizen is not yet subject to a final order of
removal. The BIA also notes a circuit split on this issue in the motion to
reopen context. Compare Nath v. Gonzales, 467 F.3d 1185, 1188-1189 (9th
Cir. 2006) with Rumierz v. Gonzales, 456 F.3d 31, 40-41 (1st Cir. 2006).
Sixth Circuit
http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf
"In Morgan, the Supreme Court upheld the availability of coram vobis to a
defendant who had not been provided counsel, but who had served his
entire sentence. Morgan, 346 U.S. at 512. The Court noted that, with no
other remedy being then available and sound reasons for the failure to
seek earlier relief, the petitioner was entitled to seek a writ of coram vobis,
for "[o]therwise a wrong may stand uncorrected which the available
remedy would right." Id. In this case, the wrong suffered by Mohamed
cannot stand uncorrected. A defendant's Sixth Amendment rights must be
protected, and in this case, the result was that both Mohamed and the
Court were unaware of the immigration consequences that would follow
from his sentence. Therefore, pursuant to a writ of coram vobis, the Court
will amend Mohamed's sentence from a term of two years to a term of
three hundred and sixty days, with all time suspended."
BIA
"This rule is based on the theory that the legislature is familiar with the
contemporaneous interpretation of a statute . . . . Therefore, it impliedly
adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and
Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v.
United States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate
Co., 283 U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943);
Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New
Materials High Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir.
1998), reh'g denied, in banc suggestion declined (Jan. 28, 1999) and cert.
dismissed, 120 S.Ct. 394 (1999).
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102
S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE
STATUTE ANALYSIS – CONJUNCTIVE CHARGES United States v. Garcia-
Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California
conviction of sale or transportation of a controlled substance, in violation
of Health & Safety Code § 11352(a), properly triggered 16-level sentence
enhancement for illegal reentry after deportation since charging to which
plea was entered listed offenses in the conjunctive, and plea of guilty was
entered to every offense listed within the counts of conviction).
Second Circuit
Third Circuit
Fifth Circuit
Seventh Circuit
Ninth Circuit
Tenth Circuit
BIA
Other
Second Circuit
Ninth Circuit
Eleventh Circuit
Other
Ninth Circuit
BIA
§ 10.20 8. Bibliography
§ 10.21 D. Pardon
Other
Seventh Circuit
Ninth Circuit
BIA
Eighth Circuit
First Circuit
NOTE: Under the particular facts of this case, it appears that the
deportation order may not have actually been final (see dissent). However,
assuming (as the majority did), that the deportation order was final and
therefore the holding of the case does not apply outside the context of late
motions to reopen/reconsider will limit the reach of this otherwise
unfortunate decision.
Second Circuit
Fourth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Eleventh Circuit
BIA
Other
DETENTION - CONDITIONS
Detention Report: Behind Bars "Between March and July 2006, in response to numerous complaints
about conditions of detention, the ACLU-NJ undertook a series of interviews with detainees in the
county jails in an effort to shed light on the conditions of confinement. The project resulted in a [May
2007] report, Behind Bars: The Failure of the Department of Homeland Security to Ensure Adequate
Treatment of Immigration Detainees." http://www.aclu-nj.org/downloads/051507DetentionReport.pdf
RELIEF – DETENTION
There’s a new web address for ICE’s Detention Operations Manual (the detention standards):
http://www.ice.gov/partners/dro/opsmanual/index.htm ARIZONA IMMIGRATION CONSEQUENCES
CHART ONLINE Chart: http://www.ilrc.org/Cal_DIP_Chart_by_section.pdf Notes Accompanying the
Chart: http://firrp.org/documents/arizona%20notes%20revised%202005.doc
Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. May 29, 2007) (petitioner was statutorily
ineligible to prove good moral character because he had engaged in alien smuggling).
GOOD MORAL CHARACTER – REGULATIONS
United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. § 316.10(b)(3)(iii),
barring good moral character based on commission of ―unlawful acts that adversely reflect upon
the applicant‘s moral character, or was convicted or imprisoned for such acts‖ is not ultra vires to
INA § 101(f); nor is the regulation unconstitutionally vague, as applied to respondent who set
fire to own vehicle with intent to defraud insurance company).
RELIEF – GOOD MORAL CHARACTER – CONVICTIONS OCCURRING OUTSIDE OF
GMC PERIOD CANNOT SERVE AS SOLE BASIS FOR DISCRETIONARY FINDING OF
NO GOOD MORAL CHARACTER
Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996) (even a serious conviction or set of
convictions that that occur outside the statutorily mandated period cannot serve as the sole basis
to decline to find good moral character as a matter of discretion).
GOOD MORAL CHARACTER
Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles:
First, the applicant cannot have a conviction on the list enumerated in INA § 101(f), 8 U.S.C. §
1101(f), during the period for which Good Moral Character must be shown, in order to avoid a
complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR §
316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction
listed on INA § 101(f) committed prior to the beginning of the period during which Good Moral
Character must be shown. This second hurdle is not a complete bar to showing Good Moral
Character. The agency must weigh positive factors against negative factors. Torres-Guzman v.
INS, 804 F.2d 531 (9th Cir. 1986).
JUDICIAL REVIEW – PETITION FOR REVIEW – NONPRECEDENTIAL BIA DECISION NOT ACCORDED
CHEVRON DEFERENCE
Rotimi v. Gonzales, 473 F.3d 55, 2007 WL 10771 (2d Cir. Jan. 3, 2007) ("[N]onprecedential decision by a
single member of the BIA should not be accorded Chevron deference, see Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984), we remand petitioner's case to provide the BIA with the
opportunity to construe the “lawfully resided continuously” provisions of § 212(h) in a precedential
opinion").
JUDICIAL REVIEW – QUESTIONS OF LAW
Chen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition ―question of law‖ for purpose of
judicial review is not limited to questions of statutory construction), revising prior opinion, 434
F.3d 144 (2d Cir. 2006).
JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR
JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION
OF REMOVAL
Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. §
1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding
eligibility for relief for cancellation of removal under 8 U.S.C. § 1229b or for adjustment of status under
8 U.S.C. § 1255(i), because they were based on nondiscretionary grounds).
http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf
JUDICIAL REVIEW – HABEAS – RIPENESS
Edwards v. INS, ___ F.3d ___, 2004 U.S. App. LEXIS 26335 (2d Cir. December 17, 2004) (Unpublished)
(petitioner's claims are ripe for judicial review, even though she will not become eligible for release from
criminal custody until 2006, since the determination of her claims may take that long in any event and
may be necessary to proceed now to avert possibility of mandatory immigration detention pending
litigation of the immigration claims after the criminal custody release date),
The federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, proscribe ―any scheme or
artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises.‖ (Ibid. [emphasis supplied].) Nowhere do these statutes suggest that
the offense could occur if the defendant intended only to ―deprive‖ someone of money or
property, rather than ―obtain‖ it. Nevertheless, federal courts have often approved jury
instructions that use the word ―deprive‖ instead of ―obtain.‖ For example, the Fifth Circuit‘s
pattern jury instructions define ―scheme to defraud‖ in the context of these statutes as ―any
scheme to deprive another of money, property, or of the intangible right to honest services by
means of false or fraudulent pretenses, representations, or promises.‖ Fifth Circuit Criminal Jury
Instructions Nos. 2.59, 2.60. Likewise, while the Ninth Circuit Model Criminal Jury Instructions
use the word ―obtain,‖ the Ninth Circuit Court of Appeals has itself sometimes carelessly used
the word ―deprive‖ in describing the required elements of a mail or wire fraud offense. See, e.g.,
United States v. Thomas, 32 F.3d 418, 419 (9th Cir. 1994) (stating that, in a mail fraud
prosecution, the defendant ―must have intended to deprive his victims of money or property‖).
The difference between obtaining and depriving is not merely semantic. Consider the case of an
executive at a publicly-traded company accused of making false statements designed to
artificially inflate the price of her company‘s stock. The executive in this scenario arguably
intends to deprive any person who purchases the stock at the inflated price of money or property.
But unless the executive also intends to sell her own stock holdings at the inflated prices, she has
not hatched a scheme to obtain money or property from the stock purchasers.
Although §§ 1341 and 1343 use the disjunctive ―or‖ between the phrases ―scheme or artifice to
defraud‖ and ―for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises,‖ the Supreme Court twice has held — based on the history of the
mail and wire fraud statutes and the meaning of the term ―defraud‖ — that those phrases are to
be read together as defining a single offense. Cleveland v. United States, 531 U.S. 12, 25-26
(2000); McNally v. United States, 483 U.S. 350, 358-359 (1987). Thus, a ―deprivation is a
necessary but not a sufficient condition‖ of mail or wire fraud because ―only a scheme to obtain
money or other property from the victim by fraud violates‖ those statutes. United States v.
