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Aggravated Felonies § 5.23 ; Criminal Defense of Immigrants § 19.41, § 22.25, Appendix ; Safe Havens § 7.153, § 7.51, Appendix :

AGGRAVATED FELONY " CRIME OF VIOLENCE " 16(b) " ORDINARY CASE ANALYSIS UNCONSTITUTIONALLY VOID FOR VAGUENESS
Linus Chan, in The ordinary cases demise in criminal sentencing & its implications for immigration law, at Crimmigration.com, summarized the impact of Johnson v. United States as follows: After the Supreme Court announced the ordinary case method in James, the Board of Immigration Appeals (BIA), and a couple of federal circuit courts began to adopt it in immigration cases when deciding whether someone has committed a crime of violence under 18 U.S.C. 16(b). Section 16(b)s language is not an exact match to ACCAs residual clause, but isnt far off. Section 16(b) defines a crime of violence as a felony which, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Like the ACCAs residual clause, 16(b) requires an examination of risk, and also looks at whether force is used in the course of committing the offense. Two circuit courts called the phrases virtually identical. See Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. 2014); Lopez-Cardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011). Moreover, the Ninth and Fifth Circuits applied the ordinary case from James to 16(b) cases. Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013); Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir. 2007). The BIA had begun applying the ordinary case method to 16(b) cases in 2011, see Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011), and just a few weeks before Johnson reiterated its support for the ordinary case method in Matter of Francisco-Alonzo, 26 I&N Dec 594 (BIA 2015) (analyzed on this blog here). In Francisco-Alonzo, the BIA relied heavily on the fact that James had not been overruled, and it saw no reason to question the rule when examining risk based definitions. The James ordinary method, it seemed, had become embedded in immigration law. The reliance on James as good precedent proved to be ill timed. On June 26, 2015, just three weeks after Francisco-Alonzo the United States Supreme Court not only overruled James in Johnson but also found that the residual clause of the ACCA and the ordinary case method unconstitutionally vague under the Due Process clause of the Fifth Amendment. The Court specifically criticized the ordinary case rule. It ties the judicial assessment of the risk to a judicially imagined ordinary case of a crime, not to real-world facts for statutory elements, the Court concluded. Johnson, No. 13-7120, slip op at 5. The Court wrote that such an exercise was too speculative and too unreliable to give guidance to either defendants or judges. The Court explained that other risk-assessment statutes did their work by gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for an application of a qualitative standard such as substantive risk to real-word conduct Id. at 12. Ultimately the residual clause was vague because it requires application of the serious potential risk standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect, the Court concluded, this abstract inquiry offers significantly less predictability than one [t]hat deals with the actual, not with an imaginary condition other than the facts. Id. (quoting International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914)).

Tooby's California Post-Conviction Relief for Immigrants § 7.51:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OR DEFEND IF BASED ON MISTAKEN BELIEF IN LEGAL CONCLUSION THAT DEFENDANT WAS A U.S. CITIZEN
Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam) (An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.). In Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1085, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam), the Supreme Court held counsel was ineffective for failing to seek funds to hire an expert where that failure was based on a mistaken belief that available funding was capped at $1,000. The attorney failed to do so because he was himself unaware that Alabama law no longer imposed a specific limit and instead allowed reimbursement for any expenses reasonably incurred. This decision may provide authority for a broader rule that counsel renders ineffective assistance where the failure to take necessary action occurred because of counsels mistaken belief concerning a matter of law. This can provide authority for a claim based on defense counsels failure to investigate the defendants immigration status, which led to counsels failure to investigate the immigration consequences of a plea, failure to advise the defendant concerning them, and failure to defend the client against them. The court held: The first prong"constitutional deficiency"is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. Padilla, supra, at 366, 130 S.Ct. 1473 (quoting Strickland, supra, at 688, 104 S.Ct. 2052). In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Strickland, supra, at 688, 104 S.Ct. 2052 Under that standard, it was unreasonable for Hinton's lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000. (Id. at 1088.) The court continued: An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. See, e.g., Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding deficient performance where counsel failed to conduct an investigation that would have uncovered extensive records [that could be used for death penalty mitigation purposes], not because of any strategic calculation but because they incorrectly thought that state law barred access to such records); Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (finding deficient performance where counsel failed to conduct pretrial discovery and that failure was not based on strategy, but on counsel's mistaken belie[f] that the State was obliged to take the initiative and turn over all of its inculpatory evidence to the defense). (Id. at 1089.)

