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JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS CORPUS CAN BE USED TO
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LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App.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(unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443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
whether respondent showed extreme hardship for purposes of adjustment of status under INA §
212(i) is barred as a discretionary determination under 8 U.S.C. § 1252(a)(2)(B)(i)).
JUDICIAL REVIEW – JURISDICTION LIMITATION – DISCRETIONARY DECISIONS –
DENIAL OF 212(C) WAIVER
Avendano-Espejo v. Department of Homeland Sec., __ F.3d __ (2d Cir. May 11, 2006) (court
lacks jurisdiction to review discretionary denial of INA § 212(c) relief).
http://caselaw.lp.findlaw.com/data2/circs/2nd/0340921p.pdf
JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS
SUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT
REVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONS
OF LAW ARE RAISED
Bugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denial
of adjustment of status and INA § 212(h) waiver on discretionary basis not subject to judicial
review; REAL ID Act of 2005, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310
(codified at 8 U.S.C. § 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8
U.S.C. § 1252(a)(2)(B)(i)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf
JUDICIAL REVIEW – RELIEF – 212(C) RELIEF – CANCELLATION OF REMOVAL –
ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUS
Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (court did
not have jurisdiction to review determination that alien had abandoned her permanent resident
alien status for purposes of § 212(c) and cancellation of removal eligibility).
JUDICIAL REVIEW – JURISDICTION OF BIA TO ORDER REMOVAL
James v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006) (while the BIA has jurisdiction
to order noncitizen removed when IJ found removability, but granted relief, and the BIA then reverses
the grant of relief, the BIA does not have jurisdiction to order removal where the IJ initially found
noncitizen was not removable, and the BIA reverses; in such case, BIA must remand to IJ), distinguishing
Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), following Noriega-Lopez v. Ashcroft, 335
F.3d 874, 880-881 (9th Cir. 2003).
We have stated clearly and without equivocation that an individual who may be deportable for a given offense, but
whose status is adjusted is no longer deportable for that offense. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992);
Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978); cf. Matter of V-, 1I&N Dec. 273 (BIA 1942).
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
5
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).
JUDICIAL REVIEW – PETITION FOR REVIEW – DUE PROCESS -- BIAS OF IMMIGRATION JUDGE
Reyez-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) (bias of immigration judge her from acting as a
neutral fact-finder and prevented her from considering and evaluating evidence relevant to establishing
extreme hardship
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.
7
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
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).
JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION – EQUITABLE TOLLING – ESTOPPEL – DUE
PROCESS
DaCosta v. Gonzales, __ F.3d __ (1st Cir. May 24, 2006) (court lacks jurisdiction to review claims where
BIA was not presented with opportunity to address legal questions raised for the first time on appeal to
the circuit court), citing Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005) (circuit courts lack authority
"to consider points not squarely raised before the BIA").
http://laws.lp.findlaw.com/1st/051438.html
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
9
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.
10
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
11
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
First Circuit
The term "arriving alien" is not defined in the Immigration and Nationality Act [INA], but is
defined by regulation at 8 C.F.R. 1001.1(q):
The term arriving alien means an applicant for
admission coming or attempting to come into the
United States at a port-of-entry, or an alien seeking
transit through the United States at a port-of-entry,
or an alien interdicted in international or United
States waters and brought into the United States by
any means, whether or not to a designated port-of-
entry, and regardless of the means of transport. An
arriving alien remains such even if paroled pursuant
to section 212(d)(5) of the Act, except that an alien
who was paroled before April 1, 1997, or an alien
who was granted advance parole which the alien
applied for and obtained in the United States prior
to the alien's departure from and return to the
United States, shall not be considered an arriving
alien for purposes of section 235(b)(1)(A)(i) of the
Act.
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).
16
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.
17
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
of aliens who enter into plea agreements as a class."); Rankine v. Reno, 319 F.3d 93, 102 (2d.
Cir. 2003) ("The issue of reliance has played a central role in the Supreme Court’s and the circuit
court ‘s reasoning with respect to the retroactivity of the IIRIRA and AEDPA."); Chambers v.
Reno, 307 F.3d 284, 289 (4th Cir. 2002) ("In reaching [its] conclusion, the Court focused on an
alien’s reasonable reliance on the possibility of discretionary relief under INA § 212(c) as one of
the most important factors prompting him to forego trial and enter a plea agreement."); Domond
v. INS, 244 F.3d 81, 86 (2d. Cir. 2001) (finding that expectation interests of alien in St. Cyr were
"especially strong" when his guilty plea was entered before the effective date of the AEDPA,
"because an alien is likely to consider the immigration consequences when deciding whether and
how to plead").").
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 – NONCITIZEN ERRONEOUSLY ADMITTED AS LPR WAS
NOT ELIGIBLE TO APPLY FOR 212(C) RELIEF
Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where INS erroneously
granted LPR status to noncitizen who had prior aggravated felony conviction, noncitizen was
ineligible for 212(c) relief in removal proceedings).
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
http://www.ilw.com/immigdaily/cases/2005,1227-arellano.pdf
Can dismissed charges be considered,
19
http://209.85.165.104/search?q=cache:ZCl5W02BNSUJ:www.ca3.uscourts.gov/opinarch/05163
2p.pdf+Balogun+v.+Ashcroft,+270&hl=en&ct=clnk&cd=5&gl=us
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).
20
Rainford, ID#3191
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
Second Circuit
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,
23
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).").
to grant a hearing, courts should be able to rely exclusively on briefs to alert them to issues).
Use Note: The Court gave some guidance on presenting issues of federal law in state courts:
"A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim
in a state court petition or brief, for example, by citing in conjunction with the claim the federal
source of law on which he relies or a case deciding such a claim on federal grounds, or by simply
labeling the claim 'federal.'" From this statement, it appears that the Court is indicating that a
defendant can "federalize" an issue simply by making any reference to "federal law."
POST CON – TENNESSEE – CORAM NOBIS
State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A writ of error coram nobis lies
"for subsequently or newly discovered evidence relating to matters which were litigated at the trial if
the judge determines that such evidence may have resulted in a different judgment, had it been
presented at the trial." T.C.A. § 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995
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
26
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
Cir. 1992).
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
theory, was the first time Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note
thoughtful and powerful dissent by Judge Hawkins, pointing out that petitioner did cite federal cases in
his argument court erred in treating defendant’s motion as successive habeas petition rather than FRCP
60(b)(6) motion).
http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf
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,
29
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
involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the
sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both
the government’s attorney and the district judge confirmed that defendant’s understanding. Id. at
1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397.
After the receipt of the pre-sentence report, the defendant moved to withdraw his guilty plea;
however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98.
The Ninth Circuit determined that the defendant had been misinformed by the court,
government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do
not believe Toothman was ‘equipped intelligently to accept the plea offer made to him.’" Id. at
1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of
Appeal accordingly found that the plea was involuntary. Id. at 1401. Thanks to Don Chairez
for the suggestion for this argument.
POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA WHERE DEFENDANT
TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS
VIRTUALLY CERTAIN TO DO SO
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist.
LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting
motion to vacate sentence pursuant to 28 U.S.C.§ 2255 on involuntary plea and
ineffective counsel grounds for misadvice concerning immigration consequences
where defendant was informed only that the conviction "could result in your
deportation," where it was certain to do so).
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
35
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
37
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).
38
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
40
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
the INS plainly intended that this court and petitioner would
act in accordance with the representations it made that
Salgado-Diaz would receive a hearing.
Third, Salgado-Diaz did not understand the basis for the
border patrol agents stopping or arresting him. He also alleges
he did not understand the significance of the documents he
was induced to sign, namely that they would lead to his
deportation rather than the INS tracking down his pending
immigration hearing status. According to Salgado-Diaz, he
did attempt to explain he was in proceedings but was arrested
and expelled anyway. As for the purported evidentiary hearing,
neither this court nor petitioner expected that fact-finding
opportunity to be illusory.
Finally, the fourth element is met here, where the INS
agents’ conduct severely disadvantaged Salgado-Diaz by
expelling him to Mexico. The act of taking him out of the
country had the effect of changing his immigration status. See
Heckler v. Cmty. Health Serv., 467 U.S. 51, 61 (1984) (analyzing
detrimental reliance by examining “the manner in
which reliance on the government’s misconduct has caused
the private citizen to change his position for the worse”). Had
he not attempted to return to the United States so he could
appear at his pending immigration hearing, he may have lost
his chance to assert his eligibility for relief from deportation.
Further, petitioner detrimentally relied on assertions by the
INS that he should and would receive a hearing on his claims.
Our own disposition in the first appeal expressly relied on
those assertions.7
7 Given the INS’s representations in the first appeal and our disposition
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
45
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
46
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.
47
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.
48
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
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
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).
strictly to immigration proceedings, this would seem to suggest that the government should
lodge all known grounds for removal in support of its removability charges, or face the prospect
of a future bar.
Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir. 2004), that an alien’s removal from the
United States does not moot a habeas challenge to the underlying order of removal
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
51
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
52
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.
53
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.
55
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.
CITIZENSHIP
FALSE Matter of I, 4 I. & N. 18 U.S.C. § 911; 8 U.S.C. NMT
STATEMENT— Dec 159 (BIA 1950) § 746(18)
CLAIM TO UNITED
STATES
CITIZENSHIP
FALSE Matter of K, 3 I. & N. 18 U.S.C. § 911 NMT
STATEMENT— Dec. 69, 71 (BIA 1947)
CLAIM TO UNITED
STATES
CITIZENSHIP
FALSE Matter of S, 2 I. & N. 18 U. S. C § 80 MT
STATEMENT— Dec. 225, 1944 WL 5185
CONSPIRACY TO (BIA 1944)
MAKE FALSE
STATEMENTS
FALSE Zaitona v. INS, 9 F.3d Mich. Comp. Laws Ann. MT
STATEMENT— 432 (6th Cir. 1993) § 257.324(1)(e)
DMV
APPLICATION
FALSE Matter of G, 8 I. & N. 18 U.S.C. § 1001 NMT
STATEMENT— Dec. 315, 1959 WL
MATERIALITY 11574 (BIA 1959)
NOT AN ELEMENT
FALSE Matter of Correa-Garces, MT
STATEMENT— 20 I. & N. Dec. 451
PASSPORT (BIA 1992)
APPLICATION
FALSE Matter of B, 7 I. & N. 18 U.S.C. § 1542 MT
STATEMENT— Dec. 342, 1956 WL
PASSPORT 10292 (BIA 1956)
APPLICATION
FALSE Kabongo v. INS, 837 18 U.S.C. § 1001 MT
STATEMENT—TO F.2d 753, 758 (6th Cir.
FEDERAL 1988)
OFFICER
FALSE Matter of Marchena, 12 18 U.S.C. § 1001 NMT
STATEMENT—TO I. & N. Dec. 355, 1967
FEDERAL WL 14033 (BIA 1967)
OFFICER
FALSE Matter of Espinosa, 10 I. 18 U.S.C. § 1001 NMT
STATEMENT—TO & N. Dec. 98, 1962 WL
FEDERAL 12937 (BIA 1962)
57
OFFICER
FALSE Matter of Jurado- Pennsylvania MT
STATEMENT TO Delgado, 24 I. & N. Dec. Consoldated Statutes Title
GOVERNMENT 29 (BIA Sept. 28, 2006) 18 § 4904(a)
AGENT
FALSE Matter of BM, 6 I. & N. 18 U.S.C. § 1001 MT
STATEMENT—TO Dec. 806, 1955 WL 8757
UNITED STATES (BIA 1955)
OFFICIAL
FALSE Matter of P, 6 I. & N. 18 U.S.C. § 1001 MT
STATEMENT—TO Dec. 193, 1954 WL 7841
UNITED STATES (BIA 1954)
OFFICIAL
FALSE Matter of IL, 7 I. & N. 18 U.S.C. § 1001 MT
STATEMENT—TO Dec. 233, 234, 1956 WL
UNITED STATES 10262 (BIA 1956)
OFFICIAL
FALSE Matter of Di Filippo, 10 Unemployment Insurance NMT
STATEMENT— I. & N. Dec. 76, 1962 Act of Canada § 106 A(a)
UNEMPLOYMENT WL 12907 (BIA 1962)
FRAUD
LOG
FORGERY Matter of Jensen, 10 Canadian Crim. Code MT OUT
I. & N. Dec. 747, 1964 §§ 309(1) and 311
WL 12130 (BIA 1964)
PASSPORT
NATURALIZATION
[*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
67
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
68
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
71
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
Fualaau, 21 I&N Dec. 475 (BIA 1996); Matter of Danesh, 19 I&N Dec.
669 (BIA 1988).
Assault and battery offenses requiring the “intentional infliction of
serious
bodily injury on another have been held to involve moral turpitude
because such intentionally injurious conduct reflects a level of
immorality that is greater than that associated with a simple offensive
touching.” Matter of Sanudo, supra, at 971.
73
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).
U.S.C. § 1252. Because, under the customary framework for a stay, the balance of hardships tips decidedly
in Thapa's favor, a stay of his voluntary departure order is warranted here." Thapa v. Gonzales, Aug. 16,
2006.
