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Ninth Circuit
Criminal Defense of Immigrants § 20.22, § 20.8 ; Safe Havens § 7.108, § 8.85:
CRIME OF MORAL TURPITUDE - STATUTORY RAPE
Quintero- Salazar v. Keisler, __ F.3d __, 2007 WL 2916162 (9th Cir. Oct. 9, 2007) (California conviction of statutory rape, in violation of California Penal Code 261.5(d), where the victim is under 16 years of age and the actor is over 21, is not a crime involving moral turpitude, since (1) it includes consensual sex between [at minimum] between a high-school junior and a college sophomore, and is not inheritly base, vile, or depraved; court also noted that (2) the statute proscribes at least some malum prohibitum conduct, since the same act would not be illegal at all if the two were married at the time; (3) the same conduct is not illegal in other states; (4) the statute was passed in order to address teenage pregnancy, not to avoid a moral issue; and (5) the offense does not require any element of intent be proven).
Aggravated Felonies § 2.19 ; Criminal Defense of Immigrants § 15.37 ; Crimes of Moral Turpitude § 3.18:
JUDICIAL REVIEW - RETROACTIVE APPLICATION OF NEW REGULATIONS
Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. August 29, 2007) (Matter of Y-L-, 23 I. & N. Dec. 270 (Op. Att'y Gen.2002), disapproved of on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir.2003), creating a presumption that a drug trafficking offense is a particularly serious crime was impermissibly retroactive as applied to noncitizen with conviction pre-dating that decision).
The test is this:
In SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), the Supreme Court held that an agency may give retroactive force to a new rule created through adjudicatory action, but "[the] retroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles." See also Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n. 12, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984) (recognizing the principle that "an administrative agency may not apply a new rule retroactively when to do so would unduly intrude upon reasonable reliance interests"). The D.C. Circuit in Retail, Wholesale and Department Store Union, AFL-CIO v. NLRB, 466 F.2d 380 (D.C.Cir.1972), fleshed out this balancing test by identifying five non-exhaustive factors for determining when an agency's retroactive application of an adjudicatory decision is invalid:
(1) whether the particular case is one of first impression,
(2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law,
(3) the extent to which the party against whom the new rule is applied relied on the former rule,
(4) the degree of the burden which a retroactive order imposes on a party, and
(5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.
Id. at 390. We adopted the Retail, Wholesale factors in Montgomery Ward, 691 F.2d at 1333. These factors are meant to "balance [ ] a regulated party's interest in being able to rely on the terms of a rule as it is written against an agency's interest in retroactive application of an adjudicatory decision." Chang v. United States, 327 F.3d 911, 928 (9th Cir.2003).
Post-Conviction Relief for Immigrants § 5.41:
POST CON RELIEF - FEDERAL - CORAM NOBIS - LACHES
United States v. Riedl, ___ F.3d ___, 2007 WL 2230256 (9th Cir. Aug. 6, 2007) (laches argument that government has not been prejudiced by tardiness "would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final." "It is irrelevant that the government has not established prejudice as to Riedl's void-for-vagueness claim because the doctrine of laches only becomes applicable once a petitioner has satisfied the second coram nobis requirement.").
Post-Conviction Relief for Immigrants § 6.31:
POST CON RELIEF - GROUNDS - COUNSEL - CONFLICT OF INTEREST
Alberni v. McDaniel, __ F.3d __ (9th Cir. Aug. 9, 2006) (case remanded to determine whether defendant's right to conflict-free counsel was violated by trial counsel's cross-examination of a prosecution witness who had been counsels client). http://caselaw.lp.findlaw.com/data2/circs/9th/0515570p.pdf
Aggravated Felonies § 2.19:
JUDICIAL REVIEW - CIRCUIT PANEL FREE TO DEVIATE FROM EARLIER DECISION WHERE REASONING OR THEORY OF PRIOR DECISION IS CLEARLY IRRECONCILABLE WITH INTERVENING HIGHER AUTHORITY
Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006) ("As Miller v. Gammie, 335 F.3d 889 (9th Cir.2003) (en banc), explained, a three-judge panel may not itself overrule a prior decision of the court, id. at 899, but "where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority," id. at 893, three-judge panels "should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled," id. at 900. We are " bound not only by the holdings of [such intervening] decisions but also by their mode of analysis. " Gill v. Stern (In re Stern ), 345 F.3d 1036, 1043 (9th Cir.2003) (quoting Miller, 335 F.3d at 900)). "Intervening higher authority" includes intervening decisions of the Supreme Court, Miller, 335 F.3d at 900, and of this court sitting en banc, Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1205 n. 8 (9th Cir.2005).")
On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).
Post-Conviction Relief for Immigrants § 6.54:
POST CON RELIEF - GROUNDS - INSUFFICIENT EVIDENCE - CONDUCT NOT A CRIME - BAD CHECKS - NO CRIME WHEN BANK HONORS THEM
Goldyn v. Hayes, ___ F.3d ___ (9th April 11, 2006) ("Petitioner spent 12 years in prison for conduct that is not a crime. We vacate her conviction pursuant to Jackson v. Virginia, 443 U.S. 307 (1979)." The conduct was writing checks with insufficient funds or credit. The alleged victims were the people she wrote checks to (not the bank). The reason it wasnt a crime is that her bank had given her a check guarantee card (in other words, extended credit), and the bank honored every one of the checks she wrote. "On federal habeas, Goldyn presents a simple argument: If the bank was obligated to cover them, then she cant have written bad checks." Kozinski ends by saying: "We are saddened and dismayed that Goldyn spent twelve years behind bars for conduct that is not a crime - or, at least, is not the crime with which she was charged.")
Post-Conviction Relief for Immigrants § 6.54:
POST CON - INSUFFICIENT EVIDENCE - BAD CHECKS - NO CRIME WHEN BANK HONORS THEM
Goldyn v. Hayes, ___ F.3d ___ (9th Cir. Feb. 1, 2006) (conviction for writing checks with insufficient funds reversed for insufficient evidence, where defendant had a check guarantee card (in other words, sufficient credit for the bank to cover the checks), and the bank in fact honored every one of the checks she wrote: "No rational trier of fact could have found that Goldyn committed the crime of writing bad checks as defined by Nevada law. . . . And no rational judicial system would have upheld her conviction.").
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JUDICIAL REVIEW - PETITION FOR REVIEW - IMMIGRATION JUDGE AND BIA ARE NOT FREE TO IGNORE ARGUMENTS RAISED BY THE PETITIONER
Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. May 4, 2005) ("IJs and the BIA are not free to ignore arguments raised by the petitioner").