Walters, 997 F.2d 1219, 1227 (7th Cir. 1993); see also Monterey Plaza Hotel Ltd. P‘ship v.
Local 483 of Hotel Employees, Rest. Employees, 215 F.3d 923, 926-27 (9th Cir. 2000) (―The
purpose of the mail and wire fraud proscriptions is to punish wrongful transfers of property from
the victim to the wrongdoer‖); United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989) (―after
McNally the elements of mail fraud remain unchanged except that the intent of the scheme must
be to obtain money or property, [and] the Court made it clear that the intent must be to obtain
money or property from the one who is deceived‖ (emphasis added)); United States v. Baldinger,
838 F.2d 176, 180 (6th Cir. 1988) (Section 1341 ―was intended by the Congress only to reach
schemes ‗that have as their goal the transfer of something of economic value to the defendant.‘‖);
United States v. Alsugair, 256 F. Supp. 2d 306, 312 (D.N.J. 2003) (―[I]n addition to an allegation
that a defendant deprived a victim of money or property, the mail-fraud statute, 18 U.S.C. §
1341, requires an allegation that the defendant obtained money or property as well.‖). [For
obvious reasons, this analysis does not apply to fraud charges that allege a scheme to deprive the
victim of ―honest services‖ under 18 U.S.C. § 1346.]
Unless defense counsel watches carefully, the subtle shift from obtain to deprive can deprive a
defendant of the right to have every element of the charged offense proved beyond a reasonable
doubt, permitting the government to obtain a conviction on insufficient evidence in mail and
wire fraud cases. Defense counsel should consider moving to dismiss charges that allege only a
scheme to deprive, as opposed obtain, money and property under 18 U.S. C. §§ 1341 and 1343.
Further, counsel should submit instructions that properly define the offense as requiring an intent
to obtain money and property in all mail and wire fraud cases. Finally, counsel should make and
preserve objections to any jury instructions that suggest that an intent to deprive is sufficient for
a mail or wire fraud conviction.
CRIMES OF MORAL TURPITUDE – DEPORTATION FOR SINGLE CMT – NOLO PLEA NOT SUFFICIENT BY
ITSELF TO SHOW OFFENSE “COMMITTED” WITHIN FIVE YEARS OF ADMISSION
United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) (federal conviction under 8 U.S.C. §
1253(b) for willful failure to comply with a term of release under supervision -- which required that he
not “commit any crimes” -- is reversed where misdemeanor nolo contendere convictions were legally
insufficient to support his conviction, because a nolo contendere plea is not an admission of guilt to the
underlying crime, a conviction based on such a plea does not prove that he "commit[ted] any crimes;"
the convictions should not have been admitted under Federal Rules of Evidence 410, 803(22), or 803(8)
for the purpose of proving that he actually committed the underlying crimes charged).
http://caselaw.lp.findlaw.com/data2/circs/9th/0630011p.pdf
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§ 5.17 2. Grounds
Ninth Circuit
Eighth Circuit
Tenth Circuit
Second Circuit
Ninth Circuit
Sixth Circuit
Ninth Circuit
Ninth Circuit
POST CON RELIEF – DIRECT APPEAL – WAIVER OF APPEAL POST CON RELIEF
– GROUNDS – GUILTY PLEA WAIVES GROUNDS
United States v. Lopez-Armenta, __ F.3d __ (9th Cir. March 10, 2005)
(defendant's challenge to the district court's denial of his motion to
suppress is dismissed since he waived his right to appeal pretrial
constitutional defects when he entered an unconditional guilty plea).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410081p.pdf
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BIA
Ninth Circuit
Second Circuit
Ninth Circuit
Second Circuit
Ninth Circuit
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Ninth Circuit
Ninth Circuit
Ninth Circuit
First Circuit
Ninth Circuit
First Circuit
Tenth Circuit
Ninth Circuit
Second Circuit
Ninth Circuit
§ 5.38 c. Mootness
Second Circuit
Fifth Circuit
§ 5.39 5. Procedure
First Circuit
Ninth Circuit
To obtain coram nobis relief, a petitioner must demonstrate that: (1) there
are circumstances compelling such action to achieve justice; (2) sound
reasons exist for failure to seek appropriate relief earlier; (3) the petitioner
continues to suffer legal consequences from his conviction that can only be
remedied by granting of the writ; and (4) the error is fundamental. United
States v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002); see also Foundation
Reserve Insurance Co. v. Martin, 79 N.M. 737, 449 P.2d 339 (Ct.App. 1968)
[Rule 60(B)(6) vests power in courts adequate to enable them to vacate
judgments whenever such action is appropriate to accomplish justice].
Thanks to Tova Indritz.
Ninth Circuit
§ 5.42 1. Procedure
Ninth Circuit
POST CON RELIEF – CORAM NOBIS – NEED TO PETITION FOR CORAM NOBIS
DIRECTLY IN FEDERAL COURT
Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir.
June 27, 2005) (district court did not commit error in failing to consider 28
U.S.C. § 2241 habeas to be a petition for coram nobis, because this issue
had not been raised in the district court and petitioner provided no
authority suggesting that the district court might have a duty to sua sponte
raise the issue), distinguishing United States v. Kwan, ___ F.3d ___, 2005
WL 1119652 (9th Cir. May 12, 2005), in which the Ninth Circuit held that
coram nobis relief was available under similar circumstances, because here
the petitioner did not file coram nobis in the district court). The court in
Resendiz rejected a claim that the district court should have sua sponte
construed the petition as a petition for coram nobis, instead of habeas
corpus: "Resendiz argues that the district court should not have construed
his petition as one under § 2241, but instead should have construed it as a
writ of coram nobis, even though Resendiz never asked the court to do so.
Because Resendiz did not contend below that his petition should be
construed as a writ of coram nobis, and because he provides no authority
suggesting that the district court might have a duty to sua sponte raise the
issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp.,
953 F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate court will
not hear an issue raised for the first time on appeal."). In footnote 3 to this
quotation, the Resendiz court stated: "Our recent decision in United States
v. Kwan, No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which
we held that coram nobis relief was available under similar circumstances,
does not affect our decision. Unlike Kwan, Resendiz did not petition the
district court for the writ of coram nobis, but argued instead that the court
should have so construed his habeas petition sua sponte."
Other
§ 5.43 2. Grounds
Lower Courts of Second Circuit
Ninth Circuit
Other
§ 5.51 b. Grounds
Second Circuit
§ 5.54 a. Procedure
§ 5.55 b. Grounds
Other
§ 5.58 1. Procedure
§ 5.59 2. Grounds
§ 5.63 2. Procedure
Sixth Circuit
Ninth Circuit
Other
POST CON – TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF –
WASHINGTON STATE
See § 2.28
§ 5.74 2. Timeliness
Ninth Circuit
BIA
First Circuit
Second Circuit
§ 5.76 4. Procedure
POST CON RELIEF – CORAM NOBIS – RAISING IAC CLAIM ON CORAM NOBIS
– NATIONAL REVIEW
Ten states— Alabama, Arizona, Florida, Illinois, Indiana, Mississippi,
Missouri, New York, South Carolina, and Utah--allow or have allowed
ineffective assistance of counsel claims to be raised on coram nobis.
Alabama, McKinney v. State, 511 So.2d 220 (Ala. 1987) (coram nobis relief
granted on grounds convicted person received ineffective assistance of
counsel when pleading guilty); Arizona, State v. Kruchten, 101 Ariz. 186,
417 P.2d 510 (1966) (coram nobis is proper remedy for claim that guilty
pleas were entered in violation of right to effective assistance of counsel);
Florida, Wells v. State, 788 So. 2d 200 (Fla. 2001) (ineffective assistance of
counsel claim was properly raised in coram nobis petition); Moreno v.
