CRIMINAL LAW PROCEDURE, IMMIGRATION LAW

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CRIMINAL LAW  PROCEDURE, IMMIGRATION LAW Powered By Docstoc
					Web Update September 2005

<REGULAR CASE CAPSULES>

POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL
Draughon v. Dretke, __ F.3d __, 2005 WL 2404154 (5th Cir. Sep. 30, 2005)
(counsel provided ineffective assistance at both the guilt and sentencing phases of
trial).
http://caselaw.lp.findlaw.com/data2/circs/5th/0470043cv0p.pdf
PCN 6.8

RELIEF – ADJUSTMENT OF STATUS
Bona v. Gonzalez, __ F.3d __, 2005 WL 2401874 (9th Cir. Sep. 30, 2005) (DHS
regulation precluding ―arriving aliens‖ from seeking adjustment of status in
removal proceedings in ultra vires to the INA).
http://caselaw.lp.findlaw.com/data2/circs/9th/0371596p.pdf
CD 6.79; CMT 3.2; AF 2.2

DERIVATIVE CITIZENSHIP
Jordon v. U.S. Atty. Gen., __ F.3d __, 2005 WL 2334686 (3d Cir. Sep. 26, 2005)
(to obtain derivative citizenship upon the naturalization of single parent having
legal custody over child born outside the United States, the parent having legal
custody must be naturalized after a legal separation from child‘s other parent).
CD 6.84; CMT 3.11; AF 2.11

AGGRAVATED FELONY – FRAUD – EMBEZZLEMENT – GOVERNMENT
AS VICTIM
Balogun v. U.S. Attorney Gen., 2005 WL 2333840 (11th Cir. Sep. 26, 2005)
(Alabama conviction for embezzlement of moneys belonging to the United States
is an aggravated felony fraud offense under INA § 101(a)(43)(M)(i); the United
States may be considered the ‗victim‘ for purposes of INA § 101(a)(43)(M)(i)).
http://caselaw.lp.findlaw.com/data2/circs/11th/0412507p.pdf
AF 5.31; CD 6.55; SH 7.80; C&C

RELIEF – ADJUSTMENT OF STATUS
Jiang v. Gonzales, __ F.3d __, 2005 WL 2319668 (9th Cir. Sep. 23, 2005)
(noncitizen ineligible for adjustment of status as ―arriving alien‖).

Note: This case may be in conflict with Bona v. Gonzalez, __ F.3d __, 2005 WL
2401874 (9th Cir. Sep. 30, 2005) (DHS regulation precluding ―arriving aliens‖
from seeking adjustment of status in removal proceedings in ultra vires to the
INA), or may be distinguishable on the basis that Jiang had previously applied for
adjustment of status to the district director and was denied, where Bona had not
previously made an application.
CD 6.79; CMT 3.2; AF 2.2

ILLEGAL RE-ENTRY – ELEMENTS – DEPORTATION – COLLATERAL
ATTACK – DUE PROCESS – IMPARTIAL IMMIGRATION JUDGE
Wang v. U.S. Attorney Gen., __ F.3d __, 2005 WL 2291912 (3d Cir. Sep. 21,
2005) ("[a]s judicial officers, [immigration judges] have a responsibility to
function as neutral and impartial arbiters and must assiduously refrain from
becoming advocates for either party." Abdulrahman v. Ashcroft, 330 F.3d 587, 596
(3d Cir.2003); immigration judge found not impartial where determination of
credibility was not based upon evidence, but upon conjecture, speculation, and
personal opinion).