Tooby's California Post-Conviction Relief for Immigrants § 7.51:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OR DEFEND IF BASED ON MISTAKEN BELIEF IN LEGAL CONCLUSION THAT DEFENDANT WAS A U.S. CITIZEN
Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam) (An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.). In Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1085, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam), the Supreme Court held counsel was ineffective for failing to seek funds to hire an expert where that failure was based on a mistaken belief that available funding was capped at $1,000. The attorney failed to do so because he was himself unaware that Alabama law no longer imposed a specific limit and instead allowed reimbursement for any expenses reasonably incurred. This decision may provide authority for a broader rule that counsel renders ineffective assistance where the failure to take necessary action occurred because of counsels mistaken belief concerning a matter of law. This can provide authority for a claim based on defense counsels failure to investigate the defendants immigration status, which led to counsels failure to investigate the immigration consequences of a plea, failure to advise the defendant concerning them, and failure to defend the client against them. The court held: The first prong"constitutional deficiency"is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. Padilla, supra, at 366, 130 S.Ct. 1473 (quoting Strickland, supra, at 688, 104 S.Ct. 2052). In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Strickland, supra, at 688, 104 S.Ct. 2052 Under that standard, it was unreasonable for Hinton's lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000. (Id. at 1088.) The court continued: An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. See, e.g., Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding deficient performance where counsel failed to conduct an investigation that would have uncovered extensive records [that could be used for death penalty mitigation purposes], not because of any strategic calculation but because they incorrectly thought that state law barred access to such records); Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (finding deficient performance where counsel failed to conduct pretrial discovery and that failure was not based on strategy, but on counsel's mistaken belie[f] that the State was obliged to take the initiative and turn over all of its inculpatory evidence to the defense). (Id. at 1089.)

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE CONCERNING IMMIGRATION CONSEQUENCES " STATE OF THE LAW PRIOR TO PADILLA
In Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013), the court stated: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. . . . Nor, finally, does St. Cyr have any relevance here. That decision stated what is common sense (and what we again recognized in Padilla ): A reasonably competent lawyer will tell a non-citizen client about a guilty plea's deportation consequences because [p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence. Padilla, 559 U.S., at """", 130 S.Ct., at 1483 (quoting St. Cyr, 533 U.S., at 322, 121 S.Ct. 2271). But in saying that much, St. Cyr did not determine that the Sixth Amendment requires a lawyer to provide such information. (Chaidez, supra, at ___.)

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " APPLICABILITY OF CHAIDEZ TO REVIEW OF STATE CONVICTIONS
In Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013), the court held Padilla did not apply to a post-conviction challenge to a federal conviction on grounds that counsel failed to advise the defendant concerning the immigration consequences of a plea in a case already final when Padilla was decided on March 31, 2010. Chaidez does not technically apply to review of state convictions in state court. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority, on independent state grounds, decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES " CHAIDEZ DOES NOT APPLY TO REVIEW OF FEDERAL OR STATE CLAIMS OF AFFIRMATIVE MISADVICE
In Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013), the court held Padilla did not apply to a post-conviction challenge to a federal conviction in a case already final when Padilla was decided on March 31, 2010 on grounds that counsel failed to advise the defendant concerning the immigration consequences of a plea. Chaidez involved a claim of failure to advise, rather than affirmative misadvice. Its holding therefore does not pertain in cases involving affirmative misadvice. Chaidez made this clear: [T]hree federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985). So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___.) One of those state courts, though not mentioned in Chaidez, was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001)(For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. ( Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 1010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes ineffective assistance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. In California, the 1987 Soriano decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. Moreover, state courts are charged with enforcing the federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It was merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx.

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE CONCERNING IMMIGRATION CONSEQUENCES OF PLEA " RETROACTIVITY OF PADILLA
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (Padilla does not apply to convictions that were already final on March 31, 2010 under the retroactivity analysis in Teague).