State, 592 So. 2d 1226 (Fla. Dist. Ct. App. 4th Dist. 1992) (coram relief
granted where guilty plea resulted from ineffective assistance of counsel);
Dugart v. State, 578 So. 2d 789 (Fla. Dist. Ct. App. 4th Dist. 1991) (a claim of
ineffective assistance of counsel may support a petition for coram nobis);
Illinois, People v. McManus, 66 Ill. App. 3d 986, 23 Ill. Dec. 774, 384 N.E.2d
568 (3d Dist. 1978) (coram nobis relief granted where direct appeal from
conviction had been dismissed due to attorney’s neglect); Indiana, Dobson
v. State, 242 Ind. 267, 177 N.E.2d 395 (1961) (competency of counsel claim
on coram nobis); Douglas v. State, 234 Ind. 621, 130 N.E.3d 465 (1955)
(coram nobis petition does not allege that trial counsel was incompetent);
Mississippi, Baker v. State, 358 So.2d 401 (Miss. 1978)(entry of guilty plea
under mistaken advice by counsel if properly pleaded and supported by
sufficient facts makes out case for relief under coram nobis); Missouri,
Ramsey v. States, 767 S.W.2d 572 (Mo. Ct. App. E.D. 1988) (Rule 27.26
motion treated as a petition for a writ of coram nobis allows for claim of
ineffective assistance of counsel where facts show deficient performance
of counsel and prejudice); New York, Aparicio v. Artuz, 269 F.3d 78 (2d Cir.
2001) (coram nobis remains available only in the context of ineffective
assistance of appellate counsel on direct appeal); People v. Keebler, 15
A.D.3d 724, 789 N.Y.S.2d 547 (3d Dep’t 2005), leave to appeal denied, 4
N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 (2005) (challenges to
adequacy of appellate counsel can only be entertained in a common law
coram nobis proceeding); South Carolina, State v. Liles, 246 S.C. 59, 142
S.E.2d 433 (1965) (ineffective assistance of counsel claim brought on coram
nobis); Utah, State v. Rees, 2003 UT App 4, 63 P.3d 120 (Utah Ct. App.
2003), cert. granted, 73 P.3d 946 (Utah 2003) (coram nobis encompasses
not only errors of fact but also legal errors or constitutional or
fundamental proportion including a claim of ineffective assistance of
appellate counsel). 13 states—Colorado, District of Columbia, Hawaii,
Idaho, Maine, New Mexico, North Carolina, Oklahoma, Oregon, Tennessee,
Washington, and West Virginia--have not directly decided whether
ineffective assistance of counsel can be brought on coram nobis, but leave
room to raise the claim. Colorado, only law review cite was given in
treatise re: law on coram nobis grounds and it did not work (coram nobis
may vacate a conviction obtained in violation of any federal or state
constitutional right); District of Columbia, Thomas v. U.S., 271 F.2d 500
(D.C. Cir. 1959) (where a sentence is attacked on grounds outside the
record under circumstances where 28 U.S.C. § 2255 is not available, a
petitioner has rights in common law writ of coram nobis); Douglas v. U.S.,
703 A.2d 1235 (D.C. 1997) (the purpose of coram nobis is to correct errors
not due to the defendant’s negligence and which amounts to a miscarriage
of justice); Hawaii, Wong v. Among, 52 Haw. 420, 477 P.2d 630 (1970)
(coram nobis relief available to correct fundamental errors and where the
circumstances compel such action to achieve justice); Idaho, Idaho R. Civ.
Proc. 60(b) (catchall provision for relief on coram nobis if there is any other
reasons justifying relief from the operation of judgment); Maine, Dwyer v.
State, 151 Me. 382, 120 A.2d 276 (1956) (coram nobis is the proper
common law vehicle to establish one’s constitutional rights, upon a
showing of an unjust deprivation thereof); New Mexico, New Mexico Rule
Civil Procedure 1-060(b) (coram nobis relief is available from judgment for
mistakes, inadvertence, surprise, inexcusable neglect, fraud, etc. and any
other reason justifying relief from the operation of the judgment); State v.
Romero, 76 N.M. 449, 415 P.2d 837 (1966)(New Mexico rule 60(b) is
identical to Fed. R. Civ. Proc. Rule 60(b) with intent to retain all substantive
rights protected by the old common law writs of coram nobis but
eliminates the niceties); North Carolina, State v. White, 74 N.C. 220, 162
S.E.2d 473 (1968)(the North Carolina PCHA as now written incorporates
habeas corpus, coram nobis, and any other common law or statutory
remedy under which a prisoner may collaterally attack his sentence);
Oklahoma, Smith v. State, 1967 OK CR 149, 431 P.2d 949 (Okla. Crim. App.
1967) (coram nobis is limited to an error of fact for which the statute
provides no other remedy, which was unknown to the court at the time
and would have prevented the judgment if known); Oregon, State v.
Endsley, 214 Or. 537, 331 P.2d 338 (1958) (coram nobis petition is available
to obtain relief in a limited class of cases from conviction obtained in
violation of a constitutional right); Tennessee, Tennessee Code Annotated
§ 40-26-105 (a writ of error will like for subsequently or newly discovered
evidence relating to matters that were litigated at trial if such evidence
would have resulted in a different judgment at trial); Harris v. State, 102
S.W.3d 587 (Tenn. 2003) (the grounds for seeking a writ of error coram
nobis are not limited to specific categories, but may be based upon any
newly discovered evidence relating to matters litigated at trial);
Washington, Wash. Super. Ct. Crim. R. 7.8(b) (coram nobis is allowed for
mistakes, inadvertence, fraud, newly discovered evidence etc. and any
other reason justifying relief from the operation of judgment); State v.
Zavala-Reynoso, 127 Wash. App. 119, 110 P.3d 827 (Div. 3 2005) (a
judgment may be vacated for any other reason justifying relief, but is
limited to extraordinary circumstances not otherwise covered by Rule
7.8(b) and where relief did not otherwise exist at time of judgment); West
Virginia, State ex rel. Richey v. Hill, 216 W. Va. 155, 603 S.E.2d 177 (2004)
(coram nobis is available when habeas corpus is not, i.e., when the
petitioner is no longer incarcerated but is of limited scope, it does not
reach prejudicial misconduct in the course of the trial). Unclear whether
five states--Georgia, Maryland, Pennsylvania, Rhode Island, and
Wisconsin—may or might have allowed an ineffective assistance of counsel
claim to be raised on coram nobis. Georgia, South v. State, 72 Ga. App. 79,
33 S.E.2d 23 (1945) (the purpose of coram nobis is to correct an error of
fact not apparent on the record and where the defendant has been
deprived of a defense to which he could not have made at his trial) Note:
the writ of coram nobis will not lie where there is another adequate
remedy--IAC must be brought on direct appeal); Maryland, Skok v. State,
361 Md. 52, 760 A.2d 647 (2000) (the grounds for challenging a conviction
via coram nobis must be of constitutional, jurisdictional, or fundamental
character and the petitioner must be suffering or facing significant
collateral consequences from the conviction) Note: coram nobis cannot be
used if another statutory or common law remedy is available – in
Maryland, the UPCPA is used to raise an IAC claim; Pennsylvania, Com. v.
Orsino, 197 Pa. Super. 306, 178 A.2d 843 (1962)(purpose of coram nobis is
to correct errors of fact and not of law which if known at the time
judgment was rendered would have prevented it) Note: coram nobis may
not be used as a substitute for an appeal or as a motion for a new trial;
Rhode Island, State v. Lanoue, 117 R.I. 342, 366 A.2d 1158 (1976) (coram
nobis petition is appropriate procedure for raising newly discovered
evidence claim attacking probation and deferred sentence revocation);
Wisconsin, Jessen v. State, 95 Wis. 2d 207, 290 N.W.2d 685 (1980) (the
purpose of coram nobis is for the trial court to correct an error of fact
which was unknown at the time of trial and if known would have
prevented the judgment); Houston v. State, 7 Wis. 2d 348, 96 N.W.2d 343
(1959) (coram nobis not available where another remedy would lie, such as
where habeas would afford a proper and complete remedy) Note: habeas
corpus is the proper remedy for raising an IAC claim.
§ 5.79 1. Procedure
Other
§ 5.80 2. Grounds
Sixth Circuit
POST CON RELIEF – STATE VEHICLES - CORAM NOBIS
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007)
(“‘The function of the writ of coram nobis is to secure relief from a
judgment rendered while there existed some fact which would have
prevented its rendition if it had been known to the trial court and which,
through no negligence or fault of the defendant, was not brought forward
before rendition of judgment.’ “ Clorid v. State, 182 S.W.3d 477, 479
(Ark.2004) (quoting State v. Larimore, 17 S.W.3d 87, 93 (Ark.2000)). “
‘Coram nobis proceedings are attended by a strong presumption that the
judgment of conviction is valid’ “ and “ ‘*t+he mere naked allegation that a
constitutional right has been invaded will not suffice.’ “ Id. (quoting
Larimore, 17 S.W.3d at 93). “The writ of error coram nobis is an
extraordinary writ, known more for its denial than its approval.” Echols v.
State, 201 S.W.3d 890, 893 (Ark.2005)”).
