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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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Post-Conviction Relief for Immigrants: §8.43
Cir. 2001) (foreign expungement effective by analogy to FFOA, distinguishing foreign pardons). Cf. Matter
Tooby's California Post-Conviction Relief for Immigrants: §3.18
Adverse Criminal Consequences The client may hesitate to attempt to set aside a plea if the risk... It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but... greater charges and may potentially be sentenced to a greater term of imprisonment. [2] ... Generally, the client must be given full credit against any new sentence for the time... practical matter, because of the law requiring credit for time served, and because the case... court would in fact 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... enhancements, the law may require the court to impose greater punishment. For example, in... a drug offense, the client originally pleaded to the drug offense and received probation on... The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted... these circumstances, the client may not wish to risk the additional prison time that might... 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.
Post-Conviction Relief for Immigrants: §7.7
a condition of probation, it is necessary to reduce or vacate that sentence in order to avoid the most serious immigration consequences any... sentence has been vacated, it is necessary to persuade the court to (a) suspend imposition of sentence (or use equivalent state procedure so that no prison sentence at all is ordered to be served), and to require service of 364 days in custody... techniques by which courts may be persuaded to enlarge the category of offenses in which to impose 364-day sentences are: (a) waiving pre-sentence credit for time served, in return for a... different counts, even if they are ordered to be served consecutively. [1] [1] See generally
Aggravated Felonies: §5.78
‘theft,’ thus indicating that the phrase ought to be read to incorporate different but closely related constructions in... a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and... prohibiting taking another’s vehicle with the intent to deprive the person of it permanently (auto theft) or temporarily (often referred to as “joyriding”), was an aggravated felony “theft offense.” Second Circuit. Deferring to the BIA definition of theft, the Second... found that taking emergency calls not directed to the defendant constituted “theft” because the noncitizen... its benefits [$300-500 charge of transporting someone to a hospital] to someone not entitled to them. Thus, we conclude that the... the offense of fraudulent use of a credit card, committed by falsely representing a credit card belonging to another as one’s own, with an intent to obtain property, was not an aggravated felony... property without consent with the criminal intent to deprive the owner of the rights and... burglary of a vehicle with the intent to commit theft therein did not constitute a... was only convicted of having the intent to commit theft rather than for actually having... with the BIA interpretation. Theft, according to the court, is “the taking of property... property without consent with the criminal intent to deprive the owner of rights and benefits... that under the Model Penal Code, coming to essentially the same conclusion as the BIA in Matter of VZS , that a temporary taking is sufficient to constitute theft. Eighth Circuit. The Eighth Circuit, refusing to adopt the Seventh Circuit’s definition of “theft... “theft offense.” [15] Rather than looking to the language of the statute itself, the court determined that the Iowa legislature intended the offense to be considered “theft” simply because it was... involved fraud [17] (and “misappropriation” as opposed to “deprivation” [18] ), the court found that... statute could be committed without any intent to commit theft. [25] Similarly, the Ninth... that could be violated without any intent to commit theft. [26] The court stated:... the generic definition is the criminal intent to deprive the owner. The Arizona statute requires... the contract or by returning the car to an airport not identified in the contract.... a college student driving his dad’s car to a destination other than that for which... rental cars are fungible (a case familiar to the author of this opinion). The examples... statute does not require an intent permanently to deprive the owner of the property. [28]... since the statute punished taking with intent to “appropriate the property to his or her own use or to the use of any person not entitled to the use of the property,” as well as intent to deprive another person of the right to the property. Adopting the BIA definition of “theft offense,” the court recognized that an intent to “appropriate” was not the same the intent to “deprive” required to constitute an aggravated felony theft offense. ... Iowa Code § 715A.8. (“with the intent to obtain a benefit fraudulently obtains identification information of another person and uses or attempts to use that information to obtain credit, property or services without the authorization of... v. Temporary Deprivation . Most courts to address the issue have found that the... includes the taking of property with intent to temporarily deprive the owner of the rights... is mistaken in including offenses lacking intent to permanently deprive within the definition of a... aggravated felony definition should be interpreted according to their “ordinary, contemporary, and common meaning.” [1]... universally requires as an element the intent to permanently deprive the owner of property, or to approximate a permanent deprivation, under common law,... and generally under state law. [2] To support its conclusion that joyriding can amount to theft, the majority decision relied not upon... on a particular federal statute that relates to taking stolen cars across state borders. This ruling therefore appears to be in error. However, because this... owed Chevron deference, [3] counsel will need to show that the BIA definition is not... banc ) (federal, not state, definition applies to determine whether a state drug offense is... (9th Cir. 1994) (the INA “was designed to implement a uniform federal policy, and the meaning of concepts important to its application are ‘not to be determined according to the law of the forum, but rather... times or of great length could amount to theft, casual joyriding does not). See... was an overbroad divisible statute, with respect to the generic definition of “theft” employed in... of services, [3] and (b) causing another to produce a false credit report. [4] Even where the circuit... WL 21418375 (9th Cir. June 19, 2003) (No. 02-71167 unreported) ( California conviction of theft... of Penal Code § 368(d), held not to be an aggravated felony, since it penalizes... 