Safe Havens § 7.103, § 7.7, § 8.64:
AIDING AND ABETTING - ABSENCE OF CO-DEFENDANTS NOT DISPOSITIVE
The Ninth Circuit vacated its decision in Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), vacated __ F.3d __ (9th Cir. August 3, 2005), in which the Court had wrongly assumed that since a co-defendant did not appear in the record of conviction, this necessarily meant that there was in fact no person whom the defendant may have aided and abetted in committing a theft offense. The in vacating the decision, the Court recognized that the California theft statute includes aiding and abetting offenses. The Court also recognized that the absence of codefendants is not dispositive. There is no requirement in California criminal law that codefendants be charged in the same complaint, or even the same case number. Many courts charge each in a wholly separate case while still being free to handle related cases together for purposes of judicial efficiency. It is not necessarily true that all codefendants are arrested or charged, or even identified. Even if a codefendant is acquitted, the defendant can still be convicted of aiding and abetting anyway without the verdict being overturned as an inconsistent verdict. See Model Penal Code 2.07(7)(1985) ("An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted."). Furthermore, Immigration courts cannot even consider the record of conviction of a codefendant to be part of the record of conviction of the defendant. Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (record of conviction of a noncitizen does not include the record of conviction of the persons codefendant).
Post-Conviction Relief for Immigrants § 6.56:
CRIMINAL DEFENSE - BRADY VIOLATION - D NOT PREJUDICED BY GOV FAILURE TO DISCLOSE IT HAD REWARDED KEY WITNESS WITH AN ILLEGAL GREEN CARD
United States v. Ross, ___ F.3d ___, 2004 U.S. App. LEXIS 12117 (9th Cir. June 21, 2004) (defendant in drug case was not prejudiced by government's behavior, including failure to disclose that key informant was rewarded with illegally-obtained permanent resident status, since "evidence of guilt would have been overwhelming even if [informants] credibility had been demolished.").
:
DRUG TRAFFICKING - DISTRIBUTION OF A CONTROLLED SUBSTANCE
21 USC 841(b)(4) states:Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marijuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.This means that anyone convicted of "knowingly or intentionally -- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance" (21 U.S.C. 844(a)) by free distribution of a small amount of marijuana must ("shall") be treated as if convicted of simple possession of a controlled substance under 844(a), which means it is a federal misdemeanor, and therefore not an aggravated felony under Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004). It also means a Lujan expungement works since it works for simple possession.
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DOMESTIC VIOLENCE - PROTECTION ORDER - INVALID ARREST FOR VIOLATION - REASONABLE OFFICER MUST LEARN TERMS OF PROTECTION ORDER BEFORE MAKING ARREST FOR ITS VIOLATION
Beier v. City of Lewiston, ___ F.3d ___ (9th Cir. Jan. 14, 2004) (police arrest for violation of protection order illegal since any reasonable officer would have learned exact terms of order before making arrest for violation).
http://caselaw.lp.findlaw.com/data2/circs/9th/0235516p.pdf
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CRIMINAL DEFENSE OF IMMIGRANTS - CONFESSIONS - MIRANDA - SPANISH WARNINGS INADEQUATE
United States v. Perez-Lopez ___ F.3d ____ (9th Cir. November 7, 2003) (Spanish-language Miranda card informing defendant that "En caso de que no tenga dinero, Ud. tiene el derecho de solicitar de la corte un abogado," which testifying officer translated in court as saying, "In case you don' t have enough money or funds, you have the right to solicit the Court for an attorney," was inadequate, in that it did not inform the defendant that he had a right to an attorney, not just that he could ask the court for one)
Use Note: get foreign language Miranda warnings translated. Don't assume that they are sufficient.Back to Table of Contents
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RECORD OF CONVICTION - PRESENTENCE REPORT IMPROPERLY CONSIDERED
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. September 11, 2003) (on denial of rehearing) ("In several cases cited by Ashcroft we have noted the documents that the Board of Immigration Appeals is free to consider in determining whether a conviction under a divisible statute constitutes an aggravated felony. The documents include the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment. Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003). We have specifically held that a Presentence Report is insufficient evidence. United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc). Four days after Corona-Sanchez was filed, an opinion of this court was filed permitting use of a Presentence Report. Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. 2002), earlier mandate withdrawn, petition for rehearing granted, prior opinion withdrawn, petition for review granted, 350 F.3d 966 (9th Cir. Nov. 21, 2003). The opinion failed to take note of the en banc decision and was pretty clearly drafted and sent to the printer before Corona-Sanchez came down. The opinion was not withdrawn or modified, providing what was delicately called "noticeable tension in our recent caselaw." Chang v. INS, 307 F.3d 1185, 1191 (9th Cir. 2002). That tension has been resolved by the enumeration in Huerta-Guevara, 321 F.3d at 888 of the usable documents along with the explicit repetition of the rule of Corona-Sanchez that a Presentence Report is insufficient.").
Aggravated Felonies § B.43:
PETTY THEFT WITH PRIOR - THEFT OFFENSE
United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc) (California felony conviction of petty theft with a prior conviction, under California Penal Code § 484(a), 666, is a divisible statute with respect to the aggravated felony generic definition of theft offense, under INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) since the California offense includes conduct such as theft of labor and solicitation of a false credit report that is not included within the federal aggravated felony definition of theft).
Aggravated Felonies § A.42:
THEFT OFFENSE - PETTY THEFT WITH PRIOR
United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc) (California felony conviction of petty theft with a prior conviction, under California Penal Code § 484(a), 666, is a divisible statute with respect to the aggravated felony generic definition of theft offense, under INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) since the California offense includes conduct such as theft of labor and solicitation of a false credit report that is not included within the federal aggravated felony definition of theft).
Post-Conviction Relief for Immigrants § 6.56:
POST CON - PROSECUTORIAL MISCONDUCT
United States v. Cabrera, 222 F.3d 590, 591 (9th Cir. 2000) (convictions reversed where detective witness made numerous remarks about stereotypical tendencies of persons of defendants ethnicity; "[t]he fairness and integrity of criminal trials are at stake if we allow police officers to make generalizations about racial and ethnic groups in order to obtain convictions. People cannot be tried on the basis of their ethnic backgrounds or national origin."). United States v. Vue, 13 F.3d 1206, 1212-13 (8th Cir. 1994) (reversible error to allow customs agents testimony about tendency of Hmong people to smuggle opium). United States v. Cruz, 981 F.2d 659, 663-64 (2d Cir. 1992) (reversible error to allow DEA agents testimony about high level of drug activity in Hispanic neighborhood). United States v. Rodriguez Cortes, 949 F.2d 532 (1st Cir. 1991) (reversible error to admit Colombian ID card into evidence to be used to make generalizations about Colombians and drug trafficking). Guerra v. Collins, 916 F. Supp 620, 629-30 (S.D. Texas 1995) (vacating conviction based upon prosecutors statement that "Mexicans only come to the United States to commit crimes and take jobs away from US citizens"). State v. Mehralian, 301 N.W.2d 409, 418-19 (N.D. 1981) (prejudice shown by prosecutors questions regarding defendants religion and immigration status). People v. Maria, 194 N.E. 510, 512 (Ill. 1935) (prejudice shown by prosecutors statements that defendant was noncitizen and did not pay taxes).