Post-Conviction Relief for Immigrants § 6.18, § 7.18, § 7.19:

ARTICLE " CAL POST CON " EFFECT OF CHAIDEZ V. UNITED STATES ON CALIFORNIA LAW CONCERNING PADILLA CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO IMMIGRATION ADVICE
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that Padilla does not apply to convictions that were already final on March 31, 2010 under the retroactivity analysis in Teague. Padilla did not much change on the California law on this subject. In California, in 1987, the First District Court of Appeals held it is ineffective assistance of counsel to fail to investigate the federal immigration consequences of a disposition and to fail to advise a foreign national defendant of them before plea. People v. Soriano, 194 Cal.App.3d 1470 (1987). In 1989, the Fifth District Court of Appeal held it to be ineffective assistance to fail to request a non-deportable sentence. People v. Barocio, 216 Cal.App.3d 99 (1989). Both of these decisions have been binding on trial courts statewide since their decision. Therefore, criminal defense counsel and lower state courts were bound to follow those opinions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456) (Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.) The California Supreme Court then held it to be ineffective assistance of counsel to give affirmative misadvice to a noncitizen concerning the immigration consequences of a plea if prejudice is shown. In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr. 2d 431 (2001). The Sixth District Court of Appeals held it to be ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense. People v. Bautista, 115 Cal.App.4th 229 (2004). The holding of Padilla, therefore, does not significantly change California law concerning effective assistance to noncitizen defendants in advising them of, and helping them avoid, disastrous immigration consequences of criminal convictions. Padillas major effect on California law is that the California Supreme Court must now recognize that a failure to advise a defendant can constitute ineffective assistance of counsel, an issue on which it was as yet unpersuaded in 2001 when it decided Resendiz. This unpersuaded statement, however, was nothing more than dictum, since the failure to advise claim was not before the California Supreme Court in Resendiz. The Court in Resendiz did not overrule or even cite the Soriano decision, that held since 1987 that failure to advise was ineffective. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (Mar. 31, 2010), the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant affirmatively to provide accurate advice about the risk of deportation arising from a guilty plea. In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that under the principles set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Padilla does not have retroactive effect. Therefore, defendants whose convictions became final prior to Padilla [March 31, 2010] therefore cannot benefit from its holding. (Chaidez, supra, at *10.) Defendants with convictions that were still on appeal, or as to which the time for filing a notice of appeal had not yet expired, may still take advantage of the new rule of Padilla. Seven justices joined in the judgment, with Justice Sotomayor, joined by Justice Ginsberg, dissenting. There are several important limitations to the Chaidez decision. Padilla decided two distinct claims: First, it held that counsels affirmative misadvice concerning the actual immigration consequences of a plea constituted ineffective assistance of counsel. Second, it held that counsels failure affirmatively to advise the client of those consequences also constituted ineffective assistance of counsel. In Chaidez, only a failure to advise claim was raised, and the Supreme Courts holding in Chaidez therefore only addressed failure to advise claims. The Supreme Court explicitly distinguished affirmative misadvice claims as not subject to its retroactivity holding: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___ [emphasis supplied].) Therefore, the Chaidez holding on retroactivity of Padilla does not apply to the separate rule for material misrepresentations as to federal immigration consequences of a plea, that pre-existed Padilla and lived in harmony with the exclusion of claims like hers [failure to advise claims] from the Sixth Amendment . . . . (Ibid.) The affirmative misrepresentation rule, that material misrepresentations constitute ineffective assistance of counsel, falls within the normal run of Strickland claims, and there is no reason to believe it was a new rule. This rule by 2001 was considered a clear state and federal consensus on federal constitutional ineffective assistance of counsel. One of those state courts, though not mentioned in Chaidez, that earlier recognized failure to advise clients was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001) (For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. (Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 2010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes deficient performance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. The Supreme Court in Chaidez was wrong to omit California from the (short) list of jurisdictions that adopted the failure to advise rule prior to Padilla. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328. This California 1987 decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1478-1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. States must enforce minimum federal constitutional standards, but are free to adopt additional protections. (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 842, 117 Cal.Rptr. 437; Cal. Const., Art. I, 24 (declaring that [r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.)) Moreover, state courts are charged with enforcing federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx. Since these two arguments were not properly preserved and presented in Chaidez, the Supreme Court did not decide them. Therefore, counsel are free to argue: (1) Teague does not apply in state proceedings, unless the state has independently chosen to follow the Teague rule. (2) New rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. Chaidez does not apply to review of state claims under state authority. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. Following the rule set forth in People v. Soriano, a California Court of Appeals panel in 1989 made explicit what was only implicit in Soriano: the duty to advise about immigration consequences also includes the duty to defend against those consequences. People v. Barocio, (1989) 216 Cal.App.3d 99 (failure to file judicial recommendation against deportation or seek 364 day sentence is ineffective assistance of counsel). This was also the holding in People v. Bautista (2004) 115 Cal.App.4th 229 (counsel correctly told the defendant that he would be deported for possession of sale conviction, but failure to attempt to plead up to offer to sell or transportation may be ineffective assistance of counsel). This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " STATE OF THE LAW PRE-PADILLA
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court stated: All 10 federal appellate courts to consider the question decided, in the words of one, that counsel's failure to inform a defendant of the collateral consequences of a guilty plea is never a violation of the Sixth Amendment. Santos-Sanchez v. United States, 548 F.3d 327, 334 (C.A.5 2008).FN7 That constitutional guarantee, another typical decision expounded, assures an accused of effective assistance of counsel in criminal prosecutions ; accordingly, advice about matters like deportation, which are not a part of or enmeshed in the criminal proceeding,'' does not fall within the Amendment's scope. United States v. George, 869 F.2d 333, 337 (C.A.7 1989). Appellate courts in almost 30 States agreed.FN8 By contrast, only two state courts held that an attorney could violate the Sixth Amendment by failing to inform a client about deportation risks or other collateral consequences of a guilty plea.FN9 FN7. See Broomes v. Ashcroft, 358 F.3d 1251, 1256 (C.A.10 2004); United States v. Fry, 322 F.3d 1198, 1200"1201 (C.A.9 2003); United States v. Gonzalez, 202 F.3d 20, 25 (C.A.1 2000); Russo v. United States, 1999 WL 164951, *2 (C.A.2, Mar. 22, 1999); Ogunbase v. United States, 1991 WL 11619, *1 (C.A.6, Feb. 5, 1991); United States v. Del Rosario, 902 F.2d 55, 58"59 (C.A.D.C.1990); United States v. George, 869 F.2d 333, 337 (C.A.7 1989); United States v. Yearwood, 863 F.2d 6, 7"8 (C.A.4 1988); United States v. Campbell, 778 F.2d 764, 768"769 (C.A.11 1985). FN8. Rumpel v. State, 847 So.2d 399, 402"405 (Ala.Crim.App.2002); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App.1995); Niver v. Commissioner of Correction, 101 Conn.App. 1, 3"5, 919 A.2d 1073, 1075"1076 (2007) (per curiam ); State v. Christie, 655 A.2d 836, 841 (Del.Super.1994); Matos v. United States, 631 A.2d 28, 31"32 (D.C.1993); Major v. State, 814 So.2d 424, 431 (Fla.2002); People v. Huante, 143 Ill.2d 61, 68"71, 156 Ill.Dec. 756, 571 N.E.2d 736, 740"741 (1991); State v. Ramirez, 636 N.W.2d 740, 743"746 (Iowa 2001); State v. Muriithi, 273 Kan. 952, 961, 46 P.3d 1145, 1152 (2002); Commonwealth v. Fuartado, 170 S.W.3d 384, 385"386 (Ky.2005); State v. Montalban, 2000"2739, p. 4 (La. 2/26/02), 810 So.2d 1106, 1110; Commonwealth v. Fraire, 55 Mass.App. 916, 917, 774 N.E.2d 677, 678"679 (2002); People v. Davidovich, 463 Mich. 446, 452, 618 N.W.2d 579, 582 (2000) (per curiam ); State ex rel. Nixon v. Clark, 926 S.W.2d 22, 25 (Mo.App.1996); State v. Zarate, 264 Neb. 690, 693"696, 651 N.W.2d 215, 221"223 (2002); Barajas v. State, 115 Nev. 440, 441"442, 991 P.2d 474, 475"476 (1999) (per curiam ); State v. Chung, 210 N.J.Super. 427, 434, 510 A.2d 72, 76 (App.Div.1986); People v. Ford, 86 N.Y.2d 397, 403"404, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269 (1995); State v. Dalman, 520 N.W.2d 860, 863"864 (N.D.1994); Commonwealth v. Frometa, 520 Pa. 552, 555"557, 555 A.2d 92, 93"94 (1989); State v. Alejo, 655 A.2d 692, 692"693 (R.I.1995); Nikolaev v. Weber, 2005 S.D. 100, 11"12, 705 N.W.2d 72, 75"77 (per curiam ); Bautista v. State, 160 S.W.3d 917, 922 (Tenn.Crim.App.2004); Perez v. State, 31 S.W.3d 365, 367"368 (Tex.App.2000); State v. Rojas"Martinez, 2005 UT 86, 15"20, 125 P.3d 930, 934"935; State v. Martinez"Lazo, 100 Wash.App. 869, 876"878, 999 P.2d 1275, 1279"1280 (2000); State v. Santos, 136 Wis.2d 528, 531, 401 N.W.2d 856, 858 (App.1987). FN9. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805. (Chaidez, supra, at ___.) Chaidez is incorrect in omitting California from the list of jurisdictions holding failure to advise concerning immigration consequences constitutes ineffective assistance of counsel. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328.