2002) ( en banc ). (D) Non-Theft Offenses. Some offenses may appear similar to theft, but in fact do not involve... burglary does not necessarily involve the intent to commit theft. Similarly, “identity theft” may... (4th Cir. Aug. 22, 2005). (E) Non-Substantive Offenses . There appear to be a number of theft statutes that... of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself). (G) Relationship to Other Grounds. The Third Circuit has... of the fraud category must be met to trigger deportation as an aggravated felony. [1]... sentence from a minimum of six months to a maximum of 23 months, does not... aggravated felony fraud conviction, since the loss to the victim was under $10,000, and because
Criminal Defense of Immigrants: §5.41
Criminal Consequences The client may hesitate to attempt to set aside a plea if the risk... It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but... greater charges and may potentially be sentenced to a greater term of imprisonment. [2] Generally, the client must be given full credit against any new sentence for the time... is fairly easy, however, for the prosecution to circumvent them by pointing to some new fact that occurred since the... of the defendant’s exercise of constitutional right to reopen a defective conviction. As a practical matter, because of the law requiring credit for time served, and because the case... court would in fact 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... enhancements, the law may require the court to impose greater punishment. For example, in... a drug offense, the client originally pleaded to the drug offense and received probation on... The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted... these circumstances, the client may not wish to risk the additional prison time that might... 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.
Safe Havens: §5.14
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 “U.S. Treasury”). This information should be sent to: Attn: Special Correspondence Unit Federal Bureau of... 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 five 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: §10.6
immigration purposes. It returns the client to the position s/he occupied immediately prior to the conviction, and all original charges, even... convictions, and some risk of being sentenced to a greater sentence than the original sentence,... . [1] Counsel should be prepared to argue that the client cannot legally receive... and that the client must be given credit for all time served, and all other
Post-Conviction Relief for Immigrants: §3.18
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 “U.S. Treasury”). This information should be sent to: Attn: Special Correspondence Unit Federal Bureau... 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 five 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.
Crimes of Moral Turpitude: §3.26
temporary and potential lawful permanent resident status to victims of alien trafficking, was added to the INA as a part of the
Post-Conviction Relief for Immigrants: §2.18
Adverse Criminal Consequences The client may hesitate to attempt to set aside a plea if the risk... It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but... greater charges and may potentially be sentenced to a greater term of imprisonment. [2] ... Generally, the client must be given full credit against any new sentence for the time... is fairly easy, however, for the prosecution to circumvent them by pointing to some new fact that occurred since the... of the defendant’s exercise of constitutional right to reopen a defective conviction. As a practical matter, because of the law requiring credit for time served, and because the case... court would in fact 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... enhancements, the law may require the court to impose greater punishment. For example, in... a drug offense, the client originally pleaded to the drug offense and received probation on... The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted... these circumstances, the client may not wish to risk the additional prison time that might... 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.
Post-Conviction Relief for Immigrants: §5.17
if it finds “fair and just reason” to do so, which is a liberal, equitable standard. It is broad enough to include the ground that the defendant did... imagine that a court might be willing to grant leave to withdraw under this circumstance [of post-plea realization... a plea can also constitute sufficient grounds to grant a pre-sentence motion to withdraw a guilty plea under Rule 32(e).... (defendant demonstrated a fair and just reason to withdraw a guilty plea entered six months
Criminal Defense of Immigrants: §17.30
supra , for a discussion of relevant non -crime related grounds of deportation, such being
Criminal Defense of Immigrants: §11.54
Adverse Criminal Consequences The client may hesitate to attempt to set aside a plea if the risk... It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but... greater charges and may potentially be sentenced to a greater term of imprisonment. [2] ... Generally, the client must be given full credit against any new sentence for the time... is fairly easy, however, for the prosecution to circumvent them by pointing to some new fact that occurred since the... of the defendant’s exercise of constitutional right to reopen a defective conviction. As a practical matter, because of the law requiring credit for time served, and because the case... court would in fact 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... enhancements, the law may require the court to impose greater punishment. For example, in... a drug offense, the client originally pleaded to the drug offense and received probation on... The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted... these circumstances, the client may not wish to risk the additional prison time that might... 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.
