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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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Crimes of Moral Turpitude: §9.105
Rape Statutory rape has generally been held to be a crime of moral turpitude. ... act. ‘Statutory rape’ is also deemed to involve moral turpitude.’” [1] In Quintero-Salazar... (4) the statute was passed in order to address teenage pregnancy, not to avoid a moral issue; and (5) the... the ages of 14 and 16 held to involve moral turpitude) ; Marciano v. INS... so a defense of reasonable mistake as to age is unavailable); Pino v. Nicolls ,... a child of 15 years held equivalent to rape, and so involves moral turpitude); Rico... under 16 by male over 18, contrary to Wisconsin Statutes § 944.10(2) , held CMT);... Wisconsin conviction of carnal knowledge held equivalent to statutory rape) ; Matter of R ,
Post-Conviction Relief for Immigrants: §5.64
as a result of nonstatutory constitutional motions to vacate, ceases to exist for immigration purposes. A state court order to this effect must be accorded full faith and credit because this type of motion is not... in the constitutional sense, by the failure to issue the statutory deportation warning, which constitutes... Roldan , held that a conviction ceases to exist “where the . . . vacation... warranted . . . on grounds relating to a violation of a fundamental . .
Criminal Defense of Immigrants: §15.10
On March 1, 2003, the INS ceased to exist as an administrative entity. [1] ... Although administrative, deportation proceedings are not subject to the Administrative Procedures Act. [2] Immigration... than criminal , and therefore not subject to constitutionally protected rights of criminal defendants. [3]... (precedential or not) may be appealed directly to the federal circuit court with jurisdiction over... (“IJ”). [1] Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002). [2] See,... notice and comment, redetermine detention boundaries, even to the extent that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit); Ardestani... ( ex post facto protections not applicable to deportation). [4] 8 C.F.R. § 1003.1(g).
Post-Conviction Relief for Immigrants: §6.21
different agency. But the court refused to impose a categorical bar on claims of... not required, by the due process clause, to advise the defendant on that subject at... consequences doctrine “originated as a policy-based adjunct to the due process requirement that a court... accepts are voluntarily given,” while “the right to competent representation in the guilty plea context... all ‘defendants facing felony charges are entitled to the effective assistance of competent counsel .’” [2] While the right to the effective assistance of counsel is subsumed... process of law, the court found: no logical or jurisprudential reason why we should truncate our examination of counsel’s Sixth Amendment responsibilities to noncitizen clients by invoking a categorical concept... assessed under the Sixth Amendment, which looks to the facts of each case to determine “whether counsel’s assistance was reasonable considering... had never applied the “collateral consequences” doctrine to limit claims of ineffective assistance of counsel:... consequences doctrine the Attorney General urges us to adopt in this case. In fact,... be informed” in order for the plea to be considered voluntary ( Hill , supra... among the alternative courses of action open to the defendant’” ( id. at p. 56).... giving of erroneous immigration advice ought categorically to be barred. Rather, recognizing the tremendous... of banishment or exile, we do well to eschew technicalities and fictions and to deal instead with realities.” ( Costello... for certain due process purposes be collateral to petitioner’s conviction should not preclude application of the ordinary Strickland standards to his ineffective assistance claim based on alleged... of California has been bound since 1987 to follow Soriano without any particular flood of
Criminal Defense of Immigrants: §3.21
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. Often, a... wrongly that s/he now has a green card. If a person has a green card, s/he may use shorthand and describe him-... the letter A) which is the key to finding his or her immigration record when... see Appendix A, infra , is necessary to determine a person’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. Note: Often... by the border patrol and being persuaded to sign a waiver form and accept a... 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... than 180 days is generally not subject to the rules of admissibility upon returning, but one exception to this rule (of many) occurs when s/he... If an LPR is unable to avoid a conviction that triggers deportation, inadmissibility,... 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, [5] or INA 212(h) [6] 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.” [7] ... 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... granted political asylum [10] have been admitted to the United States or allowed to remain in the United States because of... been granted LPR status, but 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 [12] and... 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), [13] and thereby... [14] If s/he cannot adjust status to LPR, the next goal is to preserve eligibility for the relief of withholding... serious crime.” [16] 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. (2) Even... United States , the client may wish to obtain various immigration benefits such as voluntary... See §§ 3.31-3.33, infra , on how to verify the client’s immigration situation. [2] But... also § 24.30. [8] 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
Criminal Defense of Immigrants: §2.34
that require the court taking a plea to inform every defendant of the possible immigration consequences. The intent of these provisions is to protect noncitizens from entering guilty pleas in... a citizen of the United States , to the potential adverse immigration consequences of a plea. The Legislative intent is generally to allow the defendant to investigate actual immigration consequences, with the assistance of counsel, and then to renegotiate the case with the prosecution in light of those consequences to avoid them if possible. [2] They also of necessity alert criminal counsel to this danger, and do so in every... the time of plea. Once alerted to this danger, defense counsel must act to investigate these consequences, the actual consequences, not... so the defense can take appropriate action to avoid them if possible. Since this danger is brought to light in every single guilty plea, we... disaster. This triggers the ethical duty to assist the client to learn the actual level of risk posed... the immigration consequences, and formulate a strategy to minimize those consequences to the extent the client wants to do so. [1] Cal. Penal Code §
Criminal Defense of Immigrants: §2.5