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CAL POST CON – GROUNDS – INEFFECTIVE COUNSEL – DENIAL OF RIGHT TO
DISCHARGE RETAINED COUNSEL AND OBTAIN APPOINTED COUNSEL
People v. Ortiz, 51 Cal.3d 975 (1990) (defendant has the right to discharge retained
counsel without a showing of incompetency, conflict or other cause; defendant also
has right to then be represented by court appointed counsel if defendant is indigent
at that time).
Ninth Circuit
Ninth Circuit
Ninth Circuit
RIGHT TO COUNSEL
'Nonetheless, we cannot allow a “myopic insistence on expeditiousness” to render the
right to counsel “an empty formality”’ Biwot v. Gonzales, 403 F.3d 1094 (9th Cir.
2005) citing Ungar v. Sarfite, 376 U.S. 575 (1964).
Other
Fifth Circuit
Ninth Circuit
BIA
Other
Third Circuit
Sixth Circuit
Ninth Circuit
Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – PLEA
NEGOTIATIONS – ERRONEOUS ADVICE TO REJECT PLEA BARGAIN BASED ON FAILURE
TO RESEARCH THE LAW
Hoffman v. Arave, 455 F.3d 926 (9th Cir. 2006) (counsel ineffective by giving
incompetent advice regarding prosecution’s plea offer; counsel failed to be fully
aware of state of the law in advising defendant whether to accept offer).
Ninth Circuit
POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE PLEA
FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING
State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel
ineffective by failing to file motion in arrest of judgment to challenge guilty plea on
grounds that neither written plea of guilty nor in-court colloquy informed defendant
that guilty plea might affect immigration status; failure to move in arrest of judgment
does not bar challenge to guilty plea if failure to file motion in arrest of judgment
resulted from ineffective assistance).
Sixth Circuit
Ninth Circuit
Eleventh Circuit
Ninth Circuit
Sixth Circuit
Ninth Circuit
POST CON RELIEF – VIRGINIA – CORAM VOBIS – SENTENCE REDUCTION GRANTED FOR
IMMIGRATION PURPOSES AFTER CUSTODY EXPIRED SINCE DEFENDANT HAD NO
REASON TO SUSPECT THE PROBLEM EARLIER – INEFFECTIVE ASSISTANCE OF COUNSEL
– AFFIRMATIVE MISADVICE
Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18, 2006)
(granting writ of coram vobis, reducing sentence from two years to 360 days, thereby
entitling petitioner to discretionary relief in the immigration courts, after custody had
expired, since petitioner had no reason to suspect the advice was faulty any earlier
than when he was placed into removal proceedings upon returning to the United
States).
Seventh Circuit
Ninth Circuit
§ 6.19 3. Prejudice
Ninth Circuit
Sixth Circuit
Other
Ninth Circuit
Fifth Circuit
Ninth Circuit
Ninth Circuit
Ninth Circuit
Ninth Circuit
Ninth Circuit
Ninth Circuit
Ninth Circuit
PLEA – ALFORD PLEA POST CON RELIEF – GROUNDS – FACTUAL BASIS – INSUFFICIENT
FACTUAL BASIS EVEN MORE IMPORTANT FOR ALFORD PLEA
When a defendant denies guilt, the court must make a more searching inquiry and the
record must reveal a strong factual basis for a finding of guilty. If the defendant’s
admissions during the plea colloquy, coupled with the prosecution’s offer of proof, do
not cover all of the essential elements of the offense, the plea is arguably invalid on
this ground. United States v. Avery, 15 F.3d 816 (9th Cir. 1993), citing North Carolina
v. Alford, 400 U.S. 25 (1970); see Banks v. McGougan, 717 F.2d 186, 188 (5th Cir.
1983), citing Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979); Wallace v. Turner,
695 F.2d 545, 548 (11th Cir. 1983).
Seventh Circuit
Ninth Circuit
DC Circuit
Other
Ninth Circuit
Ninth Circuit
Other
For a conditional plea, Rule 11 requires, inter alia, the approval of the court, the
consent of the government and a writing. The definition of "consent" varies among
the circuits. In the 9th Circuit, Rule 11 consent is interpreted to require "unequivocal
government acquiescence." See United States v. Carrasco, 786 F.2d 1452 (9th Cir.
1986), infra. The appeals court held that, as in this case, silence or inaction by the
government does not constitute consent, and found that the plea was unconditional
under Rule 11. The appeals court then held that because appellant entered – and the
district court accepted – this guilty plea only on the reasonable (but mistaken) belief
that appellant had preserved the speedy trial issues for appeal, his plea was, as a
matter of law, not knowing and voluntary. The court found that the defendant had
been misinformed by the court, government counsel, and his own counsel of the basic
guideline range. Judge’s Failure to Explain Nature of the Charges. United States v.
Pena, 314 F.3d 1152 (9th Cir. Jan. 9, 2003). The Ninth Circuit held that plain error
occurred where the defendant was never informed by the prosecutor or the court of
the nature of the offense, in violation of Rule 11. The district court had merely asked
whether the defendant had read the plea agreement, and asked the defendant’s
counsel whether he understood and agreed with the elements of the offense. The
Ninth Circuit found that, except for application of the ‘plain error’ rather than
‘harmless error’ standard, all prior Ninth Circuit case law regarding Rule 11 violations
still apply. United States v. Bruce, 976 F.2d 552 (9th Cir. Oct. 1, 1992). Rule 11 requires
that "[b]efore accepting a plea of guilty or nolo contendere, the court must address
the defendant personally in open court and inform him of, and determine that he
understands … the nature of the charge to which the plea is offered…" Fed. R. Crim.P.
§ 11(c)(1). This procedure is not constitutionally mandated. The determination
depends upon the ‘the particular facts of each situation, looking to both the
complexity of the charge and the personal characteristics of the defendant,’ bases
solely on the basis of the record of the plea proceeding. United States v. Kramer, 781
F.2d 1380 (9th Cir.), cert. denied, 479 U.S. 819 (1986). The judge informed the
defendant that he was charged, under a superceding indictment, of "conspiracy to
manufacture methamphetamine," when the defendant was actually charged with
aiding and abetting a conspiracy to possess a controlled substance with intent to
distribute. The Ninth Circuit held both that the district court erred in misstating the
charge, and in failing to meet the Rule 11(c)(1) requirement that he be informed of
the ‘nature’ of the charge:
A trial judge fails to satisfy his obligation under Rule 11 when, as here,
he does not fully inform the defendant of the meaning and
application of legal argot and other legal concepts that are esoteric to
an accused, including the meaning and application of the term
conspiracy.
United States v. Bruce, 976 F.2d, at 560 (internal citations and quotation marks
omitted). Mistaken belief whether a motion could be filed after an unconditional plea.
United States v. Cortez, 973 F.2d 764 (9th Cir. 1992). Appellant was charged with
distributing and possessing crack within 100 ft of a video arcade. Shortly before his
trial, appellant moved for a continuance so that he could prepare a motion to dismiss
for selective prosecution. The United States opposed the motion stating that it could
properly be heard post-conviction and that it was not therefore necessary to grant a
continuance. The court denied appellant’s motion assuring him that he had "the right
to make a selective prosecution motion after trial if he was convicted." After the jury
was impaneled, appellant pled guilty to both counts. On the day of sentencing,
appellant filed the selective prosecution motion. He also filed a motion requesting
that "if the court believes that the guilty pleas act as a waiver of the selective
prosecution motion, the defendant would then move to withdraw his guilty pleas and
enter conditional guilty pleas." The court denied the selective prosecution motion and
made no ruling on the motion to withdraw the guilty plea. Appellant was sentenced.
The court of appeal found that appellant’s plea was not conditional because the Court
and the United States did not acquiesce. (Fed.R.Crim.P. 11) The court furthermore
determined that appellant’s unconditional plea was a waiver of his right to appeal on
the basis of selective prosecution, When a criminal defendant has solemnly admitted
in open court that he is in fact guilty of the offense with which he is charged, he may
not thereafter raise independent claims relating to the deprivation of Constitutional
rights that occurred prior to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea. Tollett v. Henderson, 411 U.S.
258 (1973). However, the court of appeals determined that appellant’s unconditional
plea was not knowingly and voluntarily entered into because he believed that his
unconditional guilty plea allowed him to appeal his selective prosecution claim. The
court wrote, "the discussions at the hearing prior to trial indicate that all parties
believed the selective prosecution claim could be made post-conviction." The court
clearly distinguished this case from one in which the defendant’s attorney incorrectly
predicts the outcome of some aspect of defendant’s case. Here, all parties present
including, the district judge, the U.S. Attorney and appellant’s counsel shared the
same erroneous belief. Appellant’s plea was set aside. Attorney misrepresented to
defendant that a sentence agreement had been made with the judge. Chizen v.