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE CONCERNING IMMIGRATION CONSEQUENCES " STATE OF THE LAW PRIOR TO PADILLA
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court stated: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. . . . Nor, finally, does St. Cyr have any relevance here. That decision stated what is common sense (and what we again recognized in Padilla ): A reasonably competent lawyer will tell a non-citizen client about a guilty plea's deportation consequences because [p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence. Padilla, 559 U.S., at """", 130 S.Ct., at 1483 (quoting St. Cyr, 533 U.S., at 322, 121 S.Ct. 2271). But in saying that much, St. Cyr did not determine that the Sixth Amendment requires a lawyer to provide such information. (Chaidez, supra, at ___.)

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " APPLICABILITY OF CHAIDEZ TO REVIEW OF STATE CONVICTIONS
In Chaidez v. United States, ___ U.S.___, ___n.16, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court held Padilla did not apply to a post-conviction challenge to a federal conviction on grounds that counsel failed to advise the defendant concerning the immigration consequences of a plea in a case already final when Padilla was decided on March 31, 2010. Chaidez does not technically apply to review of state convictions in state court. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority, on independent state grounds, decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES " CHAIDEZ DOES NOT APPLY TO REVIEW OF FEDERAL OR STATE CLAIMS OF AFFIRMATIVE MISADVICE
In Chaidez v. United States, ___ U.S.___, ___n.16, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court held Padilla did not apply to a post-conviction challenge to a federal conviction in a case already final when Padilla was decided on March 31, 2010 on grounds that counsel failed to advise the defendant concerning the immigration consequences of a plea. Chaidez involved a claim of failure to advise, rather than affirmative misadvice. Its holding therefore does not pertain in cases involving affirmative misadvice. Chaidez made this clear: [T]hree federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985). So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___.) One of those state courts, though not mentioned in Chaidez, was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001)(For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. ( Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 1010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes ineffective assistance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. In California, the 1987 Soriano decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. Moreover, state courts are charged with enforcing the federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It was merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx.

Post-Conviction Relief for Immigrants § 6.18:

POST CON RELIEF " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " STATE OF THE LAW PRE-PADILLA
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court stated: All 10 federal appellate courts to consider the question decided, in the words of one, that counsel's failure to inform a defendant of the collateral consequences of a guilty plea is never a violation of the Sixth Amendment. Santos-Sanchez v. United States, 548 F.3d 327, 334 (C.A.5 2008).FN7 That constitutional guarantee, another typical decision expounded, assures an accused of effective assistance of counsel in criminal prosecutions ; accordingly, advice about matters like deportation, which are not a part of or enmeshed in the criminal proceeding,'' does not fall within the Amendment's scope. United States v. George, 869 F.2d 333, 337 (C.A.7 1989). Appellate courts in almost 30 States agreed.FN8 By contrast, only two state courts held that an attorney could violate the Sixth Amendment by failing to inform a client about deportation risks or other collateral consequences of a guilty plea.FN9 FN7. See Broomes v. Ashcroft, 358 F.3d 1251, 1256 (C.A.10 2004); United States v. Fry, 322 F.3d 1198, 1200"1201 (C.A.9 2003); United States v. Gonzalez, 202 F.3d 20, 25 (C.A.1 2000); Russo v. United States, 1999 WL 164951, *2 (C.A.2, Mar. 22, 1999); Ogunbase v. United States, 1991 WL 11619, *1 (C.A.6, Feb. 5, 1991); United States v. Del Rosario, 902 F.2d 55, 58"59 (C.A.D.C.1990); United States v. George, 869 F.2d 333, 337 (C.A.7 1989); United States v. Yearwood, 863 F.2d 6, 7"8 (C.A.4 1988); United States v. Campbell, 778 F.2d 764, 768"769 (C.A.11 1985). FN8. Rumpel v. State, 847 So.2d 399, 402"405 (Ala.Crim.App.2002); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App.1995); Niver v. Commissioner of Correction, 101 Conn.App. 1, 3"5, 919 A.2d 1073, 1075"1076 (2007) (per curiam ); State v. Christie, 655 A.2d 836, 841 (Del.Super.1994); Matos v. United States, 631 A.2d 28, 31"32 (D.C.1993); Major v. State, 814 So.2d 424, 431 (Fla.2002); People v. Huante, 143 Ill.2d 61, 68"71, 156 Ill.Dec. 756, 571 N.E.2d 736, 740"741 (1991); State v. Ramirez, 636 N.W.2d 740, 743"746 (Iowa 2001); State v. Muriithi, 273 Kan. 952, 961, 46 P.3d 1145, 1152 (2002); Commonwealth v. Fuartado, 170 S.W.3d 384, 385"386 (Ky.2005); State v. Montalban, 2000"2739, p. 4 (La. 2/26/02), 810 So.2d 1106, 1110; Commonwealth v. Fraire, 55 Mass.App. 916, 917, 774 N.E.2d 677, 678"679 (2002); People v. Davidovich, 463 Mich. 446, 452, 618 N.W.2d 579, 582 (2000) (per curiam ); State ex rel. Nixon v. Clark, 926 S.W.2d 22, 25 (Mo.App.1996); State v. Zarate, 264 Neb. 690, 693"696, 651 N.W.2d 215, 221"223 (2002); Barajas v. State, 115 Nev. 440, 441"442, 991 P.2d 474, 475"476 (1999) (per curiam ); State v. Chung, 210 N.J.Super. 427, 434, 510 A.2d 72, 76 (App.Div.1986); People v. Ford, 86 N.Y.2d 397, 403"404, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269 (1995); State v. Dalman, 520 N.W.2d 860, 863"864 (N.D.1994); Commonwealth v. Frometa, 520 Pa. 552, 555"557, 555 A.2d 92, 93"94 (1989); State v. Alejo, 655 A.2d 692, 692"693 (R.I.1995); Nikolaev v. Weber, 2005 S.D. 100, 11"12, 705 N.W.2d 72, 75"77 (per curiam ); Bautista v. State, 160 S.W.3d 917, 922 (Tenn.Crim.App.2004); Perez v. State, 31 S.W.3d 365, 367"368 (Tex.App.2000); State v. Rojas"Martinez, 2005 UT 86, 15"20, 125 P.3d 930, 934"935; State v. Martinez"Lazo, 100 Wash.App. 869, 876"878, 999 P.2d 1275, 1279"1280 (2000); State v. Santos, 136 Wis.2d 528, 531, 401 N.W.2d 856, 858 (App.1987). FN9. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805. (Chaidez, supra, at ___.) Chaidez is incorrect in omitting California from the list of jurisdictions holding failure to advise concerning immigration consequences constitutes ineffective assistance of counsel. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328.

Post-Conviction Relief for Immigrants § 6.16:

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PLEA " KNOWING INTELLIGENT PLEA VOIDED BY INEFFECTIVE ASSISTANCE OF COUNSEL
Ineffective assistance of counsel voids a guilty plea (which is supposed to be a knowing, intelligent, and voluntary waiver of many rights) if there is prejudice, i.e., a reasonable probability of a different outcome absent counsels error. The most recent all-jurisdiction Supreme Court statement of this principle is found in Missouri v. Frye, 132 S.Ct. 1399 (March 21, 2012). The court there held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. That right applies to all critical stages of the criminal proceedings. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, established that Stricklands two-part test governs ineffective-assistance claims in the plea bargain context. There, the defendant had alleged that his counsel had given him inadequate advice about his plea, but he failed to show that he would have proceeded to trial had he received the proper advice. 474 U.S., at 60, 106 S.Ct. 366. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, where a plea offer was set aside because counsel had misinformed the defendant of its immigration consequences, this Court made clear that the negotiation of a plea bargain is a critical stage for ineffective-assistance purposes, id., at 1392, 130 S.Ct., at 1486 and rejected the argument made by the State in this case that a knowing and voluntary plea supersedes defense counsel's errors.

Post-Conviction Relief for Immigrants § 6.18, § 6.8, Appendix :

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PLEA BARGAINING
Lafler v. Cooper, 132 S.Ct. 1376 (Mar. 21, 2012) (defendant received ineffective assistance of counsel during plea bargaining, in rejecting an offer of a 51-to-85-month sentence, because counsel misadvised him that the prosecution would be unable to establish intent to murder, prejudice can be shown by establishing a reasonable probability the defendant and the trial court would have accepted the more favorable guilty plea absent counsels error). NOTE: The majority cites Padilla's floodgates discussion in defending the point that "Courts have recognized claims of this sort for over 30 years" without creating undo chaos. By "this sort," they mean Strickland claims about rejected pleas, which have a little bit more of a pedigree than non-advisal Padilla claims. This is another case with an application of Strickland that the dissent claims is novel. This language is strong confirmation that the Court understands Padilla's floodgates discussion as assuming its radioactivity as a mere application of Strickland and not a new rule. Thanks to Dan Kesselbrenner and Isaac Wheeler.