Crimes of Moral Turpitude: §3.2
or Youthful Offender Exception, will give rise to inadmissibility. A noncitizen who committed more... § 212(h) before s/he will be allowed to obtain adjustment of status. Adjustment of... resident relative, or an employer, without having to travel outside the United States. [1] Any noncitizen who is eligible to adjust, is not inadmissible, and has an immigrant visa immediately available may be allowed to adjust. It is also possible to obtain lawful permanent resident status by travelling... status application simultaneously. [2] Those subject to the preference quota system [3] may face a wait of months or years before being able to immigrate, with their place in line determined... one who has a U.S. citizen spouse) to “re-immigrate” by filing an application for adjustment of status in removal proceedings as a defense to deportation. [5] If granted, the renewed adjustment of status will be a complete defense to removal. [6] In some circumstances,... visa petitions filed on their behalf prior to April 30, 2001, may be able to adjust status to a lawful permanent resident. [7] However, a noncitizen subject to a reinstated order of removal is not eligible to adjust status. [8] Nor, generally, is... or Youthful Offender Exception, will give rise to inadmissibility. See §§ 4.5-4.7, supra .... § 212(h) before s/he will be allowed to obtain adjustment of status. See §... minors from petitioning for any family member to become a lawful permanent resident. [18] ... the DHS determines that the petitioner poses no risk to the person seeking LPR status. [19] Adjustment... waiver allowed for asylees and refugees seeking to adjust status is discussed at § 3.30,... petitioner does not fall within any exception to this statute). [9] Matter of Lemus-Losa ,... 8 U.S.C. § 1255(i) (2000), is unavailable to a noncitizen who is inadmissible under INA... deportation, under INA § 212(a)(9)(C), is ineligible to adjust status under the LIFE Act); Duran-Gonzales... applies even if I-212 petition for permission to re-enter following removal was filed prior to DHS filing to reinstate prior removal order), reversing Perez-Gonzalez v. Ashcroft , 379 F.3d 783 (9th Cir. 2004), deferring to BIA decision Matter of Torres-Garcia , 23... plaintiffs ineligible as a matter of law to adjust their status because they are ineligible to receive I-212 waivers, because they have illegally... 8 U.S.C. § 1255(i), is not available to a noncitizen who is inadmissible under unlawful... 8 U.S.C. § 1255(i) does not apply to noncitizens inadmissible to the United States under INA § 212(a)(9)(C)(i)(I),... Cir. Oct. 18, 2005) (LIFE Act applies to status violators who have been in the... unlawful during the pendency of an application to adjust status; mere fact that he has received permission to work in the country does not alter... reversed and remanded based on BIA’s failure to consider rehabilitation). [13] Adjustment of status occurs... 2005) (where DHS erroneously granted LPR status to noncitizen who had prior controlled substance/aggravated felony... § 1182(c) is available as a defense to deportation). [16] Adam Walsh Child Protection and... (P.L. 109-248), available at AILA InfoNet Doc. No. 07012564 (posted Jan. 25, 2007). [17] As
Tooby's California Post-Conviction Relief for Immigrants: §6.11
state-court decision vacating a drug conviction pursuant to a writ of audita querela did not... BIA was correct in denying the motion to reopen deportation proceedings to allow application for adjustment of status, and... it is improper for a federal court to grant a writ of audita querela , where no legal defect in a federal conviction appears,... (1) The federal law referred to states the federal court may not grant... federal writs. Each sovereign is free to set its own standards in this area.... (3) Not surprisingly, the Ninth Circuit cited no authority for the dubious proposition quoted above.... conviction, the federal immigration court is required to accept the final state-court judgment which cannot... state erases the state conviction, then it no longer exists to trigger them. Even if the Beltran-Leon decision governs, it should have practically no impact on the day-to-day work of obtaining post-conviction relief for immigrants, since the decision can be distinguished as limited to audita querela cases. [5] Moreover,... words of the court in Beltran , to “identify [a] new defense or legal defect in the criminal proceedings” (thus providing a ground on which to distinguish Beltran ). The petitioner in... conviction be set aside solely in order to prevent deportation . . . .” And the normal habeas, coram nobis , or motion to vacate proceeding will therefore “remove the legal... federal [immigration] law.” [6] In order to ensure that an order vacating a conviction... court, the face of the documents (equivalent to the “record of conviction”) must establish that... adverse immigration consequences are also made known to the criminal court that issued the order,... I. & N. Dec. 1378 (BIA 2000)(referring to federal obligation to give full faith and credit to state court judgments). [5] In Lujan-Armendariz v.... th Cir. 2000), the court was careful to limit Beltran-Leon to its facts: “At oral argument, INS... rule that guilt is sufficient, without more, to support a removal order. Of course, if that were true with respect to offenses covered by the Federal First Offenders... that for a writ of audita querela to issue, there must be a legal defect