Post-Conviction Relief for Immigrants § 6.56:
POST CON RELIEF - GROUNDS - CONSPIRACY - INSUFFICIENT EVIDENCE - EVIDENCE OF BUYER-SELLER RELATIONSHIP, STANDING ALONE, INSUFFICIENT TO PROVE CONSPIRACY SINCE SALE REQUIRES TWO PERSONS FOR ITS COMMISSION
United States v. Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998) ("[E]vidence of a mere buyer-seller relationship is insufficient to support a conspiracy conviction [unless there is third party involvement, or it was agreed between them that the drugs would be further distributed]."); United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) ("[P]roof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy.");.accord United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir. 1987) ("[M]erely purchasing drugs or other property from a conspiracy, standing alone, can never establish membership in the conspiracy"); United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985) (merely introducing a willing buyer to a willing seller does not establish conspiracy). See Sevilla, What About Whartons Rule?, CACJ Nuggets (Jun.19, 2008).
There are exceptions to this rule. If a statute implicitly or explicitly allows a conspiracy to be charged in addition to the substantive offense, then the statute controls. Iannelli v. United States, 420 U.S. 770 (1975) (lengthy description of Whartons Rule, finding it inapplicable to a prosecution for conspiracy as well as a federal gambling statute (18 U.S.C. 1955) based on an analysis of legislative intent).
There are other examples of substantive offenses that require two persons to commit them. E.g., People v. Wettengel, 98 Colo. 193 (Colo. 1936) (bribery, as a crime requiring two peoples involvement, one to offer the bribe and one to accept it, could not qualify as a conspiracy where the actors within the conspiracy included both sides of the bribe); Gebardi v. United States, 287 U.S. 112, 121 (1932) (transporting a woman across state lines for immoral purposes in violation of the Mann Act: "Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, * * * or under the federal statute."); People v. Purcell, 304 Ill. App. 215 (Ill. App. Ct. 1940) (indictment returned charging defendants with conspiring with each other to gamble, holding the substantive offense of gaming required the concerted action of two or more persons so the substantive offense could not be committed by each of the two defendants); People v. Mayers, 110 Cal. App. 3d 809, 815 (1980)(the defendant was convicted of operating a game of three-card monte, and conspiracy to cheat and defraud another in the game; Court of Appeal held the defendant could not be convicted of conspiracy because the game required the concerted effort of a dealer and a shill); People v. Keyes, 103 Cal. App. 624, 646 (1930) (in denying rehearing, the Supreme Court noted the Rule and stated: "we deem it proper to say that we withhold our approval of so much of the opinion [of the Court of Appeal] rendered as holds that in California, contrary to rulings elsewhere, an unlawful agreement between two parties, the one to give and the other to receive a bribe, may constitute a criminal conspiracy. It is true that a set of defendants may conspire to give or a set of defendants may conspire to receive or accept a bribe, but bribery requires for its consummation the unlawful concert of one or more persons acting with one or more other persons having a different motive or purpose. That being true, there is in such a case no room for the operation of a charge of conspiracy.").
California courts have found the Rule inapplicable in situations where the intent of the statute permits conspiracy prosecutions. See People v. Lee, 136 Cal. App. 4th 522 (2006) (defendant may be convicted of a conspiracy to furnish a controlled substance to a prison inmate in violation of Pen. Code, 4573.9. The same is true where the crime clearly involved other people than the two needed for the crime itself. In Hutchins v. Municipal Court, 61 Cal. App. 3d 77 (1976), an attorney was charged with aiding and abetting and conspiring with runners (cappers) to solicit business, in violation of Cal. Bus. & Prof. Code 6152, 6153. The attorney contended that while the cappers were subject to prosecution for violating 6152 and 6153, attorneys were not. On appeal, the court held the legislative history did not support the attorney's contention. An attorney who joins with cappers for the solicitation of business could be properly charged with solicitation, under which he could be found guilty of the completed offense set forth in 6152 and 6153, or with conspiracy. Wharton's Rule was held not to apply because the completed crime necessarily involves approaching third persons. In Calhoun v. Superior Court of San Diego County, 46 Cal. 2d 18, 29-30 (1955), Calhoun was indicted by the grand jury for conspiring to receive political contributions from persons licensed by the Board of Equalization to sell alcoholic beverages under Cal. Elec. Code 5002.5 and for obstruction of justice under Cal. Penal Code 182(5). Calhoun was a director of a nonprofit that sold alcohol. He was also general counsel for an association of wholesale liquor distributors, which gave him the authority to contribute to political funds. He was indicted for using these positions to fund a campaign to reelect a member of the board by improperly using monies provided by retail liquor licensees to fight a different political cause. He sought a writ of prohibition to restrain respondent Superior Court from going forward with a trial on the indictment. Denied. The Court held that the evidence showed an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance a political campaign and that petitioner was connected with the campaign as more than a donor. The Court rejected his Whartons Rule argument by noting that the conduct involved a widespread conspiracy: "In attacking the sufficiency of the evidence to support count I of the indictment, Calhoun urges that it establishes only his participation as a donor, or the agent of a donor, in the making of contributions to Bonelli's campaigns. He relies upon the rule, to which this court referred in denying a petition for hearing in People v. Keyes, 103 Cal.App. 624, 646 [284 P. 1096], which precludes prosecution for conspiracy to commit a substantive offense when the only concert of action shown is that necessary to consummate the substantive offense. (Gebardi v. United States, 287 U.S. 112 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]; notes, 26 So.Cal.L.Rev. 64, 70; 23 So.Cal.L.Rev. 262.) There is little dispute, however, that the evidence shows an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance Bonelli's political campaigns."
When applicable, the Rule prevents a defendant from being convicted both for a conspiracy to commit an offense and the substantive offense where the latter offense requires concerted action. It may be that both crimes can be charged if the prosecution hurdles the insufficiency of evidence issues at a preliminary hearing and a 995 motion (and a later 1181.1 during trial). If the conspiracy charge makes it to verdict, the jury should be instructed that unless the other necessary facts are proven, it must acquit of the conspiracy.
Aggravated Felonies § 6.7 ; Criminal Defense of Immigrants § 11.5 ; Post-Conviction Relief for Immigrants § 4.7:
POST CON RELIEF - EFFECTIVE ORDER - COMITY AND RESPECT FOR STATE COURTS' DECISIONS - FULL FAITH AND CREDIT
The Ninth Circuit has recognized that a proper respect for state and federal courts requires that their orders be considered valid and effective, unless they can be shown to be otherwise. Rashtabadi v. INS, 23 F.3d 1562, 1569 (9th Cir. 1994). In Rashtabadi, the Ninth Circuit acknowledged what the United States Supreme Court stated well more than a century ago:
"There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears; and this rule applies as well to every judgment or decree, rendered in the various stages of their proceedings, from the initiation to their completion, as to their adjudication that the plaintiff has a right of action. Every matter adjudicated, becomes a part of their record; which thenceforth proves itself, without referring to the evidence on which it has been adjudged."