not be released until they are deported to their country of citizenship. They may quickly be driven in a government van down to one of the huge immigration camps on... under contract with the DHS and subjected to deportation proceedings locally. Because the... not “criminal” – in nature, there is no right to court-appointed counsel to defend them against deportation. Half of the persons in deportation proceedings have no means to hire an attorney to defend them. The immigration judges are often affirmatively working to deport them, telling them God knows what off the record, and then going on the record to record their agreement to accept deportation, even if – without knowing... some defense against deportability or some claim to discretionary relief from deportation. Even... trigger deportation, or that they are eligible to apply for relief from deportation, they may not be able to endure remaining in custody until the immigration... detention, even if the immigration judge agrees to release them, until the conclusion six or eight months later of a government appeal to the Board of Immigration appeals challenging the... criminal custody on O.R. or bail, prior to conviction, but an immigration hold surfaces before... client moves into deportation proceedings as if no criminal proceedings were still pending against them.... anyway, unless we work with immigration counsel to obtain the client’s return in custody to the criminal court to face the music there, still subject to an immigration hold. Of course, any... dead time, for which the client receives no credit against a future sentence, since the custody... client – miraculously – is not subject to mandatory immigration detention, then a bond must... at a cost of thousands of dollars, to try to defend them against deportation, or to try to obtain compassionate relief from deportation if they are eligible to apply for that relief.
Aggravated Felonies: §2.11
of bond. Immigration detention is analogous to criminal detention. The person detained may... criminal bond, unless the noncitizen is subject to mandatory detention. An aggravated felony conviction... 1998. A noncitizen may be able to work with criminal defense and immigration counsel to avoid a conviction that would trigger mandatory detention. Criminal lawyers should attempt in criminal court to obtain criminal dispositions that do not trigger... number of inadmissible and deportable noncitizens subject to mandatory immigration detention prior to a final order of removal. The... inadmissible or deportable under certain grounds related to crimes. [1] The Attorney General must... release, a noncitizen inadmissible under grounds relating to moral turpitude, drug conviction, drug trafficking, prostitution,... years of last entry if a sentence to one year or more imprisonment was imposed,... Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005). In addition, a considerable... Offense, Youthful Offender or Political Offense Exceptions to inadmissibility. (4) Conviction of a single... not trigger mandatory detention for noncitizens subject to deportation where (a) the crime was not... list substantive offenses, and attempt and conspiracy to commit them, but no other classes of inchoate offenses. See... a basis of legal validity, will work to avoid mandatory detention for most, if not... Deportation, granted by the sentencing judge prior to November 29, 1990, also avoid mandatory detention... applies, the immigration court is not permitted to release the immigrant on bond, unless, as... appeals that decision, the immigrant is subject to mandatory detention until the Board of Immigration... deportability and did not request a hearing to determine whether he was subject to mandatory detention. The Supreme Court thereby overturned a number of decisions to the contrary. [12] The Demore decision... valid and that he was “therefore subject to mandatory detention under § 1226(c) . .... the plurality of four justices was insufficient to hold the mandatory detention statute constitutional, Justice... held that “due process requires individualized procedures to ensure there is at least some merit to the Immigration and Naturalization Service’s (INS) charge [of removability] and, therefore, sufficient justification to detain a lawful permanent resident pending a... proceedings turns solely upon the alien’s ability to satisfy the normal bond procedures — namely,... a risk of flight or a danger to the community.” [14] If a... a mandatory detention category, s/he remains entitled to a bond hearing and to release on reasonable bond [15] unless s/he is shown to be a flight risk or danger to the community. As both the plurality and concurring opinions note, the noncitizen was entitled to a hearing in which he could have “raised[d] any nonfrivolous argument available to demonstrate that he was not properly included... noncitizen would also have had a right to a bond hearing “if the continued detention... Demore v. Kim , has found that no due process claim exists where the noncitizen... the basis for contesting the claim has no merit. [20] Another court has found a period of two years and eight months too long to detain a noncitizen pending expedited removal. [21]... (N.D.Ill. Apr. 28, 2003) (Attorney General authorization to set conditions of release under INA § 241(a)(3), 8 U.S.C. § 1231(a)(3) includes authorization to set bond as a condition of release... contesting removal was based on claim contrary to binding case precedent). [21] Tijani v. Willis... (two years and four months detention pursuant to INA § 236(c), 8 U.S.C. § 1226(c)... § 1003.19(i) and expanding the DHS authority to obtain an automatic stay of the immigration... by filing a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) within one... BIA decision. If the DHS fails to file an appeal within 10 days of... Commissioner can certify the Board’s custody order to the AG, and then release is further... 8 C.F.R. § 1003.19(i)(2) is ultra vires to the statute, and facially violates substantive and... § 1003.19(i)(2) violates Fifth Amendment substantive right to bail and due process by allowing government to maintain custody without showing likelihood of success on appeal or harm to government), distinguishing Demore v. Kim , 538... is released” from criminal custody without regard to whether s/he is released on parole, supervised release, or probation, and without regard to whether s/he may be arrested or imprisoned again for the same offense. Prior to IIRAIRA, Congress passed AEDPA, which included similar detention provisions requiring the Attorney General to take into custody certain individuals convicted of... did not intend the mandatory detention provision to apply to persons released from incarceration before the AEDPA... IIRAIRA, [3] s/he should not be subject to mandatory detention. The Board of Immigration... the Transition Period Custody Rules is subject to mandatory detention pursuant to INA § 236(c), even if the noncitizen... (July 22, 1996); Montero v. Cobb , No. 96-1141C-WGY (D. Mass. 1996); Grodzki v. Reno , No. 96-cv-2303-ODE (N.D.Ga. Sept. 20, 1996); Lopez-Tellez v. INS , No. 96-1432-BTM (CGA) (S.D.Cal. Sept. 26, 1996). [2]... under 28 U.S.C. § 2241, ordering USICE to release returning LPR with CMT conviction; INA... 236(c)(1), 8 U.S.C. § 1226(c)(1) applies only to aliens who are being released from incarceration... Congress intended that § 236(c) apply retroactively to aliens released from incarceration on criminal convictions... 