Hunter, 809 F.2d 560 (9th Cir. 1986). Appellant was charged with child molesting and
pled nolo contendre in exchange for the dismissal of the charge of contributing to the
delinquency of a minor. As part of his plea, he signed a Boykin waiver form by which
he initialed that his decision to plead had been made freely and voluntarily and that
he understood that "regardless of motions or recommendations made by others . . .
the sentence will be decided solely by the judge." Before sentencing, appellant moved
to withdraw his plea on the grounds that the plea had been induced by his attorney’s
assurance that a plea bargain had been struck and that the maximum sentence would
be 90 days. His motion to withdraw the plea was summarily denied and he was
sentenced to 180 days. The issue on appeal was whether the plea was involuntary
because it was based on the misrepresentation of his attorney that the trial judge had
committed himself to a particular sentence, notwithstanding that appellant has
signed a waiver form. The court distinguished this case from one where appellant’s
counsel erroneously predicts favorable consequences. Here, appellant’s plea was
involuntary because it was induced by his counsel’s misrepresentations as to what his
sentence in fact would be. (Note here that unlike almost every case so far, there is no
other party contributing to this mistaken belief. It is defendant’s counsel alone.)
United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986). Appellant was indicted for
conspiracy to transport and harbor illegal aliens, and for harboring illegal aliens.
Before trial, appellant filed a motion to suppress evidence and the district court
denied the motion. The government offered appellant a conditional plea agreement
where appellant would enter a conditional plea of guilty to count one in return for the
government’s dismissal of count two. Appellant would thereby be able to preserve his
right to appeal the suppression motion. Appellant and the co-defendant accepted the
plea, but the government withdrew the offer before the pleas were entered. The
appellant then pled guilty to count one and prepared for trial on count two. Count
two was then, sua sponte dismissed by the court. Appellant argues that the
government gave sufficient consent to the conditional plea based on the discussion
on the record and in writing. The court of appeals found the pre-plea discussions on
the record to be vague and "[do] not establish that the government manifested assent
to a conditional plea. The government attorney reasonably could have believed,
based on the exchange, that appellant was entering an unconditional plea." The
appeals court also found the writing to be deficient because it did not specify which
pretrial issues would be reserved for appeal. Therefore, the court of appeals found
that there was insufficient assent manifested by the government for a conditional
plea, and that the plea was therefore unconditional. Based on the same pre-plea
conversations between counsel and the court, the appeals court found that appellant
did not understand that her plea was unconditional, and it was therefore not knowing
and voluntary. Appellant’s sentence was vacated. Temporal scope of an appeal
waiver. United States v. Johnson, 67 F.3d 200 (9th Cir. 1995). Appellant was charged
with possession of heroin with intent to distribute, and with the importation of
heroin. In a written plea agreement, defendant pled guilty to count one. The
agreement, acknowledging that count one carried a mandatory minimum sentence of
10 years, stated that appellant waived "the right to appeal any sentence imposed by
the district judge." The district court, sua sponte, raised the question of whether
appellant could qualify for sentencing under the newly enacted Violent Crime Control
and Law Enforcement Act of 1994. The "crime bill" added a section that allowed the
court to sentence certain drug offenders without regard to the statutory minimum
sentences. The court ultimately concluded that the new section did not apply to
appellant because of his criminal history. He was sentenced to the statutory minimum
of 10 years. Appellant appealed the sentence claiming that the district court was
incorrect in its belief that the new ‘crime bill’ section did not apply to appellant. The
government moved to dismiss the appeal on the ground that Johnson waived his right
to appeal his sentence. Appellant argues that, although he knowingly and intelligently
waived all appealable issues from the sentence based upon the status of the law at
the time of his plea and waiver, such voluntary relinquishment of known rights was
not intended to encompass, and could not logically extend to, appeal of a sentencing
error premised upon a law not yet enacted at the time of the waiver. In this case of
first impression, the court of appeal held that appellant’s appeal waiver encompasses
appeals arising out of the new law applicable to his sentencing. The appeal’s court
found that because the waiver refers to "any sentence imposed by the district judge,"
and not "any sentence imposed under the laws currently in effect" it is reasonable to
find that the waiver includes any new laws enacted after the agreement. The appeals
court also concluded that the waiver was knowing and voluntary as to the laws
enacted after the waiver was executed. The court wrote that "the fact that [appellant]
did not foresee the specific issue that he now seeks to appeal does not place that
issue outside the scope of his waiver." (See United States v. Navarro-Botello, 912 F.2d
318, 320 (9th Cir. 1990).
Ninth Circuit
Other
Seventh Circuit
Other
BIBLIOGRAPHY
L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE (2d ed. 2007).
Sixth Circuit
Ninth Circuit
Second Circuit
Eighth Circuit
Ninth Circuit
Other
Ninth Circuit
Ninth Circuit
Other
Ninth Circuit
Fifth Circuit
Seventh Circuit
Ninth Circuit
POST CON RELIEF – FEDERAL – RULE 32(e) NOW 11(d)(2)(B) – ILLEGAL REENTRY
CONVICTION INVALID SINCE DEPORTATION INVALID BECAUSE OF ST. CYR
RESPONDENT ELIGIBLE FOR 212(C) BUT NOT INFORMED OF THIS BY THE
IMMIGRATION JUDGE
United States v. Ortega-Ascanio, ___ F.3d ___, 2004 WL 1575244 (9th Cir. July 15,
2004) (district court committed an error of law, and thus an abuse of discretion, in
denying a F.R.Crim. P. 32(e) (now 11(d)(2)(B)) motion to withdraw a guilty plea in an
illegal reentry case, by applying an incorrect standard: a defendant need not prove
that his plea is invalid in order to meet his burden of establishing a fair and just reason
for withdrawal; where after plea, but before sentence, the Supreme Court decided
INS v. St. Cyr, 533 U.S. 289 (2001), holding that INA § 212(c) relief had been available
to respondent in removal proceedings based on two crime of moral turpitude
convictions, but the immigration judge had failed to inform him of it, and he was not
represented by counsel, and waived appeal).
Other
Second Circuit
"Although we have acknowledged the existence of the issue, United States v. Cuoto,
311 F.3d 179, 190 (2d Cir. 2002), we have not decided whether “automatic”
deportation is a collateral consequence of a guilty plea that need not be mentioned or
a direct consequence that required discussion during the plea proceeding. Once again,
the issue is not before us. As the district court noted, “*w+hether automatic
deportation is a direct or collateral consequence is of no matter in this case because
the court did address deportation at the plea hearing.” Zhang I, 401 F.Supp.2d at 239.
We agree.”
Fourth Circuit
POST CON – OHIO – GROUNDS -- STATE ADVISAL STATUTE -- COURT TAKING PLEA
NEED ONLY SUBSTANTIALLY COMPLY WITH STATUTE REQUIRING ADVICE ON
POSSIBLE IMMIGRATION CONSEQUENCES OF PLEA
State v. Badawi, ___ ?? ___, 2004 Ohio App. LEXIS 4536 (Ohio Ct. App. Sept. 20, 2004)
(court taking plea need only substantially comply with statute requiring advice on
possible immigration consequences of plea, R.C. 2943.031(A), which provides that
"prior to accepting a plea of guilty or a plea of no contest to an indictment . . .
charging a felony . . ., the court shall address the defendant personally, provide the
following advisement to the defendant that shall be entered in the record of the
court, and determine that the defendant understands the advisement: 'If you are not
a citizen of the United States you are hereby advised that conviction of the offense to
which you are pleading guilty (or no contest, when applicable) may have the
consequences of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.'").
Seventh Circuit
Ninth Circuit
20001 CVC [hit and run driving with personal injury, etc.];
20002 CVC [hit and run driving with property damage only];
23152 CVC [driving a motor vehicle while under the influence of alcohol or drugs];
23153 CVC [driving a motor vehicle while under the influence of alcohol or drugs with
personal injury];
21651(b) CVC [driving on a highway other than to the right of an intermittant barrier
or a dividing section which separates one or more opposing landes of traffic];
22348(b) CVC [driving a vehicle upon a highway at a speed greater than 100 miles per
hour];
23109.1 CVC [engaging in motor vehicle speed contest causing specified bodily
injuries];
31602 CVC [unlawful driving on a public highway for the purpose of transporting
explosives];
23140(a) CVC [driving with a BAC of 0.05 by a person under the age of 21];
23140(b) CVC [driving while UIA (0.05) by a person under the age of 21];
14601.4 CVC [driving with suspended or revoked driver's license resulting in injury to
another person];
14601.5 CVC [driving while privileges suspended for failure to take chemical test or for
driving with specified blood alcohol level].