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
77
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.
relief); United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001)
("[f]ailure to ... inform the alien [of eligbility for discretionary relief] is a denial of
due process that invalidates the underlying deportation proceeding") with United
States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004) (en banc) (holding
The line of cases represented by Aguirre-Tello is fundamentally flawed: it is
inconsistent with both United States ex rel. Accardi v. Shaughnessy, 347
U.S. 260 (1954), and United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
The premise underlying Aguirre-Tello is that there is no right to
discretionary relief. See 353 F.3d at 1205. Aguirre-Tello overlooks the fact
that aliens who are eligible for relief have an enforceable right to be
considered for that relief: they can compel the Attorney General to exercise
his discretion. See Accardi, 347 U.S. at 268. Accord Arevalo v. Ashcroft,
344 F.3d 1, 15 (1st Cir. 2003) (holding an alien’s right to seek discretionary
adjustment of status is a "vested" right). See also Jideonwo v. INS, 224 F.3d
692, 696-97 (7th Cir. 2000) (retroactive denial of a vested right to the
exercise of discretion “is a cognizable claim under the Due Process
Clause”). More fundamentally, Mendoza-Lopez affirmed the dismissal of
the indictment because the denial of access to discretionary relief resulted in
“a complete deprivation of judicial review” of the hearing. Id. at 840;
accord id. at 842. Aguirre-Tello and Mendoza-Lopez cannot be reconciled.
See United States v. Lepore, __ F. Supp.2d __, 2004 WL 292483, *12-13
(D. Mass. Feb. 12, 2004) (agreeing Ag tello is incosistentv with Mendoza) - See United States v.
Arrieta, 224 F.3d 1076, 1080 (9th 2000) 212 h undocumented.
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.
Lewis v. Commonwealth
93-CA"000941-MR, 5/6/94
The defendant was charged and convicted of two counts of fraudulent use of a credit card in
violation of KRS 434.650 as a result of purchasing tennis shoes from the shoe department and
clothes from the men’s department at J. C. Penney’s with an allegedly stolen credit card. Prior
to trial and at the close of all the evidence, the defendant argued he could only be charged with
one count of fraudulent use of a credit card because KRS434.650 and KRS 434.690 consolidate
all fraudulent credit card transactions which occur during a six month period into one offense.
The circuit court disagreed. The Count of Appeals agreed with the defendant that the terms of
the abovementioned statutes "prohibit and punish a course of conduct over a six-month period,
rather than individual acts." After examining the statutes and case law from other states with
similar statutes, the Court of Appeals held the defendant "was incorrectly indicted and convicted
of two felony counts of fraudulently using a credit card and should have been convicted of[only
one count." The defendant’s conviction for the second count of fraudulent use of a credit card
was reversed and the case was remanded for resentencing.
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).
proof by clear, unequivocal and convincing evidence, and the burden does not shift to
respondent. Matter of Guevara, 20 I. & N. Dec. 238 (BIA 1991).
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
83
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
where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been
completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462
F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders,
INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a
motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales,
412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in
absentia order where the noncitizen had departed the United States before the commencement of
proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is
vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction
was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But
see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua
sponte authority to reopen and reconsider a case at any time).
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.
87
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
88
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.
______________________________
LOG
IN
Medina v. INS, 1 F.3d 312, denying reh'g of 993 F.2d 499 (5th
Cir. 1993), may be viewed without charge at:
91
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
17
should bar relitigation of an issue only in subsequent
proceedings in the federal courts – not in proceedings within the
agency itself. It stresses that the decisions in which the Supreme
Court has discussed the doctrine, particularly Astoria Federal
Savings & Loan Association v. Solimino, 501 U.S. 104 (1991),
involved cases brought in federal court following an adverse
agency determination. See id. at 106-07. On this premise, the
INS posits that decisions of the agency should be given estoppel
effect only in subsequent judicial proceedings
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
99
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,
100
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,
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
101
[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.
before issuing its decision. (Burger v. Gonzales, 8/17/07). AILA Doc. No.
07101262
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
103
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."
Monjaraz-Munoz v. INS, 327 F.3d 892, 896 (9th Cir. 2003). Under similar circumstances in Monjaraz-
Munoz, the
Ninth Circuit stated:
The role of an attorney . . . is especially important. For the alien unfamiliar with the laws of our
country, an attorney serves a special role in helping the alien through a complex and completely
foreign process. It is therefore reasonable for an alien to trust and rely upon an attorney’s advice to
such an extent that if an alien fails to show up to a hearing because of an attorney, we can say that
this is an exceptional circumstance “beyond the control of the alien.”
Id at 897; see also Iturribarria v. INS, 321 F.3d 889, 901 (9th Cir. 2003) (“One reason that aliens . . .
retain legal assistance in the first place is because they assume that an attorney will know how to comply
with the procedural details that make immigration proceedings so complicated.”).
5 Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 712 (6th Cir. 2004) (BIA abuses its
discretion when it ignores its ownprecedent); Hernandez v. Ashcroft, 345 F.3d 824,
846 (9th Cir. 2003) (same); Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002)
(“Although an agency can change or adapt its policies, it acts arbitrarily if it
departs from its established precedents without ‘announcing a
principled reason’ for the departure.”); Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996)
(“[A]dministrative agencies must apply the same basic rules to all similarly
situated supplicants. An agency cannot merely flit serendipitously from case to
case, like a bee buzzing from flower to flower, making up the rules as it goes
along.”); Salameda v. INS, 70 F.3d 447, 450 (7th Cir. 1995) (“An agency may not
abandon an interpretation without an explanation . . . . Agencies do not have the
same freedom as courts to change direction without acknowledging and justifying
the change.”); Davila-Bardales v.INS, 27 F.3d 1, 5 (1st Cir. 1994) (requiring BIA
to “confront the issue squarely and explain why the departure is reasonable” when
it departs from its own precedents).
6 We decline the Government’s invitation to affirm the IJ’s decision on the grounds that Galvez has not
shown that he was prejudiced byhis counsel’s performance. First, In re Grijalva-Barrera, 21 I. &N. Dec.
at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to
constitute an “exceptional circumstance” justifying rescission of an in absentia removal order. Second,
we may not affirm an agency decision on reasons other than those it provided. Dong Sik Kwon v. INS, 646
F.2d 909, 916 (5th Cir. 1981) (en banc) (court may not affirm BIA’s decision on reasoning other than that
adopted by the BIA
own behalf, and (3) the right to an individualized determination of her interests. Id.
at 549. The denial of Lin’s motion to reopen did not implicate any of
these rights.
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).
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
107
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
108
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.
factors must be examined, the main purpose of the inquiry is to discover congressional intent
behind the statute. See Shendock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d
1458, 1462 (3d Cir. 1990) (“[A]ttachment of the label ‘jurisdiction’ to a statute’s filing
requirements without examination of its language and structure, as well as the congressional
policy underlying it, would be an abdication of our duty to interpret the language of a statute in
accordance with Congress’s intent in passing it.”); Ramadan v. Chase Manhattan Corp.,156 F.3d
499, 501 (3d Cir. 1998)
denial of the relief would result in a denial of due process. 3. What error may
nunc pro tunc relief be used to correct: Despite arguments that the doctrine of
nunc pro tunc may only be used to correct inadvertent errors, and not to remedy
a defect in a judgment order, the court held that in the immigration context nunc
pro tunc relief was available to correct such defects in the immigration context.
Edwards v. INS, 393 F.3d, at 309 n. 12.
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).
320.
[10] At the second step, we determine whether the statute would have an impermissible
retroactive effect. “A retroactive effect, as defined in Landgraf, is one that ‘would impair rights
a party possessed when he acted, increase a party’s liability SINOTES-CRUZ v. GONZALES 18727
for past conduct, or impose new duties with respect to transactions already completed.’ ”
Jimenez-Angeles, 291 F.3d at 601 (quoting Landgraf, 511 U.S. at 280). “The inquiry into
whether a statute operates retroactively demands a commonsense, functional judgment about
‘whether the new provision attaches new legal consequences to events completed before
its enactment.’ ” St. Cyr, 533 U.S. at 321 (quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999)
(quoting Landgraf, 511 U.S. at 270)) (internal quotation marks omitted).
[11] Applying Landgraf’s first step, we hold that part B of § 1229b(d)(1) is ambiguous with
respect to its retroactivity. As the Court pointed out in St. Cyr, numerous other provisions
of IIRIRA expressly state that they have retroactive application. 533 U.S. at 318-20, 320 n.43.
For example, IIRIRA § 321(b), 8 U.S.C. § 1101(a)(43), states that IIRIRA’s
new definition of “aggravated felony” applies to “conviction[s] . . . entered before, on, or after”
the enactment of IIRIRA. Id. at 319-20. By contrast, the text of § 1229b(d)(1)(including part B)
says nothing whatsoever about retroactive application. Basing our analysis solely on the text of
§ 1229b(d)(1), we would have no trouble concluding that it is ambiguous with respect to its
retroactive application
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), distinguishing Simmonds v.
INS, 326 F.3d 351 (2d Cir. 2003)(holding immigration claims not yet ripe where petitioner would not be
released from criminal custody for 10 years, because the law governing the immigration consequences
of the criminal disposition might well change in the meantime.
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.
"We review the BIA's ruling on the motion to reopen for an abuse of discretion and will reverse
the denial of the motion to reopen only if the BIA acted “ ‘arbitrarily, irrationally, or contrary to
law.’ “ Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir.2004) (quoting Singh v. INS,
213 F.3d 1050, 1052 (9th Cir.2000)).").
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
115
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)).
116
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).
117
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
118
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)
119
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.”
CA4 Finds Exclusive District Court Jurisdiction Over Natz Applications Under
INA §336(b) (8/7/2007)
The court held that the timely filing of a request for a district court hearing
on a naturalization application under INA §336(b) vests the district court
with exclusive jurisdiction over the matter and deprives CIS of jurisdiction
to adjudicate an application unless instructed to do so by the court. (Etape
v. Chertoff, 8/2/07). AILA Doc. No. 07080767.
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")
121
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
122
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.
124
First Circuit
willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v.
Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005);
Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following Dekoladenu v. Gonzales, 459 F.3d
500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006).
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
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
127
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
jurisdiction to review motions filed by people who have been deported or have departed and that any
departure from the United States constitutes the withdrawal of a pending motion. The Ninth and
Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v.
Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its
terms applies only to a person who departs the United States while he or she ‘is the subject of removal
…proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings;
where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been
completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462
F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders,
INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a
motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales,
412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in
absentia order where the noncitizen had departed the United States before the commencement of
proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is
vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction
was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But
see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua
sponte authority to reopen and reconsider a case at any time).
Other
2003) ("Under 8 C.F.R. § 1003.4, any voluntary departure from the United States following entry of an
order of deportation will be deemed to withdraw a pending appeal and to render the order of
deportation final."). Thanks to Rachel E. Rosenbloom; Beth Werlin
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.
Moral turpitude refers generally to conduct that shocks the public conscience as
being inherently base, vile, or depraved, and contrary to the accepted rules of morality
and the duties owed between persons or to society in general. Moral turpitude has been
defined as an act which is per se morally reprehensible and intrinsically
Wrong, or malum in se, so it is the nature of the act itself and not the statutory
prohibition of it which renders a crime one of moral turpitude. Among the tests to
determine if a crime involves moral turpitude is whether the act is accompanied by a
vicious motive or a corrupt mind.
The respondent, through counsel, argues that his departure from the United States to
Cuba renders moot the Service’s appeal of the Immigration Judge’s order terminating
deportation proceedings. The respondent maintains that “there is no issue in regard to
[his] deportation as he has departed the United States.” According to the respondent,
because he is not the appealing party, “his departure cannot be construed as a
withdrawal of his appeal under 8 C.F.R. § 3.4. nor can it be construed as self-
deportation because he [prevailed in] this case [before the Immigration Judge] and
was not ordered deported.”
Summary JUDGMENT
“A district court’s grant of a summary judgment motion is subject to de novo review . . . .
All evidence submitted on the motion is to be construed in the manner most favorable to the
nonmoving party.” Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir. 2004)
(citations omitted). Summary judgment “should be rendered if the pleadings, the discovery and
the disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)
130
Matter Of Espinosa
This Board has been notified by the Service that the respondent has departed the United
States. We do not know, however, whether that departure is intended to be temporary or
permanent. We held in a recent precedent decision that an alien’s departure from the United
States does not serve as a constructive withdrawal of an appeal filed by the Service. Matter
of Luis, 22 I&N Dec. 3395, at 8 (BIA 1999). Furthermore, we decided that the Board has, as
a matter of prudence, reserved the discretion to dismiss appeals and deny motions as moot.
Id. at 9. We find, as we did in Matter of Luis, that the instant case is not moot because a
resolution of the Service’s appeal that is adverse to the respondent would have significant
legal consequences were the respondent to seek admission to the United States in the future.
Furthermore, because the respondent is a lawful permanent resident, the question whether he
is entitled to retain that status is not mooted by his mere departure from this country.
In 1992, in a Tennessee state court, Sawyers pled guilty to facilitation of a felony or, more specifically,
facilitation of aggravated burglary. He argues that the district court erred in classifying this as a "violent
felony" under the ACCA. We find, however, that the district court was correct and affirm its holding.
