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Ninth Circuit
Criminal Defense of Immigrants § 15.26:
REMOVAL PROCEEDINGS " EVIDENCE " UNCERTIFIED FACSIMILE COPY OF PLEA TRANSCRIPT HELD ADMISSIBLE
Padilla-Martinez v. Holder, ___ F.3d ___, 2014 WL 5421219 (9th Cir. Oct. 27, 2014) (failure to fully comply with the terms of the statute and regulation [8 U.S.C. 1229a(c)(3); 8 C.F.R. 1003.41] does not render electronic conviction records inadmissible; holding admissible an uncertified facsimile copy of a transcript of the state court felony change-of-plea proceedings to establish drug-trafficking aggravated felony conviction); citing Sinotes"Cruz v. Gonzales, 468 F.3d 1190, 1195"96 (9th Cir. 2006) (admitting copies of criminal convictions that were stamped by an immigration agent and appeared to be official state-court records even though certification by a state official was lacking); 8 U.S.C. 1229a(c)(3)(C) instead establishes the maximum standard for authentication of electronically transmitted records of conviction, but it does not establish a minimum standard. The BIA may therefore admit evidence under either the requirements of the INA statute or through any procedure that comports with common law rules of evidence. [Admissibility is generally warranted so long as there is] some sort of proof that the document is what it purports to be.); quoting Iran v. I.N.S., 656 F.2d 469, 472 n. 8 (9th Cir.1981) (as amended)).
Safe Havens § 9.25:
SAFE HAVEN " CRIME INVOLVING MORAL TURPITUDE " UNAUTHORIZED MANUFACTURE OR POSSESSION OF U.S. IDENTIFICATION CARD
United States v. Jackson, ___ F.3d ___, 2014 WL 2747193 (9th Cir. Jun. 18, 2014) (reversing federal misdemeanor conviction for unlawfully manufacturing a U.S. identification card, in violation of 18 U.S.C. 701, since no rational finder of fact could have concluded beyond a reasonable doubt that an identification card the defendant was accused of unlawfully manufacturing or possessing was, as section 701 requires, "of the design prescribed by the head of any department or agency of the United States."). Note: This offense should not be considered a crime of moral turpitude, since it is purely regulatory offense. There is no evil intent in manufacturing a U.S. identity card. It is only the fact that the manufacture or possession is unauthorized that renders it illegal. This is not sufficient categorically to constitute a CMT.
Aggravated Felonies § 2.15 ; Criminal Defense of Immigrants § 15.39, Appendix 13:
REMOVAL " REINSTATEMENT OF REMOVAL " REENTRY WAS ILLEGAL EVEN THOUGH PROCEDURALLY REGULAR
Tamayo-Tamayo v. Holder, 709 F.3d 795 (9th Cir. Feb. 28, 2013) (denying petition for review of reinstatement of 1989 removal order, after illegal reentry, where 1993 removal order did not invalidate original removal order, and procedurally regular, yet substantively illegal, reentry met the requirement in INA 241(a)(5), 8 U.S.C. 1231(a)(5), that he had "reentered the United States illegally," where petitioner tricked the border official into allowing him physically to enter by presenting an invalid alien registration card).
Aggravated Felonies § 2.44 ; Criminal Defense of Immigrants § 24.28 ; Crimes of Moral Turpitude § 3.43:
WAIVERS " 212(C) RELIEF " FIVE YEARS SERVED BAR
Corpuz v. Holder, 697 F.3d 807, *814 (9th Cir. Aug. 31, 2012) (while time in pre-conviction civil confinement to determine competence to stand trial generally would not be included in the phrase term of imprisonment for purposes of former INA 212(c), such a period is considered part of the term of imprisonment where the defendant was given credit for time served on the basis of the civil confinement, but with limitations: The question is how this time should be counted. We conclude that time spent in civil psychiatric confinement that is credited against a defendant's sentence should be counted in a manner that allows us to approximate, as closely as possible, the time the defendant would have served in prison had he never been in civil psychiatric confinement. This means that we should determine a constructive good time credit for the period spent in civil confinement based on the degree to which the defendant accumulated good time credit while in prison. The period spent in pre-trial psychiatric confinement should be calculated as part of the defendant's term of imprisonment only after this constructive good time credit is taken into account.).
Aggravated Felonies § 2.19 ; Criminal Defense of Immigrants § 15.37 ; Crimes of Moral Turpitude § 3.18:
JUDICIAL REVIEW " BOARD OF IMMIGRATION APPEALS " DE NOVO REVIEW OF FACTUAL FINDINGS
Rodriguez v. Holder, 683 F.3d 1164, *1170 (9th Cir. Jun. 27, 2012) (BIA erred by making its own factual determination and engaging in de novo review of the IJ's factual findings; 8 C.F.R. 1003.1(d)(3)(i), (iv), allow it to review findings of fact only for clear error, and prohibit it from making its own factual determinations). The court described the correct standard of review as follows: The BIA may find an IJ's factual finding to be clearly erroneous if it is illogical or implausible, or without support in inferences that may be drawn from the facts in the record. Anderson v. Bessemer City, 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc).(Footnote omitted.) The Supreme Court's opinion in Anderson is extremely helpful to our understanding of the limits on the BIA when it reviews the IJ's factual findings for clear error. In fact, the Department of Justice cited Anderson in the explanatory comments that it issued to accompany the new regulations adopting the clear error standard of review, and concluded that [a] factfinding may not be overturned simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 54,878, 54,889 (Aug. 26, 2002) (citing Anderson, 470 U.S. at 573, 105 S.Ct. 1504). Anderson provides important guidance on the purpose and limits of the clear error standard: Th[e clear error] standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty ... if it undertakes to duplicate the role of the lower court.... If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. 470 U.S. at 573"74, 105 S.Ct. 1504 (emphasis added); see also Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857"58, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (An appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. (quoting United States v. Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 94 L.Ed. 1007 (1950))). In particular, where credibility determinations are at issue, Anderson counsels that even greater deference must be afforded to the IJ's factual findings, for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. Id. at 575, 105 S.Ct. 1504 (citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). Similarly, the Fourth Circuit very recently noted that IJs hear witnesses and determine the credibility of evidence. The BIA reviews a paper record, devoid of the nuances of weighing evidence first hand. The IJ is thus in a better position to make factual determinations than the BIA acting in an appellate capacity. Turkson, 667 F.3d at 527. Of course, as the Anderson Court rightly pointed out, [t]his is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. 470 U.S. at 575, 105 S.Ct. 1504. In certain circumstances, Anderson explains, the weight of the record may overcome a positive credibility determination: Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. Id. (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). However, the Anderson court concluded by explaining that when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Id. (emphasis added). In the context of this case, it would be error for the BIA to hold that the IJ's findings of fact and credibility determinations were clearly erroneous if those findings and determinations were not illogical or implausible and had support in inferences that may be drawn from the record, and if Lopez"Rodriguez's testimony is uncontradicted by objective evidence and internally consistent. (Id. at ___.)