236(c), 8 U.S.C. § 1226(c) applies only to noncitizens taken into immigration custody immediately after... (D) INS Policy Change: Review Available to Persons Released from Incarceration before October 9,... from state or federal criminal custody prior to October 9, 1998, [1] the expiration date... under which the Attorney General had discretion to release from INS custody persons subject to mandatory removal. This policy gives district directors discretion to release persons who are not considered a flight risk, and who are determined not to be a danger to the community. This will apply only to persons who were released from criminal custody... automatic release, but do have the right to have a hearing on whether they are a flight risk or danger to the community. The INS estimated that... This policy was apparently the response to losing at least 13 court cases challenging... § 235(b)(1)(A), but who are later transferred to the immigration courts for removal proceedings following... 1003.19(h)(2)(i) (e.g., arriving aliens, or those subject to mandatory detention). [1] [1] Matter of... authorities actually will make it a priority to detain [1] setting out four categories, in... neglect of children. The INS must continue to detain those who were taken into INS... not pose a flight risk or danger to the community. The memorandum states that persons in exclusion proceedings are not subject to mandatory detention, except for those convicted of... detainee 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). Citizens 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 persecution. The INS is not required to detain people already released from criminal custody,... and begins removal proceedings they are subject to detention. [1] The memorandum is reprinted... Removal. The Attorney General is required to detain noncitizens subject to a final order of removal during the... order becomes administratively final, or, if appealed to federal court, on the date the court... s/he will be taken into custody pursuant to the warrant of removal. [4] Any... period, the statute provides for release subject to an order of supervision. [8] However, the regulations shift the burden to the noncitizen to establish eligibility for an order of supervision. They provide that the Attorney General may continue to detain immigrants beyond the 90-day removal period unless they demonstrate to the district director’s satisfaction that they are likely to comply with the removal order and are not a risk to the community. [9] In Zadvydas... Court found insufficient evidence of congressional intent to authorize indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country. ... future. Federal courts have habeas power to order release on conditions after a reasonable... only with noncitizens that had been admitted to the United States and subsequently ordered removed,... Supreme Court has recently extended this holding to noncitizens subject to removal from the United States following exclusion... their release would not pose a danger to the community or a significant flight risk.... the Attorney General a full 90 days to effect an alien’s removal after the alien... 241(a) of the Act, and it imposes no duty on the Attorney General to act as quickly as possible, or with... period. This reading of the Act raises no constitutional infirmity. It is permissible for the Attorney General to take more than the 90-day removal period to remove an alien even when it would be within the Attorney General’s power to effect the removal within 90 days. The... when the delay in removal is related to effectuating the immigration laws and the nation’s... things, delays in removal that are attributable to investigating whether and to what extent an alien has terrorist connections... reason for any delay or for refusing to release the noncitizen. [18] There may... of removal who ordinarily would be subject to mandatory and indefinite detention. The INS... noncitizen’s removal, the noncitizen is not subject to mandatory detention and could be released from... been granted withholding or deferral of removal to a specific country come within this category, unless the DHS is actively pursuing their removal to some third country. The agency decision whether to release such a person must take into... including whether the alien poses a threat to the community or flight risk.” [19] [1]... provides that these aliens “shall be subject to supervision under regulations prescribed by the Attorney... under IIRAIRA § 309 do not apply to noncitizens placed into proceedings prior to April 1, 1997. Seirra v. Romaine... § 241(a)(6), 8 U.S.C. § 1231(a)(6) applies to inadmissible noncitizens ordered excluded prior to April 1, 1997). [13] Clark v. Martinez... Sept. 2, 2003) (removable noncitizen who refuses to cooperate fully in securing travel documents from foreign government cannot meet burden of showing no significant likelihood of removal in the foreseeable... final order. [1] Counsel should consult up-to-date litigation references. Many federal defender offices... The Detention Watch Network maintains a website to follow these issues. [2] Habeas corpus in federal district court is also available to challenge illegal detention before a removal order... v. Davis ); Tam v. INS , No. S-98-183 FCD, 1998 WL 466584 (E.D. Cal.... the foreseeable future); Theck v. INS , No. CV97-6206-JSL (RC), 1998 WL 611009 (C.D. Cal.... who will not be accepted for deportation to Korea in the foreseeable future has the right to marry, which would allow him to be deported to Spain); In re Indefinite Detention Cases ,... factors set forth in the regulations pertaining to release pending deportation violated noncitizens’ procedural due... found that this regulation cannot be applied to a noncitizen granted advance parole, where the... This group of noncitizens is not subject to INA § 236(c). That section applies only to those who have been “arrested on a... v. Kim , arguably do not apply to detention issues involving arriving aliens. ... regulation [3] denies the Immigration Judge jurisdiction to redetermine conditions of custody with respect to [subparagraph (2)(B)] “[a]rriving aliens in removal proceedings, including persons paroled after arrival pursuant to section 212(d)(5) of the Act.” The term... an applicant for admission coming or attempting to come into the United States at a... States by any means, whether or not to a designated port-of-entry, and regardless of the... alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that... and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered... see 8 C.F.R. § 1001.1(9). Thanks to Rick Coshnear.