Criminal Defense of Immigrants: §21.1
. A conviction is not required to trigger a number of these grounds, even if your client has a green card (i.e., LPR status). See §§ 21.5-21.7,... your client is safe if there is no conviction. [3] Do: ü Avoid... ü Know whether your client needs to avoid inadmissibility or deportability. [6] ü ... excluded even if s/he has a green card. ü Try to obtain a dismissal of charges without entering a plea or making an admission of sufficient facts to warrant a conviction. [7] Possible defense... of the controlled substance involved, or pleading to a substance not listed in the federal schedules. [9] · Pleading to an offense not related to drug trafficking. [10] · Pleading to a state offense that does not exist under federal law. [11] · Pleading to accessory after the fact, misprision of a felony, or solicitation. [12] · Pleading to simple possession. [13] · Pleading to simple possession of under 30 grams of... clients will need different solutions; there is no one universal solution, not even dismissal. ... the goal of defense counsel may be to minimize the effects of the conviction or conduct, to allow the noncitizen to apply for relief in immigration court. ... 21.30-21.37 discuss certain “safe havens” specifically relevant to controlled substances convictions. Sections 21.38-21.40 discuss... removability. [1] Even a misdemeanor is sufficient to cause immigration problems in most cases. ... [6] See § 15.5, supra . [7] To keep the DHS from using the arrest
Crimes of Moral Turpitude: §10.3
conviction originally came into existence is effective to eliminate the conviction for immigration purposes. See... infra . The Full Faith and Credit doctrine precludes immigration courts from looking behind... is possible, however, for the immigration authorities to argue that a conviction vacated by a court which lacked jurisdiction to enter the vacatur continues to exist for immigration purposes. See §... grounds of legal invalidity may be used to vacate convictions for immigration purposes. See
Criminal Defense of Immigrants: §11.34
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: §10.7
Relationship to Plea Bargaining Sometimes, a plea bargain determines the sentence, so no discretion is left to the court to make different sentence choices. Under those... counsel must do the analysis and argument to obtain an immigration-safe sentence during plea bargaining.... plea bargaining, and defense counsel is free to attempt, by means of the techniques identified in this chapter, to protect the defendant against immigration consequences by... sometimes argues that the plea bargain continues to dictate the sentence, so the particular post-conviction... initial sentence, the court thereafter has discretion to modify the sentence in the interests of... (2d App. Dist. Oct. 26, 2006) (error to deny motion to reduce 365-day sentence imposed as probation condition in the mistaken belief that the court lacked jurisdiction to alter jail term because it had been... that “a trial court enjoys continuing jurisdiction to modify terms and conditions of probation, even
Criminal Defense of Immigrants: §19.94
‘theft,’ thus indicating that the phrase ought to be read to incorporate different but closely related constructions in... definition of “theft offense,” remanding the case to the Ninth Circuit to answer the questions of whether that definition... a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and... of taking another’s vehicle with the intent to deprive the person of it permanently (auto theft) or temporarily (often referred to as “joyriding”) [9] , was an aggravated felony “theft offense.” Second Circuit. Deferring to the BIA definition of theft, the Second... found that taking emergency calls not directed to the defendant constituted “theft” because the noncitizen... benefits [the $300-500 charge of transporting someone to a hospital] to someone not entitled to them. Thus, we conclude that the... the offense of fraudulent use of a credit card, committed by falsely representing a credit card belonging to another as one’s own, with an intent to obtain property, was not an aggravated felony... property without consent with the criminal intent to deprive the owner of the rights and... burglary of a vehicle with the intent to commit theft therein [19] did not constitute... was only convicted of having the intent to commit theft rather than for actually having... with the