Aggravated Felonies § 2.19 ; Criminal Defense of Immigrants § 15.37 ; Crimes of Moral Turpitude § 3.18:
JUDICIAL REVIEW " CIRCUIT PANEL CONSISTENCY
United States v. Ramos-Medina, 682 F.3d 852, 857-858 (9th Cir. June 21, 2012) Where there has been no change in the relevant statues, regulations or governing authority, such as an intervening decision of the Supreme Court, only an en banc panel of our court may overrule or revise the binding precedent established by a published opinion. As we observed in Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc): 'A goal of our circuit's decisions, including panel and en banc decisions, must be to preserve the consistency of circuit law. The goal is codified in procedures governing en banc review. See 28 U.S.C. 46; Fed. R.App. P. 35.' This panel is not free to disregard the decision of another panel of our court simply because we think the arguments have been characterized differently or more persuasively by a new litigant.").
Safe Havens § 9.25:
AGGRAVATED FELONY " FRAUD " UNAUTHORIZED ACCESS DEVICE FRAUD REQUIRES PROOF DEVICES ARE USABLE
United States v. Onyesoh, 674 F.3d 1157 (9th Cir. Apr. 4, 2012) (reversing federal conviction for access device fraud under 18 U.S.C. 1029, for lack of proof of essential element that unauthorized "access devices" were be usable; and government did not provide any evidence of usability of the expired credit card numbers).
Aggravated Felonies § 5.78 ; Criminal Defense of Immigrants § 19.94 ; Safe Havens § 7.103:
AGGRAVATED FELONY " THEFT OFFENSE " DEFINITION
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011)(California conviction of theft, in violation of Penal Code 484(a), does not categorically constitute an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because it penalizes additional conduct that is not encompassed within the aggravated felony theft definition, such as theft of labor, false credit reporting, and theft by false pretenses); citing Carrillo"Jaime v. Holder, 572 F.3d 747, 751, 753 (9th Cir.2009) (California conviction of theft, under Penal Code 484(a), is not a categorical match to theft as defined in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because the state statute also expressly criminalizes certain conduct"such as theft of labor, false credit reporting, and theft by false pretenses-that do not satisfy the generic definition); see United States v. Corona"Sanchez, 291 F.3d 1201, 1208 (9th Cir.2002) (en banc) (California conviction of petty theft conviction, under Penal Code 484(a), cannot qualify as an aggravated felony because it prohibits a broader range of conduct than is prohibited by the generic theft offense referred to in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)).
Tooby's California Post-Conviction Relief for Immigrants § 8.35:
POST CON RELIEF " FULL FAITH AND CREDIT " FEDERAL COURT MUST CREDIT STATE COURT ORDER TERMINATING PROBATION
United States v. Yepez, ___ F.3d ___, 2011 WL 2988774 (9th Cir. Jul. 25, 2011) (in sentencing defendants for federal offenses, the district court must credit state orders terminating probationary sentences in calculating criminal history points for purposes of safety valve eligibility, because of the wide latitude in modifying probationary terms given to state courts).
Criminal Defense of Immigrants § 18.23, § 18.24, § 21.6:
INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163(9th Cir. Jul.14, 2011) (where, as here, respondent was charged in a removal hearing with inadmissibility under the reason to believe drug trafficking ground, INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C): the IJ, as a representative of the Attorney General, was free to receive new information at the evidentiary hearing, and to decide its credibility and weight. See Alarcon-Serrano, 220 F.3d at 119-20. It was permissible and appropriate for the IJ and BIA to rely on such information in determining whether there was reason to believe petitioner was knowingly transporting marijuana when he attempted to cross the border into the United States. See id. Accordingly, we conclude that it was proper for the IJ to receive and consider petitioner's testimony, Agent Lehman's opinion, and other information not necessarily known, actually or constructively, to officers at the border on December 13, 2002.).
Aggravated Felonies § 5.78 ; Criminal Defense of Immigrants § 19.94 ; Safe Havens § 7.103:
AGGRAVATED FELONY " THEFT OFFENSE " DEFINITION
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.16 (9th Cir. Jul. 7, 2011) (There was also no dispute in Ngaeth that the immigrants intent in breaking into the locked vehicle was to commit a generic theft offense, as opposed to some other kind of theft offense included in Californias larceny statute, Cal. Penal Code 484, which criminalizes some conduct, such as theft of labor and false credit reporting, that do not meet the generic definition. See United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. 2L1.2, cmt. n.4 (2002); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189-90 (2007).).
Aggravated Felonies § 5.26, § A.14, § B.25, § B.59 ; Criminal Defense of Immigrants § 19.44:
AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
United States v. Snyder, 643 F.3d 694 (9th Cir. Jun. 30, 2011) (Oregon conviction for high speed flight, in violation of ORS 811.540(1), is a violent felony for purposes of the Armed Career Criminal Act), following Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267 (Jun. 9, 2011).
Criminal Defense of Immigrants § 15.36:
REMOVAL PROCEEDINGS " COURT OF APPEALS " STAY OF REMOVAL
Leiva-Perez v. Holder, ___ F.3d ___, 2011 WL 1204334 (9th Cir. Apr. 1, 2011) (clarifying standard for stays of removal in light of Nken v. Holder, 129 S.Ct. 1749 (2009); In sum, and for the sake of clarity, we hold that in light of Nkens impact on our prior precedent, a petitioner seeking a stay of removal must show that irreparable harm is probable and either: (a) a strong likelihood of success on the merits and that the public interest does not weigh heavily against a stay; or (b) a substantial case on the merits and that the balance of hardships tips sharply in the petitioners favor. As has long been the case, [t]hese standards represent the outer extremes of a continuum, with the relative hardships to the parties providing the critical element in determining at what point on the continuum a stay pending review is justified.).
Aggravated Felonies § 2.45 ; Criminal Defense of Immigrants § 24.29 ; Crimes of Moral Turpitude § 3.43:
RELIEF - WAIVERS - 212(H) WAIVER OF INADMISSIBILITY -
Sum v. Holder, ___ F.3d ___, 2010 WL 1630859 (9th Cir. Apr. 23, 2010) (aggravated felony bar to relief under INA 212(h) for lawful permanent residents is not defeated by claim that person was not "lawfully admitted" to permanent residence because he procured his green card by visa fraud.)