A person is a party to a crime in Tennessee "if the offense is committed by the person's own conduct, by
the conduct of another for which the person is criminally responsible, or by both." TENN. CODE ANN. §
39-11-401(a). The comments to this section make clear that Tennessee law provides "equal liability for
principals, accessories before the fact, and aiders and abettors." Id. § 39-11-401(a) cmt. More
specifically, a person is criminally responsible for an offense committed by another so long as he has the
appropriate mental state-i.e., an "intent to [*11] promote or assist the commission of the offense, or to
benefit in the proceeds"-and solicits, directs, aids, or attempts to aid the person who commits the crime.
Id. § 39-11-402(2).
Here, Sawyers pled guilty to facilitation of aggravated burglary. "Aggravated burglary occurs when an
individual enters a habitation 'without the effective consent of the property owner' and, . . . intends to
commit a felony . . . ." State v. Langford, 994 S.W.2d 126, 127 (Tenn.1999)(citing TENN. CODE ANN. §§
39-14-402 and 39-14-403).
Facilitation of aggravated burglary satisfies [*12] the "felony" requirement because it is punishable by
more than one year. Specifically, as a class D felony, the crime carries a minimum two year sentence.
TENN. CODE ANN. § 40-35-111(b)(4). n2 It is therefore necessary to determine if the crime meets the
second requirement under the ACCA. Facilitation of aggravated burglary clearly does not involve the use
of explosives or contain an element of force. Thus, it is a "violent felony" only if it is specifically
enumerated or falls within the otherwise clause.
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=FCLRetrieveCaseDetail&caseID=13&format=
FULL&resultHandle=913a1c58b50ee27990afda5f7e0510ee&pageLimit=10&xmlgTotalCount=18&combin
edSearchTerm=facilitation+and+mens+rea+and+intent&juriName=Combined%20Federal%20Cases&sou
rceFile=GENFED;COURTS
This case was tried on the theory that, in the course of his dealings with the cooperating witness, Roy
both conspired to and did in fact "conduct[] or attempt to conduct[] a financial transaction involving
property represented to be the proceeds of specified unlawful activity" -- to wit, marijuana sales
involving the cooperating witness -- "with the intent . . . to promote the carrying on of specified unlawful
activity" -- to wit, future marijuana sales to and by that same witness. 18 U.S.C. § 1956(a)(3)(A); 18
U.S.C. § 1956(h). Roy's principal appellate argument is that the district court committed reversible error
in informing the jury that Roy could be convicted if he engaged in the actus reus with an intent to
promote "or facilitate" the already [*3] referenced marijuana sales. As Roy correctly points out, the
132
statute makes no mention of an intent to "facilitate"; an intent to "promote" is required. Promotion and
facilitation are not the same, Roy posits, because one can facilitate something simply by doing nothing,
whereas one must engage in affirmative conduct in order to engage in "promotion." Thus, Roy contends,
the instruction impermissibly and prejudicially diminished the government's burden of proof. The
government's principal response is that, contrary to Roy's protestations, the words "promote" and
"facilitate" are synonymous and have been used interchangeably by a number of appellate courts,
including this court, in describing the mens rea required by 18 U.S.C. § 1956(c)(3)(A). See United States
v. LeBlanc, 24 F.3d 340, 346 (1st Cir. 1994); see also United States v. Panaro, 266 F.3d 939, 949-50 (9th
Cir. 2001); United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999); United States v. Paramo, 998 F.2d
1212, 1215-16 (3d Cir. 1993); United States v. Skinner, 946 F.2d 176, 177-78 (2d Cir. 1991).
Individual words [*4] usually signify a range of ideas, and we have little trouble agreeing with Roy that,
in some contexts, "promotion" and "facilitation" might signify different concepts. Moreover, we may
grant for the sake of argument that one sometimes may reasonably be thought to have "facilitated"
something without actually doing anything, whereas "promotion" always (or at least nearly always)
requires affirmative conduct of some sort. But the question here is not whether "promotion" and
"facilitation" are always synonymous; the question is whether, in the context of the jury instructions,
there is a reasonable likelihood that the jury understood the district court's use of the word "facilitate"
to denote something materially easier for the government to prove than the "promotion" that is
required by the statute. See United States v. DeLuca, 137 F.3d 24, 37 (1st Cir. 1998) (collecting cases).
Roy says that there is such a reasonable likelihood because the jury instructions "clearly misled the jury
as to the level of involvement required to convict Mr. Roy." The argument continues:
Had the District Court properly instructed the jury on the meaning of promote, the verdict likely [*5]
would have been different. Mr. Roy's actions may have facilitated the narcotics activity, but that
certainly does not mean he promoted, or intended to promote, such activity. Unfortunately, based on
the District Court's instructions, the jury believed it was enough to convict Mr. Roy if he merely
facilitated the activity.But Roy's elaboration of his argument incorrectly assumes that the district court's
instruction on promotion or facilitation described the actus reus at which the statute is directed. It did
not. As set forth above, the instruction described the actus reus prohibited by the statute as the
conducting of (or attempted conducting of) financial transactions involving the proceeds of unlawful
activity (here specified to be marijuana sales). The concepts of "promotion" or "facilitation" came into
play only in describing the mens rea with which one must have engaged in the actus reus. Thus, contrary
to Roy's argument, the jury was not permitted to convict on a showing that Roy somehow inertly
facilitated the narcotics activity. Rather, it was asked whether Roy had engaged in affirmative conduct
while harboring a specified mens rea: "to promote [*6] or facilitate" the carrying on of the specified
narcotics-related activity. Because it is incoherent to say that one engaged in affirmative conduct with
an intent to bring about some consequence by means of one's facilitative inaction, we think there is no
reasonable likelihood that the jury understood the district court's use of the verb "facilitate" in the jury
instructions to denote conduct-free passivity. And because Roy has not suggested any other definition of
"facilitate" under which the jury was reasonably likely to have convicted by finding that he engaged in
the actus reus with something short of the promotive intent required by the statute, we reject his
challenge to the instructions. See DeLuca, 137 F.3d at 37.
133
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ULL&resultHandle=f3a9a0c96363367e553dfb31714da7f5&pageLimit=10&xmlgTotalCount=1&combined
SearchTerm=krs+506.080&juriName=Combined%20Federal%20Cases&sourceFile=GENFED;COURTS
Jensen argues that because she did not actively participate in the sexual abuse, but rather only passively
allowed it to occur, her conviction for complicity to commit sexual abuse does not fall within the ambit
of offenses which require sex offender registration. Kentucky courts, however, disagree. In Parks v.
Commonwealth, 192 S.W.3d 318, 326 (Ky. 2006), the Kentucky Supreme Court distinguished complicity
liability from liability for an inchoate offense, such as criminal facilitation, [*10] which carries a reduced
penalty because the underlying offense was never actually committed. See KRS 506.080. The Kentucky
Supreme Court explained that "unlike an inchoate offense, 'KRS 502.020 does not create a new offense
known as complicity.'" Id. at 326 (citing Commonwealth v. Caswell, 614 S.W.2d 253, 254 (Ky. App.
1981)). Rather, as stated earlier by the Kentucky Supreme Court in Wilson v. Commonwealth, 601
S.W.2d 280, 286 (Ky. 1980), "one who is found guilty of complicity to a crime occupies the same status
as one being guilty of the principal offense."
Complicity liability under KRS 502 .020 is not an inchoate offense, such as the offenses
described in KRS Chapter 506, e.g_, criminal facilitation, KRS 506.080, the offense to
which Blakeman and Morris pled guilty. Inchoate offenses carry reduced penalties
because the underlying offense was never actually committed. However, unlike an
inchoate offense, "KRS 502.020 does not create a new offense known as complicity ."
Commonwealth v. Caswell , 614 S.W.2d 253, 254 (Ky. App. 1981). "[O]ne who is found
guilty of complicity to a crime occupies the same status as one being guilty of the
principal offense." Wilson v.Commonwealth , 601 S.W.2d 280,286 (Ky. 1980) .
www.probono.net/nationalareasearch/attachment.109695
www.opinions.kycourts.net/sc/2005-SC-000307-MR.pdf
In slight contrast, the statute criminalizing facilitation, KRS 506 .080(1), reads:
Commonwealth, 916 S .W.2d 148,160 (Ky. 1995), cert. denied , 519 U .S . 855,117 S .
Ct. 151, 136 L. Ed . 2d 96 (1996)).
An instruction on facilitation (as a lesser-included offense of complicity) "is
appropriate if and only if on the given evidence a reasonable juror could entertain
reasonable doubt of the defendant's guilt on the greater charge, but believe beyond a
reasonable doubt that the defendant is guilty of the lesser offense." Skinner, 864
S.W .2d at 298. An instruction on a lesser included offense requiring a different mental
state from the primary offense is unwarranted, however, unless there is evidence
supporting the existence of both mental states . See Taylor v. Commonwealth, 995
S .W.2d 355, 362 (Ky. 1999).
Duran, ID#3101
(1) An immigration judge in deportation proceedings properly denied the respondent's motion to subpoena government
records where the respondent failed to comply with the requirements of 8 C.F.R. § 287.4(a)(2) (1984) by not specifically
stating what he expected to prove by such documentary evidence and by not affirmatively showing a diligent effort to
obtain the records.
(2) While a subpoena is not required in the instant proceedings and access should generally be given to a person in
immigration proceedings concerning records maintained about himself, the respondent failed to show compliance with the
requirements of 8 C.F.R. § 103.21 (1984) which permit such access
(5) An interlocutory appeal will ordinarily be considered moot upon the alien’s departure under an order of
exclusion and deportation, but such an appeal need not be considered moot in each and every circumstance,
particularly where the order of exclusion was erroneous and the issue raised has continuing importance to the proper
administration of the immigration laws. Matter of Okoh, 20 I&N Dec. 864 (BIA 1994), distinguished.
Matter of Brown, 18 I&N Dec. 324, 325(BIA 1982) (holding that an alien may
not defeat a Service appealand nullify deportation proceedings by effecting a
departure from and subsequent reentry to the United States). We therefore
hold that the respondent’s departure from the United States did not serve as
a constructive withdrawal of the Service’s appeal.
Whether an alien’s crime involves moral turpitude is determined by the criminal statute and the
record of conviction, not the alien’s conduct. Knapik, 384 F.3d at 88,90-91; De Leon-Reynoso v.
Ashcroft, 293 F.3d 633, 635 (3dCir. 2002). Under this categorical approach, we read the
applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under
the statute. Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996); Matter of Marchena, 12 I. & N.
Dec. 355, 357 (BIA 1967). As a general rule, a criminal statute defines a crime involving “moral
turpitude only if all of the conduct it prohibits is turpitudinous
The United States continues to attract immigrants from many foreign lands, and lawyers in criminal
practice must increasingly be conscious of the immigration status of parties and deportation
consequences of criminal proceedings involving alien residents. So far, juvenile delinquency
adjudications have not been deemed criminal "convictions" that have negative immigration
consequences. (Matter of Ramirez-Rivero, 18 I&N 135 (BIA 1981); Matter of C.M., 5 I&N 327 (BIA 1953).)
But the conviction of a juvenile as an adult in a criminal court does meet the law’s requirement and may
result in deportation. (Matter of C.M., supra; Morasch v. INS, 363 F.2d 30 (9th Cir. 1966).) One major
consequence of the transfer of a youth to trial in adult court is exposure to the likelihood of deportation,
depending on the gravity of the offense charged or nature of the sentence imposed. 18 U.S.C. §§
5031-5042
IJ REQ
An U is required to inform eligible aliens about the availability of discretionary relief,
including voluntary departure; failure to do so is a basis for a remand by the BlA. In re Julio
Antonio Cordova, 22 I. & N. Dec. 966, 970-72, 1999 WL 590719 (BlA 1999). Under 8
C.F.R. § 240.11(a)(2) (now 8 C.P.R. § 1240(a)(2)), "[t]he Immigration Judge shall inform
the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this
chapter and shall afford the alien an opportunity to make application during the hearing."
Voluntary departure is one of the "benefits enumerated in this chapter." See 8 C.P.R.
1-KRS 506.080 is violated without any requirement that the def. have a specific intent to cause any
liability to the victim being defrauded.The statute requires the existance of no state of mind or
criminal intent beyond that plainly expressed on the face of the statute. “ The legistlator thought to
deter ALL acts by a facilitator that may or may not result in a liability,“whether or not such a
consequence was intended or even forseen” Moral turpitude generally requires an evil motive, one
doesnot violate …. by merely ………, Rather,one must intentionally engage in a deception or fraud
that might fairly be described as noninnocent behavior, even if, in some instances,it might not stem
from an evil motive.
2- the crime of facilitation was complete at the time the offense to defraud began.
3- Penalty for Facilitation of a class A is a class B Misd punishable by a max of 90 days in Jail.
4- CIMT is not defined by the INA or in any US code.
5- Intent to defraud shall be focused on the person who commits the actual offense not the facilitator.