Id. (quoting Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed 490 (1836) (quotation in original, supporting citations omitted). "Principles of comity, finality and economy all militate in favor of placing the burden of attacking court judgments and orders on the party who seeks to upset them." Id. The Board itself has acknowledged and applied these same principles. See Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000) (rejecting the INS's argument that the Board should go behind a state court vacatur of judgment to determine whether it was entered for purposes of avoiding removal, according full faith and credit to the state court judgment, and relying on 28 U.S.C. 1738, which requires federal courts to accord full faith and credit to state court judgments). At least where a substantive defect must be found to support a vacatur, Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) does not require a different result.
As the Ninth Circuit previously held, "[c]ertain areas of criminal regulation are beyond Congress's reach[,]" even in the immigration arena, which Congress possesses exclusive authority to regulate. Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 - 914 (9th Cir. 2004). The Board has no authority to reach into the merits of a change of plea proceeding; that proceeding was governed by, and carried out pursuant to, state law. Accordingly, the vacatur of a state conviction must be accorded full faith and credit by the Board and by the Court.
Thanks to Deborah S. Smith.
Lower Courts of Ninth Circuit
Tooby's California Post-Conviction Relief for Immigrants § 10.52:
PRACTICE ADVISORY " CAL POST CON " VEHICLES " EXPUNGEMENTS " NEW REALIGNMENT EXPUNGEMENT STATUTE
Realignment Expungements under Penal Code 1203.41 By Norton Tooby In 2013, the California Legislature enacted a Realignment Expungement statute granting the court the discretion to expunge felony sentences in excess of one year imposed under the realignment legislation. See Penal Code 1203.41 (effective Jan. 1, 2014, added by Stats.2013, c. 787, A.B. 651, 1). If the defendant is given a realignment felony county jail sentence in excess of one year, pursuant to Penal Code 1170(h)(5), the court has discretion to grant an expungement in the interests of justice analogous to that available to probationers under Penal Code 1203.4(a). This new statute provides: The court may permit the defendant to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty, and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. Penal Code 1203.41(a)(1). This expungement may be granted after the expiration of one year following completion of a split sentence, under Penal Code 1170(h)(5)(B) (in which a concluding portion of the sentence is suspended, and the defendant released for the balance of the term on postrelease community supervision), or after the expiration of two years following completion of a full-term sentence under Penal Code 1170(h)(5)(A). Penal Code 1203.41(a)(3). The relief available under this section may be granted only if the defendant is not under supervision [during service of a split sentence], and is not serving a sentence for, on probation for, or charged with the commission of any offense. Penal Code 1203.41(a)(3).
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Aggravated Felonies: §5.11
of Title 18, United States Code (relating to child pornography).” [1] These offenses are... children,” punishing the use of a minor to engage in any sexually explicit conduct for... guardian who permits or assists the minor to do so. [2] 18... knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering: (a) to receive, exchange, buy, produce, display, distribute, or reproduce any visual... that the person “knows or has reason to know that such notice or advertisement will... someone who knowingly publishes a notice offering to distribute by computer a visual depiction of... children over the internet may be considered to be conduct that violates this statute. There may be other defenses relating to lack of knowledge the subject was a... the client if immigration counsel did not to have to defend against this possibility at all. ... U.S.C. § 2252, entitled “Certain activities relating to material involving the sexual exploitation of children,”... maximum for a violation, attempt, or conspiracy to violate subparagraphs (a)(1)-(3). With a prior... chapter 109A, the term is from five to 15 years. Subparagraph (b)(2) provides a five-year maximum for a violation, attempt, or conspiracy to violate (a)(4). To qualify as an aggravated felony, all the... 263.05, did not constitute an offense relating to child pornography, and was therefore not an... by the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of... of 1996 violated the First Amendment right to free speech in defining child pornography to include “virtual pornography,” not produced using actual... Among other possible safer alternatives [1] to a conviction that would clearly trigger removal... under 18 U.S.C. § 2252A, when applied to child pornography as defined in 18 U.S.C.... involved are more broadly defined, by reference to the “child pornography” definition at 18 U.S.C. § 2256(8), to include a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging... This portion of the definition is recognized to cover the act of “morphing,” i.e., altering... children and are in that sense closer [to images made using actual minors engaged in... definition covers materials that would be insufficient to constitute a violation of 18 U.S.C. §
Post-Conviction Relief for Immigrants: §8.41
provides that an executive pardon is effective to eliminate the deportation consequences of one or... § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute;
Tooby's California Post-Conviction Relief for Immigrants: §5.19
It may be possible for the prosecution to file any additional charges it could have... It would be possible for the client to be convicted of more charges, or greater charges, than those to which a plea was entered originally, and the client may potentially be sentenced to a greater term of imprisonment. [1] ... enhancements, the law may require the court to impose greater punishment. [2] Before appealing, it is essential for counsel carefully to consider whether the appeal might result in... at an appellate doorstep he subjects himself to thorough scrutiny of the proceedings below." [3]... conviction was unauthorized, following a guilty plea to a crime that did not exist (conspiracy to commit attempted murder). The appellate court... It would be possible for the client to receive a greater sentence if reconvicted. ... was reopened and the judge is sympathetic to the prosecution. · The prosecution is able to force conviction of offenses and enhancements that trigger mandatory sentencing laws, so the judge has no choice but to sentence the client more harshly the second time around. · The prosecution is able to force conviction of more or greater offenses... The client has reoffended (or is thought to be continuing a life of crime, even... that the court has a good reason to hand down a stiffer sentence the second... that the client receive full and mandatory credit for time served for every day spent... of appeal, [5] though this protection appears to be weakening. [6] Counsel can... and that the client must be given credit for all time served, and all other... served, but if the court can point to some changed circumstance since the original sentence... is unlikely and only occurs in five to ten percent of the cases. The... has gone into the case, the expense to the state of a jury trial, and the difficulty for the prosecution to reconstruct an old case. As a practical matter, because of the law requiring credit for time served, and because the case... that the court would resentence the client to a greater punishment after reconviction unless the court were required to do so by mandatory sentencing laws. ... aware of this risk when deciding whether to go forward with an attack on the... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence. ... after retrial if legitimate reasons are given to justify increased penalty.].