Aggravated Felonies § 5.54, § 5.78 ; Criminal Defense of Immigrants § 19.72, § 19.94 ; Safe Havens § 7.103, § 7.80:
AGGRAVATED FELONY - FRAUD OFFENSE - AGGRAVATED FELONY FRAUD IS COMMITTED WITH THE CONSENT OF THE VICTIM
Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul.15, 2009) (California conviction of owning and operating a chop shop, in violation of Vehicle Code 10801 ("premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud"), did not constitute a theft aggravated felony within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the categorical approach, since the offense permits exercising control over property obtained by fraud, which is necessarily committed with the consent of the owner, and the conviction therefore does not require that the exercise of control over the property be "without consent" as required by the generic definition of theft aggravated felony).
Aggravated Felonies § 5.78, § A.42, § B.43 ; Criminal Defense of Immigrants § 19.94 ; Safe Havens § 7.103, § 8.46:
Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul. 15, 2009) (California conviction of owning and operating a chop shop, in violation of Vehicle Code 10801 ("premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud"), did not constitute a theft aggravated felony within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the categorical approach, since the offense permits exercising control over property obtained by fraud, which is necessarily committed with the consent of the owner, and the conviction therefore does not require that the exercise of control over the property be "without consent" as required by the generic definition of theft aggravated felony).
Criminal Defense of Immigrants § 20.10 ; Crimes of Moral Turpitude § 8.10, § 9.97 ; Safe Havens § 7.112, § 8.77:
CRIMES OF MORAL TURPITUDE - POSSESSION OF CHILD PORNOGRAPHY
United States v. Santacruz, 563 F.3d 894 (9th Cir. Apr. 20, 2009) (per curiam) (federal conviction of possession of child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) ("knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography"), constituted a conviction of a crime involving moral turpitude, and supported district court's order granting partial summary judgment in favor of the United States in an action to revoke naturalized citizenship: "The Supreme Court has characterized sexual abuse of a minor as "an act repugnant to the moral instincts of a decent people." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Moreover, child pornography, as "permanent record of a child's abuse," causes continuing "injury to the child's reputation and well-being." Id. at 249. Because possession of child pornography offends conventional morality and visits continuing injury on children, it is "vile, base or depraved and ... violates societal moral standards." Navarro-Lopez, 503 F.3d at 1074. Therefore, possession of child pornography under 18 U.S.C. 2252A(a)(5)(B) is a crime involving moral turpitude."); accord In re Olquin-Rufino, 23 I. & N. Dec. 896, 896 (BIA 2006) (Florida conviction of possession of child pornography, under Florida Statute 827.071(5) ("unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which ... he or she knows to include any sexual conduct by a child"), constituted conviction of crime involving moral turpitude); See Iowa Supreme Court Attorney Disciplinary Bd. v. Blazek, 739 N.W.2d 67, 69 (Iowa 2007) (possession of child pornography is morally turpitudinous); Chapman v. Gooden, 974 So.2d 972, 977 (Ala.2007) (same); cf. In re Wolff, 490 A.2d 1118, 1120 (D.C.Ct.App.1985), vacated, 494 A.2d 932, aff'd, 511 A.2d 1047 (1986) (en banc) (same) (possession of child pornography is a crime involving moral turpitude).
This decision is incorrect. Museums, law enforcement agencies, court clerks, and academic researchers may possess these items without moral culpability of any kind. The issue of criminality of their possession hinges on whether the possession is unauthorized under law. This offense is therefore malum prohibitum, and should be considered a regulatory offense, rather than a crime of moral turpitude. It is, after all, mere private possession, rather than production or distribution.
Post-Conviction Relief for Immigrants § 5.35:
POST CON RELIEF -- HABEAS - FEDERAL - CUSTODY - DEFINED
Wilson v. Belleque, 554 F.3d 816 (9th Cir. Feb. 5, 2009) ("[T]he Supreme Court has construed the phrase "in custody" very broadly. '[T]he use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.' Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). To satisfy the custody requirement, the Supreme Court has held that a petitioner must show that he is subject to a significant restraint upon his liberty 'not shared by the public generally.' Id. at 240, 83 S.Ct. 373. For example, the custodial requirement has been held met by prisoners released on parole, id. at 242-43, 83 S.Ct. 373, prisoners released on their own recognizance, Hensley, 411 U.S. at 351, 93 S.Ct. 1571, and prisoners free on bail, Lefkowitz v. Newsome, 420 U.S. 283, 286 n. 2, 291 n. 8, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).").
Tooby's California Post-Conviction Relief for Immigrants § 6.26, § 6.34:
POST CON RELIEF -- HABEAS " FEDERAL " CUSTODY -- DEFINED
Wilson v. Belleque, 554 F.3d 816 (9th Cir. February 5, 2009)("[T]he Supreme Court has construed the phrase in custody very broadly. '[T]he use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.' Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). To satisfy the custody requirement, the Supreme Court has held that a petitioner must show that he is subject to a significant restraint upon his liberty 'not shared by the public generally.' Id. at 240, 83 S.Ct. 373. For example, the custodial requirement has been held met by prisoners released on parole, id. at 242-43, 83 S.Ct. 373, prisoners released on their own recognizance, Hensley, 411 U.S. at 351, 93 S.Ct. 1571, and prisoners free on bail, Lefkowitz v. Newsome, 420 U.S. 283, 286 n. 2, 291 n. 8, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).").
Aggravated Felonies § 3.62 ; Criminal Defense of Immigrants § 10.46 ; Post-Conviction Relief for Immigrants § 7.3 ; Safe Havens § 7.25:
SENTENCE - CALIFORNIA PROBATION VIOLATION SENTENCE OF 365 DAYS INCLUDES PRIOR CREDIT FOR TIME SERVED UNLESS RECORD OF CONVICTION AFFIRMATIVELY SHOWS DEFENDANT CONSENTED TO SERVING A TOTAL SENTENCE IN LOCAL CUSTODY IN EXCESS OF 365 DAYS
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (to determine whether a sentence of 13 months was imposed, in assessing an illegal reentry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(I) for a drug trafficking conviction, the record of conviction must affirmatively show the defendant consented to receiving a probation violation sentence of 365 days in excess of the original sentence served, or else the 365-day probation violation sentence will be construed as including the original sentence, since California Penal Code 19.2 prohibits a court from imposing a local custody sentence in excess of 365 days), citing People v. Johnson, 82 Cal.App.3d 183, 147 Cal.Rptr. 55, 58 (Ct.App.1978) (providing that a California trial court can impose up to 365 days of jail time after a probation violation, if the defendant consents, even if the jail time imposed as an original condition of probation was 365 days).