Criminal Defense of Immigrants § 20.2 ; Crimes of Moral Turpitude § 8.2:

BIBIOGRAPHY " CRIME OF MORAL TURPITUDE " DEFINITION
Mary Holper, Deportation for a Sin: Why Moral Turpitude is Void for Vagueness, Roger Williams University School of Law (Sept. 30, 2011). Abstract: A major problem facing noncitizen criminal defendants today is the vagueness of the term crime involving moral turpitude (CIMT) in deportation law. The Supreme Court in the 1951 case Jordan v. DeGeorge decided that a statute authorizing deportation for a CIMT was not void for vagueness because courts had long held the noncitizens offense, fraud, to be a CIMT, so he was on notice of his likely deportation. I argue that when noncitizens are charged with an offense that case law has not clearly delineated as a CIMT, the term is vague, since the definition used by the agency and courts, an act that is base, vile, depraved, and contrary to the rules of morality, provides no useful definition. Rather, it casts judges in the role of God, deporting noncitizens for sin. Exacerbating this situation is the Supreme Courts 2010 decision in Padilla v. Kentucky; since the Court held that defense counsel only has a Sixth Amendment duty to warn noncitizens about immigration consequences that are succinct, clear, and explicit from the immigration statute, there is no clear obligation to warn about deportability for a CIMT. Scholars have thoroughly discussed the vagueness doctrine and also have begun to analyze the Courts recent Padilla decision. This article is the first to address whether CIMT in deportation law is void for vagueness in a post-Padilla world. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1936136

Tooby's California Post-Conviction Relief for Immigrants § 7.27:

GROUNDS " IAC " PREJUDICE - DIFFERENT STANDARD FOR IAC IN GUILTY PLEA CONTEXT
Premo v. Moore (January 19, 2011) ___ U.S. ___, 131 S.Ct. ___, reversing (9th Cir. Cir. 2009) 534 F.3d 1138 (under limited role of federal court in reviewing state court denial of effective assistance claims, Court reversed Ninth Circuit finding the state courts determination was not an unreasonable application of the Strickland standards, in the guilty plea context). Practice Advisory. The Court in Premo noted that there are significant differences between an ineffective assistance claim in the guilty plea context and that after a trial. The guilty plea context places a most substantial burden on the defendant to show that but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial, and employed the standard enunciated in Hill v. Lockhart, in 1985. The distortion of a hindsight perspective can make accurate review very difficult, while upsetting pleas years later may bring instability to the process that would be damaging to defendants as well as the criminal justice system. The Court discounted the possibility that a defendant can show prejudice by showing a reasonable possibility that a different plea might have been entered absent counsels error, rather than a possibility the defendant would have chosen to go to trial. On the other hand, the Court in Padilla v. Kentucky explicitly referred to the possibility of an ineffective counsel claim for failure to attempt to negotiate an immigration-harmless plea. Counsel can argue that in the immigration context, the proper standard of prejudice is that suggested by Padilla. This is because certain pleas cause severe immigration damage, while others do not, a factor not present in the non-immigration plea context presented in Premo.

Tooby's California Post-Conviction Relief for Immigrants § 7.27:

GROUNDS " IAC " PREJUDICE - DIFFERENT STANDARD FOR IAC IN GUILTY PLEA CONTEXT
Premo v. Moore (January 19, 2011) 131 S.Ct. 733, reversing (9th Cir. Cir. 2009) 534 F.3d 1138 (under limited role of federal court in reviewing state court denial of effective assistance claims, Court reversed Ninth Circuit finding the state courts determination was not an unreasonable application of the Strickland standards, in the guilty plea context). Practice Advisory. The Court in Premo noted that there are significant differences between an ineffective assistance claim in the guilty plea context and that after a trial. The guilty plea context places a most substantial burden on the defendant to show that but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial, and employed the standard enunciated in Hill v. Lockhart, in 1985. The distortion of a hindsight perspective can make accurate review very difficult, while upsetting pleas years later may bring instability to the process that would be damaging to defendants as well as the criminal justice system. The Court discounted the possibility that a defendant can show prejudice by showing a reasonable possibility that a different plea might have been entered absent counsels error, rather than a possibility the defendant would have chosen to go to trial. On the other hand, the Court in Padilla v. Kentucky explicitly referred to the possibility of an ineffective counsel claim for failure to attempt to negotiate an immigration-harmless plea. Counsel can argue that in the immigration context, the proper standard of prejudice is that suggested by Padilla. This is because certain pleas cause severe immigration damage, while others do not, a factor not present in the non-immigration plea context presented in Premo.