Aggravated Felonies: §5.42
controlled substances conviction will not be sufficient to sustain deportability as an aggravated felony drug... of conviction may be violated with regard to one or more of those substances; and (3) either the record of conviction is completely silent as to the controlled substance involved, or the record... 1965, former INA § 241(a)(11) made subject to deportation any noncitizen who “has been convicted... . . any law or regulation relating to the illicit possession or traffic in narcotic... Matter of Paulus was decided, there was no definition of “narcotic drug” for immigration purposes,... adopted that would have included whatever happened to be considered a “narcotic” in California or... that limited the term “narcotic drug” [3] to substances defined as a “narcotic drug” by... specifically limited the definition of “controlled substances” to those substances defined as such by federal... not controlled at all. [7] Where no particular controlled substance is identified in the... § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) (reason to believe illicit trafficking ground of inadmissibility); INA... . Probably the most direct threat to the survival of the Paulus rule is... drug paraphernalia, [2] was a conviction “related to” a controlled substance. The court found... an object is drug paraphernalia,” including intent to use, a conviction under the statute was clearly “related to” a controlled substances offense. [3] ... of drug paraphernalia conviction was not related to any particular drug. The Arizona statute... “controlled substance” was limited under the INA to the federal drug schedules, and that “the... that the Arizona statute was “plainly intended to criminalize behavior involving the production or use... idea that possession of paraphernalia is “related to” a controlled substance, no case has yet cited Luu-Le as a challenge to the Paulus rule. [6] However, there... took a “close enough” position by failing to hold that a conviction under the Arizona... could not qualify as an offense “related to” a controlled substance unless the record of conviction made clear that the paraphernalia was intended to be used with a federally controlled substance. This holding appears to violate the Paulus rule. This holding... but the exact elements of the offense to which the noncitizen entered a plea are... than a controlled substance, there is room to distinguish Luu-Le from a straight Paulus situation.... drug conviction (but rather a conviction “related to” drugs), did not directly consider the Paulus... , 222 F.3d 728 (9th Cir. 2000) to a conviction for possession of paraphernalia). [7]... 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively... (precedent not controlling on issue not presented to prior panel), cert. denied , 113 S.Ct.... federal drug schedules and the state schedules to determine that the noncitizen in that case must have been convicted of an offense related to a federal controlled substance. Mr.... all controlled substances proscribed by Connecticut law to only hallucinogenic or narcotic drugs. [3] ... list, so the court turned its focus to determining whether all “narcotic” drugs listed in... rejected counsel’s argument that the substance had to be proscribed under federal law at the... beyond merely holding that the substance had to be proscribed under federal law by the... conviction limited the applicable state controlled substances to hallucinogens and narcotics. There may still... the federal schedules. It is important to remember who has the burden of proof... the federal drug schedules were retroactively applied to Mr. Gousse, charged as an aggravated felon,... deportation grounds are not expressly made retroactive to convictions occurring before the deportation ground came into existence or was expanded to cover the present case. Surprisingly, both Luu-Le and Gousse fail to cite or mention Matter of Paulus , even though the circuit courts are normally required to give Paulus deference under Chevron [7] to BIA decisions. Both decisions were... placed the burden on the noncitizen appellants to show that the court had petition for... Cir. 2000) ( Chevron deference not accorded to construction of state penal code). [8] Luu-Le... INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (no jurisdiction to review orders of removal on criminal grounds). (D) How to Make A Drug List Comparison. The... through April 26, 2004. To make an alphabetical proscribed drug list of... most recent state drug schedule in an electronic format, and paste this list into a... the individual drugs remains. Make sure to indicate the schedule in which each drug... a number, and give that same number to each alternative name (or alias) for the... “sort” function of the word processor program to alphabetize the list. To make a drug-by-drug comparison between the state... down the list, use the strikeout function to mark any highlighted/non-highlighted drug pairs. These pairs each represent... the federal, list. 7. Return to the top of the list and use the “find” function to find any AKAs of the drugs stricken.... as an aggravated felon, the federal schedules to apply in making the comparison are those... immigration proceedings commenced, while the state schedules to apply are those that existed at the... §§ 1308.11, et seq . Updates to the schedules are tracked on the following site: http://www.deadiversion.usdoj.gov/schedules/actions/90_actions.htm
Criminal Defense of Immigrants: §3.36
criminal history records, it is most important to obtain the FBI rap sheet concerning the... the FBI record by writing a letter to the FBI asking for a “background search.”... fee (certified check or money order payable to the “Treasurer of the United States ”).... a return address and the client’s authorization to release the information to counsel. This information should be sent to: Federal Bureau of Investigation Criminal Justice... telephone number is (304) 625-3878. Check to see if any changes of fee, procedure,... FBI criminal history report be sent directly to his or her attorney, if desired. It generally takes six to eight weeks or so to receive the report. [1] The police department may charge a small fee, usually no more than $10, for the service of taking the client’s fingerprints and providing a completed fingerprint card to the client. (E.g., California Penal Code § 13300e.) The client should be instructed not to inform the police department, DMV, or other... contemplated that these fingerprints will be submitted to the DHS and the agency may refuse to provide the prints under those circumstances, since... The client should simply state s/he wants to see his or her own criminal record.
Tooby's California Post-Conviction Relief for Immigrants: §11.19
for one conviction of crimes relating to domestic violence, stalking, and the abuse or... certain offenses. The admissibility statute referred to lists (a) convictions of crimes of moral turpitude, (b) convictions of offenses related to a listed federal controlled substance, and (c) situations in which the DHS has “reason to believe” the noncitizen is or has been... listed federal controlled substance. In order to be inadmissible, as the mandatory detention statute... offense, it is necessary for the noncitizen to have been convicted of the commission of... under this statute. In response to an increasing number of court decisions, [6]... 8 U.S.C. § x 1226(c), apply only to noncitizens released from criminal sentence on or... the mandatory detention statute applying “normal factors to determine bond conditions, such as an individual's likelihood of danger to the public, flight risk, health factors, equities,... the Transition Period Custody Rules is subject to mandatory detention pursuant to section 236(c) of the Immigration and Nationality... Custody Provisions (7/12/99) effective 7/13/99. If no actual custody is imposed, the sentence date
Tooby's California Post-Conviction Relief for Immigrants: §11.16
hold, do not assume it is hopeless to attempt to obtain his or her release. The basic strategy is to bail the client out of criminal custody... It may not be an immigration “request to detain” at all, but merely a notice... obtaining the client’s liberty from the DHS non-hold. [1] If it was lodged... by the proper written form, it is no longer effective as an immigration hold, and... within 48 hours, and can then attempt to bond out of immigration custody. If
Tooby's California Post-Conviction Relief for Immigrants: §4.36
criminal history records, it is most important to obtain the FBI rap sheet concerning the... the FBI record by writing a letter to the FBI asking for a “background search.”... fee (certified check or money order payable to the “Treasurer of the United States ”).... a return address and the client’s authorization to release the information to counsel. This information should be sent to: Federal Bureau of Investigation Criminal Justice... telephone number is (304) 625-3878. Check to see if any changes of fee, procedure,... FBI criminal history report be sent directly to his or her attorney, if desired. It generally takes six to eight weeks or so to receive the report. [1] The police department may charge a small fee, usually no more than $10, for the service of taking the client’s fingerprints and providing a completed fingerprint card to the client. (E.g., California Penal Code § 13300e.) The client should be instructed not to inform the police department, DMV, or other... contemplated that these fingerprints will be submitted to the DHS and the agency may refuse to provide the prints under those circumstances, since... The client should simply state s/he wants to see his or her own criminal record.