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Aggravated Felonies: §5.11
of Title 18, United States Code (relating to child pornography).” [1] These offenses are... children,” punishing the use of a minor to engage in any sexually explicit conduct for... guardian who permits or assists the minor to do so. [2] 18... knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering: (a) to receive, exchange, buy, produce, display, distribute, or reproduce any visual... that the person “knows or has reason to know that such notice or advertisement will... someone who knowingly publishes a notice offering to distribute by computer a visual depiction of... children over the internet may be considered to be conduct that violates this statute. There may be other defenses relating to lack of knowledge the subject was a... the client if immigration counsel did not to have to defend against this possibility at all. ... U.S.C. § 2252, entitled “Certain activities relating to material involving the sexual exploitation of children,”... maximum for a violation, attempt, or conspiracy to violate subparagraphs (a)(1)-(3). With a prior... chapter 109A, the term is from five to 15 years. Subparagraph (b)(2) provides a five-year maximum for a violation, attempt, or conspiracy to violate (a)(4). To qualify as an aggravated felony, all the... 263.05, did not constitute an offense relating to child pornography, and was therefore not an... by the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of... of 1996 violated the First Amendment right to free speech in defining child pornography to include “virtual pornography,” not produced using actual... Among other possible safer alternatives [1] to a conviction that would clearly trigger removal... under 18 U.S.C. § 2252A, when applied to child pornography as defined in 18 U.S.C.... involved are more broadly defined, by reference to the “child pornography” definition at 18 U.S.C. § 2256(8), to include a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging... This portion of the definition is recognized to cover the act of “morphing,” i.e., altering... children and are in that sense closer [to images made using actual minors engaged in... definition covers materials that would be insufficient to constitute a violation of 18 U.S.C. §
Post-Conviction Relief for Immigrants: §8.41
provides that an executive pardon is effective to eliminate the deportation consequences of one or... § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute;
Tooby's California Post-Conviction Relief for Immigrants: §5.19
It may be possible for the prosecution to file any additional charges it could have... It would be possible for the client to be convicted of more charges, or greater charges, than those to which a plea was entered originally, and the client may potentially be sentenced to a greater term of imprisonment. [1] ... enhancements, the law may require the court to impose greater punishment. [2] Before appealing, it is essential for counsel carefully to consider whether the appeal might result in... at an appellate doorstep he subjects himself to thorough scrutiny of the proceedings below." [3]... conviction was unauthorized, following a guilty plea to a crime that did not exist (conspiracy to commit attempted murder). The appellate court... It would be possible for the client to receive a greater sentence if reconvicted. ... was reopened and the judge is sympathetic to the prosecution. · The prosecution is able to force conviction of offenses and enhancements that trigger mandatory sentencing laws, so the judge has no choice but to sentence the client more harshly the second time around. · The prosecution is able to force conviction of more or greater offenses... The client has reoffended (or is thought to be continuing a life of crime, even... that the court has a good reason to hand down a stiffer sentence the second... that the client receive full and mandatory credit for time served for every day spent... of appeal, [5] though this protection appears to be weakening. [6] Counsel can... and that the client must be given credit for all time served, and all other... served, but if the court can point to some changed circumstance since the original sentence... is unlikely and only occurs in five to ten percent of the cases. The... has gone into the case, the expense to the state of a jury trial, and the difficulty for the prosecution to reconstruct an old case. As a practical matter, because of the law requiring credit for time served, and because the case... that the court would resentence the client to a greater punishment after reconviction unless the court were required to do so by mandatory sentencing laws. ... aware of this risk when deciding whether to go forward with an attack on the... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence. ... after retrial if legitimate reasons are given to justify increased penalty.].
Aggravated Felonies: §5.42
controlled substances conviction will not be sufficient to sustain deportability as an aggravated felony drug... of conviction may be violated with regard to one or more of those substances; and (3) either the record of conviction is completely silent as to the controlled substance involved, or the record... 1965, former INA § 241(a)(11) made subject to deportation any noncitizen who “has been convicted... . . any law or regulation relating to the illicit possession or traffic in narcotic... Matter of Paulus was decided, there was no definition of “narcotic drug” for immigration purposes,... adopted that would have included whatever happened to be considered a “narcotic” in California or... that limited the term “narcotic drug” [3] to substances defined as a “narcotic drug” by... specifically limited the definition of “controlled substances” to those substances defined as such by federal... not controlled at all. [7] Where no particular controlled substance is identified in the... § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) (reason to believe illicit trafficking ground of inadmissibility); INA... . Probably the most direct threat to the survival of the Paulus rule is... drug paraphernalia, [2] was a conviction “related to” a controlled substance. The court found... an object is drug paraphernalia,” including intent to use, a conviction under the statute was clearly “related to” a controlled substances offense. [3] ... of drug paraphernalia conviction was not related to any particular drug. The Arizona statute... “controlled substance” was limited under the INA to the federal drug schedules, and that “the... that the Arizona statute was “plainly intended to criminalize behavior involving the production or use... idea that possession of paraphernalia is “related to” a controlled substance, no case has yet cited Luu-Le as a challenge to the Paulus rule. [6] However, there... took a “close enough” position by failing to hold that a conviction under the Arizona... could not qualify as an offense “related to” a controlled substance unless the record of conviction made clear that the paraphernalia was intended to be used with a federally controlled substance. This holding appears to violate the Paulus rule. This holding... but the exact elements of the offense to which the noncitizen entered a plea are... than a controlled substance, there is room to distinguish Luu-Le from a straight Paulus situation.... drug conviction (but rather a conviction “related to” drugs), did not directly consider the Paulus... , 222 F.3d 728 (9th Cir. 2000) to a conviction for possession of paraphernalia). [7]... 