(min. conduct required should be discussed)
http://www.plol.org/Pages/Secure/Document.aspx?d=4mBXPcT15pNzBDKeBxG%2bSw%3d%3d&l=Case
s&rp=4 5 cir case of viol facilitation ( immig is a driver of the car in which the pass. Is the drive by
shooter) Nguyen V Ashcroft.
Mizrahi v Gonzales Ca2 Solicitation of CS NY penal:
Because every solicitation conviction in New York depends on two statutes to define the minimum
conduct proscribed -- the generic statute which defines the actus reus element and the object statute
which defines the mens rea element -- when, as in Mizrahi's case, the intent element is supplied by a
statute defining the defendant's objective to be a drug crime, the solicitation conviction categorically
constitutes "a violation of . . . any law . . relating to a controlled substance." 8 U.S.C. § 182(a)(2)(A)(i)(II).
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=FCLRetrieveCaseDetail&caseID=5&format=F
ULL&resultHandle=12fbb1fe83a385acefd7112611619fda&pageLimit=10&xmlgTotalCount=16&combine
dSearchTerm=facilitation+and+deportation&juriName=Combined%20Federal%20Cases&sourceFile=GE
NFED;COURTS
PRO SE In Ca2
we construe the briefs of pro se petitioners as raising the
strongest arguments that they suggest, Weixel v. Bd. of Educ.,
287 F.3d 138, 146 (2d Cir. 2002);Mcintoch
an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is
the nature of the act itself and not the statutory prohibition of it which renders a crime one
of moral turpitude. Among the tests to determine if a crime involves moral turpitude is
whether the act is accompanied by a vicious motive or a corrupt mind.’” (quoting Hamdan
v. INS, 98 F.3d 183, 186 (5th Cir. 1996))). The conduct that Nguyen pleaded guilty to falls
within this definition.
By these standards, we conclude that the crime of malicious mischief as defined by the
Washington statute does not rise to the level of either depravity or fraud that would
qualify it as necessarily involving moral turpitude. In contrast to the bulk of other non-
fraud crimes necessarily involving moral turpitude, malicious mischief is a relatively
minor offense. Indeed, one can be convicted of malicious mischief for destroying as little
as $250.00 of another's property with an evil wish to annoy. Moreover, malice can be
inferred if the act is merely "wrongfully done without just cause or excuse." RCW Sec.
9A.04.110(12). The Washington statute's reach thus extends to include pranksters with
poor judgment. Consequently, unlike the crimes of spousal abuse, child abuse, first-
degree incest, and carnal knowledge of a fifteen year old, malicious mischief does not
necessarily involve an "act of baseness or depravity contrary to accepted moral
standards." Grageda 12 F.3d at 921; cf. Matter of N--, 8 I & N Dec. 466, 468 (BIA 1959)
(Delaware malicious mischief statute not a crime necessarily involving moral turpitude).5
As for fraudulent intent, it is undisputed that Washington's malicious mischief statute
includes no such element. We therefore conclude that malicious mischief, as defined by
RCW Sec. 9A.48.080, is not a crime necessarily involving moral turpitude.
16
The INS resists this conclusion, arguing that if a statute requires an "evil intent, wish, or
design to vex, annoy, or injure another person," then the crime necessarily involves
moral turpitude. We cannot accept this proposition. It is true that in the fraud context we
have placed a great deal of weight on the requirement of an evil intent. But even in this
139
context, we have not held that if a statute requires evil intent, it necessarily involves
moral turpitude. We have held only that without an evil intent, a statute does not
necessarily involve moral turpitude. See Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.1962)
("A crime that does not necessarily involve evil intent, such as an intent to defraud, is
not necessarily a crime involving moral turpitude."). To state the proposition positively,
we have held that in the fraud context an evil intent is necessary, but not sufficient, for a
crime inevitably to involve moral turpitude. Cf. Gonzalez-Alvarado, 39 F.3d at 246
(holding that "[a] crime involving the willful commission of a base or depraved act is a
crime involving moral turpitude, whether or not the statute requires proof of evil intent.").
17
While mental state is an important factor, we reject the contention that all crimes
requiring some degree of evil intent are necessarily crimes involving moral turpitude.
Here, for example, the Washington statute permits malice (which imports an evil intent)
to "be inferred from an act done in wilful disregard of the rights of another, or an act
wrongfully done without just cause or excuse, or an act or omission of duty betraying a
wilful disregard of social duty." RCW Sec. 9A.04.110(12). Under this definition, evil
intent may become much too attenuated to imbue the crime with the character of fraud
or depravity that we have associated with moral turpitude. At least outside of the fraud
context,6 the bare presence of some degree of evil intent is not enough to convert a
crime that is not serious into one of moral turpitude leading to deportation under section
241(a)(4) of the Immigration and Nationality Act. (Rodriguez-herrera, Petitioner, v.INS)
http://cases.justia.com/us-court-of-appeals/F3/52/238/573134/
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 . . . .” See also
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). However, we
have jurisdiction over petitioner’s equitable estoppel claim because it arises from actions
taken by a corrupt government employee prior to any decision made by the Attorney General to
commence proceedings against her. See Wong v. United States, 373 F.3d 952, 965 (9th Cir.
2004) (holding that Ҥ 1252(g) does not bar review of actions that occurred prior to any decision
to ‘commence proceedings’ ”).
SHIN v. MUKASEY 2033
WONG v U S: 1252 (a) (2) (B):
(ii) any other decision or action of the Attorney General the authority for which is specified
under this title to be in the discretion of the Attorney General....
8 U.S.C. § 1252(a)(2)(B). The government maintains that this provision precludes jurisdiction
in this Bivens action over Wong's challenges to the decisions regarding adjustment of status,
advance parole or permission to depart without advance parole, and revocation of parole.
In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142
L.Ed.2d 940 (1999) (AADC), the Supreme Court interpreted § 1252(g). In the course of doing so,
the Court cautioned that we must be careful not to read broadly language in the INA affecting
court jurisdiction that is subject to a "much narrower" interpretation. See id. at 478-82, 119 S.Ct.
936. Consistent with that admonition, we have recognized that the § 1252(a)(2)(B) jurisdictional
bar is not to be expanded beyond its precise language.
For example, decisions made on a purely legal basis may be reviewed, as they do not turn on
discretionary judgment. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir.2003)
(decision that alien was statutorily barred from petitioning for adjustment of status was not
discretionary and could be reviewed notwithstanding § 1252(a)(2)(B)); Montero-Martinez, 277
F.3d at 1143-44 (§ 1252(a)(2)(B) does not preclude jurisdiction over purely legal, and hence non-
discretionary, questions). Moreover, decisions that violate the Constitution cannot be
"discretionary," so claims of constitutional violations are not barred by § 1252(a)(2)(B). See
Torres-Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir.2001); see also Sanchez-Cruz v. INS, 255
F.3d 775, 779 (9th Cir.2001). In addition, § 1252(a)(2)(B)(ii) precludes jurisdiction only over
decisions as to which discretionary authority is "specified" by statute, not all discretionary
decisions. See Spencer Enterprises, Inc., 345 F.3d at 689-90.)
(B) does not preclude the district court from entertaining such claims.
Section 1252(g) limits judicial review of certain decisions or actions of the Attorney
General regarding removal.15 That provision states:
commence proceedings, adjudicate cases, or execute removal orders against any alien
under this Act.
8 U.S.C. § 1252(g).
AADC held that § 1252(g) "applies only to three discrete actions that the Attorney
General may take: her `decision or action' to `commence proceedings, adjudicate cases,
or execute removal orders.'" 525 U.S. at 482, 119 S.Ct. 936. Section 1252(g),
consequently, does not bar "all claims relating in any way to deportation proceedings."
Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir.2000) (en banc). As AADC
noted, "[t]here are of course many other decisions or actions that may be part of the
deportation process — such as the decisions to open an investigation, to surveil the
suspected violator, to reschedule the deportation hearing, to include various provisions
in the final deportation order ..., and to refuse reconsideration of that order." AADC, 525
U.S. at 482, 119 S.Ct. 936.
46
Following AADC, we have narrowly construed § 1252(g). For example, we have held that
"the reference to `executing removal orders' appearing in [§ 1252(g)] should be
interpreted narrowly, and not as referring to the underlying merits of the removal
decision." Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir.2002) (citations omitted).
Similarly, in Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001), we held
that § 1252(g) does not bar judicial review of decisions or actions that occur during the
formal adjudicatory process, because they are separate from the "decision to
adjudicate." Sulit v. Schiltgen, 213 F.3d 449 (9th Cir.2000), determined that § 1252(g)
does not bar the due process claims of aliens alleging that their green cards were
improperly seized without a hearing, that the INS failed to provide them with notice
requiring them to surrender for deportation, and that their counsel failed to notify them
of the issuance of the court's decision. See id. at 452-53 & n. 1; see also Catholic Soc.
Servs., 232 F.3d at 1150 (concluding that § 1252(g) does not limit jurisdiction to grant
injunctive relief in a class action challenging the INS's advance parole policy). But see
Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir.2002) (holding that § 1252(g)'s
bar to judicial review of decision whether to commence proceedings precludes review of
the decision when to commence proceedings).
Plaintiffs' claims [do] not amount to a challenge of the decision of the INS to
`commence proceedings,' `adjudicate cases,' or `execute removal orders.' Rather, ...
Plaintiffs' claims arise from the discriminatory animus that motivated and underlay the
actions of the individual defendants which resulted in the INS's decision to commence
removal proceedings and ultimately to remove Plaintiff Wong from the United States.
142
The instant case ... involves claims arising prior to any INS decision `to commence
proceedings against Wong, as well as claims that the Defendants placed Wong in a
detention situation where she suffered constitutional injury at the hands of third parties.
(emphasis added). Wong thus disclaims any challenge to the execution of the removal
itself, but rather asserts that her claims implicate only actions other than that removal,
or the commencement of proceedings, if any, leading to that removal.16
Wong is correct that § 1252(g) does not bar review of the actions that occurred prior to
any decision to "commence proceedings," if any, against her or to execute the removal
order, such as the INS officials' allegedly discriminatory decisions regarding advance
parole, adjustment of status, and revocation of parole. See Humphries v. Various Fed.
USINS Employees, 164 F.3d 936, 944 (5th Cir.1999) ("[W]e would defy logic by holding
that a claim for relief somehow `aris[es] from' decisions and actions accomplished only
after the injury allegedly occurred.") (second alteration in original). None of these
decisions involves the discrete actions enumerated in § 1252(g).
Similarly, the government asserts that § 1252(a)(2)(A), which deals directly with the
expedited removal procedure under which Wong was removed, may also be implicated
by Wong's claims. Section 1252(a)(2)(A) reads in relevant part:
Notwithstanding any other provision of law, no court shall have jurisdiction to review —
(i) except as provided in subsection (e), any individual determination or to entertain any
other cause or claim arising from or relating to the implementation or operation of an
order of removal pursuant to section 235(b)(1) [setting forth procedures for expedited
removal],
(ii) except as provided in subsection (e), a decision by the Attorney `General to invoke
the provisions of such section, [or]
(iii) the application of such section to individual aliens, including the determination
made [as to eligibility for asylum].
8 U.S.C. § 1252(a)(2)(A). Subsection (e) provides that no court may "enter declaratory,
injunctive, or other equitable relief in any action pertaining to an [expedited removal
order]," unless certain exceptions not applicable here apply. 8 U.S.C. § 1252(e)(1)(A).
Like § 1252(g), § 1252(a)(2)(A) does not preclude Wong's claims concerning events that
occurred prior to the decision to initiate her expedited removal — namely, the claims
challenging the adjustment of status, advance parole, and revocation of parole decisions.
None of these claims implicates actions covered by § 1252(a)(2)(A). And, as we
explained above, Wong has expressly disclaimed interpreting her complaint to include a
143
challenge to her expedited removal, maintaining instead that the complaint challenges
only the decisions described above, which preceded her removal.17
We conclude that the district court properly exercised jurisdiction over Wong's claims
regarding advance parole, adjustment of status, and parole revocation, as well as over
her detention-related claims
We are not precluded, for example, from ruling on constitutional challenges to deportation procedures.
See Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir.1998) ("By its terms, [§ 1252(g)] does not prevent the
district court from exercising jurisdiction over the plaintiffs' due process claims [because such claims]
constitute `general collateral challenges to unconstitutional practices and policies used by the agency.'")
(quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991));
see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1121 (9th Cir.2001) (holding § 1252(g) did not bar
aliens' challenge to INS deportation procedures); Catholic Social Servs. v. INS, 232 F.3d 1139, 1150 (9th
Cir.2000) (en banc) (same).
Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007) (noting
that “unpublished BIA decisions do not constitute agency interpretations of law warranting
Chevron deference”)
Aggravated felony
Forgery A conviction under this statute is an aggravated felony as a crime related to
forgery under 8 U.S.C. § 1101(a)(43)(R) if the sentence is at least one year. In the
aggravated felony definition, forgery is not defined. Nor is the there a federal definition
of forgery to use as a benchmark. Therefore, courts have reasoned that the common law
definition of forgery should be used to determine whether a particular offense is an
aggravated felony. The three elements of the common law definition of forgery are: (1)
the false making or material alteration (2) with intent to defraud (3) of a writing that, if
genuine, might be of legal efficacy). Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005).