JUDICIAL REVIEW – HABEAS – CUSTODY REQUIREMENT – FEDERAL
Rosales v. BICE, __ F.3d __, 2005 WL 2292526 (5th Cir. Sep. 21, 2005) (joining
Second, Sixth, Ninth, and Tenth Circuits to hold that noncitizen subject to final
order of deportation is "in custody" for purposes of habeas corpus under § 2241‖).
CMT 3.18; AF 2.17

RELIEF - NATURALIZATION
Jamieson v. Gonzales, __ F.3d __, 2005 WL 2218045 (8th Cir. Sep. 14, 2005)
(immigration judge's findings regarding plaintiff's misrepresentation of his
citizenship supported by substantial evidence)
http://caselaw.lp.findlaw.com/data2/circs/8th/042280p.pdf
CD 9.12; CMT 3.23; AF 2.22

RELIEF – CANCELLATION – PHYSICAL PRESENCE
Valdivia v. Gonzales, __ F.3d __, 2005 WL 2212319 (10th Cir. Sep. 13, 2005)
(determination whether noncitizen is barred from cancellation of removal because
of lack of physical presence is a non-discretionary issue, and therefore subject to
judicial review; immigration judge properly denied cancellation due to lack of
physical presence in the United States within 90 days of application for relief,
under INA § 240A(d)(2)).
http://laws..lp.findlaw.com/10th/049525.html
CD 6.81; CMT 3.3; AF 2.4

AGGRAVATED FELONY - RETROACTIVITY
Guaylupo-Moya v. Gonzalez, 423 F.3d 121 (2d Cir. Sep. 12, 2005) (aggravated
felony definition retroactive; ex post facto clause does not apply to civil
deportation proceedings).
AF 4.18; CD 6.13
RELIEF – CANCELLATION OF REMOVAL
JUDICIAL REVIEW – REAL ID ACT
Martinez-Rosas v. Gonzales, __ F.3d __, 2005 WL 2174477 (9th Cir. Sep. 9, 2005)
(following REAL ID Act, appellate courts continue to lack jurisdiction to review
the subjective, discretionary determination that noncitizen failed to satisfy the
exceptional and extremely unusual hardship requirement for cancellation of
removal).
http://caselaw.lp.findlaw.com/data2/circs/9th/0436150p.pdf
CD 6.81; CMT 3.3; AF 2.4; CMT 3.18; AF 2.17

ILLEGAL RE-ENTRY - NO COLLATERAL ESTOPPEL
United States v. Smith-Baltiher, 2005 WL 2174475 (9th Cir. Sep. 9, 2005)
(defendant is not collaterally estopped from challenging alienage).
AF 6.4

SENTENCING - FEDERAL - PREDICATE OFFENSE
United States v. Murillo, 422 F.3d 1152 (9th Cir. Sep. 9, 2005) (―in determining
whether Washington state criminal conviction is of a crime punishable by a term
exceeding one year for purposes of prosecution under 18 U.S.C. § 922(g)(1) (felon
in possession of a firearm), maximum sentence for the prior conviction is defined
by state criminal statute, not the maximum sentence in the particular case set by
Washington's sentencing guidelines.‖).
CD 1.56; AF 6.3

POST-CON NATIONAL - HABEAS CORPUS - FEDERAL - SHOWING
REQUIRED FOR HEARING
Earp v. Stokes, 423 F.3d 1024 (9th Cir. Sep. 8, 2005) (Petitioner alleged facts
warranting evidentiary hearing on claim that prosecutor committed prejudicial
misconduct by dissuading a witness from testifying, and on claim that defense
counsel was ineffective in failing to sufficiently investigate mitigation evidence.
Petitioner presented colorable claims and had never received evidentiary hearing
on them in state court.)
PCN 5.28

RELIEF – ADJUSTMENT OF STATUS
Zheng v. Gonzalez, 422 F.3d 98 (3d Cir. Sep 8, 2005) (regulation at 8 C.F.R. §
1245.1(c)(8), barring adjustment of status for ―arriving aliens‖ is ultra vires to the
INA).
CD 6.79; CMT 3.2; AF 2.2

RELIEF – CANCELLATION OF REMOVAL
Cabrera-Alvarez v. Gonzales, 423 F.3d 1006 (9th Cir. Sep. 8, 2005) (immigration
judge did not err by declining to interpret INA § 240A(b)(1)(D) in a manner
consistent with international law).
http://caselaw.lp.findlaw.com/data2/circs/9th/0472487p.pdf
CD 6.81; CMT 3.6; AF 2.4