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively... (precedent not controlling on issue not presented to prior panel), cert. denied , 113 S.Ct.... federal drug schedules and the state schedules to determine that the noncitizen in that case must have been convicted of an offense related to a federal controlled substance. Mr.... all controlled substances proscribed by Connecticut law to only hallucinogenic or narcotic drugs. [3] ... list, so the court turned its focus to determining whether all “narcotic” drugs listed in... rejected counsel’s argument that the substance had to be proscribed under federal law at the... beyond merely holding that the substance had to be proscribed under federal law by the... conviction limited the applicable state controlled substances to hallucinogens and narcotics. There may still... the federal schedules. It is important to remember who has the burden of proof... the federal drug schedules were retroactively applied to Mr. Gousse, charged as an aggravated felon,... deportation grounds are not expressly made retroactive to convictions occurring before the deportation ground came into existence or was expanded to cover the present case. Surprisingly, both Luu-Le and Gousse fail to cite or mention Matter of Paulus , even though the circuit courts are normally required to give Paulus deference under Chevron [7] to BIA decisions. Both decisions were... placed the burden on the noncitizen appellants to show that the court had petition for... Cir. 2000) ( Chevron deference not accorded to construction of state penal code). [8] Luu-Le... INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (no jurisdiction to review orders of removal on criminal grounds). (D) How to Make A Drug List Comparison. The... through April 26, 2004. To make an alphabetical proscribed drug list of... most recent state drug schedule in an electronic format, and paste this list into a... the individual drugs remains. Make sure to indicate the schedule in which each drug... a number, and give that same number to each alternative name (or alias) for the... “sort” function of the word processor program to alphabetize the list. To make a drug-by-drug comparison between the state... down the list, use the strikeout function to mark any highlighted/non-highlighted drug pairs. These pairs each represent... the federal, list. 7. Return to the top of the list and use the “find” function to find any AKAs of the drugs stricken.... as an aggravated felon, the federal schedules to apply in making the comparison are those... immigration proceedings commenced, while the state schedules to apply are those that existed at the... §§ 1308.11, et seq . Updates to the schedules are tracked on the following site: http://www.deadiversion.usdoj.gov/schedules/actions/90_actions.htm
Criminal Defense of Immigrants: §3.36
criminal history records, it is most important to obtain the FBI rap sheet concerning the... the FBI record by writing a letter to the FBI asking for a “background search.”... fee (certified check or money order payable to the “Treasurer of the United States ”).... a return address and the client’s authorization to release the information to counsel. This information should be sent to: Federal Bureau of Investigation Criminal Justice... telephone number is (304) 625-3878. Check to see if any changes of fee, procedure,... FBI criminal history report be sent directly to his or her attorney, if desired. It generally takes six to eight weeks or so to receive the report. [1] The police department may charge a small fee, usually no more than $10, for the service of taking the client’s fingerprints and providing a completed fingerprint card to the client. (E.g., California Penal Code § 13300e.) The client should be instructed not to inform the police department, DMV, or other... contemplated that these fingerprints will be submitted to the DHS and the agency may refuse to provide the prints under those circumstances, since... The client should simply state s/he wants to see his or her own criminal record.
Tooby's California Post-Conviction Relief for Immigrants: §11.19
for one conviction of crimes relating to domestic violence, stalking, and the abuse or... certain offenses. The admissibility statute referred to lists (a) convictions of crimes of moral turpitude, (b) convictions of offenses related to a listed federal controlled substance, and (c) situations in which the DHS has “reason to believe” the noncitizen is or has been... listed federal controlled substance. In order to be inadmissible, as the mandatory detention statute... offense, it is necessary for the noncitizen to have been convicted of the commission of... under this statute. In response to an increasing number of court decisions, [6]... 8 U.S.C. § x 1226(c), apply only to noncitizens released from criminal sentence on or... the mandatory detention statute applying “normal factors to determine bond conditions, such as an individual's likelihood of danger to the public, flight risk, health factors, equities,... the Transition Period Custody Rules is subject to mandatory detention pursuant to section 236(c) of the Immigration and Nationality... Custody Provisions (7/12/99) effective 7/13/99. If no actual custody is imposed, the sentence date
Tooby's California Post-Conviction Relief for Immigrants: §11.16
hold, do not assume it is hopeless to attempt to obtain his or her release. The basic strategy is to bail the client out of criminal custody... It may not be an immigration “request to detain” at all, but merely a notice... obtaining the client’s liberty from the DHS non-hold. [1] If it was lodged... by the proper written form, it is no longer effective as an immigration hold, and... within 48 hours, and can then attempt to bond out of immigration custody. If
Tooby's California Post-Conviction Relief for Immigrants: §4.36
criminal history records, it is most important to obtain the FBI rap sheet concerning the... the FBI record by writing a letter to the FBI asking for a “background search.”... fee (certified check or money order payable to the “Treasurer of the United States ”).... a return address and the client’s authorization to release the information to counsel. This information should be sent to: Federal Bureau of Investigation Criminal Justice... telephone number is (304) 625-3878. Check to see if any changes of fee, procedure,... FBI criminal history report be sent directly to his or her attorney, if desired. It generally takes six to eight weeks or so to receive the report. [1] The police department may charge a small fee, usually no more than $10, for the service of taking the client’s fingerprints and providing a completed fingerprint card to the client. (E.g., California Penal Code § 13300e.) The client should be instructed not to inform the police department, DMV, or other... contemplated that these fingerprints will be submitted to the DHS and the agency may refuse to provide the prints under those circumstances, since... The client should simply state s/he wants to see his or her own criminal record.