Criminal Defense of Immigrants: §10.49
. If prosecution and court wish to impose a certain amount of time in... and a new offense, counsel can seek to accept the custody time on the new... violation on the original offense, in order to keep the total sentence ordered by the... example, if the client was originally sentenced to six months on a theft offense, and the court wishes to impose an additional six month sentence on... violation conduct, counsel could ask the court to do so on a new theft conviction... as an aggravated felony, since there was no total one-year sentence on any single theft conviction. The same tactic can be used to accept a custody order on a certain... in its entirety, that the client waive credit for the time he has already served... six month sentence on count II with no deduction for time already served. That... is not, counsel could ask the court to impose the additional custody time as punishment... regardless of sentence, it may be advisable to take a prison sentence on the original
Criminal Defense of Immigrants: §8.33
Whether to Alert Prosecution or Court to Immigration Issues This can be a difficult... the prosecution or court will be aware to some extent of the immigration issues, often... the prosecution (or court) will be delighted to learn they can force the permanent banishment... additional source of leverage against the client, to force the client to take more counts or serve more years... therefore be in the client’s interest not to disclose the immigration situation. For example,... consequences can be avoided by a plea to an immigration-harmless offense without necessarily alerting the prosecution or court to the immigration situation. The client has an absolute statutory right to keep silent in plea discussions about his... minor, many prosecutors and courts are open to respecting the immigration needs of the client,... · they do not want to deport the breadwinner away from his or... minor offense that s/he will be forced to take the case through a lengthy trial, appeal, and on to the Supreme Court and into post-conviction relief if necessary in an effort to preserve the ability to reside here at home with family members, and the prosecution is unwilling to incur major transaction costs over a minor... by inflicting the same criminal penalties (and no more) on the client that are routinely... Under these circumstances, it may make sense to make the immigration consequences a focal point... that at the time of the plea no defendant shall be required to disclose his or her legal [immigration] status to the court.” (California Penal Code §... of their immigration status, since an answer to these questions may provide a link in the chain of evidence necessary to convict them of illegal entry.
Safe Havens: §4.26
While the immigration statute limits pardons to aggravated felonies, crimes of moral turpitude, and... an argument that a pardon is effective to eliminate any deportable conviction. (A) In... will provide immigration relief; legislative pardons have no effect. While the BIA has... specific federal legislation, so they remain effective to eliminate the adverse immigration consequences specified in... [1] This protection has been extended to encompass, in addition, those noncitizens who would... by the authorities who granted the pardon to revoke the pardon. [5] The immigration courts need not grant a stay or continuance of deportation to enable the noncitizen to apply for a pardon. The decision whether to issue a stay is a discretionary one.... provides that an executive pardon is effective to eliminate the deportation consequences of one or... offense cannot be used as a basis to establish a noncitizen’s deportability regardless of the... of the Constitution, which authorizes the President “to grant Reprieves and Pardons for Offenses against... Separation of Powers for Congress through legislation to try to impose limits on the effect of the... the basis of this provision; the authority to deport hinges completely on the fact of... only recipients of Presidential pardons, as opposed to state pardons, are not deportable for the pardoned offense, the argument would apply to only a handful of people. There are special arguments in the Ninth Circuit to prevent the government from deporting a noncitizen... it violated equal protection of the laws to allow noncitizens whose offenses qualified for treatment... had their convictions expunged under state laws, to be subject to removal on account of those offenses. In... on the ‘mere fortuity’ that they happen to have been prosecuted under state rather than federal law, or under different state laws, as there is no rational basis for distinguishing among the affected... , and Garberding . Congress’ attempt to limit the presidential power in violation of... ground of deportability, notwithstanding the statutory language to the contrary, because the attempt to limit presidential pardon authority invalidates the entire... § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute;... 2000). [6] Id. at 748. [7] Thanks to Ben Caspar and Dan Kesselbrenner for this... law. [5] The President’s constitutional power to grant conditional pardons is discussed in Schick... a pardon states that it is granted “to prevent deportation” does not make it conditional,... U.S. High Commissioner and the U.S. Ambassador to Germany . [12] Such a pardon... accepted by the immigration authorities as equivalent to a pardon. [15] Commutations of sentence... restoring civil rights may be considered equivalent to a pardon, for immigration purposes, if it... a Wisconsin restoration of civil rights is no longer regarded as equivalent to a full and unconditional pardon for immigration... Pardons . Legislative pardons are ineffective to avoid deportation. [19] (4) ... (5) Pardon Effective Only As to Specific Offense . In Roccaforte v.... and entering in the nighttime with intent to commit burglary and larceny, and (2) possession of burglary tools with intent to commit larceny. He had been ordered... by Immigration Act of 1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5081. The predecessor statute, prior to 1990, was INA § 241(b). The... 561 (8th Cir. 1959)(court rejected government’s attempt to discredit a pardon of a conviction of... not possible for a third party