JUDICIAL REVIEW – REAL ID ACT
Practice Advisory: Federal Court Jurisdiction Over Discretionary Decisions After
REAL ID: Mandamus, Other Affirmative Suits and Petitions for Review
(September 7, 2005).
http://www.ailf.org/lac/lac_pa_090705.pdf
CMT 3.18; AF 2.17

RELIEF – VOLUNTARY DEPARTURE
Kanivets v. Gonzales, __ F.3d __, 2005 WL 2140048 (3d Cir. Sep. 7, 2005) (time
allotted for voluntary departure is tolled pending ruling on motion for rehearing
before the BIA).
http://caselaw.lp.findlaw.com/data2/circs/3rd/033569p.pdf
CMT 3.38; AF 2.38

RELIEF – NATURALIZATION
United States v. Hovsepian, 422 F.3d 883 (9th Cir. Sep. 6, 2005) (district court's
decision to administer oath of citizenship affirmed where district court‘s finding
that they were persons of good moral character was not clearly erroneous).
http://caselaw.lp.findlaw.com/data2/circs/9th/9950041p.pdf
CMT 3.23; AF 2.22; SH 4.5; CD 8.12

AGGRAVATED FELONY – CRIME OF VIOLENCE – AGGRAVATED
BATTERY
United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. Sep. 7, 2005) (Kansas
for aggravated battery against a law enforcement officer, in violation of K.S.A. 21-
3414(a)(1)(C), is a crime of violence for sentencing purposes; ―[a]lthough not all
physical contact performed in a rude, insulting or angry manner would rise to the
level of physical force, we conclude that all intentional physical contact with a
deadly weapon done in a rude, insulting or angry manner does constitute physical
force under § 2L1.2(b)(1)(A)‖).
CD 6.39; AF 5.15; C&C

AGGRAVATED FELONY – DRUG TRAFFICKING – SIMPLE POSSESSION
SENTENCE – MISDEMEANOR LABEL OVERCOMES MAXIMUM
POSSIBLE SENTENCE
United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sep. 6, 2005) (Maryland
conviction of misdemeanor simple possession of cocaine, in violation of
Md.Code, Art. 27, 287(e), was not an aggravated felony for sentencing purposes,
as the state offense is not a felony, even though the offense was punishable by up
to four years imprisonment).
C&C; CD 6.44; AF 5.20; SH 7.69, 7.22

POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO
ADVISE – WAIVERS OF POST-CONVICTION RELIEF
Washington v. Lampert, 422 F.3d 864 (9th Cir. Sep. 6, 2005) (ineffective
assistance where trial counsel failed to explain consequences of the stipulated
sentencing agreement, and the effect of waivers of post-conviction relief)
http://caselaw.lp.findlaw.com/data2/circs/9th/0435381p.pdf
PCN 6.41, 5.22

AGGRAVATED FELONY – CRIME OF VIOLENCE – ATTEMPTING TO
ELUDE POLICE VEHICLE
United States v. Kelly, 422 F.3d 889 (9th Cir. Sep. 6, 2005) (Washington State
conviction for attempting to elude a police vehicle, in violation of RCW
46.61.024, is not a "crime of violence" for sentencing purposes)
http://caselaw.lp.findlaw.com/data2/circs/9th/0430074p.pdf
C&C; CD 6.39; AF 5.15; SH 7.54, 8.62

FIREARMS OFFENSE
RECORD OF CONVICTION
United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. Sep. 2, 2005)
(California conviction for possession of a weapon, in violation of Penal Code §
12020(a)(1) cannot be considered a ―firearms offense‖ where the record of
conviction did not specify the weapon, even though the police report indicated that
the weapon involved was a sawed-off shotgun).
SH 7.172, 4.47
CD 4.55; CMT 7.12; AF 4.15; SH 6.23