Post-Conviction Relief for Immigrants: §5.3
Matching the Vehicle to the Immigration Effect Counsel must first determine what change in the criminal history is needed in order to avoid or ameliorate the adverse immigration effect to which the client is subject. For... of violence aggravated felony, then a motion to reduce a felony to a misdemeanor may be sufficient to avert the immigration damage. If time is needed to assess the situation, it may be possible to file a direct appeal from the conviction, in order to avoid a “final” conviction and thus obtain the client’s release from mandatory immigration detention and buy time to plan a more durable strategy. ... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality
Criminal Defense of Immigrants: §10.18
Tactics to Avoid Sentence Imposed (A) In General... in which the court orders the defendant to serve a certain length of time in... can employ various tactics in an effort to prevent this outcome: (1) Obtaining a sentence of less than the trigger amount; (2) Waiving credit for time previously served; (3) Waiving future credit for time served; (4) Stacking shorter sentences... the level of the offense from felony to misdemeanor. See §§ 11.13-11.15, infra .... Sentence Shorter Than the Trigger Amount . To achieve a safe haven sentence of less than a trigger amount, counsel can ask the court (1) to decline to order a prison sentence at all, and to require service of no more than 364 days in custody or less as a condition of probation, or (2) to impose a sentence shorter than one year... can therefore expand the actual time served to be equivalent to a sentence considerably longer than the sentence ordered by the court, and thus obtain non-trigger sentences for more serious cases. ... Counts. Counsel can ask the court to sentence the defendant to shorter, non-trigger sentences on different counts, and then order they be served consecutively, so long as each sentence fails to qualify independently as a trigger length. ... 360-day sentences on four different theft convictions, to run consecutively, without receiving a “sentence imposed” of one year or more on any single count. No single count would be considered to be an aggravated felony conviction, and the... (6) Reduction from Felony to Misdemeanor . If the criminal court reduces the level of the offense from felony to misdemeanor, that reduction is binding on the... maximum possible sentence the court can impose to the misdemeanor maximum. [3] Therefore, even... the sentence ordered must now be considered to be no greater than the misdemeanor maximum for the... of California “wobbler” offense from a felony to a misdemeanor offense, since reductions of sentences
Criminal Defense of Immigrants: §19.31
of Title 18, United States Code (relating to child pornography).” [1] These offenses are... children,” punishing the use of a minor to engage in any sexually explicit conduct [1]... guardian who permits or assists the minor to do so. [3] 18... knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering: (a) to receive, exchange, buy, produce, display, distribute, or reproduce any visual... that the person “knows or has reason to know that such notice or advertisement will... someone who knowingly publishes a notice offering to distribute by computer a visual depiction of... children over the internet may be considered to be conduct that violates this statute. There may be other defenses relating to lack of knowledge the subject was a... the client if immigration counsel did not to have to defend against this possibility at all. ... U.S.C. § 2252, entitled “Certain activities relating to material involving the sexual exploitation of children,”... maximum for a violation, attempt, or conspiracy to violate subparagraphs (a)(1)-(3). With a prior... chapter 109A, the term is from five to 15 years. Note that this list of the two no-substantive offenses of attempt and conspiracy gives rise to the argument that other unlisted non-substantive offenses are not included. See Appendix... maximum for a violation, attempt, or conspiracy to violate (a)(4). See Appendix G, infra . To qualify as an aggravated felony, all the... child engaging in “sexual conduct,” as opposed to “explicit sexual conduct.” Counsel could therefore... 263.05, did not constitute an offense relating to child pornography, and was therefore not an... by the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of... of 1996 violated the First Amendment right to free speech in defining child pornography to include “virtual pornography,” not produced using actual... Among other possible safer alternatives [1] to a conviction that would clearly trigger removal... under 18 U.S.C. § 2252A, when applied to child pornography as defined in 18 U.S.C.... involved are more broadly defined, by reference to the “child pornography” definition at 18 U.S.C. § 2256(8), to include a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging... This portion of the definition is recognized to cover the act of “morphing,” i.e., altering... children and are in that sense closer [to images made using actual minors engaged in... definition covers materials that would be insufficient to constitute a violation of 18 U.S.C. §
Criminal Defense of Immigrants: §6.35
authorities will actually make it a priority to detain, [1] setting out four categories, in... detention can be released only if necessary to protect a witness, a person cooperating with... that release would not pose a danger to persons or property or a flight risk.... convictions). Noncitizens who are a danger to the community or a flight risk, those... detention . Noncitizens who are inadmissible, non-criminal noncitizens not in expedited removal proceedings, noncitizens... apprehended at a worksite for committing fraud to get a job. Category 4... in expedited removal who have been referred to full removal proceedings based on fear of
Tooby's California Post-Conviction Relief for Immigrants: §10.47
provides that an executive pardon is effective to eliminate the deportation consequences of one or... § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute;
Safe Havens: §5.6
counsel can obtain the basic information necessary to brief immigration counsel on the immigration situation... so, make photocopies. Counsel may need to ask an immigration attorney to interpret the documents. [1] Often,... wrongly that s/he now has a green card. If somebody has a green card, s/he may use shorthand and wrongly describe... the letter A) which is the key to finding his or her record when you... Answering the following questions is necessary to determine a client’s current or potential immigration... immigration specialist is consulted, s/he will need to know this information in order to diagnose the client’s situation. ● ... how long? The date of adjustment to permanent residency will appear on the client’s green card. ● How long has... Would the client’s employer help the client to immigrate? [4] ● Has... by the border patrol and being persuaded to sign a waiver form and accept a... See § 5.10, infra , on how to verify the client’s immigration situation. [3] See... Immigration § 11.1 (2004). [4] For most non‑professional workers, this may yield few results. ... U.S. citizen or national, it is necessary to determine the client’s exact immigration status, since... consequences of criminal cases, it is useful to group noncitizens into the following categories: (1) Lawful permanent residents, or green card holders, have been lawfully admitted to the United States to live and work permanently. The chief concern of a lawful permanent resident is usually to avoid deportation. An LPR who has... person may also care about preserving eligibility to naturalize by avoiding any conviction or other... are inadmissible, they may not be allowed to return after a trip abroad, even if... than 180 days is generally not subject to the rules of admissibility upon returning, but one exception to this rule occurs when s/he has committed... If an LPR is unable to avoid a conviction that triggers deportation or... from naturalization, s/he may still be able to qualify in immigration court for some sort... in a conviction, s/he will be eligible to apply for cancellation of removal to avoid deportation, or INA 212(h), 8 U.S.C. § 1182(h) relief to avoid inadmissibility, if s/he can avoid an... admitted into the United States on a Non-Immigrant Visa, unlike LPRs, “enter the U.S. for a temporary period of time and are restricted to the activity consistent with their visas. ... . . . they are more likely to obtain waivers of inadmissibility.” [3] ... into the U.S. , they are subject to the grounds of deportability. If they wish to adjust status, and obtain immigrant visas so they have Lawful Permanent Resident status, or if they wish to leave the U.S. and return, they