Eleventh Circuit
POST CON RELIEF – STATE ADVISAL STATUTES – CORAM NOBIS VACATUR OF STATE
CONVICTION FOR VIOLATION OF STATE STATUTORY RIGHT CEASED TO BE A
CONVICTION FOR PURPOSES OF THE JURISDICTION LIMITATION
Alim v. Gonzales, ___ F.3d ___, 2006 WL 1059322 (11th Cir. Apr. 24, 2006) (Florida
conviction of domestic battery, vacated by grant of coram nobis on grounds of
violation of state advisal statute requiring court accepting plea to warn defendant of
possible immigration consequences, ceased to be a conviction for purposes of barring
jurisdiction over petition for review under 8 U.S.C. § 1252(a)(2)(C), on account of two
convictions of crimes of moral turpitude, even though order did not specify ground of
vacatur, since coram nobis petition did so and was granted), deferring to BIA
approach in Matter of Adamiak, 23 I & N Dec. 878 (BIA Feb. 8, 2006).
POST CON RELIEF – STATE ADVISAL STATUTE – FLORIDA – TIME PERIOD FOR FILING
MOTION TO VACATE
State v. Green, ___ Fla. ___ (Oct. 26, 2006) (a Florida criminal "defendant seeking to
withdraw a plea because the trial court did not advise the defendant of the possibility
of deportation as part of the plea colloquy must file a rule 3.850 motion within two
years after the judgment and sentence become final. The motion must allege, in
addition to the lack of a deportation warning, that the defendant would not have
entered the plea if properly advised and that under current law the plea does render
the defendant subject to being removed from the country at some point in the future.
A defendant filing outside the two-year limitation period must allege and prove that
he or she could not have ascertained the immigration consequences of the plea with
the exercise of due diligence within the two-year period. Our holding in this case
reduces the time in which a defendant must bring a claim based on an alleged
violation of rule 3.172(c)(8). Therefore, in the interest of fairness, defendants whose
cases are already final will have two years from the date of this opinion in which to
file a motion comporting with the standards adopted today. In cases now pending in
the trial and appellate courts on this issue, courts should apply the criteria set out
herein. If relief is denied in a case now pending because the defendant has not alleged
or established that he or she is subject to or threatened with deportation, the
defendant should be allowed to refile in compliance with the standards set out in this
case within sixty days of affirmance, denial, or dismissal. All other defendants have
two years from the date their cases become final in which to seek relief under our
holding today.").
DC Circuit
Other
POST CON RELIEF – STATE ADVISAL STATUTES – IDAHO COURT RULE REQUIRES STATE
CRIMINAL JUDGES TO ADVISE ALL DEFENDANTS CONCERNING POSSIBLE
IMMIGRATION CONSEQUENCES
Effective July 1, 2007: Rule 11. Pleas.
(d) Other advisories upon acceptance of plea. The district judge shall, prior to entry of
a guilty plea or the making of factual admissions during a plea colloquy, instruct on
the following:
(1) The court shall inform all defendants that if the defendant is not a citizen of the
United States, the entry of a plea or making of factual admissions could have
consequences of deportation or removal, inability to obtain legal status in the United
States, or denial of an application for United States citizenship.
SECTION 1. Chapter 278 of the General Laws is hereby amended by striking out
section 29D, as appearing in the 2002 Official Edition, and inserting in
place thereof the following section:-
Section 29D. The court shall not accept a plea of guilty, a plea of nolo
contendere, or an admission to sufficient facts from any defendant in any
criminal proceeding unless the court advises such defendant of the
following: "If you are not a citizen of the United States, you are hereby
advised that the acceptance by this court of your plea of guilty, plea of
nolo contendere, or admission to sufficient facts may have consequences of
deportation, exclusion from admission to the United States, or denial of
naturalization, pursuant to the laws of the United States." The court shall
advise such defendant during every plea colloquy at which the defendant is
proffering a plea of guilty, a plea of nolo contendere, or an admission to
sufficient facts. The defendant shall not be required at the time of the
plea to disclose to the court his legal status in the United States.
If the court fails so to advise the defendant, and he later at any time
shows that his plea and conviction may have or has had one of the enumerated
consequences, even if the defendant has already been deported from the
United States, the court, on the defendant's motion, shall vacate the
judgment, and permit the defendant to withdraw the plea of guilty, plea of
nolo contendere, or admission of sufficient facts, and enter a plea of not
guilty. Absent an official record or a contemporaneously written record kept
in the court file that the court provided the advisement as prescribed in
this section, including but not limited to a docket sheet that accurately
reflects that the warning was given as required by this section, the
defendant shall be presumed not to have received advisement. An advisement
previously or subsequently provided the defendant during another plea
colloquy shall not satisfy the advisement required by this section, nor
shall it be used to presume the defendant understood the plea of guilty, or
admission to sufficient facts he seeks to vacate would have the consequence
of deportation, exclusion from admission to the United States, or denial of
naturalization.
SECTION 2. Section 1 shall apply to pleas of guilty, pleas of nolo
contendere and admissions to sufficient facts which occur on or after the
effective date of this act. Former section 29D of chapter 278 of the General
Laws shall continue to apply to pleas of guilty, pleas of nolo contendere
and admissions to sufficient facts which occurred before the effective date
of this act.
POST CON RELIEF – STATE ADVISAL STATUTE – MASSACHUSETTS M.G.L. c. 278 sec.
29D: § 29D.
Conviction upon plea of guilty, nolo contendere or an admission to sufficient facts;
motion to vacate The court shall not accept a plea of guilty, a plea of nolo
contendere, or an admission to sufficient facts from any defendant in any criminal
proceeding unless the court advises such defendant of the following: "If you are not a
citizen of the United States, you are hereby advised that the acceptance by this court
of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may
have consequences of deportation, exclusion from admission to the United States, or
denial of naturalization, pursuant to the laws of the United States." The court shall
advise such defendant during every plea colloquy at which the defendant is proffering
a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The
defendant shall not be required at the time of the plea to disclose to the court his
legal status in the United States. If the court fails so to advise the defendant, and
he later at any time shows that his plea and conviction may have or has had one of
the enumerated consequences, even if the defendant has already been deported
from the United States, the court, on the defendant's motion, shall vacate the
judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo
contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an
official record or a contemporaneously written record kept in the court file that the
court provided the advisement as prescribed in this section, including but not limited
to a docket sheet that accurately reflects that the warning was given as required by
this section, the defendant shall be presumed not to have received advisement. An
advisement previously or subsequently provided the defendant during another plea
colloquy shall not satisfy the advisement required by this section, nor shall it be used
to presume the defendant understood the plea of guilty, or admission to sufficient
facts he seeks to vacate would have the consequence of deportation, exclusion from
admission to the United States, or denial of naturalization. CREDIT(S) Added by
St.1978, c. 383. Amended by St.1996, c. 450, § 254; St.2004, c. 225, § 1, eff. Oct. 27,
2004.
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES MAY REQUIRE VACATING
CONVICTION IF COURT FAILED TO ASCERTAIN DEFENDANT READ AND UNDERSTOOD
CONTENTS OF FORM
It is possible to have the defendant's ability to read English tested, and determine the
grade level at which s/he reads and understands English. The language used for many
of the state advisal statutes, e.g., California Penal Code § 1016.5, warning is quite
difficult, and it takes a reading level of at least 12th grade to understand 70% of the
warning. Microsoft WORD has the ability to compute the Flesch-Kincaid Grade Level
score, which gives the U.S. grade level required to understand a given text, under
Tools, Spelling and Grammar, Options, Grammar, Show Readability Statistics. When
this operation was performed on the Penal Code § 1016.5 text, it produced a
readability score of 12th grade. For a description of the process of challenging a
defendant's competency to understand and waive Miranda rights, and the analogous
question of challenging ability to understand the immigration waiver, see I. Bruce
Frumkin & Alfredo Garcia, Psychological Evaluations and the Competency to Waive
Miranda Rights, THE CHAMPION 12 (Nov. 2003); S. Kassin & G. Gudjonsson, The
Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOLOGICAL
SCIENCE IN THE PUBLIC INTEREST (November 2004). If the defendant's reading grade
level is below the readability score required to understand the warning, it is possible
to argue that the defendant did not understand the warning, and the conviction must
therefore be vacated. See, e.g., People v. Ramirez (1999) 71 Cal.App.4th 519, 522
(Penal Code § 1016.5 advice can be given by means of a form, provided: "The judge
need only determine whether defendant had read and understood the contents of
the form, and had discussed them with his attorney."), quoting In re Ibarra (1983) 34
Cal.3d 277, 285-286.