Post-Conviction Relief for Immigrants: §5.3
Matching the Vehicle to the Immigration Effect Counsel must first determine what change in the criminal history is needed in order to avoid or ameliorate the adverse immigration effect to which the client is subject. For... of violence aggravated felony, then a motion to reduce a felony to a misdemeanor may be sufficient to avert the immigration damage. If time is needed to assess the situation, it may be possible to file a direct appeal from the conviction, in order to avoid a “final” conviction and thus obtain the client’s release from mandatory immigration detention and buy time to plan a more durable strategy. ... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality
Criminal Defense of Immigrants: §10.18
Tactics to Avoid Sentence Imposed (A) In General... in which the court orders the defendant to serve a certain length of time in... can employ various tactics in an effort to prevent this outcome: (1) Obtaining a sentence of less than the trigger amount; (2) Waiving credit for time previously served; (3) Waiving future credit for time served; (4) Stacking shorter sentences... the level of the offense from felony to misdemeanor. See §§ 11.13-11.15, infra .... Sentence Shorter Than the Trigger Amount . To achieve a safe haven sentence of less than a trigger amount, counsel can ask the court (1) to decline to order a prison sentence at all, and to require service of no more than 364 days in custody or less as a condition of probation, or (2) to impose a sentence shorter than one year... can therefore expand the actual time served to be equivalent to a sentence considerably longer than the sentence ordered by the court, and thus obtain non-trigger sentences for more serious cases. ... Counts. Counsel can ask the court to sentence the defendant to shorter, non-trigger sentences on different counts, and then order they be served consecutively, so long as each sentence fails to qualify independently as a trigger length. ... 360-day sentences on four different theft convictions, to run consecutively, without receiving a “sentence imposed” of one year or more on any single count. No single count would be considered to be an aggravated felony conviction, and the... (6) Reduction from Felony to Misdemeanor . If the criminal court reduces the level of the offense from felony to misdemeanor, that reduction is binding on the... maximum possible sentence the court can impose to the misdemeanor maximum. [3] Therefore, even... the sentence ordered must now be considered to be no greater than the misdemeanor maximum for the... of California “wobbler” offense from a felony to a misdemeanor offense, since reductions of sentences
Criminal Defense of Immigrants: §19.31
of Title 18, United States Code (relating to child pornography).” [1] These offenses are... children,” punishing the use of a minor to engage in any sexually explicit conduct [1]... guardian who permits or assists the minor to do so. [3] 18... knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering: (a) to receive, exchange, buy, produce, display, distribute, or reproduce any visual... that the person “knows or has reason to know that such notice or advertisement will... someone who knowingly publishes a notice offering to distribute by computer a visual depiction of... children over the internet may be considered to be conduct that violates this statute. There may be other defenses relating to lack of knowledge the subject was a... the client if immigration counsel did not to have to defend against this possibility at all. ... U.S.C. § 2252, entitled “Certain activities relating to material involving the sexual exploitation of children,”... maximum for a violation, attempt, or conspiracy to violate subparagraphs (a)(1)-(3). With a prior... chapter 109A, the term is from five to 15 years. Note that this list of the two no-substantive offenses of attempt and conspiracy gives rise to the argument that other unlisted non-substantive offenses are not included. See Appendix... maximum for a violation, attempt, or conspiracy to violate (a)(4). See Appendix G, infra . To qualify as an aggravated felony, all the... child engaging in “sexual conduct,” as opposed to “explicit sexual conduct.” Counsel could therefore... 263.05, did not constitute an offense relating to child pornography, and was therefore not an... by the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of... of 1996 violated the First Amendment right to free speech in defining child pornography to include “virtual pornography,” not produced using actual... Among other possible safer alternatives [1] to a conviction that would clearly trigger removal... under 18 U.S.C. § 2252A, when applied to child pornography as defined in 18 U.S.C.... involved are more broadly defined, by reference to the “child pornography” definition at 18 U.S.C. § 2256(8), to include a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging... This portion of the definition is recognized to cover the act of “morphing,” i.e., altering... children and are in that sense closer [to images made using actual minors engaged in... definition covers materials that would be insufficient to constitute a violation of 18 U.S.C. §
Criminal Defense of Immigrants: §6.35
authorities will actually make it a priority to detain, [1] setting out four categories, in... detention can be released only if necessary to protect a witness, a person cooperating with... that release would not pose a danger to persons or property or a flight risk.... convictions). Noncitizens who are a danger to the community or a flight risk, those... detention . Noncitizens who are inadmissible, non-criminal noncitizens not in expedited removal proceedings, noncitizens... apprehended at a worksite for committing fraud to get a job. Category 4... in expedited removal who have been referred to full removal proceedings based on fear of
Tooby's California Post-Conviction Relief for Immigrants: §10.47
provides that an executive pardon is effective to eliminate the deportation consequences of one or... § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute;
Safe Havens: §5.6
counsel can obtain the basic information necessary to brief immigration counsel on the immigration situation... so, make photocopies. Counsel may need to ask an immigration attorney to interpret the documents. [1] Often,... wrongly that s/he now has a green card. If somebody has a green card, s/he may use shorthand and wrongly describe... the letter A) which is the key to finding his or her record when you... Answering the following questions is necessary to determine a client’s current or potential immigration... immigration specialist is consulted, s/he will need to know this information in order to diagnose the client’s situation. ● ... how long? The date of adjustment to permanent residency will appear on the client’s green card. ● How long has... Would the client’s employer help the client to immigrate? [4] ● Has... by the border patrol and being persuaded to sign a waiver form and accept a... See § 5.10, infra , on how to verify the client’s immigration situation. [3] See... Immigration § 11.1 (2004). [4] For most non‑professional workers, this may yield few results. ... U.S. citizen or national, it is necessary to determine the client’s exact immigration status, since... consequences of criminal cases, it is useful to group noncitizens into the following categories: (1) Lawful permanent residents, or green card holders, have been lawfully admitted to the United States to live and work permanently. The chief concern of a lawful permanent resident is usually to avoid deportation. An LPR who has... person may also care about preserving eligibility to naturalize by avoiding any conviction or other... are inadmissible, they may not be allowed to return after a trip abroad, even if... than 180 days is generally not subject to the rules of admissibility upon returning, but one exception to this rule occurs when s/he has committed... If an LPR is unable to avoid a conviction that triggers deportation or... from naturalization, s/he may still be able to qualify in immigration court for some sort... in a conviction, s/he will be eligible to apply for cancellation of removal to avoid deportation, or INA 212(h), 8 U.S.C. § 1182(h) relief to avoid inadmissibility, if s/he can avoid an... admitted into the United States on a Non-Immigrant Visa, unlike LPRs, “enter the U.S. for a temporary period of time and are restricted to the activity consistent with their visas. ... . . . they are more likely to obtain waivers of inadmissibility.” [3] ... into the U.S. , they are subject to the grounds of deportability. If they wish to adjust status, and obtain immigrant visas so they have Lawful Permanent Resident status, or if they wish to leave the U.S. and return, they