BIA interpretation. Theft, according to the court, is “the taking of property... property without consent with the criminal intent to deprive the owner of rights and benefits... that of the Model Penal Code, coming to essentially the same conclusion as the BIA... that a temporary taking may be sufficient to constitute theft. Eighth Circuit. The Eighth Circuit, refusing to adopt the Seventh Circuit’s definition of “theft... “theft offense.” [23] Rather than looking to the language of the statute itself, the court determined that the Iowa legislature intended the offense to be considered “theft” simply because it was... rule that a state label is irrelevant to this question of federal law. [24] ... involved fraud [25] (and “misappropriation” as opposed to “deprivation” [26] ), the court found that... statute could be committed without any intent to commit theft. [33] Similarly, the Ninth... that could be violated without any intent to commit theft. [34] The court stated:... the generic definition is the criminal intent to deprive the owner. The Arizona statute requires... the contract or by returning the car to an airport not identified in the contract.... a college student driving his dad’s car to a destination other than that for which... rental cars are fungible (a case familiar to the author of this opinion). The examples... statute does not require an intent permanently to deprive the owner of the property. [36]... Court remanded a case under this statute to the Ninth Circuit. The court did... definition of “theft offense,” remanding the case to the Ninth Circuit to answer the questions of whether that definition... since the statute punished taking with intent to “appropriate the property to his or her own use or to the use of any person not entitled to the use of the property,” as well as intent to deprive another person of the right to the property. Adopting the BIA definition of “theft offense,” the court recognized that an intent to “appropriate” was not the same the intent to “deprive” required to constitute an aggravated felony theft offense. ... [5] Id. at 820. See Appendix A to the opinion, citing the 50 state aiding... 10851, constitutes an aggravated felony; “the intent to make a less than permanent, i.e., temporary,... Iowa Code § 715A.8. (“with the intent to obtain a benefit fraudulently obtains identification information of another person and uses or attempts to use that information to obtain credit, property or services without the authorization of... v. Temporary Deprivation . Most courts to address the issue have found that the... includes the taking of property with intent to temporarily deprive the owner of the rights... is mistaken in including offenses lacking intent to permanently deprive within the definition of a... aggravated felony definition should be interpreted according to their “ordinary, contemporary, and common meaning.” [1]... universally requires as an element the intent to permanently deprive the owner of property, or to approximate a permanent deprivation, under common law,... and generally under state law. [2] To support its conclusion that joyriding can amount to theft, the majority decision relied not upon... on a particular federal statute that relates to taking stolen cars across state borders. This ruling therefore appears to be in error. However, because this... is owed Chevron deference, counsel will need to show that the BIA definition is not... banc ) (federal, not state, definition applies to determine whether a state drug offense is... (9th Cir. 1994) (the INA “was designed to implement a uniform federal policy, and the meaning of concepts important to its application are ‘not to be determined according to the law of the forum, but rather... times or of great length could amount to theft, casual joyriding does not). See... was an overbroad divisible statute, with respect to the generic definition of “theft” employed in... of services, [3] and (b) causing another to produce a false credit report. [4] Even where the circuit... § 1101(a)(43)(G). [3] Macapagal v. INS , No. 02-71167 (9th Cir. June 19, 2003) (unpublished)... of Penal Code § 368(d), held not to be an aggravated felony, since it penalizes... 2002) ( en banc ). (D) Non-Theft Offenses. Some offenses may appear similar to theft, but in fact do not involve... burglary does not necessarily involve the intent to commit theft. It can be committed with intent to commit a non-theft offense. Similarly, “identity theft” may not... of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself). [2]... aggravated felony theft offense). (F) Relationship to Other Grounds. The Third Circuit has... of the fraud category must be met to trigger deportation as an aggravated felony. [1]... sentence from a minimum of six months to a maximum of 23 months, does not... aggravated felony fraud conviction, since the loss to the victim was under $10,000, and because
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