must... persons granted political asylum have been admitted to the United States or allowed to remain in the United States because of... status, but members of both are eligible to adjust status to LPR after being present in the U.S.... is obviously especially urgent for these persons to avoid deportation to the place where they will likely be... the U.S. , and are therefore subject to the grounds of deportation. However, in practice, a refugee should be subject to removal proceedings only if s/he is inadmissible,... cannot avoid inadmissibility, s/he may be able to adjust status to LPR under INA § 209, 8 U.S.C.... on the ground the DHS has reason to believe s/he is or has ever been a drug trafficker (even if there is no conviction of drug trafficking), [6] and thereby... [7] If s/he cannot adjust status to LPR, the next goal is to preserve eligibility for the relief of withholding... of sentence. [9] Most asylees want to obtain LPR status, and so must avoid... If this is not possible, they wish to preserve eligibility for the special waiver or... be eligible now or in the future to obtain lawful permanent resident status, political asylum,... relief, principally eligibility for adjustment of status to LPR (through avoiding inadmissibility), or eligibility for... Even if the client does not appear to be eligible now or in the future to obtain LPR status, asylum, or other relief from removal, or does not desire to remain in the United States now or to return lawfully in the future, it may still be in the client’s interest to avoid certain criminal dispositions that trigger immigration... be much better off without a roadblock to obtaining lawful status. (b) The client may wish to obtain various immigration benefits even if s/he... 2002-2003) (emphasis supplied). [4] These include seeking to enter the U.S. to engage in espionage, sabotage, any other unlawful activity, any activity to oppose or overthrow the U.S. government by... inadmissibility may be granted “for humanitarian purposes, to assure family unity, or when it is
Crimes of Moral Turpitude: §2.12
Rule. Long-standing law requires a conviction to be final before it will trigger deportation.... finality requirement, at least as it applied to direct appeals of a conviction. [5] A non-final conviction can also sometimes be used to enhance sentence in a criminal case. [6]... 1990) (Texas deferred adjudication disposition held not to be a final conviction); Martinez-Montoya v. INS... I. & N. Dec. 638 (BIA 1968) (no conviction despite guilty plea); Matter of LR... 539, 541 (BIA 1957). This applied to foreign convictions as well. Marino v. INS... been extinguished by presidential amnesty and refused to hear the appeal and where the defendant... on probation or on suspended sentence pursuant to section 1081 of the Canadian Criminal Code).... been extinguished by presidential amnesty and refused to hear the appeal and where the defendant... on probation or on suspended sentence pursuant to section 1081 of the Canadian Criminal Code).... (2d Cir. 1991). A conviction subject to collateral attack is still final for the... 146, 146 (S.D.N.Y. 1995).”); Johnson v. INS No. 3:03 CV96(JBA) (D. Conn. Jan. 21, 2003)... Cir. 1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality... “[O]n the record here we are unable to say that the conviction has attained such finality as to support an order of deportation,” and therefore... this point. When Congress fails expressly to overrule existing judicial decisions, it is deemed to have approved of them. [4] In... all circuits that have not expressly held to the contrary, and the finality requirement should... circuits that have mistakenly suggested or held to the contrary, since the adverse decisions may... finality requirement but remanding because there was no evidence that court had imposed any punishment,... on liberty) petitioner, as required by statute to constitute a conviction). [3] Pino v. Landon... of judicial interpretation of a statute and to adopt it when it re-enacts a statute... Dec. 44 (BIA Apr. 28, 1995) (right to appeal such issues as whether a violation... of a final conviction for immigration purposes; to disturb finality, issues on appeal must relate to the issue of “guilt or innocence of the original charge.”). This decision contravenes authorities holding no conviction exists unless sentence has been imposed.... defendant has missed the deadline by which to appeal, s/he may nonetheless attempt to file a late notice of appeal to start the appellate process. When... assistance of counsel based on counsel’s failure to inform the defendant about the deadlines by which to appeal, or to advise the defendant about possible grounds on... reversed on direct appeal, it is appropriate to reopen deportation proceedings since the conviction no longer exists as a basis for deportation.... assistance will be established entitling the defendant to an out-of-time appeal where counsel fails to “consult” with a criminal defendant about the... or a rational defendant would have wanted to appeal under the circumstances of the case).... 440 (6th Cir. July 1, 2004) (request to begin belated appeal does not affect finality... sentence. [1] These decisions, however, appear to limit their holdings concerning finality to the deferred adjudication context, and they have not been extended to invalidate direct appeal as a means of... Texas law and the Full Faith and Credit Act, 28 U.S.C. § 1738, required the federal criminal court to honor that conclusion, since "the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal... completion of probation has been deemed not to impair the finality of the conviction. [2]... action in the deportation case be deferred to await completion of probation and extinction of... set aside on collateral attack, it ceases to exist for immigration purposes even if an appeal from the vacatur is pending, because there is no clear and convincing evidence the conviction still... final, at the time of defendant’s deportation, to qualify as aggravated felony conviction for purposes... until the conviction has been overturned pursuant to such a motion); Matter of Gabryelsky ,... 506 (BIA 1992); Rivas v. INS , No. 02 Civ. 677(DLC) (S.D.N.Y. Jan. 27, 2003)... 164 (2d Cir. 1991). A conviction subject to collateral attack is still final for the... 146, 146 (S.D.N.Y.1995).”); Johnson v. INS , No. 3:03CV96(JBA) (D.Conn. Jan. 21, 2003) (unpublished) (“Moreover,... Cir. 1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality... (INS and BIA agreed on administrative policy to postpone proceedings until the noncitizen has had a reasonable opportunity to complete probation and apply for expungement of... (6th Cir. Jan. 31, 2008) (petitioner's challenge to the state court conviction in immigration court
Criminal Defense of Immigrants: §3.43
is absolutely necessary . There is no substitute for consulting an immigration expert to find out (a) the client’s exact immigration situation prior to any new conviction, and (b) the exact... Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005). Crimes-related deportation defense... rarely, handle a removal case or try to obtain cancellation of removal for a client... client with criminal issues, it is necessary to inquire specifically into potential immigration counsel’s experience... Immigration Counsel . It is important to balance expertise in this specialty against the advantages... · has offices very close to the immigration court. On the... forms of relief available in immigration court to noncitizens convicted of crimes; · is accustomed to cooperating with criminal and post-conviction counsel; and · either knows or is willing to learn the necessary criminal and post-conviction law.... plea bargains? Have you spoken recently to criminal lawyers’ groups on this topic? ... (You can then call them as references to check the lawyer out.) Ample resources exist to assist criminal defense counsel in obtaining answers to the immigration questions that arise during the... Expert Resource Centers. Ample resources exist to assist criminal defense counsel in obtaining answers to the immigration questions that arise during the... Lawyers Association (AILA) will often be able to help. The Washington , D.C. ,... Resources (both live and written) specific to individual state include: California . ... in San Francisco , California is a non-profit organization that provides advice, training and materials to non-profit community agencies and immigrants’ organizations. For... . · M. Baldini-Potermin, Defending Non-Citizens In Minnesota Courts (1998), distributed by the... the New York State Defenders Association works to defend the legal, constitutional and human rights of immigrants facing criminal or deportation charges. IDP seeks to (1) minimize deportation and detention under current... including “Know Your Rights” charts and guides to help unrepresented individuals understand the criminal justice... resources affecting particular states, see the Bibliography to this volume, Appendix G. [1] D.... also provides a referral service (fees not to exceed $100.00 per consultation) by calling 1-800-954-0254, or sending and email to ilrs@aila.org. You will need to provide your name, location and describe your