must... persons granted political asylum have been admitted to the United States or allowed to remain in the United States because of... status, but members of both are eligible to adjust status to LPR after being present in the U.S.... is obviously especially urgent for these persons to avoid deportation to the place where they will likely be... the U.S. , and are therefore subject to the grounds of deportation. However, in practice, a refugee should be subject to removal proceedings only if s/he is inadmissible,... cannot avoid inadmissibility, s/he may be able to adjust status to LPR under INA § 209, 8 U.S.C.... on the ground the DHS has reason to believe s/he is or has ever been a drug trafficker (even if there is no conviction of drug trafficking), [6] and thereby... [7] If s/he cannot adjust status to LPR, the next goal is to preserve eligibility for the relief of withholding... of sentence. [9] Most asylees want to obtain LPR status, and so must avoid... If this is not possible, they wish to preserve eligibility for the special waiver or... be eligible now or in the future to obtain lawful permanent resident status, political asylum,... relief, principally eligibility for adjustment of status to LPR (through avoiding inadmissibility), or eligibility for... Even if the client does not appear to be eligible now or in the future to obtain LPR status, asylum, or other relief from removal, or does not desire to remain in the United States now or to return lawfully in the future, it may still be in the client’s interest to avoid certain criminal dispositions that trigger immigration... be much better off without a roadblock to obtaining lawful status. (b) The client may wish to obtain various immigration benefits even if s/he... 2002-2003) (emphasis supplied). [4] These include seeking to enter the U.S. to engage in espionage, sabotage, any other unlawful activity, any activity to oppose or overthrow the U.S. government by... inadmissibility may be granted “for humanitarian purposes, to assure family unity, or when it is
Crimes of Moral Turpitude: §2.12
Rule. Long-standing law requires a conviction to be final before it will trigger deportation.... finality requirement, at least as it applied to direct appeals of a conviction. [5] A non-final conviction can also sometimes be used to enhance sentence in a criminal case. [6]... 1990) (Texas deferred adjudication disposition held not to be a final conviction); Martinez-Montoya v. INS... I. & N. Dec. 638 (BIA 1968) (no conviction despite guilty plea); Matter of LR... 539, 541 (BIA 1957). This applied to foreign convictions as well. Marino v. INS... been extinguished by presidential amnesty and refused to hear the appeal and where the defendant... on probation or on suspended sentence pursuant to section 1081 of the Canadian Criminal Code).... been extinguished by presidential amnesty and refused to hear the appeal and where the defendant... on probation or on suspended sentence pursuant to section 1081 of the Canadian Criminal Code).... (2d Cir. 1991). A conviction subject to collateral attack is still final for the... 146, 146 (S.D.N.Y. 1995).”); Johnson v. INS No. 3:03 CV96(JBA) (D. Conn. Jan. 21, 2003)... Cir. 1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality... “[O]n the record here we are unable to say that the conviction has attained such finality as to support an order of deportation,” and therefore... this point. When Congress fails expressly to overrule existing judicial decisions, it is deemed to have approved of them. [4] In... all circuits that have not expressly held to the contrary, and the finality requirement should... circuits that have mistakenly suggested or held to the contrary, since the adverse decisions may... finality requirement but remanding because there was no evidence that court had imposed any punishment,... on liberty) petitioner, as required by statute to constitute a conviction). [3] Pino v. Landon... of judicial interpretation of a statute and to adopt it when it re-enacts a statute... Dec. 44 (BIA Apr. 28, 1995) (right to appeal such issues as whether a violation... of a final conviction for immigration purposes; to disturb finality, issues on appeal must relate to the issue of “guilt or innocence of the original charge.”). This decision contravenes authorities holding no conviction exists unless sentence has been imposed.... defendant has missed the deadline by which to appeal, s/he may nonetheless attempt to file a late notice of appeal to start the appellate process. When... assistance of counsel based on counsel’s failure to inform the defendant about the deadlines by which to appeal, or to advise the defendant about possible grounds on... reversed on direct appeal, it is appropriate to reopen deportation proceedings since the conviction no longer exists as a basis for deportation.... assistance will be established entitling the defendant to an out-of-time appeal where counsel fails to “consult” with a criminal defendant about the... or a rational defendant would have wanted to appeal under the circumstances of the case).... 440 (6th Cir. July 1, 2004) (request to begin belated appeal does not affect finality... sentence. [1] These decisions, however, appear to limit their holdings concerning finality to the deferred adjudication context, and they have not been extended to invalidate direct appeal as a means of... Texas law and the Full Faith and Credit Act, 28 U.S.C. § 1738, required the federal criminal court to honor that conclusion, since "the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal... completion of probation has been deemed not to impair the finality of the conviction. [2]... action in the deportation case be deferred to await completion of probation and extinction of... set aside on collateral attack, it ceases to exist for immigration purposes even if an appeal from the vacatur is pending, because there is no clear and convincing evidence the conviction still... final, at the time of defendant’s deportation, to qualify as aggravated felony conviction for purposes... until the conviction has been overturned pursuant to such a motion); Matter of Gabryelsky ,... 506 (BIA 1992); Rivas v. INS , No. 02 Civ. 677(DLC) (S.D.N.Y. Jan. 27, 2003)... 164 (2d Cir. 1991). A conviction subject to collateral attack is still final for the... 146, 146 (S.D.N.Y.1995).”); Johnson v. INS , No. 3:03CV96(JBA) (D.Conn. Jan. 21, 2003) (unpublished) (“Moreover,... Cir. 1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality... (INS and BIA agreed on administrative policy to postpone proceedings until the noncitizen has had a reasonable opportunity to complete probation and apply for expungement of... (6th Cir. Jan. 31, 2008) (petitioner's challenge to the state court conviction in immigration court
Criminal Defense of Immigrants: §3.43
is absolutely necessary . There is no substitute for consulting an immigration expert to find out (a) the client’s exact immigration situation prior to any new conviction, and (b) the exact... Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005). Crimes-related deportation defense... rarely, handle a removal case or try to obtain cancellation of removal for a client... client with criminal issues, it is necessary to inquire specifically into potential immigration counsel’s experience... Immigration Counsel . It is important to balance expertise in this specialty against the advantages... · has offices very close to the immigration court. On the... forms of relief available in immigration court to noncitizens convicted of crimes; · is accustomed to cooperating with criminal and post-conviction counsel; and · either knows or is willing to learn the necessary criminal and post-conviction law.... plea bargains? Have you spoken recently to criminal lawyers’ groups on this topic? ... (You can then call them as references to check the lawyer out.) Ample resources exist to assist criminal defense counsel in obtaining answers to the immigration questions that arise during the... Expert Resource Centers. Ample resources exist to assist criminal defense counsel in obtaining answers to the immigration questions that arise during the... Lawyers Association (AILA) will often be able to help. The Washington , D.C. ,... Resources (both live and written) specific to individual state include: California . ... in San Francisco , California is a non-profit organization that provides advice, training and materials to non-profit community agencies and immigrants’ organizations. For... . · M. Baldini-Potermin, Defending Non-Citizens In Minnesota Courts (1998), distributed by the... the New York State Defenders Association works to defend the legal, constitutional and human rights of immigrants facing criminal or deportation charges. IDP seeks to (1) minimize deportation and detention under current... including “Know Your Rights” charts and guides to help unrepresented individuals understand the criminal justice... resources affecting particular states, see the Bibliography to this volume, Appendix G. [1] D.... also provides a referral service (fees not to exceed $100.00 per consultation) by calling 1-800-954-0254, or sending and email to ilrs@aila.org. You will need to provide your name, location and describe your