ILLEGAL REENTRY – REINSTATEMENT – RETROACTIVITY
Dinnall v. Gonzales, 421 F.3d 247 (3d Cir. Sep. 1, 2005) (reinstatement of prior
order of deportation under INA § 241(a)(5) had an impermissibly retroactive
effect to noncitizen who re-entered the United States prior to passage of
IIRAIRA).
http://caselaw.lp.findlaw.com/data2/circs/3rd/042415p.pdf
CD 6.95; CMT 3.34; AF 2.32

POST CON – HABEAS – PROCEDURE – CONFRONTATION
CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
Fowler v. Sacramento County, 421 F.3d 1027 (9th Cir. Aug. 31, 2005) (defendant
was improperly precluded from cross-examining accuser in violation of Sixth
Amendment right to confrontation).
http://caselaw.lp.findlaw.com/data2/circs/9th/0415885p.pdf
PCN 6.56

VOLUNTARY DEPARTURE
Orichitch v. Gonzales, 421 F.3d 595 (7th Cir. Aug. 31, 2005) (denial of application
for adjustment of status, based on a statutory bar triggered by failure to comply
with voluntary departure order, reversed where intermediate decision to reopen
removal proceedings served to vacate preexisting voluntary departure order).
http://caselaw.lp.findlaw.com/data2/circs/7th/041109p.pdf
CMT 3.38; AF 2.36

POST CON RELIEF – GROUNDS – COUNSEL – SELF-REPRESENTATION
COUNSEL - SELF-REPRESENTATION - DENIAL BASED ON LACK OF
LEGAL KNOWLEDGE
Hirschfield v. Payne, 420 F.3d 922 (9th Cir. Aug. 22, 2005) (state court properly
ruled that first Faretta motion was for purposes of delay, but second motion (made
after case had to be delayed due to other reasons), which was denied by another
judge on the basis that the defendant did not have sufficient legal knowledge to
represent himself, was erroneous; because the appellate court did not address the
second motion separately, the federal panel reviewed the trial court's oral decision,
and found it contrary to clearly established federal law).
PCN 6.5

AGGRAVATED FELONY THEFT – FRAUD IS NOT ALWAYS THEFT
Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (although not
mutually exclusive, it is not the case that all fraud offenses are necessarily also
theft offenses; ―theft‖ is a taking without the consent of the owner, ―fraud‖ is a
taking with consent that has been unlawfully obtained).
AF 5.31, 5.52; CD 6.55, 6.76; SH 7.80, 7.103

THEFT – FRAUDULENT USE OF A CREDIT CARD
Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (fraudulent use of a
credit card, in violation of Virginia Code § 18.2-195, where the actor uses a credit
card belonging to a different person without that person‘s authorization to obtain
something of value is not an aggravated felony theft offense, but a fraud offense).
C&C; AF 5.52; CD 6.76; SH 7.103

HABEAS CORPUS - FEDERAL - DISMISSING MIXED PETITION
Jefferson v. Budge, 419 F.3d 1013 (9th Cir. Aug. 16, 2005) (district court erred in
dismissing dismiss mixed habeas petition without first offering petitioner the
options provided in Rose v. Lundy, 455 U.S. 509 (1982) (choice of exhausting his
unexhausted claims by returning to state court, or abandoning those claims and
pursuing the remaining exhausted claims in federal court)).
PCN 5.28

RELIEF - DETENTION
Kathleen Glynn and Sarah Bronstein, SYSTEMIC PROBLEMS PERSIST IN U.S.
ICE CUSTODY REVIEWS FOR "INDEFINITE" DETAINEES, is reprinted in
the August 15, 2005 issue of Bender's Immigration Bulletin, p. 1279.
CD 6.84; CMT 3.11; AF 2.11

JUDICIAL REVIEW – PETITIONS FOR REVIEW
John R.B. Palmer, Stephen W. Yale-Loehr, and Elizabeth Cronin, "Why Are So
Many People Challenging Board of Immigration Appeals Decisions in Federal
Court? An Empirical Analysis of the Recent Surge in Petitions for Review"
(August 4, 2005). Cornell Law School. Cornell Law School Working Papers
Series. Paper 18. http://lsr.nellco.org/cornell/clsops/papers/18
CMT 3.18; AF 2.17