Criminal Defense of Immigrants: §11.77
sentence is vacated, a wonderful opportunity exists to settle the case on acceptable terms that... a human being in their eyes. No one wants time-consuming litigation of a case... Presumably the client has given them no fresh cause to punish him or her more severely (aside... can sometimes sweeten the pot by offering to have the client begin anew a three... year, the defense can in fact offer to increase the hanging time, exposing the defendant to a greater term of imprisonment in the... client may be in a strong position to bargain if the case is an old... good record since the incident giving rise to the charge, and the equities in his... can take a credible position of refusing to acquiesce in any outcome that will destroy the family and permanently exile the client to a foreign land. The client can also threaten to put prosecution and court to the extensive work and considerable expense of a jury trial, because the issue is so important to the client, unless an acceptable result is... the penalty, there may be little or no risk of any downside for the client... the nature and (b) number of charges to which the client will plead guilty or no contest, and (c) the nature of the sentence the client will receive. To analyze goals for the new disposition, counsel... the information the immigration lawyer will need to diagnose the situation. See Appendix A,... during the course of plea‑bargaining in order to minimize adverse immigration consequences: (1) Counsel can attempt to find a related (or even unrelated) [1]... trigger removal or other adverse immigration consequences to which to plead. In the alternative, the client can plead to two or more offenses, none of which trigger immigration problems, instead of pleading to one that involves immigration damage. EXAMPLE: In one case, after a motion to vacate a voluntary manslaughter conviction had been granted, the client pleaded guilty to involuntary manslaughter and received a sentence of... eliminated. (2) Counsel can offer to have the client serve a greater traditional criminal penalty in return for adjusting the charge to one that does not have disastrous immigration consequences. For example, a client might agree to serve an additional six months in jail,... in return for changing the charged offense to a different offense which does not trigger... immigration consequences. (3) Counsel can offer to have the client plead to two misdemeanors in lieu of a felony, in order to avoid the one felony‑three misdemeanor rule disqualifying applicants for amnesty and Family Unity, or to multiple infractions in lieu of a misdemeanor... For example, the client can bargain to obtain suspension of imposition of sentence, a... purpose. (5) Counsel can attempt to persuade the prosecution to permit a plea to a non‑narcotics offense in lieu of a deportable narcotics... possible. (6) Counsel can bargain to obtain a plea to a non-firearms offense with a firearms sentencing enhancement, or other options to avoid deportability for a firearms offense. ... [1] It is of course perfectly proper to plead a client guilty to a crime of which s/he is completely innocent — as a tactical decision to avoid worse consequences (criminal or immigration), if... simply enter a plea of guilty pursuant to People v. West, 3 Cal.3d 595, 91... Thus, the parties can negotiate a plea to any mutually acceptable offense, and thus avoid... many district judges resist accepting or refuse to accept a plea if the defendant maintains... more closely related the negotiated offense is to the offense committed, the easier it is to convince prosecution and court to accept the disposition. [2] See § 10.92,... cannot be punished for exercising the right to vacate the conviction, this protection has become riddled with exceptions. For example, there is no presumption of vindictive prosecution where a greater... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence. [2]... for his action in obtaining post-conviction relief to vindicate a constitutional right. [1] Alabama... valid waiver under due process). (C) Credit for Time Served . When the... requires that s/he receive full and mandatory credit for time served for every day previously... may exercise his or her statutory right to disqualify the original judge, [1] even if... The intent of this statute is to protect a successful appellant from retaliation by... statute of limitations defense applies where applicable to require dismissal of charges that were filed... [1] State courts can be urged to adopt the same rule, for the same... any charges that were originally filed prior to the time the operative statute of limitations ran. It only operates to restrict the prosecution’s ability to file new charges, after the original conviction... as a limit on the prosecution’s ability to threaten greater charges than had originally been
Criminal Defense of Immigrants: §2.23
counsel have a legal and ethical responsibility to protect our clients from damaging immigration consequences... · It’s the right thing to do. · Ethics considerations require it. · Courts expect us to do it. · Standards of the... of possible immigration consequences. · Duty to investigate. · Duty to use mitigating facts to obtain better plea and lower sentence. · Duty not to give affirmative misadvice. · Duty to advise the client of actual immigration consequences. · Duty to defend against collateral consequences. Moreover, it is in our own interest to do so: · Desire to deliver excellent legal services. · Benefits... on court appointed panels. · Damage to reputation within the profession. · Damage to reputation among client communities. · Disciplinary sanctions: disbarment and lesser penalties. · Damage to self-esteem. · Loss of income. ·... mental distress. · Costs of attempting to rectify a mistake. These are the... If you want, you can skip to the conclusion, [1] which addresses the question:... And offers a surprisingly simple way to do so that uses our knowledge and skills as criminal lawyers, but does not require us to learn the complexities of immigration law .
Tooby's California Post-Conviction Relief for Immigrants: §10.1
of probation or other evidence of rehabilitation to clear defendants’ criminal convictions from their records... recommendations against deportation (JRADs) that were, prior to November 29, 1990, granted by criminal sentencing judges to eliminate deportation and other immigration consequences of... been ameliorated , some discussion is given to ways in which those consequences can be... (2) Expungements of misdemeanors where no probation was granted. See § 10.60,
Tooby's California Post-Conviction Relief for Immigrants: §7.46
Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate The Vienna Convention on Consular Relations (VCCR) is a treaty to which the United States is a party and which requires local law enforcement officers to advise a foreign national, who has been arrested, of his or her right to contact the embassy for assistance. In... enforceable by the defendant for the failure to advise with a motion to suppress any subsequent statement. The court... of the arresting officer's error in failing to tell the defendant of the right to contact the consulate, must be set aside... require suppression of evidence, they appear motivated to some extent by reluctance to create a new “suppression of evidence” remedy... This is a familiar prejudice test, analogous to that required in the context of a... of the Vienna Convention, and that failure to notify of the petitioner of the right to consular assistance constituted an Article 36 violation. [3] The court went on to hold that counsel’s failure to raise the violation was deficient performance. [4]... been informed of his or her right to contact the consulate, the Consul would have... been retained who would have known how to prevent the adverse immigration consequences from occurring.... courts require claims under the Vienna Convention to be brought in a habeas corpus petition,... 2 . [6] The State Department advisory to all law enforcement on the arrest of... at: http://www.state.gov/www/global/legal_affairs/ca_notifications/ . The State Department site includes a 60+ page manual designed for... what the treaty means: http://www.state.gov/www/about_state/ca_prelim.html . To get a copy of the treaty itself:
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