The common law definition of forgery exactly mirrors the Virginia definition of forgery
and therefore, a conviction under this statute is an aggravated felony if the sentence
imposed is at least one year
http://www.ca3.uscourts.gov/opinarch/072164p.pdf
We review the IJ's factual determinations for substantial evidence. n2 See Francis v. Gonzales, 442 F.3d
131, 137 (2d. Cir. 2006). When the Government bears the burden of proof below, the substantial
145
evidence standard is more demanding than in asylum and withholding of removal cases. See id. at 137-
39. In order to grant Yuhter's petition for review, we "are not required to find that any rational trier of
fact would be compelled to conclude that" Yuhter's transcript was authentic, but "we must find that any
rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and
convincing evidence." Id. at 138-39.
Asika v Ashcroft
Third Circuit, Asika contends that the "practical effect" of reading section 246(a) not to apply to
deportation in this set of cases would be to "construe it out of existence." See Bamidele v. INS, 99 F.3d
557, 562-65 (3d Cir. 1996). He also argues the Attorney General's contrary interpretation is not due
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L.
Ed. 2d 694, 104 S. Ct. 2778 (1984), both because the statute is clear and because "a statute of
limitations is not a matter within the particular expertise of the INS," see Bamidele, 99 F.3d at 561.
AGG. Felony. And 1 yr Sentence:
we have already [*17] concluded that "Congress was sufficiently clear in its intent to include certain
crimes with one-year sentences in the definition of 'aggravated felony.'" United States v. Graham, 169
F.3d 787, 788 (3d Cir. 1999), cert. denied 528 U.S. 845, 145 L. Ed. 2d 99, 120 S. Ct. 116 (rejecting the
argument that a one-year sentence does not implicate 8 U.S.C. § 1101(a)(43)(G)).
Alford Plea :
As the lnunigration Judge determined,in http://www.bibdaily.com/pdfs/BIAu%208-25-08%20Dennis.pdf
Mathew Dennis
however, neither offense categorically satisfies the requirements ofits respective aggravated felony
category, andthus the charges ofdeportability cannot be sustained absent proof that the respondent's
convictions were based on proof of (or admissions to) facts identifying his offenses as aggravated
felonies. Where an alien was convicted by means of a plea, as here, an hnmigration Judge
conducting such a "modified categorical" inquiry is "generally limited to examining the statutory
definition, charging document~ written plea agreement, transcript ofplea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented" or which was"confirmed by the
defendant." Shepard v. United States, 544 U.S. 13, 16, 26 (2005) (emphasis added
Immigration Judge' determined that because the respondent had entered an Alford plea-thereby
neither "assent[ingJ" to nor "confirm[ing]" any factual basis for his plea-it was simply not possible
to "pare down" his offenses ofconviction to ones encompassed by the elements oftheir respective
aggravated felony categories. This result appears to be consistent with-and dictated by-eontroIling
Supreme Court precedent.l Thus, we will dismiss the appeal.
The appeal is dismissed.
REMOVABILITY UNDER THE INA (2nd Circ ALSOL,
http://www.bibdaily.com/pdfs/Alsol%202%2011-14-08.pdf
Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992). The BIA found that a non-citizen
convicted in Arizona of solicitation to possess narcotics was convicted of a CSO. The
individual was convicted under a statute which provided that a person is guilty of the
offense if he “ ‘commands, encourages, requests or solicits’ another person to engage in
criminal activity with the intent to promote or facilitate the commission of the crime.”
Under Arizona law solicitation is classified as a preparatory offense (inchoate crime) and
the BIA found that the crime is more closely related to attempt, conspiracy and aiding
and abetting than it is to misprision of a felony. The BIA noted that under federal law,
one who commands, encourages or requests a crime is deemed to be an accomplice and
guilty of the substantive offense. The BIA also based its decision of the similarity of the
penalties in Arizona for solicitation and for the underlying offense.
BUT CONSIDER:
147
Current BIA case law on facilitation to commit a drug offense in Arizona holds it is a violation
“relating to” a controlled substance. See Matter of Del Risco, 20 I. & N. 109, 109 (BIA 1989).
However, this opinion predates Coronado- Durazo and might be overruled if the issue
came before the BIA again. State case law defines it as an offense of its own (not a lesser
included). See State v. Harris, 134 Ariz. 287, 288, 655 P.2d 1339, 1340 (App.1982) (holding
crime of facilitation was not a lesser-included offense of burglary or theft). So, facilitation
might also be a good plea. Attempt and conspiracy to commit deportable offenses, on
the other hand, are specifically included in the immigration laws.
ARS § 13-2002 Forgery
Every subsection of this statute includes the element “intent to defraud” and is a CIMT.
Solicitation to commit forgery or possession of a forgery device, first subsection, are possible
class 6 plea deals that avoid being CIMTs. Forgery with an imposed sentence of at least
one year is also an aggravated felony. See In re Aldabesheh, 22 I.&.N. 983 (BIA 1999
IJ prejuidice/Due Process:
Zolotukhin, 417 F.3d at 1075 (“The IJ’s prejudgment of the merits of petitioner’s
case led her to deny [petitioner] a full and fair opportunity to present evidence on
his behalf, including that the IJ excluded the testimony of several key witnesses.”).
The IJ violated Hassani’s due process rights, requiring that we remand this case for
148
a new hearing—one in which Hassani would be given a “full and fair opportunity”
to present his case, Lopez-Umanzor, 405 F.3d at 1059, and to assert any other
grounds that may warrant relief from removal.
We review a district court's grant of summary judgment de novo , applying the same standard as
the district court. Shepherd v. Comptroller of Pub. Accounts , 168 F.3d 871, 873 (5th Cir. 1999).
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper when the
"pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter
of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett , 477 U.S.317, 322-23 (1986); Anderson
v. Liberty Lobby, Inc. , 477 U.S. 242,251-52 (1986).
When making its determination, the court must draw all justifiable inferences in favor of the
nonmoving party.
Anderson , 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574,
587-88 (1986); Bodenheimer v. PPG Indus. Inc. , 5 F.3d 955, 956 (5th Cir. 1993).
To defeat a properly supported motion for summary judgment, the non-movant must present
more than a mere scintilla of evidence. Anderson , 477 U.S. at 251. Rather, a factual dispute
precludes a grant of summary judgment if the evidence would permit a reasonable jury to return
a verdict for the nonmoving party. See Merritt- Campbell, Inc. v. RxP Prods., Inc. , 164 F.3d
957, 961 (5th Cir. 1999). http://altlaw.org/v1/cases/104968
149
150
151
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Chapter 10
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§ 10.1 I. Introduction
Other
First Circuit
Third Circuit
Other
First Circuit
Ninth Circuit
Tenth Circuit
U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (requiring "clear,
unequivocal, and convincing evidence that the facts alleged as grounds for
deportation are true"); Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th
Cir. 1985); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (reversing
deportation order where smuggling "for gain" had not been established by
Woodby v. INS, 385 U.S. 276 (1966) standard). In Cruz-Garza v. Ashcroft,
396 F.3d 1125 (10th Cir. Feb. 2, 2005)(Utah conviction of attempted theft
by deception, a third-degree felony, with a suspended sentence and a term
of probation, was not sufficiently proved to establish a ground of
deportation, because the record of post-conviction proceedings did not
establish with sufficient clarity and certainty that the conviction was still in
existence), the Tenth Circuit applied the rule of Woodby v. INS, 385 U.S.
276 (1966) to the question whether a conviction had been eliminated, by
post-conviction relief, so it no longer triggered a ground of deportation.
The court held that the government must establish by clear and convincing
evidence that the conviction was still in existence for immigration purposes
before a valid removal order could be premised on it. The INS had to
prove by "clear and convincing evidence" that petitioner was subject to
removal, i.e., that his conviction fell within the aggravated-felony ground of
deportation and thus supported removal under 8 U.S.C. § 1227(a)(2)(A)(iii).
8 U.S.C. § 1229a(c)(3)(A); see Evangelista v. Ashcroft, 359 F.3d 145, 149-50
(2d Cir. 2004); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.
2003).
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)
156
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
Pickering v. Gonzales, - 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter
of Pickering, 23 I. & N. Dec. 621 (BIA 2003) ("the motive of the Petitioner in
seeking to have his conviction quashed is of limited relevance to our
inquiry. See Sandoval v. INS, 240 F.3d 577, 583 (7th Cir.2001). Such motive
is relevant only to the extent that the Canadian court relied upon it in
quashing the conviction.").
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
168
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
U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v.
Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951);
National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64
L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09
and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a
new law incorporating sections of a prior law, Congress normally can be
presumed to have had knowledge of the interpretation given to the
incorporated law, at least insofar as it affects the new statute.” Lorillard v.
Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978).
"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
Saleh v. Gonzales, ___ F.3d ___, 2007 WL 2033497 (2d Cir. July 17, 2007)
("the BIA has reasonably concluded that an alien remains convicted of a
removable offense for federal immigration purposes when a state vacates
the predicate a conviction pursuant to a rehabilitative statute."), citing
Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006), vacating Matter of
Pickering, 23 I. & N. Dec. 621 (BIA 2003); Alim v. Gonzales, 446 F.3d 1239,
1249-50 (11th Cir.2006); Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir.
2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza
v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Resendiz-Alcaraz v.
Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS,
261 F.3d 771, 774 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299, 305
(1st Cir. 2000), and following Sanusi v. Gonzales, 474 F.3d 341, 342-43 (6th
Cir. 2007) (“We deny the petitions for review on the ground that the state
court's vacation of Sanusi's conviction was ineffective for immigration
purposes because it was done solely for the purpose of ameliorating the
immigration consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432
(6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005).
Third Circuit
Fourth Circuit
Fifth Circuit
http://caselaw.lp.findlaw.com/data2/circs/5th/0341492p.pdf
Seventh Circuit
Ninth Circuit
Tenth Circuit
BIA
States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham,
315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272,
1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2
(3d Cir. 1993).
Other
complicated and not their function; courts will likely be happy to leave it to
criminal defense counsel. If the court wants to police defense counsel's
performance of their duty to do this, in order to avoid future IAC claims,
the court's question should be limited to whether counsel has investigated
the actual immigration consequences of the plea and informed the client of
them (without specifying what they are) and leaving it at that. As far as the
court's advisal goes, the current version is the best the court can
realistically do: to tell the defendant, "If you are not a U.S. citizen, this plea
might cause your (a) deportation, (b) exclusion, or (c) denial of
naturalization or other immigration benefits."
Second Circuit
pro tunc relief should be available were the noncitizen has demonstrated
that s/he was erroneously denied the opportunity to apply the relief due to
an error on the part of the agency, and that, but for nunc pro tunc relief,
the denial of relief would be irremediable. The court stated that the
noncitizen, outside an illegal reentry context, did not need to show that a
denial of the relief would result in a denial of due process. 3. What error
may nunc pro tunc relief be used to correct: Despite arguments that the
doctrine of nunc pro tunc may only be used to correct inadvertent errors,
and not to remedy a defect in a judgment order, the court held that in the
immigration context nunc pro tunc relief was available to correct such
defects in the immigration context. Edwards v. INS, 393 F.3d, at 309 n. 12.
Ninth Circuit
Eleventh Circuit
Other
Ninth Circuit
BIA
§ 10.20 8. Bibliography
§ 10.21 D. Pardon
Other
Rahman, 16 I. & N. Dec. 579 (BIA 1978), regarding President Ford's pardon
of Vietnam era draft dodgers, particularly regarding LPRs who returned on
or before June 1, 1978.
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
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
2003) ("Under 8 C.F.R. § 1003.4, any voluntary departure from the United
States following entry of an order of deportation will be deemed to
withdraw a pending appeal and to render the order of deportation final.").
Thanks to Rachel E. Rosenbloom; Beth Werlin.
294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or
entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea
coupled with a sentence constitutes a conviction under the INA, and noting that “Congress focused the
sanction of removal on a criminal conviction as opposed to an admission of guilt”); Mugalli v. Ashcroft,
258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a
Certificate of Relief is still a conviction under the INA because the defendant “entered a plea of guilty,
and the court entered a formal judgment of guilt”).
from the day the notice of appeal is filed unless the BIA grants a discretionary stay extending the period.
71 Fed. Reg. 57873 (Oct. 2, 2006).
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
information on his income tax returns for two years, by underreporting, was not a person of good moral
character). Note: The Board has found that failure to file tax returns is not necessarily a bar to good
moral character, citing Matter of T, 1 I&N Dec. 158 (BIA 1941), Matter of Carbajal, Int. Dec. 2765 (Comm.
1978). Thanks to Susan Compernolle
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
200
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).
F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court declined to resolve the related question whether
due process requires this same result before the BIA enters a final order of removal on the basis of
administratively noticed facts. We now address this question and hold that it does.")
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
203
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
204
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
205
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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Other
Other
Second Circuit
Ninth Circuit
Ninth Circuit
§ 5.17 2. Grounds
Ninth Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
dismissed where defendant's removal from the United States mooted his
appeal).