collaterally to attack or indirectly impeach it); Matter of... 1974) (BIA remanded Iranian nonimmigrant student’s case to allow unconditional pardon for the crime of theft to be received into evidence); Matter of L... saying that the noncitizen was being pardoned “to prevent deportation,” since quoted words did not create a condition that if violated, would cause the pardon to become null and void and merely described... pardon because it did not restore offender to former state of innocence); Matter of C... of any other crime, otherwise this pardon to become null and void.” A conditional pardon is one to which a condition is annexed, the performance of which is necessary to the pardon’s validity.) . [4] Matter of... conversion, larceny, receiving stolen goods, and conspiracy to steal — did not qualify as executive... (discharge from parole nunc pro tunc pursuant to a state statute providing that “punishment so... 539 (BIA 1988) (a pardon was held to be legislative, and therefore ineffective, when granted pursuant to a state constitutional provision specifying that on... N. Dec. 336 (BIA 1961) (statutory purpose to ban legislative pardons permits recognition of pardon granted by U.S. High Commissioner for Germany to Soviet citizen convicted of abortion). [20] Matter... granted by sentencing court held not equivalent to full and unconditional executive pardon required to eliminate conviction for immigration purposes). [21] Roccaforte... Cir. 2001) (foreign expungement effective by analogy to FFOA, distinguishing foreign pardons). Cf. Matter... person convicted of a felony and committed to state prison or other institution may petition... charges may apply for a pardon directly to the governor. Under California Penal Code... lives around. He does not appear to need to avoid granting any boons to criminals because his right-wing credentials are sufficiently strong. Therefore, it may have become worthwhile to apply for a pardon in California for... Georgia State Board of Pardons and Paroles to a Greek permanent resident who had been... More recently, the Georgia pardon board, insulated to some extent against the political pressures that preclude so many governors from exercising the power to pardon, has become active in granting pardons to avoid immigration consequences. In Georgia , it is apparently the practice to sentence every misdemeanant to 12 months custody, and then suspend execution of that sentence in many cases so as to place the defendant on probation. This... of Pardons and Paroles granted a pardon to avert imminent deportation on account of a... Board held that a pardon automatically given to an immigrant from Ireland pursuant to a state constitutional provision did not qualify... purposes. The pardon was issued pursuant to the Louisiana Constitution, which partly provided that... the argument that because, under Louisiana law, no pardon was available to the noncitizen as a first-felony offender that... request a pardon if s/he is eligible to have the conviction set aside, at least until the application to do so has been denied. [6] ... were granted, and 64 denied or allowed to expire. Of the five that were... had indicated that they were not opposed to the pardon. In each case, the... on her property. She was sentenced to three years probation. She had no other criminal history, and was also facing certain deportation to Norway . Her story was in... Governor John Kitzhaber granted an unconditional pardon to Hector Carillo-Landeros, convicted in 1991 of Sex... since he was 11, he was going to face deportation without the pardon. Even though he was pardoned, he agreed to continue to register as a sex offender. At the same time, the Governor denied the request to commute the sentence of another person then... criminal justice system has failed or provides no adequate remedy for manifest injustice. ... application for his noncitizen client, states that to obtain a pardon one needed to show very strong equities, and an outpouring... “do your homework on the prosecuting attorney, to the victim and etc.” Washington State .... by a Mexican citizen was not sufficient to eliminate the immigration effects of convictions for... case, following the termination of deportation proceedings, to afford the noncitizen an opportunity to apply for a full and unconditional pardon... for the automatic restoration of civil rights to a person by serving out his or... be restored only by a pardon, according to a 1916 opinion of the Wisconsin attorney... certificate of rehabilitation procedure] shall not apply to . . . persons convicted of a
Tooby's California Post-Conviction Relief for Immigrants: §4.21
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. Often, a... wrongly that s/he now has a green card. If a person has a green card, s/he may use shorthand and describe him-... the letter A) which is the key to finding his or her immigration record when... see Appendix A, infra , is necessary to determine a person’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. Note: Often... by the border patrol and being persuaded to sign a waiver form and accept a... 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... than 180 days is generally not subject to the rules of admissibility upon returning, but one exception (of many) to this rule occurs when s/he has committed... If an LPR is unable to avoid a conviction that triggers deportation, inadmissibility,... 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, [5] or INA 212(h) [6] 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.” [7] ... 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... granted political asylum [10] have been admitted to the United States or allowed to remain in the United States because of... been granted LPR status, but are eligible to adjust status to LPR after being present in the U.S.... It is 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 [12] and... 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), [13] and thereby... [14] If s/he cannot adjust status to LPR, the next goal is to preserve eligibility for the relief of withholding... serious crime.” [16] 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) Even... United States , the client may wish to obtain various immigration benefits such as voluntary... See §§ 3.31-3.33, infra , on how to verify the client’s immigration situation. [2] But... Immigrants § 24.30. [8] 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: §1.1