Criminal Defense of Immigrants: §11.77
sentence is vacated, a wonderful opportunity exists to settle the case on acceptable terms that... a human being in their eyes. No one wants time-consuming litigation of a case... Presumably the client has given them no fresh cause to punish him or her more severely (aside... can sometimes sweeten the pot by offering to have the client begin anew a three... year, the defense can in fact offer to increase the hanging time, exposing the defendant to a greater term of imprisonment in the... client may be in a strong position to bargain if the case is an old... good record since the incident giving rise to the charge, and the equities in his... can take a credible position of refusing to acquiesce in any outcome that will destroy the family and permanently exile the client to a foreign land. The client can also threaten to put prosecution and court to the extensive work and considerable expense of a jury trial, because the issue is so important to the client, unless an acceptable result is... the penalty, there may be little or no risk of any downside for the client... the nature and (b) number of charges to which the client will plead guilty or no contest, and (c) the nature of the sentence the client will receive. To analyze goals for the new disposition, counsel... the information the immigration lawyer will need to diagnose the situation. See Appendix A,... during the course of plea‑bargaining in order to minimize adverse immigration consequences: (1) Counsel can attempt to find a related (or even unrelated) [1]... trigger removal or other adverse immigration consequences to which to plead. In the alternative, the client can plead to two or more offenses, none of which trigger immigration problems, instead of pleading to one that involves immigration damage. EXAMPLE: In one case, after a motion to vacate a voluntary manslaughter conviction had been granted, the client pleaded guilty to involuntary manslaughter and received a sentence of... eliminated. (2) Counsel can offer to have the client serve a greater traditional criminal penalty in return for adjusting the charge to one that does not have disastrous immigration consequences. For example, a client might agree to serve an additional six months in jail,... in return for changing the charged offense to a different offense which does not trigger... immigration consequences. (3) Counsel can offer to have the client plead to two misdemeanors in lieu of a felony, in order to avoid the one felony‑three misdemeanor rule disqualifying applicants for amnesty and Family Unity, or to multiple infractions in lieu of a misdemeanor... For example, the client can bargain to obtain suspension of imposition of sentence, a... purpose. (5) Counsel can attempt to persuade the prosecution to permit a plea to a non‑narcotics offense in lieu of a deportable narcotics... possible. (6) Counsel can bargain to obtain a plea to a non-firearms offense with a firearms sentencing enhancement, or other options to avoid deportability for a firearms offense. ... [1] It is of course perfectly proper to plead a client guilty to a crime of which s/he is completely innocent — as a tactical decision to avoid worse consequences (criminal or immigration), if... simply enter a plea of guilty pursuant to People v. West, 3 Cal.3d 595, 91... Thus, the parties can negotiate a plea to any mutually acceptable offense, and thus avoid... many district judges resist accepting or refuse to accept a plea if the defendant maintains... more closely related the negotiated offense is to the offense committed, the easier it is to convince prosecution and court to accept the disposition. [2] See § 10.92,... cannot be punished for exercising the right to vacate the conviction, this protection has become riddled with exceptions. For example, there is no presumption of vindictive prosecution where a greater... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence. [2]... for his action in obtaining post-conviction relief to vindicate a constitutional right. [1] Alabama... valid waiver under due process). (C) Credit for Time Served . When the... requires that s/he receive full and mandatory credit for time served for every day previously... may exercise his or her statutory right to disqualify the original judge, [1] even if... The intent of this statute is to protect a successful appellant from retaliation by... statute of limitations defense applies where applicable to require dismissal of charges that were filed... [1] State courts can be urged to adopt the same rule, for the same... any charges that were originally filed prior to the time the operative statute of limitations ran. It only operates to restrict the prosecution’s ability to file new charges, after the original conviction... as a limit on the prosecution’s ability to threaten greater charges than had originally been
Criminal Defense of Immigrants: §2.23
counsel have a legal and ethical responsibility to protect our clients from damaging immigration consequences... · It’s the right thing to do. · Ethics considerations require it. · Courts expect us to do it. · Standards of the... of possible immigration consequences. · Duty to investigate. · Duty to use mitigating facts to obtain better plea and lower sentence. · Duty not to give affirmative misadvice. · Duty to advise the client of actual immigration consequences. · Duty to defend against collateral consequences. Moreover, it is in our own interest to do so: · Desire to deliver excellent legal services. · Benefits... on court appointed panels. · Damage to reputation within the profession. · Damage to reputation among client communities. · Disciplinary sanctions: disbarment and lesser penalties. · Damage to self-esteem. · Loss of income. ·... mental distress. · Costs of attempting to rectify a mistake. These are the... If you want, you can skip to the conclusion, [1] which addresses the question:... And offers a surprisingly simple way to do so that uses our knowledge and skills as criminal lawyers, but does not require us to learn the complexities of immigration law .
Tooby's California Post-Conviction Relief for Immigrants: §10.1
of probation or other evidence of rehabilitation to clear defendants’ criminal convictions from their records... recommendations against deportation (JRADs) that were, prior to November 29, 1990, granted by criminal sentencing judges to eliminate deportation and other immigration consequences of... been ameliorated , some discussion is given to ways in which those consequences can be... (2) Expungements of misdemeanors where no probation was granted. See § 10.60,
Tooby's California Post-Conviction Relief for Immigrants: §7.46
Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate The Vienna Convention on Consular Relations (VCCR) is a treaty to which the United States is a party and which requires local law enforcement officers to advise a foreign national, who has been arrested, of his or her right to contact the embassy for assistance. In... enforceable by the defendant for the failure to advise with a motion to suppress any subsequent statement. The court... of the arresting officer's error in failing to tell the defendant of the right to contact the consulate, must be set aside... require suppression of evidence, they appear motivated to some extent by reluctance to create a new “suppression of evidence” remedy... This is a familiar prejudice test, analogous to that required in the context of a... of the Vienna Convention, and that failure to notify of the petitioner of the right to consular assistance constituted an Article 36 violation. [3] The court went on to hold that counsel’s failure to raise the violation was deficient performance. [4]... been informed of his or her right to contact the consulate, the Consul would have... been retained who would have known how to prevent the adverse immigration consequences from occurring.... courts require claims under the Vienna Convention to be brought in a habeas corpus petition,... 2 . [6] The State Department advisory to all law enforcement on the arrest of... at: http://www.state.gov/www/global/legal_affairs/ca_notifications/ . The State Department site includes a 60+ page manual designed for... what the treaty means: http://www.state.gov/www/about_state/ca_prelim.html . To get a copy of the treaty itself:
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