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Third Circuit
Ninth Circuit
NOTE: The court here distinguished United States v. Corona-Sanchez, 291 F.3d 1201
(9th Cir.2002), on the basis that 18 U.S.C. § 921(a)(20) requires that the
determination of whether the conviction is a felony or a misdemeanor be made
according to state law, while in the aggravated felony and federal sentencing
contexts, the categorical approach is used to determine whether the offense would
be a felony under federal law.
BIA
Other
(2) Enter a waiver of credit for time previously served for the 364 days already
served; and
(3) As the court to impose a new probation condition of whatever time in custody
will meet the prosecution and court’s sense of an appropriate additional custodial
sentence for the probation violation. (A new sentence of no more than 180 days in
custody would enable the conviction to qualify under the sentence-imposed
requirement of the Petty Offense Exception to inadmissibility for a crime of moral
turpitude conviction if that is a relevant consideration for the defendant.)
Since the court explicitly vacates (even if not as legally invalid) the original 365
sentence order, that is effectively eliminated for immigration purposes. Matter of
Cota, 23 I. & N. Dec. 849 (BIA 2005); Matter of Song, 20 I. & N. Dec. 136 (BIA 1989);
LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).
Ninth Circuit
Ninth Circuit
Second Circuit
Fifth Circuit
FELONY CLASSIFICATION
United States v. Alfaro-Hernandez, __ F.3d __ (5th Cir. Jun. 16, 2006) (felony
classification of defendant’s underlying offense, for purposes of sentence imposed
upon revocation of defendant's supervised release on a conviction for
transportation of an illegal alien, is determined by the underlying statute of
conviction, not the Guidelines range as calculated by the district court).
http://caselaw.lp.findlaw.com/data2/circs/5th/0540327cr0p.pdf
Tenth Circuit
FELONY/MISDEMEANOR DEFINITION
United States v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. Aug. 8, 2006) (Colorado
conviction for assault in the third degree, in violation of Colo.Rev.Stat. § 18-3-204,
although labeled by the State as a misdemeanor, is a felony for illegal re-entry
sentencing purposes since the maximum possible punishment for the offense is 18
months).
Second Circuit
Ninth Circuit
The court concluded that a different test was possible for immigration purposes,
than is the rule for illegal reentry sentencing cases, and the better view uses a
uniform national test based on whether the conviction would have been a felony if
the case had been prosecuted in federal court. Under this test, because simple
possession is a misdemeanor under federal law, even a state felony possession
offense would be judged a "misdemeanor" if prosecuted in federal court, and is
therefore not an aggravated felony. Since Cazarez has been withdrawn, criminal
defense counsel should assume that the law reverts to what it was before the
Cazarez-Gutierrez opinion. The BIA rule holds that a state felony conviction for
simple possession is an aggravated felony, but even multiple state misdemeanor
convictions for simple possession are not. See Matter of Yanez-Garcia 23 I. & N. Dec.
390 (BIA 2002); Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002). If the
Ninth Circuit holds it has no petition for review jurisdiction in Cazarez, the case
would go to federal district court on habeas corpus under 28 U.S.C. § 2241 to decide
the same issue of whether the felony state conviction for simple possession is an
aggravated felony for immigration purposes. Even under the BIA rule, it is still
possible, in the Ninth Circuit, to eliminate all adverse immigration consequences of a
first felony or misdemeanor conviction for simple possession by "rehabilitative
relief" such as, in California, withdrawal of plea under deferred entry of judgment,
Proposition 36, or expungement pursuant to Penal Code § 1203.4. See Lujan-
Armendariz v INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo,
22 I. & N. Dec. 512 (BIA 1999). This is also true for a first conviction of giving away a
small amount of marijuana. See 21 U.S.C. § 841(b)(4). In Criminal Court. Until the
Ninth Circuit issues a new ruling, criminal defense counsel should act conservatively
and assume that a felony simple possession will be held an aggravated felony in
immigration proceedings. Counsel should advise and assist clients to eliminate an
existing first felony conviction for simple possession, by obtaining rehabilitative
relief. Counsel should attempt to defer pleading to a new felony simple possession
(unless it is a first offense that can quickly be eliminated by rehabilitative relief), or
plead to a different offense. Alternatives include misdemeanor simple possession
and offenses such as accessory after the fact, being under the influence, being in a
place where drugs are used, possession of paraphernalia, or possession of an
unidentified controlled substance. If it is crucial to avoid an aggravated felony, the
person may decide to plead up to statutes that include solicitation or "offering" to
commit a drug offense, such as Calif. Health & Safety Code §§ 11352(a), 11360(a)
and 11379(a), which would not be held to be drug trafficking aggravated felonies, or
even controlled substances convictions. See United States v. Rivera-Sanchez, 247
F.3d 905 (9th Cir. 2001); "Note: Drug Offenses" at the Quick Reference Chart at
www.ilrc.org/Cal_DIP_Chart_by_section.pdf. In Immigration Court. Immigration
counsel should continue to argue that the original decision in Cazarez-Gutierrez was
decided correctly, or ask for a continuance pending the Ninth Circuit's decision.
Fifth Circuit
Ninth Circuit
§ 7.42 f. Naturalization
§ 7.43 g. Registry
Fifth Circuit
BIA
Other
Ninth Circuit
Ninth Circuit
Tenth Circuit
Ninth Circuit
Third Circuit
Sixth Circuit
Ninth Circuit
First Circuit
Other
Ninth Circuit
Ninth Circuit
Second Circuit
Other
Note: Justice Stevens, in dissent, points out that the majority did not reach the issue
whether Blakely errors are structural because they deprive defendants of sufficient
notice regarding the charges they must defend against. So that argument is still
available.
Third Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
Other
§ 7.103 4. Allocution
Ninth Circuit
Other
Ninth Circuit
Ninth Circuit
Other
Ninth Circuit
Ninth Circuit
Ninth Circuit
Eleventh Circuit
Ninth Circuit
§ 7.125 a. Generally
§ 7.128 5. Procedure
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§ 8.1 I. Introduction
First Circuit
Ninth Circuit
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Second Circuit
Fifth Circuit
NOTE: This case can be cited to support the position that a second controlled
substances offense may be expunged under Lujan in the Ninth Circuit as long
as the first conviction had not become final by the time of the second
conviction.
Seventh Circuit
Ninth Circuit
BIA
Other
"This rule is based on the theory that the legislature is familiar with the
contemporaneous interpretation of a statute . . . . Therefore, it impliedly
adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and
Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v. United
States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate Co., 283
U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943); Allen v.
Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New Materials High
Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir. 1998), reh'g denied, in
banc suggestion declined (Jan. 28, 1999) and cert. dismissed, 120 S.Ct. 394
(1999).
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102
S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE
STATUTE ANALYSIS – CONJUNCTIVE CHARGES United States v. Garcia-
Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California
conviction of sale or transportation of a controlled substance, in violation of
Health & Safety Code § 11352(a), properly triggered 16-level sentence
enhancement for illegal reentry after deportation since charging to which
plea was entered listed offenses in the conjunctive, and plea of guilty was
entered to every offense listed within the counts of conviction).
Fifth Circuit
Ninth Circuit
Tenth Circuit
BIA
We express no opinion about whether this reasoning would apply with equal
force to the situation the Lujan-Armendariz court specifically identified,
where an alien has a finding of guilt on his record but the actual conviction is
deferred pending successful completion of probation. See 222 F.3d at 746
n.28 (referring to 'deferred adjudication' statutes). Aliens sentenced under
such schemes do not have a “conviction” on their record at any time during
probation. However, because we are not faced with that situation here, that
question must continue to remain open for another day. Id. at 1293
(emphasis added).
In Chavez-Perez v. Ashcroft, 386 F.3d 1284, 2004 WL 2389907 (9th Cir. Oct.
27, 2004), the court held that although an Oregon expungement would erase
a simple possession conviction, the immigration authorities may remove
noncitizen from the United States before the expungement has been
granted. The Ninth Circuit, in dicta, distinguished between the situation in
which the noncitizen had not yet made any attempt to begin expungement
(as in Chavez-Perez), and the situation in which the noncitizen is in process of
obtaining an expungement by court order.
Seventh Circuit
Ninth Circuit
Tenth Circuit
BIA
Other
BIA
Other
In the case of a first prosecution for the offense of possession, the bill
provides that if the defendant is found guilty or pleads guilty, the judge may,
in lieu of entering a judgment of guilty Place the accused person upon
probation. 3 U.S. Cong. & Admin. News ‘70-72. [Emphasis added.]