Second Circuit
Ninth Circuit
Sixth Circuit
Ninth Circuit
Ninth Circuit
http://caselaw.lp.findlaw.com/data2/circs/9th/0530401p.pdf
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
Other
Ninth Circuit
BIA
Second Circuit
Ninth Circuit
Second Circuit
Ninth Circuit
mistake about it, the tape is powerful evidence; so potent that all the
curative instructions in the world could not erase its impact. I would,
therefore, reach the merits and grant the petition." I fear that this is yet
another example of the Ninth Circuit avoiding relief to deserving
defendants based on hyper-technical legal reasoning. I hope this is not a
sign of things to come. Use Note: the majority’s action in ducking the issue
does not excuse state trial counsel’s failure to properly brief it. It’s not that
hard to throw in some federal constitutional cases, folks!
court stated that the concluding sentence that stated petitioner's rights
under the Fifth, Sixth and Fourteenth Amendments were violated was a
"conclusory, scattershot citation of federal constitutional provisions,
divorced from any articulated federal legal theory, was the first time
Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note
thoughtful and powerful dissent by Judge Hawkins, pointing out that
petitioner did cite federal cases in his argument.
Second Circuit
habeas corpus where the petitioner failed properly to raise the claim on
direct review. Id. If the claim has not been presented on direct review, the
procedural bar may be waived only if the petitioner establishes (1) "cause"
for the waiver and shows "actual prejudice" from the alleged violations or
(2) "actual innocence." Bousley v. United States, 523 U.S. 614, 622, 118 S.
Ct. 1604, 1611 (1998); Rosario v. United States, 164 F.3d 729, 732 (2d Cir.
1998); see also Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 2667-
68, 91 L. Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct.
2639, 2643-44, 91 L. Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72,
87, 97 S. Ct. 2497, 2506-07, 53 L. Ed.2d 594 (1977); Douglas v. United
States, 13 F.3d 43, 46 (2d Cir. 1993). Further, the traditional procedural
default rule generally does not apply to ineffective assistance of counsel
claims. Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690; 155 L. Ed.
2d 714 (2003). In Massaro, the Supreme Court held that ineffective
assistance claims are appropriately litigated in the context of a collateral
challenge in the district court and not on direct appeal. Id. at 504-05;
accord United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9, 124 S.Ct.
2333, 159 L. Ed. 2d 157 (2004). This is so because the trial record is not
developed precisely for the object of litigating the ineffective assistance
claim, but instead is devoted to issues of guilt or lack of guilt. Massaro, 538
U.S. at 504-05, 123 S. Ct. 1690; 155 L. Ed. 2d 714.").
Ninth Circuit
Other
Ninth Circuit
OF ORIGINAL FILING
Anthony v. Cambra, __ F.3d __ (9th Cir. Dec. 15, 2000) (district court
accepted resubmitted habeas petition containing only exhausted claims
nunc pro tunc to date of original petition; court had improperly denied
initial petition containing both exhausted and inexhausted claims).
Ninth Circuit
Ninth Circuit
First Circuit
Ninth Circuit
First Circuit
Third 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
239
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
240
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
241
Ninth Circuit
Ninth Circuit
Other
§ 5.50 a. Procedure
§ 5.51 b. Grounds
Second Circuit
§ 5.54 a. Procedure
§ 5.55 b. Grounds
Other
§ 5.58 1. Procedure
246
§ 5.59 2. Grounds
§ 5.63 2. Procedure
Sixth Circuit
United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004)
(request to begin belated appeal does not affect finality of a conviction).
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
(County Circuit Ct. Aug. 18, 2006) (Virginia coram vobis relief granted on
claim of ineffective assistance of counsel since both defendant and court
were unaware of immigration consequences at the time of plea, so
sentence amended from two years to 360 days).
http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf
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);
251
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
252
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
253
§ 5.79 1. Procedure
Other
§ 5.80 2. Grounds
Sixth Circuit
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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Chapter 6: Grounds for Vacating the Conviction
DC Circuit
Fifth Circuit
Ninth Circuit
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).
at that time).
Ninth Circuit
Ninth Circuit
reversed on grounds that waiver of right to counsel was not knowing and intelligent,
and that the Sixth Amendment was violated, when he was allowed to proceed pro se
after district court failed accurately to "describe the “possible penalties” faced by
Forrester. Id. The court told him that he faced 10 years to life in prison, whereas he
actually faced the materially different sentence range of zero to 20 years in prison.";
even though court erroneously overstated defendant's exposure, automatic reversal
was required because court cannot engage in harmless error analysis for this type of
error), following United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) (“[T]he
failure to meet the requirements for a valid Faretta waiver constitutes per se
prejudicial error, and the harmless error standard is inapplicable.”); United States v.
Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994) (invalid Faretta waiver “requires
automatic reversal of a defendant's conviction”); United States v. Balough, 820 F.2d
1485, 1490 (9th Cir. 1987) ; cf. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)
(“Since the right of self-representation is a right that when exercised usually increases
the likelihood of a trial outcome unfavorable to the defendant, its denial is not
amenable to ‘harmless error’ analysis.”); cf. United States v. Keen, 96 F.3d 425, 429-30
(9th Cir.1996) (“Regrettably, given the overwhelming evidence of Keen's guilt and the
inconvenience a retrial would impose ... this discussion appears insufficient.... [He] is
entitled to a reversal and an opportunity to make an informed and knowing choice.”).
Ninth Circuit
http://caselaw.lp.findlaw.com/data2/circs/9th/0455752p.pdf
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
http://caselaw.lp.findlaw.com/data2/circs/5th/0470043cv0p.pdf
Ninth Circuit
http://caselaw.lp.findlaw.com/data2/circs/9th/0290004p.pdf
the original hearing, the only meaningful remedy is to give the respondent a hearing
under the law that would have applied, had the BIA not delayed his appeal.
Guadalupe-Cruz, 240 F.3d at 1212.
BIA
Other
avenues leading to facts relevant to the merits of the case and the penalty in the
event of conviction. The investigation should always include efforts to secure
information in the possession of the prosecution and law enforcement authorities.
The duty to investigate exists regardless of the accused's admissions or statements to
the lawyer of facts constituting guilt or the accused's stated desire to plead guilty." 1
ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.). The Court stated: ""[W]e
long have referred [to these ABA Standards] as 'guides to determining what is
reasonable.' " Wiggins v. Smith, 539 U.S., at 524, 123 S.Ct. 2527 (quoting Strickland v.
Washington, 466 U.S., at 688, 104 S.Ct. 2052), and the Commonwealth has come up
with no reason to think the quoted standard impertinent here." (Id. at 2466)).
Third Circuit
Sixth Circuit
Ninth Circuit
hearing).
Ninth Circuit
269
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
270
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
passage in Brady suggests, and as the federal courts have consistently held over the
last three decades, this distinction between "direct" and "collateral" consequences
loses all significance when the defendant’s plea results from affirmative misadvice
about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d
55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989);
United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v.
McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987);
United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v.
United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61,
64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975);
United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v.
Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46
F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208,
1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich
1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d
1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of
misinformation regarding the "collateral consequence" of parole eligibility on the
voluntariness of a plea]. As those and other cases demonstrate, a plea that results
from actual misinformation provided to the defendant about its effects is not knowing
and voluntary, and cannot be given force. Applying these principles, the federal
courts have consistently voided guilty pleas entered – as this one was – on the basis of
affirmative misadvice regarding considerations of consequence to the defendant. For
example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth
Circuit held that a plea induced by material misinformation from the prosecution,
court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman
was advised by his counsel that the sentencing guidelines would fix his sentence at
somewhere between 10 to 16 months, and both the government’s attorney and the
district judge confirmed that defendant’s understanding. Id. at 1395-97. The
subsequent pre-sentence report, however, recommended 199 months. Id. at 1397.
After the receipt of the pre-sentence report, the defendant moved to withdraw his
guilty plea; however, the district court denied his motion and sentenced him to 109
months. Id. at 1397-98. The Ninth Circuit determined that the defendant had been
misinformed by the court, government counsel and his own counsel, and held that
"[b]ecause of this misinformation, we do not believe Toothman was ‘equipped
intelligently to accept the plea offer made to him.’" Id. at 1400; quoting, United States
v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found
that the plea was involuntary. Id. at 1401. Thanks to Don Chairez for the suggestion
for this argument.
on appeal after remand, 86 Wn. App. 1100 (1997), review denied, 133 Wn. 2d 1032,
950 P.2d 476 (1998); State v. Santos, 136 Wis. 2d 528, 532, 401 N.W.2d 856 (Wis. App.
1987).").
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
sentencing, the judge decided to reduce the sentence by one day, which prevented
the defendant's federal deportation, because defense counsel failed at the time of the
original sentencing to inform the judge that the defendant was subject to deportation.
The question presented is whether the judge had discretionary authority to set aside
the judgment on the ground of neglect or carelessness of defense counsel. We
conclude that he did and we affirm that exercise of discretion.").
Other
Rob A. Justman, The Effects Of AEDPA And IIRIRA On Ineffective Assistance Of Counsel
Claims For Failure To Advise Alien Defendants Of Deportation Consequences Of
Pleading Guilty To An "Aggravated Felony," 2004 Utah Law Review 701 (2004).
§ 6.19 3. Prejudice
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282 (1993).
Sixth Circuit
Other
his conviction that is separate and distinct from the court-martial process.”).
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Fifth Circuit
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which courts are capable [*13] in canvassing the matter with the accused to make
sure he has a full understanding of what the plea connotes and its consequences. . . .
We therefore require the record affirmatively to disclose that the defendant's choice
was made intelligently and voluntarily." (Citations omitted; internal quotation marks
omitted.))
Ninth Circuit
Jury Trial
Ninth Circuit
admission of copies of a hotel receipt bearing the defendant's name and a car rental
invoice bearing his signature at a revocation hearing to establish that he had traveled
out of state. Documents such as these, which are not made in anticipation of being
used in court, are not testimonial. But it’s less common for the hearing to rest entirely
on such documents.
This may also mean immigration courts must receive live testimony, and cannot
rely on "testimonial" hearsay such as police reports or reports of immigration officers’
observations to sustain conduct-based grounds of deportation or inadmissibility.
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
United States v. Villarreal-Tamayo, ___ F.3d ___, 2006 WL 3055948 (7th Cir. Oct. 30,
2006 ) (court's failure to inform illegal reentry defendant of significance of aggravated
felony does not justify withdrawal of the plea, because (1) it is not an element of
illegal reentry after deportation offense; (2) it does not define a separate crime, but
rather is a penalty provision authorizing an enhanced penalty for violations of 8 U.S.C.
§ 1326(a)); and (3) the Constitution does not require an enhancement based on
recidivism to be treated as an element of the underlying offense), following
Almendarez-Torres, 523 U.S. at 244-47; see also United States v. Stevens, 453 F.3d
963, 967 (7th Cir.2006) (“ ‘[T]he district court does not violate a defendant's Sixth
Amendment right to a jury trial by making findings as to his criminal record that
expose him to greater criminal penalties.’”); United States v. Williams, 410 F.3d 397,
401-02 (7th Cir.2005); United States v. Lechuga-Ponce, 407 F.3d 895, 896-97 (7th
Cir.2005) (relying on Almendarez-Torres to state “the fact of a prior conviction need
not be proven beyond a reasonable doubt”).
Ninth Circuit
loses all significance when the defendant’s plea results from affirmative misadvice
about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d
55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989);
United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v.
McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987);
United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v.
United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61,
64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975);
United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v.
Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46
F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208,
1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich
1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d
1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of
misinformation regarding the "collateral consequence" of parole eligibility on the
voluntariness of a plea]. As those and other cases demonstrate, a plea that results
from actual misinformation provided to the defendant about its effects is not knowing
and voluntary, and cannot be given force. Applying these principles, the federal
courts have consistently voided guilty pleas entered – as this one was – on the basis of
affirmative misadvice regarding considerations of consequence to the defendant. For
example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth
Circuit held that a plea induced by material misinformation from the prosecution,
court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman
was advised by his counsel that the sentencing guidelines would fix his sentence at
somewhere between 10 to 16 months, and both the government’s attorney and the
district judge confirmed that defendant’s understanding. Id. at 1395-97. The
subsequent pre-sentence report, however, recommended 199 months. Id. at 1397.
After the receipt of the pre-sentence report, the defendant moved to withdraw his
guilty plea; however, the district court denied his motion and sentenced him to 109
months. Id. at 1397-98. The Ninth Circuit determined that the defendant had been
misinformed by the court, government counsel and his own counsel, and held that
"[b]ecause of this misinformation, we do not believe Toothman was ‘equipped
intelligently to accept the plea offer made to him.’" Id. at 1400; quoting, United States
v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found
that the plea was involuntary. Id. at 1401. Thanks to Don Chairez for the suggestion
for this argument.
Seventh Circuit
VACATE CONVICTION
The Seventh Circuit has held that misinformation by the sentencing court regarding
the mandatory parole provision in the plea bargain violated due process. See Ferris v.
Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding defendant’s due process rights were
violated when in the course of making a plea agreement the court misinformed him
that he would not have to serve mandatory five-year parole term).
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Other
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297
Other
http://laws.findlaw.com/us/000/04-5928.html
correctly informed the defendant of the specific dangers of self representation, but
failed to correctly inform the defendant of the maximum penalty he would face if
convicted. The court therefore found that his sixth amendment right to counsel had
been violated for failure of the court to ensure that the defendant understood the
possible penalties. United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998).