Introduction The aim of this volume is to aid immigration and criminal counsel by gathering... principles used by immigration and federal courts to determine when a conviction is, and is... crimes of moral turpitude from roughly 1940 to the present. This was done by... from 1 I. & N. Dec. 1 to the present, and all reported federal cases.... generalizing from a CMT decision cited here to the particular client’s case you may have... interim. The law governing the rules to be applied in determining whether a given... crimes of moral turpitude in several contexts, to reduce the need to repeat the law governing certain general principles... what is not a conviction, effective ways to eliminate a conviction for immigration purposes, and... relief in immigration court, organized alphabetically according to the name of the status or form... and determining whether the minimum conduct necessary to violate the statute invariably involves moral turpitude,... and second, consulting the record of conviction to determine which offense within a divisible statute,... that point, the basic analysis is employed to determine whether the conviction involves moral turpitude.... well as discussions of regulatory, target and non-substantive offenses. See §§ 8.22-8.24, infra .... involving moral turpitude. In addition to compiling the most complete collection of CMT cases anywhere, we have tried to make the law governing what offenses are,... There are a number of ways to discover the case law closest on point... offense is discussed, starting from one citation to a pertinent case; and (3) The Index seeks to grant access to specific discussions according to the key words defining the offense. ... well. This Table is kept up to date on a monthly basis on our web site: http://www.NortonTooby.com . Appendix B consists... S.Ct. 105, 136 L.Ed.2d 59 (1996) (refusing to adopt bright-line rule regarding classification of crimes... analyzed on a case-by-case basis). [2] Reference to a section of this work will be
Criminal Defense of Immigrants: §3.63
in criminal cases involving noncitizens may need to investigate and obtain evidence from outside the United States to present in defense of their clients. [1]... will often be willing and able both to assist in the conduct of a foreign... in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law 347 (2d ed. 2006). See... that state courts have a comparable power to compel the attendance of witnesses abroad.” [2]... Lawful Permanent Resident, however, cannot be compelled to testify since they owe no allegiance to the United States . [3] Defense counsel may be able to use a “treaty of mutual assistance” or letter rogatory to compel foreign testimony. [1] 28 U.S.C.... in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.3-12.8, 348-349 (2d ed.... . See also F.R.Civ.P. 4(j)(1) (how to effect service of process in another country... [2] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-21 (P.... their nationality and immigration status allows them to do so. A visa such as a visitor’s visa may also allow them to enter to attend court. If they do not... they are inadmissible, it will be necessary to seek to have them paroled into the United States . The DHS Secretary has authority to parole a noncitizen into the United States to testify without admitting the witness in immigration... security risk or a risk of failing to appear as required or leave the United... is a cooperating witness, providing important information to the prosecution in a state or federal case, it may be possible to have the witness admitted to the United States by obtaining an “S,”... §§ 24.15-24.17, infra . [3] To request parole, obtain Form I-131 from the... however. If the government refuses to admit the witness, the witness may still... violating due process by preventing defense access to exculpatory testimony. [6] [1] 8 U.S.C. §... generally R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.27-12.32, 354-355 (2d ed.... 244 (1st Cir. 1990) (prosecutorial misconduct intentionally to obstruct compulsory defense process). (C) Government... a witness in, or as a party to, any criminal case under investigation or pending... “This rule arguably may be expanded to require the consent of the defense as well, in light of the constitutional due process restrictions on non-reciprocal rules favoring the prosecution in criminal proceedings.... (1973).” [2] Federal courts have authority to detain material witnesses upon a showing that “it may become impracticable to secure the presence of the person by subpoena.” [3] The court must balance the liberty interest of the witness against... defendant, and may use less restrictive means to ensure appearance, such as electronic monitoring or bond. [4] If the... is mandated.” [5] Federal standards apply to this question. [6] Conflicting authority exists on which federal standard to apply, but the defendant generally must show... Three circuits also require the defense to show “bad faith” on the part of the government in allowing the deportation to occur. [8] A defendant will usually... be advised that it may be impossible to obtain the witness’s presence at trial if... at least show it made reasonable efforts to secure the attendance of the absent witness.... [2] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-19 (P.... made that it was material, was favorable to the defendant, and was not cumulative). ... generally American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-20 (P.... (1968) (government must show good faith effort to produce witness). Compare United States v.... 1992) (good faith effort includes taking steps to ensure witness remains in United States); with... 467, 469 (8th Cir. 1984) (government has no obligation to secure attendance of deported witness since effort... may in exceptional circumstances allow a party to take a deposition of a witness in... of such depositions include taking great care to obtain an interpreter and learning about the... of the foreign witness if it chooses to do so. If the defense has... court may commit reversible error by refusing to order the deposition of a foreign witness, who is unwilling or unable to travel to the United States to testify. [5] If the court orders... be admissible. [6] A court’s refusal to admit sworn videotaped depositions can violate the defendant’s constitutional right to present a defense. [7] [1] F.R.Crim.P. 15(a) (allowing court to order foreign deposition “[w]henever due to exceptional circumstances of the case it is... Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony... 1993). [2] See Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions , 32 Colo. Law .... R . McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.42-12.46, 359-360 (2d ed.... Cir. 1979). Some courts, however, refuse to authorize the deposition of a witness who... Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony... Relations requires federal and state law enforcement to notify every foreign national who is arrested within the United States of his or her right to consult with consular officials from their home... in fact, often be of great assistance to the foreign national, and to defense counsel, in such matters as arranging... Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, Art. 36(1)(b).
Tooby's California Post-Conviction Relief for Immigrants: §10.60
Penal Code § 1203.4a requires the court to grant expungement of a misdemeanor conviction, even... has elapsed since pronouncement of judgment; (c) no new charges are pending, and the applicant... a minor later conviction, counsel can try to persuade a court that it is too minor to disqualify the client from expunging the conviction, even though there is no statutory provision expressly authorizing discretion under these circumstances. This expungement statute does not apply to misdemeanors listed in Vehicle Code § 42001(b), [2] or to infractions. [3] [1] Penal Code § 1203.4a(a)... honest and upright life and has conformed to and obeyed the laws of the land... firemen], and 2803 [disobedience of police order to stop to correct illegal load]. [3] Penal Code §
Tooby's California Post-Conviction Relief for Immigrants: §11.18
In these jurisdictions, it is therefore possible to request and obtain a bond from the... prohibits the indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country, to those who were never formally admitted into... have been issued, [1] expanding DHS authority to obtain an automatic stay of the immigration... by filing a Notice of Service Intent to appeal Custody Redetermination (Form EOIR-43) within one... the case. If the DHS fails to file an appeal with the BIA within... Commissioner can certify the Board's custody order to the Attorney General, and then release is... makes a decision. The balance of the regulation remains unchanged. These... greater than $10,000, except there was formerly no provision staying release after the BIA decided... the automatic stay provision, and leaves it to the discretion of the DHS, rather than the IJ, because there is no limitation of the new automatic stay regulation to those falling within INA § 242(a)(2).
Tooby's California Post-Conviction Relief for Immigrants: §4.63
in criminal cases involving noncitizens may need to investigate and obtain evidence from outside the United States to present in defense of their clients. [1]... will often be willing and able both to assist in the conduct of a foreign... in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law 347 (2d ed. 2006). See... that state courts have a comparable power to compel the attendance of witnesses abroad.” [2]... Lawful Permanent Resident, however, cannot be compelled to testify since they owe no allegiance to the United States . [3] Defense counsel may be able to use a “treaty of mutual assistance” or letter rogatory to compel foreign testimony. [1] 28 U.S.C. §... in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.3-12.8, 348-349 (2d ed.... . See also F.R.Civ.P. 4(j)(1) (how to effect service of process in another country... [2] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-21 (P.... their nationality and immigration status allows them to do so. A visa such as a visitor’s visa may also allow them to enter to attend court. If they do not... they are inadmissible, it will be necessary to seek to have them paroled into the United States . The DHS Secretary has authority to parole a noncitizen into the United States to testify without admitting the witness in immigration... security risk or a risk of failing to appear as required or leave the United... is a cooperating witness, providing important information to the prosecution in a state or federal case, it may be possible to have the witness admitted to the United States by obtaining an “S,”... Immigrants §§ 24.15-24.17 (2007). [3] To request parole, obtain Form I-131 from the... however. If the government refuses to admit the witness, the witness may still... violating due process by preventing defense access to exculpatory testimony. [6] [1] 8 U.S.C. §... generally R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.27-12.32, 354-355 (2d ed.... 244 (1st Cir. 1990) (prosecutorial misconduct intentionally to obstruct compulsory defense process). (C) Government Deportation... a witness in, or as a party to, any criminal case under investigation or pending... “This rule arguably may be expanded to require the consent of the defense as well, in light of the constitutional due process restrictions on non-reciprocal rules favoring the prosecution in criminal proceedings.... [2] Federal courts have authority to detain material witnesses upon a showing that “it may become impracticable to secure the presence of the person by subpoena.” [3] The court must balance the liberty interest of the witness against... defendant, and may use less restrictive means to ensure appearance, such as electronic monitoring or bond. [4] If the... is mandated.” [5] Federal standards apply to this question. [6] Conflicting authority exists on which federal standard to apply, but the defendant generally must show... Three circuits also require the defense to show “bad faith” on the part of the government in allowing the deportation to occur. [8] A defendant will usually... be advised that it may be impossible to obtain the witness’s presence at trial if... at least show it made reasonable efforts to secure the attendance of the absent witness.... [2] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-19 (P.... made that it was material, was favorable to the defendant, and was not cumulative). ... generally American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-20 (P.... (1968) (government must show good faith effort to produce witness). Compare United States v.... 1992) (good faith effort includes taking steps to ensure witness remains in United States); with... 467, 469 (8th Cir. 1984) (government has no obligation to secure attendance of deported witness since effort... may in exceptional circumstances allow a party to take a deposition of a witness in... of such depositions include taking great care to obtain an interpreter and learning about the... of the foreign witness if it chooses to do so. If the defense has... court may commit reversible error by refusing to order the deposition of a foreign witness, who is unwilling or unable to travel to the United States to testify. [5] If the court... be admissible. [6] A court’s refusal to admit sworn videotaped depositions can violate the defendant’s constitutional right to present a defense. [7] [1] F.R.Crim.P. 15(a) (allowing court to order foreign deposition “[w]henever due to exceptional circumstances of the case it is... Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony... 1993). [2] See Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions , 32 Colo. Law . 81 (2003). [3] See generally R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.42-12.46, 359-360 (2d ed.... Cir. 1979). Some courts, however, refuse to authorize the deposition of a witness who... Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony... Relations requires federal and state law enforcement to notify every foreign national who is arrested within the United States of his or her right to consult with consular officials from their home... in fact, often be of great assistance to the foreign national, and to defense counsel, in such matters as arranging... Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, Art. 36(1)(b).
Crimes of Moral Turpitude: §9.35
turpitude; a conviction of unlawfully aiding one to escape from jail is not a crime... Dec. 512 (BIA 1951) (conviction of attempt to escape from reformatory in violation of Chapter... ILCS 5/11-204.1(a)(1), constitutes a CMT: "It seems to us that a person who deliberately flees... officer who, the fleer knows, wants him to stop, thus deliberately flouting lawful authority and... Ashcroft , supra. He may not want to endanger anyone, but he has to know that he is greatly increasing the... consequence of his deliberate and improper decision to ignore a lawful order of the police.... of 18 U.S.C. § 1071 was contrary to justice and an act of baseness, so
Safe Havens: §9.3
essential element, that the offense be “related to” a controlled substance listed on the federal... listed in the federal schedules in order to trigger deportation under the aggravated felony drug... substances conviction, therefore, 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... However, there are a number of non-CMT drug offenses from which a safe haven... ground of deportability [5] should be read to cover only abuse of, or addiction to, a drug on the federal lists. ... substances grounds of deportation require the drug to be in the federal list, this ground... specificity, this ground of deportation would seem to violate due process by being void for vagueness, since it would have no boundaries other than the common sense definition... conviction. Defense counsel can attempt to sanitize the record of conviction of the identity of the specific controlled substance, so no particular controlled substance is identified in the... listed controlled substance, the defendant may ask to plead guilty to an amended charge that fails to specify any particular controlled substance, but merely... such as cocaine, the defendant can attempt to plead guilty to the statute as written (which does not... district attorney, who need only decide not to take the case to trial over the difference between the portion of the charge to which the defendant is willing to plead guilty and the larger or different... The court can simply accept the plea to a non-specified drug on its own. While this “cleaning” strategy works well to construct a conviction proof against a ground... some cases, defense counsel may be able to plead the defendant guilty to commission of a state drug offense explicitly... Unless, and until, that substance is added to the federal schedules, the noncitizen will successfully... 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... with the burden of proof loses 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... of drug paraphernalia, 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. [2] ... 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. [5] However, there... took a “close enough” position by failing to hold that the a conviction under the... 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). [6]... 305 (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. 1611,... 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. Gousse... 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). (E) 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... down the list, use the strikeout function to mark any highlighted/nonhighlighted drug pairs. These... 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: §6.3
Custody Normally, criminal defense counsel will attempt to get the client out of criminal custody... then transport the client across the country to a distant immigration detention center, in a... and it may be difficult or impossible to secure the presence of the client in... The client will also not receive credit for time served, against a criminal sentence,... should therefore think carefully about the decision to obtain the client’s release from criminal custody,... and the immigration court is not allowed to release the client on bond, resulting in... is of great importance for criminal counsel to avoid a disposition of the criminal case that triggers mandatory deportation. Information on how to conduct the criminal defense to achieve this result is discussed in §§... 6.4, infra , for advice on whether to secure the client’s release from criminal custody
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