<LONG AND UNDATED CAPSULES>

EXPUNGEMENT - EFFECT ON INADMISSIBILITY
      People who can benefit from rehabilitative relief eliminating a conviction
under Lujan also are protected from being held inadmissible for having made an
admission, because of a longstanding BIA rule that where a case is addressed in
criminal proceedings and a disposition results that is less than a conviction, the
person cannot be found inadmissible for having "admitted" the offense.
Neither the prior guilty plea, or even a subsequent admission to INS official, will
make them inadmissible for admitting the elements of the offense. See California
Criminal Law and Immigration (2004), § 3.8.

Thanks to Kathy Brady, ILRC for this analysis.
CD 10.10; AF 7.4; PCN 8.5; SH 4.27; CMT 10.11

POST CON RELIEF – EXPUNGEMENT – SIMPLE POSSESSION
     The literal requirements of the Federal First Offender Act are:

18 U.S.C. § 3607 (a) Pre-judgment Probation: If a person found guilty of an
offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844)
(1) has not, prior to the commission of such offense, been convicted of violating a
Federal or State law relating to controlled substances; and (2) has not previously
been the subject of a disposition under this subsection.
      Under this language, it may be possible to obtain a Lujan safe expungement
where two simple possession acts and convictions exist if, (1) at the time of
commission of the second possession offense, the defendant had not yet been
convicted of the first, and (2) both convictions are expunged at the same time.

Thanks to Ann Benson for this analysis.
CD 10.10; AF 7.4; PCN 8.5; SH 4.27; CMT 10.11

AGGRAVATED FELONY – DUI – NEW LEGISLATION PROPOSED TO
OVERRULE LEOCAL
       The Supreme Court and the Ninth Circuit have held that driving under the
influence, and other offenses where injury may be caused through negligence, do
not come within the definition of crime of violence under 18 USC 16. Under
these rulings, the offense will not be an aggravated felony even a sentence of a 365
days or more is imposed. Leocal v Ashcroft, 125 S.Ct. 377 (2004); Montiel-
Barraza v INS, 275 F.3d 1178 (9th Cir. 2002).

        However, some members of Congress are engaging in a concerted effort to
legislatively overrule Leocal and make DUI a "crime of violence." In case they
succeed, criminal defense counsel should act conservatively and do everything
possible to obtain a sentence of 364 days or less for any single count of DUI.
For suggestions on sentence strategies to get to 364 days in felony cases, see
"Note: Sentence" at the Quick Reference Chart and Notes
at www.ilrc.org/criminal.html.

       Advocates are fighting to keep the Leocal rule, but we need to be prepared.
If Leocal is legislatively overruled, the penalties may apply to past convictions as
well.

       If Leocal is legislatively overruled, any felony that involves a negligent or
reckless creation of a risk of injury, including child endangerment, might be
termed a crime of violence and become an aggravated felony with a sentence of
365 days. Where there is any risk, counsel must try to avoid a sentence of 365
days or more (including suspended sentence).

Thanks to Kathy Brady
CD 6.37; AF 5.13; SH 7.41

POST CON – WASHINGTON STATE
forms to vacate misdemeanors (and juvenile convictions) may be found at:
http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=38
felony certificate of discharge forms (which starts the clock on time period to
vacate a felony under RCW 9.94A.640) may be found at:
http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=43
PCN 5.47

AGGRAVATED FELONY – PROSTITUTION
       There could arguably be offenses relating to the ―attempted promotion‖ of
prostitution that don‘t come under 101(a)(43)(K)(i)—which deploys 4 verbs:
 ―owning, controlling, managing or supervising of a prostitution business.‖ Those
are specific verbs, seemingly aimed at the top end of the enterprise. Not everyone
who has ever been involved with the prostitution business has ―owned,
controlled,‖ etc; so there might be a statutory argument that an offense such as
employment at a house of prostitution (i.e. as a receptionist) is not an aggravated
felony.
CD 6.64; AF 5.40; SH 7.91, 8.82