Defendant was an INS agent who solicited sexual favors from eight women in
exchange for assistance with their immigration documents. Appellant was initially
indicted on 11 counts including felony sexual abuse, felony deprivation of rights under
color of law and bribery. Appellant agreed to plead guilty in exchange for the
government’s filing of a superceding 8-count information. The superceding
information changed count one from a felony to a misdemeanor and deleted all
references to sexual acts and bodily injuries. The remaining seven counts charged the
seeking of sexual favors by a public official. During the plea hearing appellant was
advised by his counsel that the sentencing guidelines would fix his sentence at
somewhere between 10 to 16 months. The discussion that took place during the plea
hearing shows that both the government’s attorney and the district judge confirmed
appellant’s understanding. The subsequent pre-sentence report recommended 199
months. After the receipt of the pre-sentence report, appellant moved to withdraw
his guilty plea to count one in order to eliminate criminal sexual abuse as the
underlying offense. The court denied his motion following a hearing and sentenced
him to 109 months. The court of appeal determined that appellant had been
misinformed by the court, government counsel and his own counsel that the basic
guideline range for all counts would be 10 to 16 months. Because of the
misinformation, the appeals court determined that appellant was not " ‘equipped
intelligently to accept the plea offer made to him,’ " and found that the plea was
involuntary. Mistaken belief that an appeal issue was preserved: United States v.
Pierre, 120 F.3d 1153 (11th Cir. 1997). Appellant pled guilty to three immigration
offenses (not specified). He filed a motion to dismiss, alleging violations of the Speedy
Trial Act. The motion was denied, he entered a guilty plea and was sentenced. During
the plea hearing, the record unequivocally indicated that appellant intended to plead
guilty on the condition that – and only after having been assured by the court that –
he had preserved the speedy trial issues for appeal. He appealed the denial of the
speedy trial issues and the government countered by arguing that the guilty plea
waived appellant’s right to raise the speedy trial issues on appeal. These facts raise
two related issues:
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
301
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
302
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
303
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
Tenth Circuit
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting argument that
the INS's failure to apprise him that he was entitled to communicate with Mexican
consular or diplomatic officers under the Vienna Convention and immigration
regulations violates Article 36(1)(b) of the Vienna Convention on Consular Relations
and 8 C.F.R. § 236.1(e), on grounds the argument was waived because he failed to
assert the issue before the IJ, and, in any event, Torres could not show that the
violation resulted in any prejudice).
Other
Seventh Circuit
Other
BIBLIOGRAPHY
L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE (2d ed. 2007).
Sixth Circuit
Kim, 803 F. Supp. 352 (D. Haw. 1992) (written Miranda warning showing defendant
had circled a number of words he did not understand deemed insufficient given
defendants limited understanding of English). People v. Mejia-Mendoza, 965 P.2d 777,
778-781 (Colo.1998) (Miranda warning given through interpreter insufficient where
interpreter mistranslated warning, did not ask noncitizen if meaning was clear, and
reported to police that defendant had waived rights when defendant had not actually
done so). People v. Jiminez, 863 P.2d 981 (Colo. 1993) (Miranda waiver invalid where
English and Spanish understanding where very limited, and native language did not
have a word for legal "right"). State v. Jenkins, 81 S.W.3d 252 (Tenn. Crim. App. 2002)
(Miranda warning founds in absence of proof that translation of warning was
accurate). State v. Ramirez, 732 N.E.2d 1065 (Ohio Ct. App. 1999) (Spanish translation
of Miranda warning was confusing and incomplete). People v. Diaz, 140 Cal.App.3d
813, 820 (Cal. Ct. App.1983) (if native language lacks single word to describes a
Miranda right, officer must explain the right until sure the defendant fully
understands). State v. Turkenich, 529 N.Y.S.2d 385, 137 A.D.2d 363 (1988)
(interrogation of Russian defendant in hospital found coercive when "accentuated by
the defendant’s recent immigration to the United States from a country with a vastly
different political structure and by his inability to speak or understand the language of
his inquisitor."). United States v. Castorena-Jaime, 285 F.3d 916 (10th Cir. 2002)
(suggesting police should not use co-defendants to translate Miranda warnings).
Ninth Circuit
Second Circuit
Eighth Circuit
Ninth Circuit
counsel himself is acting in complete accordance with professional standards. ") State
v. Rios, 539 P.2d 900 (Ariz. 1975) ("For defense counsel to cross-examine witnesses,
listen attentively to testimony and objections of the prosecuting attorney and hear
rulings and remarks of the presiding judge and simultaneously render an accurate and
complete translation to his three clients, is an impossible task. The effectiveness of
defense counsel under those circumstances is obviously greatly impaired to the
serious detriment of his clients’ defense.") People v. Chavez, 124 Cal.App.3d 215 (Cal.
Ct. App. 1981) (overruled on other grounds) ("right to an interpreter is effectively
denied when a defense attorney must discharge the function, and…the right to
counsel may be significantly impaired when he does."). United States v. Martinez, 616
F.2d 185, 188 (5th Cir. 1980) ("Where the court was careful to make clear the
defendant had a right to an interpreter, but was assured by defendant’s retained
bilingual counsel that he could translate for the defendant and no objection was
made, there was no abuse of discretion in failing to supply a court-appointed
interpreter.") People v. Wing Choi Lo, 570 N.Y.S.2d 776 (N.Y. Crim. Term. 1991) ("since
the interpreter was a police officer who was clearly an agent of the interrogator and
not someone selected by the defendant to speak on his behalf, the interpreter’s
statements cannot be attributed to the defendant.")
(granting motion to withdraw guilty plea where Rule 11 violation occurred because
defendant was prevented, through cultural mores, from interrupting his attorney
during the guilty plea phase, and defendant did not understand the nature of the
charges against him, or the immigration consequences thereof, until he was later able
to read a Chinese translation of the plea agreement).
Other
Ninth Circuit
http://caselaw.lp.findlaw.com/data2/circs/9th/0399005p.pdf
Ninth Circuit
wrote. "On federal habeas, Goldyn presents a simple argument: If the bank was
obligated to cover them, then she can’t have written bad checks." Kozinski ends by
saying: "We are saddened and dismayed that Goldyn spent twelve years behind bars
for conduct that is not a crime – or, at least, is not the crime with which she was
charged.")
Other
Ninth Circuit
AGREEMENT
United States v. Patterson, ___ F.3d ___ (9th Cir. Aug. 20, 2004) (failure to specify
amount of marijuana in defendant's plea agreement does not invalidate original plea
agreement where drug quantity is not an essential element of the offense).
http://caselaw.lp.findlaw.com/data2/circs/9th/0030306p.pdf
that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats"
is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted];
Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d
1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct
consequences, it cannot stand if "induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business . . . . " Brady v. United States, 397 U.S.
at 755 (1969) [citation omitted]. It is established in federal law that the immigration
effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea.
United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein.
Thus defense counsel’s failure to advise the defendant that he or she will be deported
is not "ineffective assistance of counsel," and the trial court’s failure to do so does not
render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003);
United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet, as the quoted
passage in Brady suggests, and as the federal courts have consistently held over the
last three decades, this distinction between "direct" and "collateral" consequences
loses all significance when the defendant’s plea results from affirmative misadvice
about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d
55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989);
United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v.
McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987);
United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v.
United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61,
64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975);
United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v.
Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46
F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208,
1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich
1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d
1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of
misinformation regarding the "collateral consequence" of parole eligibility on the
voluntariness of a plea]. As those and other cases demonstrate, a plea that results
from actual misinformation provided to the defendant about its effects is not knowing
and voluntary, and cannot be given force. Applying these principles, the federal
courts have consistently voided guilty pleas entered – as this one was – on the basis of
affirmative misadvice regarding considerations of consequence to the defendant. For
example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth
Circuit held that a plea induced by material misinformation from the prosecution,
court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman
was advised by his counsel that the sentencing guidelines would fix his sentence at
317
somewhere between 10 to 16 months, and both the government’s attorney and the
district judge confirmed that defendant’s understanding. Id. at 1395-97. The
subsequent pre-sentence report, however, recommended 199 months. Id. at 1397.
After the receipt of the pre-sentence report, the defendant moved to withdraw his
guilty plea; however, the district court denied his motion and sentenced him to 109
months. Id. at 1397-98. The Ninth Circuit determined that the defendant had been
misinformed by the court, government counsel and his own counsel, and held that
"[b]ecause of this misinformation, we do not believe Toothman was ‘equipped
intelligently to accept the plea offer made to him.’" Id. at 1400; quoting, United States
v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found
that the plea was involuntary. Id. at 1401. Thanks to Don Chairez for the suggestion
for this argument.
Fifth Circuit
Seventh Circuit
Ninth Circuit
that Ross must understand his “right to a jury trial” and “the nature of each charge”
before his guilty plea may be accepted. See Rule 11(b)(1)(C), (G). Because the
reasonable doubt standard of proof is a due process requirement that permeates all
aspects of a criminal trial, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368 (1970), we read Rule 11 as requiring an advisement of the reasonable doubt
standard of proof .FN1 Such an advisement was particularly necessary in this case
because admission to the stated drug quantity exposed Ross to a higher sentence.
United States v. Minore, 292 F.3d 1109, 1113 (9th Cir.2002) (“[B]efore accepting a
guilty plea, the district court must advise the defendant that the government would
have to prove to the jury beyond a reasonable doubt any quantity of drugs that would
expose the defendant to a higher statutory maximum sentence.”); see also 21 U.S.C. §
841(b) (prescribing different statutory maximums for violations involving various
quantities of crack)."), citing Benchbook for U.S. District Court Judges 78 (5th ed.)
(2007) (“Ask the defendant: Do you understand ... that at trial you would be presumed
to be innocent and the government would have to prove your guilt beyond a
reasonable doubt[?]”); accord, United States v. Wagner, 996 F.2d 906, 912 (7th
Cir.1993) ( “Pursuant to [Rule 11,] the court advised the defendants that ... they would
not be convicted unless proved guilty beyond a reasonable doubt.”); United States v.
Bell, 966 F.2d 914, 917 (5th Cir.1992) (“[T]he district court engaged [the defendant] in
the requisite Rule 11 colloquy, advising him of ... the right to a ... public trial by jury at
which the government would have to prove him guilty beyond a reasonable
doubt....”); United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) (“[T]he district
court followed the requirements of Rule 11 by discussing with the defendant ... the
right ... to have the government prove all the elements of the offense beyond a
reasonable doubt ....”).
that, but for the error, the defendant would not have entered the plea).
crime). http://caselaw.lp.findlaw.com/data2/circs/9th/0550000p.pdf
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
323
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).
Hispanic neighborhood). United States v. Rodriguez Cortes, 949 F.2d 532 (1st Cir.
1991) (reversible error to admit Colombian ID card into evidence to be used to make
generalizations about Colombians and drug trafficking). Guerra v. Collins, 916 F. Supp
620, 629–30 (S.D. Texas 1995) (vacating conviction based upon prosecutor’s
statement that "Mexicans only come to the United States to commit crimes and take
jobs away from US citizens"). State v. Mehralian, 301 N.W.2d 409, 418-19 (N.D. 1981)
(prejudice shown by prosecutor’s questions regarding defendant’s religion and
immigration status). People v. Maria, 194 N.E. 510, 512 (Ill. 1935) (prejudice shown by
prosecutor’s statements that defendant was noncitizen and did not pay taxes).
Other
violated).
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.
327
We agree.”
CAL POST CON – GROUNDS – STATE ADVISAL STATUTE – PREJUDICE IS SHOWN WHERE
DEFENDANT WOULD NOT HAVE ENTERED PLEA IF PROPERLY ADVISED; NOT
NECESSARY TO SHOW OUTCOME OF TRIAL WOULD HAVE BEEN DIFFERENT
People v. Castro-Vasquez (2d Dist. March 26, 2007) ___ Cal.Rptr.3d ___, 2007 WL
882132 (prejudice from failure to deliver warning required by Penal Code § 1016.5 is
shown where it was reasonably probable defendant would not have pleaded guilty if
properly advised; it was not necessary to show the outcome of the trial would have
been different), following People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183,
210. http://caselaw.lp.findlaw.com/data2/californiastatecases/b192721.pdf
Fourth Circuit
naturalization).
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
Now persons convicted of the following offenses, even if they have completed
probation in a flawless manner, will have to petition the court to exercise its
discretion in granting 1203.4 relief. Persons convicted of the following code sections
are affected by this latest statutory revision:
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
333
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
334
today.").
you, such as throwing you out of the country. I doubt that will happen, but the
possibility exists. Do you understand that?" found sufficient to fulfilled the
requirements of Florida Rule of Criminal Procedure 3.172(c)(8)).
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.