Elkins v. Comfort, ___ F.3d ___ (10th Cir. Dec. 21, 2004) (affirming denial of
adjustment of status on account of Korean conviction of possession of
marijuana, with two-year probation term, since Federal First Offender Act
provided for only one-year probation term, so conviction still existed to
trigger ground of inadmissibility).
http://laws.lp.findlaw.com/10th/031184.html
Eleventh Circuit
Other
FIREARMS OFFENSE – STATE REHABILITATIVE RELIEF DOES NOT ELIMINATE
FIREARMS CONVICTION FOR DEPORTATION PURPOSES
Matter of Luviano, 23 I. & N. Dec. 718 (AG Jan. 18, 2005) (firearms conviction
expunged pursuant to California state rehabilitative relief statute, Penal Code
§ 1203.4(a), remained a conviction for immigration purposes under the
statutory definition of conviction, INA § 101(a)(48)(A), 8 U.S.C. §
1101(a)(48)(A)).
Other
Second Circuit
The JRAD statute applied both to the moral turpitude and the aggravated
felony deportation grounds, in that it waived deportability under former INA
§ 237(a)(4), which included both CMT and AF. (See Nguyen v. Chertoff, 501
F.3d 107, 113 (2d Cir. 2007), and cases cited.) Mr. Nguyen' obtained a JRAD
for a CMT that later was retroactively made an aggravated felony. The
Second Circuit did not adopt the government's anti-retroactivity argument
that the JRAD does not waive the AF conviction because the conviction was
not classified as an AF at the time the JRAD was issued. The most extensive
discussion of JRADs is found in N. Tooby, J. Rollin & J. Foster, CRIMES OF
MORAL TURPITUDE §§ 10.12-10.20 (3d ed. 2008).
Ninth Circuit
§ 8.27 B. Procedure
Second Circuit
Ninth Circuit
Fifth Circuit
We do not dispute that "it is well settled that Congress has the authority
to make past criminal activity a new ground for deportation." Ignacio v. INS,
955 F.2d 295, 298 (5th Cir. 1992) (citations omitted). See also United States v.
Bodre, 948 F.2d 28, 32 (1st Cir. 1991), cert. denied, 503 U.S. 941 (1992).
However, Congress’ use of plain language referring to convictions, not JRADS,
entered before, on or after the 1990 Act, must control. Greyhound Corp. v.
Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978)(reiterating that the starting
point in construing a statute is the language itself); United States v. Wong
Kim Bo,472 F.2d 720, 722 (5th Cir. 1972) (per curiam) ("words are to be given
their natural, plain, ordinary and commonly understood meaning unless it is
clear that some other meaning was intended"). The express language in
section 505(b) of the 1990 Act makes the amendment repealing JRADs
applicable retroactively to convictions. This reading is underscored by both 8
C.F.R.§ 240.10(d) of the removal regulations and § 240.48(c) of the
regulations applicable to deportation proceedings commenced prior to April
1, 1997, in which the Attorney General has provided expressly that, The
alien shall provide a court certified copy of a Judicial Recommendation
Against Deportation (JRAD) to the immigration judge when the
recommendation shall be the basis of denying any charges brought by the
Service. . . . No JRAD is effective against a charge of deportability under
former section 241(a)(11) of the Act, or if the JRAD was granted on or after
November 29, 1990. Id. (emphasis added). These regulations plainly
recognize the repealer, but authorize giving effect to a JRAD granted prior to
November 29, 1990.[FN1] [FN1] See also Kurzban, Immigration Law
Sourcebook, 8th Ed. (2002), at 150 (citing INS ImmAct Wire No. 5, McNary,
Comm, (Nov. 28, 1990)); Legomsky, Immigration and Refugee Law and Policy,
3d Ed. (2002), at 537. The regulations clearly reflect the view of the agency
that the repealer did not rescind all JRADs.[FN2] [FN2] It should go without
saying that the INS is bound by such regulations. 8 U.S.C. § 1103(a)(3). But cf.
Resp. Br. at 17 (arguing both that the JRAD was ineffective because it did not
apply to the grounds charged for Renteria-Gonzalez’ deportation, and
because the statute was repealed before he was charged with being
deportable). Similarly, none of the out-of-circuit decisions cited by the
panel stand for the proposition that a pre-November 29, 1990 JRAD is no
longer effective. Cf. Renteria, supra, at *12, n. 5. The cited decisions involve
two cases, United States v. Bodre, supra, and United States v. Koziel, 954 F.
2d 831 (2d Cir. 1992), in which a defendant sought a JRAD after November
29, 1990, arguing that it should be available to a pre-November 1990
conviction, and one case, United States v. Yacoubian, 24 F. 3d 1 (9th Cir
1994), in which deportability was charged on a ground of deportability
independent of the conviction for which a JRAD previously had been issued.
Bodre v INS, supra, involved a defendant who had been convicted before
November 29, 1990 and was awaiting a ruling on a JRAD that had been filed
on November 26, 1990. In rejecting Bodre’s argument that, as applied to
crimes committed before the effective date, the repealer violated the
Constitutional prohibition of ex post facto laws," id. at 33, the First Circuit
ruled that section 505 "repealed the sentencing judge’s power to issue
JRADs," and "applied ‘to convictions entered before. . .’ November 29, 1990."
Id. at 30 (emphasis added). United States v. Koziel, supra, involved the denial
of JRADs where the provision was repealed after the aliens' criminal conduct
occurred, but before they pled guilty and were sentenced. Id. The Second
Circuit ruled that "there is no ex post facto impediment to Congress's making
the abolition of JRADs applicable to convictions for conduct engaged in
before the enactment of the repealer." Id. at 834-35 (emphasis added).
Likewise, in United States v. Yacoubian, supra, the Ninth Circuit recognized
that "under the JRAD and the law at the time of the JRAD's issuance in 1989,
the defendant would not have been deportable based upon any of his
convictions," id. at 7-8 (finding that "deportation was sought on grounds
different from those as to which the JRADs were effective."). The Fifth Circuit
appears to have previously understood that the language in section 505
related to convictions, not JRADs, entered before, on and after November 29,
1990. See Ignacio v. INS, supra, at 298 (comparing the retroactive language
eliminating an automatic stay for aliens having aggravated felony convictions
to the similar language relating to convictions in section 505). Moreover, in
United States v. Castro, 26 F.3d 557, 558, reh’g denied, 38 F.3d 759, (5th Cir.
Tex. 1994), the Fifth Circuit remanded an ineffective assistance of counsel
claim relating to a 1984 failure to seek a JRAD, finding that Castro "was
entitled to have the sentencing court consider a JRAD," and that "there is a
reasonable probability that such relief would have been granted if a request
had been made." Id. at 562-63. It cannot be the case that the Fifth Circuit
previously viewed section 505 as rescinding all JRADS or there would have
been little purpose to its reversing and remanding in Castro. Since that time,
the court has not indicated a different view in the JRAD context. United
States v. Flores-Ochoa, 139 F.3d 1022, (5th Cir. Tex. 1998) (distinguishing
United States v. Castro because it was based on a "specific statutory option"
and on the strength of the case on its merits). In sum, the panel
misapprehended the retroactive effect of section 505, which applies
expressly to convictions entered prior to the November 29, 1990 effective
date of the 1990 Act, not to JRADs. Cf. Renteria, supra, at *11-12. A timely
issued JRAD covers aggravated felony convictions under 8 U.S.C.
1252(a)(2)(A)(iii) and precludes reliance on the conviction at issue as a basis
for deportability or inadmissibility. Bodre v. INS, supra, at 30 ("[b]efore
November 29, 1990, a convicted alien could seek relief from Section
1251(a)(2)(A)(iii)'s mandatory deportation requirement by seeking a JRAD
under 8 U.S.C. § 1251(b)(2)"). See also United States v. Probert, 737 F. Supp.
1010, 1012 (E.D. Mich. Nov 15, 1989). Similarly, a conviction that is the
subject of a pre-November 29, 1990 JRAD would not bar judicial review
under either the temporary or the permanent rules, which apply only where
an alien is deportable by reason of having committed a covered offense.
IIRIRA § 304(C)(4)(G), 8 U.S.C. § 1252(a)(2)(C) (emphasis added).[FN3] [FN3]
See also Probert v. INS, 954 F. 2d 1253, 1255 (6th Cir. 1992) (reasoning that a
1989 JRAD preventing the INS from deporting Probert based on his drug
conviction, also precluded mandatory detention under either version of 8
U.S.C. § 1252(a)(2)) Accordingly, the panel discussion indicating that the
retroactive effect of the language in section 505 extends to JRADs granted
before November 29, 1990, and that all JRADs are rescinded, must be
corrected. THIS IS FROM RENTERIA AMICUS PETITION FOR REHEARING
Second Circuit
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