Arizona rules of criminal procedure contain a state advisal requirement that the court,
before accepting a plea of guilty or no contest, advise every defendant concerning
potential adverse immigration consequences of the plea. These rules also state the
defendant is not to be required to disclose his or her immigration status. After plea,
however, defendants are seen by a presentence report writer, who asks them their
birthplace, mother’s name and birthplace, the father’s name and birthplace. This
information is included in a presentence probation report which is presented to the
judge, and is also used as a basis for notifying ICE of the situation so an immigration
hold can be placed in an appropriate case. The defendant can decline to answer these
questions, if necessary raising a Fifth Amendment privilege against self-incrimination
objection in addition to the rule of court prohibiting the court from inquiring into the
defendant's immigration status. In addition, illegal presence in the United States is
now a statutory aggravating factor for Arizona crimes, which a judge can use to
increase sentence. To aggravate the sentence on this basis, the sentencing judge need
only find the illegal presence aggravating factor by a preponderance, not beyond
reasonable doubt. ICE will no doubt look closely at the status of a person who refused
to answer these questions. It may detain them while they look into the situation.
Thanks to Beth Houck for this analysis. Defense counsel or immigration counsel can
argue that it is unreasonable to assume undocumented status based on alienage
because a person can be in legal status as a nonimmigrant, can be a permanent
resident, can have protection under 8 U.S.C. § 1231(b)(3)(withholding) or
"withholding" or "deferral of removal" under the Convention Against Torture (See 8
CFR § 1208.18). Second, a person in status or who otherwise has the right to remain
in the United States (such as the person with "withholding" or "deferral of removal,"
or even a person granted "deferred action" by immigration authorities) might still
have a Fifth Amendment right to remain silent because of a variety of criminal
offenses in which alienage is an element. Even legal permanent residents sometimes
commit the offense of illegal entry and are subject to prosecution for it. (If a person
makes a weekend visit to Nogales, suffers a lost or stolen wallet, and has a need to get
back to work Monday in the United States, a lawful permanent resident may reenter
illegally for one's job). Alienage is also an element of illegal reentry as well as
other federal offenses. See, e.g., 8 U.S.C. § 911 (false claim to citizenship); 8 US.C.§
1282(c) (alien crewman overstay); 8 U.S.C. § 1304 (18 or over, not carrying
immigration documentation); 8 U.S.C. § 1325 (illegal entry into U.S.); 8 U.S.C. § 1326
(illegal reentry after deportation or removal). A non-citizen’s potential exposure to
criminal prosecution thus gives rise to a Fifth Amendment right against self-
incrimination. See Kastigar v. United States, 406 U.S. 441, 444 (1972); U.S. v. Alderete-
Deras, 743 F.2d 645 (9th Cir. 1984); Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir.
1984). If the person has no prior encounters with immigration officials, does not
reveal his/her birthplace, and is not in possession of foreign identification, ICE will be
unable to complete the paperwork and will not be able to do anything with the
338
person. On the other hand, if the prints match, ICE will do what it would do if the
person confessed to foreign birth. Thanks to Lynn Marcus.
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.
340
removal, could prevent you from ever being able to get legal status in the United
States, or could prevent you from becoming a United States citizen.' The court shall
also give the advisement in this section prior to any admission of facts sufficient to
warrant finding of guilt, or prior to any submission on the record. The defendant shall
not be required to disclose his or her legal status in the United States to the court."
Order Amending Rule 17.2, Rules of Criminal Procedure, Arizona Supreme Court No.
R-03-0025 (June 8, 2004).
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
342
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.
LO
G
OU
T
Post-Conviction Relief for Immigrants
- Chapter 7
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§ 7.1 I. Introduction
http://www.apltwo.ct.state.az.us/Decisions/CR20040044Opinion.pdf
Other
Third Circuit
Ninth Circuit
defendant was convicted under subsection (5), for repeat offenders, and to convict
under (5), the prosecution must prove the prior beyond a reasonable doubt).
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
suffered a “conviction” within the meaning of INA § 101(a)(48)(A)). Note: the court
here sought to establish a national standard (rather than relying on Florida state
law), and includes amounts paid in restitution as a cost equaling “punishment.”
Other
(2) Enter a waiver of credit for time previously served for the 364 days already
served; and
348
(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
of an aggravated felony within the language of 8 U.S.C. § 1326(b)(2) “is necessarily ...
a question of federal, not state, law, despite the fact that the predicate offense and
its punishment are defined by the law of the State” (internal quotation marks
omitted)).").
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
Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New
York state conviction mitigated by a Certificate of Relief is still a conviction under the
INA because the defendant “entered a plea of guilty, and the court entered a formal
judgment of guilt”).
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
353
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.
Legalization Program
Fifth Circuit
Ninth Circuit
§ 7.42 f. Naturalization
§ 7.43 g. Registry
Fifth Circuit
Eleventh Circuit
BIA
Other
which is no longer available here)). And even if it did, DHS says, modifying the
sentence for immigration purposes does not fall within the scope of any of the five
permissible grounds for modifying a sentence or vacating a conviction under the
applicable Rule 7.8(b) (1. mistakes, inadvertence, surprise, excusable neglect or
irregularity in obtaining a judgment or order; 2. newly discovered evidence which by
due diligence could not have been discovered in time to move for a new trial under
rule 7.5; 3.fraud, misrepresentation, or other misconduct of an adverse party; 4. the
judgment is void; or 5. any other reason justifying relief from the operation of the
judgment.) Their argument against the exceptions to the 1 year time limits is
bogus in light of a case that permits equitable tolling (State v. Littlefair). However,
their other argument - that such sentence modifications aren't permitted under the
grounds of 7.8(b) was recently given traction by Quintero-Morelos, __ P.2d __, 2004
Wash. App. LEXIS 2340 (Wa. Ct. App. Oct. 2004). Fortunately, this incorrectly
decided appeal was withdrawn a month later (appellate attorney failed to file a
brief) and is no longer available for citation. However, the appeal continues and the
Washington Association of Prosecuting Attorneys will certainly move again to
publish the bad decision. BOTTOM LINE: There are usually plenty of legal bases -
or at least some non-immigration-equities related basis - for modifying the sentence
(e.g. ineffective assistance of counsel to not deal with immigration issue at original
sentencing). I certainly recommend - at least for Washington state practitioners - to
be aware of the current state of flux and exercise care in getting sentence
modification orders. Ann Benson, Directing Attorney
Ninth Circuit
Ninth Circuit
Tenth Circuit
Ninth Circuit
Third Circuit
Sixth Circuit
Ninth Circuit
First Circuit
Ninth Circuit
State v. Quintero-Morelos, 133 Wn. App. 591, 2006 Wash. App. LEXIS 1301 (Jun. 22,
2006) (trial court had discretion, under CrR 7.8, to grant a motion to vacate
judgment imposing sentence of 365 days, in order to impose one of 364 days, to
avoid aggravated felony mandatory deportation, on the basis of "excusable neglect .
. . in obtaining a judgment . . . ." based on defense counsel's failure to inform the
sentencing court of defendant's noncitizen status), distinguishing State v. Cortez, 73
Wn. App. 838, 871 P.2d 660 (1994).
Other
Ninth Circuit
Ninth Circuit
its discretion in imposing condition requiring drug treatment because there was no
evidence of drug abuse; defendant had a Sixth Amendment right to be present at
sentencing, and adding conditions after the sentencing was over violated that right.
http://caselaw.lp.findlaw.com/data2/circs/9th/0530348p.pdf
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.
future, however, where additional factors have been found by the jury, or admitted
by the defendant, the record of conviction that may be examined by an Immigration
Judge in determining whether a conviction falls within a ground of removal will likely
contain additional factual information with which the legacy INS can prove its case.
Third Circuit
Ninth Circuit
reasonable doubt).
http://caselaw.lp.findlaw.com/data2/circs/9th/0310656p.pdf
Tenth Circuit
Eleventh Circuit
Other
§ 7.103 4. Allocution
Ninth Circuit
Other
being on welfare and fathering children out of wedlock. People v. Bolton, 23 Cal.3d
208, 217 (1979). The court may not threaten to have the defendants castrated.
United States v. Duhart, 496 F.2d 941 (9th Cir. 1974) (judge stated he could put
defendant in same room with husbands of sex offense victims and possibly cut
"something" out of the defendant’s body).
Ninth Circuit
Ninth Circuit
Other
Ninth Circuit
http://caselaw.lp.findlaw.com/data2/circs/9th/0330334p.pdf
Ninth Circuit
Ninth Circuit
rendering the twelve-month sentence illegal on its face, requiring remand to the BIA
to consider the issue in the first instance).
Eleventh Circuit
Ninth Circuit
§ 7.125 a. Generally
§ 7.128 5. Procedure
LO
G
OU
T
Post-Conviction Relief for
Immigrants - Chapter 8
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updated 6/12/08 by Norton Tooby
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§ 8.1 I. Introduction
First Circuit
14 (1st Cir. 2000). Persons born in Puerto Rico are United States citizens,
although there are some issues if the birth date was prior to 1941. INA § 302,
8 U.S.C. § 1402.
Ninth Circuit
Other
Second Circuit
petitioner.”) (citing Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Ali v. Ashcroft,
395 F.3d 722, 728-29 (7th Cir. 2005).
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.
Salazar-Regino v. Trominski, ___ F.3d ___ (5th Cir. June 30, 2005) (Texas
deferred adjudication following guilty plea to felony possession of marijuana
constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8
U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal
under the BIA law in place at the time the plea of guilty was entered),
following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999).
http://caselaw.lp.findlaw.com/data2/circs/5th/0341492p.pdf
Seventh Circuit
Ninth Circuit
that the defendant was actually innocent of the crime."), following Dickerson
v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845
(1983).
BIA
Other
CMT convictions when combined with a later (or earlier) second CMT.
Immigration counsel could argue that under the former statute, still
enforced, deportation cannot be based on a CMT for which a JRAD was
granted. The government can argue that the CMT for which a JRAD was
granted forms one CMT of a two-CMT deportation ground. They could
analogize to those cases that hold if a noncitizen has CMTs that trigger
deportation, and then respondent obtains a waiver of deportation for them
under former INA § 212(c) waiver, and the client suffers another CMT
conviction, the old waived CMT can be combined with the new CMT
conviction to trigger deportation for multiple CMTs. The waiver does not
eliminate the old CMT. It merely waivers deportation for that ground and that
ground only. The two-CMT deportation ground is a different ground, and
both CMT convictions continue to exist, and so can trigger deportation. The
question would be whether counsel can distinguish those 212(c) cases.
"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.
392
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
would have to have words of limitation modifying the word "offense." Any
such words would necessarily be adjectives, not indefinite articles. For
example, the government contends that the words of the statute "an
offense" excludes "two offenses." But the word "two" is an adjective which
describes or limits the word "offense." The word "one" is also an adjective,
but that word is not used in the Act to describe or limit the word "offense."
"Had Congress intended the narrow construction [urged upon it by one of the
parties] it could have expressly so provided. It did not, and it would be
improper for us to introduce an additional requirement on our own." United
States v. Hunter, 101 F3d 82, 85 (1996); Smith v. United States, 508 U.S. 223
(1993). If the court believes that the language of the Act is somehow
ambiguous, then the court can look at legislative intent of this section which
was enacted in the Drug Control Act of 1970. The House Report states:
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.]
of criminal prohibitions or the penalties they impose, that "The rule of lenity"
applies. United States v. Batchelder, 442 U.S. 114, 121 (1979); Simpson v.
United States, 435 U.S. 6, 14-15 (1978). "This policy of lenity means that the
court will not interpret a federal criminal statute so as to increase the penalty
that it places on an individual when such an interpretation can be based on
no more than a guess as to what Congress intended." (Ladner v. United
States, 358 U.S. 169, 178 (1958)). Finally, respondent’s reading of the
statute is consistent with other parts of the Federal Controlled Substances
Act. Conviction of two or more offenses for violation of the Controlled
Substances Act in the same proceeding is only a misdemeanor, provided
there were no prior convictions for any Controlled Substances violations,
rather than a felony under 21 U.S.C. § 844(a). However, conviction of a
possession offense after a prior controlled substance conviction is a felony. A
felony is defined as any offense punishable with a maximum of more than
one year in prison. (18 U.S.C. § 3159). The section denoting the punishment
for possession of a controlled substance is 21 U.S.C. § 844(a). This section
provides, in relevant part:
Tenth Circuit
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
Other
Second Circuit
Chertoff, 501 F.3d 107, 113 (2d Cir. 2007); Probert v. United States, 737
F.Supp. 1010 (E.D. Mich. 1989) (JRAD available to offender whose aggravated
felony controlled substance conviction was on appeal, since only thirty days
were allowed within which to seek a JRAD, and by not limiting JRADs only to
crimes of moral turpitude, Congress intended court to have an opportunity to
determine which aggravated felonies should be the basis for deportation).
This is because the JRAD statute stated it prevented deportability under the
statute that provided both CMTs and AFs constituted grounds of
deportability. (Former INA 237(a)(4).) United States v. Hovsepian, 359 F.3d
1144 (9th Cir. 2004) (en banc), does not hold a JRAD does not prevent
deportation on account of an AF. Hovsepian was charged with deportability
under the firearms and destructive devices grounds, not the aggravated
felony ground. The JRAD is effective to prevent deportation on the
aggravated felony ground.
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.
406
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
407
Second Circuit
Other
408
Other
BIA
Other