Tooby's California Post-Conviction Relief for Immigrants § 7.27:

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " ARTICLE
Flawed Supreme Court Decision in Premo v. Moore Restricts Prejudice Analysis of Ineffective Assistance of Counsel Claims in Plea of Guilty Context By Norton Tooby In Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733 (January 19, 2011), the Supreme Court held that the state post-conviction courts conclusions that defense counsel did not render deficient performance, and the defendant had not shown prejudice, were were not unreasonable applications of clearly established federal law as determined by the Supreme Court. The court pointed out that federal habeas corpus is very limited in its review of state post-conviction decisions, and owes great deference to the decisions of state courts. In addition, federal habeas review of ineffective assistance claims owes deference to defense counsel. This double duty of federal courts to defer to state ineffective counsel decisions provides the framework for this decision. Here, the Court found the court of appeals was wrong to accord scant deference to counsels judgment, and doubly wrong to find that the Oregon court was unreasonable in its finding that effective assistance was provided. The distortion of a hindsight perspective can make accurate review very difficult, while upsetting pleas years later may bring instability to the process that would be damaging to defendants as well as the criminal justice system. In this sense, Premo is inapplicable to state court post-conviction consideration of claims of ineffective assistance of counsel, because state courts are not constrained by the limitations of 28 U.S.C. 2254(d)s requirement that the state court must violate a clearly established Supreme Court decision. The Supreme Court stated there are significant differences between an ineffective assistance claim in the guilty plea context, and that after a trial. The guilty plea context places a most substantial burden on the defendant to show that but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial (Hill v. Lockhart, 1985). After trial, the burden is on the defendant to show a reasonable probability that the outcome of the trial would be different. A trial produces a fuller record of the facts of the case and the details of trial counsels actions and omissions. The plea process is full of unknowns and defense attorneys knowledge of facts and practices that are not in the record. Hindsight and second guesses are inappropriate and the stability and certainty that the plea process brings to the criminal justice system must not be undermined. Most of these differences between guilty pleas and trials, however, are not real and this dictum is gratuitous and irrelevant the legal standards involved. Stability is equally important in both contexts, and the court makes no sensible case for stating that stability is more important in the guilty plea context. The slightly different prejudice standard does not mean that it is any more difficult to set aside a guilty plea than a trial; Hill simply applied the Strickland standard to the plea context. It did not stiffen the standard, and Premo did not purport to change the Hill standard. Therefore, the prejudice standard in the plea context enunciated in Hill remains unchanged. The Supreme Court pointed out that the plea process is full of unknowns and defense attorneys knowledge of facts and practices that are not in the record. (Id. at ___.) Counsel can nullify this factor, however, by making as full a record as necessary during post-conviction litigation as to any relevant facts that are not already in the record. The issue of hindsight is equally significant in the trial and plea contexts. The only other real difference between the plea and trial contexts is that the vast majority of criminal cases, perhaps more than 95%, are resolved by plea rather than trial. This difference, however, does not offer a reason why it should be more or less difficult to set aside a conviction in either context. Each case is equally important to the defendant and to society. The Constitution should provide equal guarantees of fairness and stability in both contexts. The deficient performance claim in Premo was that counsel erred in recommending a guilty plea in a potentially capital case to avoid the possibility of the death penalty, without making a motion to suppress the defendants confession. The Supreme Court found that the state court was not unreasonable in believing the motion was not meritorious, or counsel made a reasonable recommendation to plead guilty early to avoid the death penalty, or that the motion was pointless because even if the defendants confession to authorities had been suppressed, he had made identical admissible confessions to two codefendants. The Supreme Court found the Ninth Circuit misapplied Fulminante (1991), and that novelty alone was a sufficient reason to reject the Ninth Circuits reasoning under 28 U.S.C. 2254(d)s requirement that the state court must violate a clearly established Supreme Court decision. The Supreme Court also found the state courts conclusion that the petitioner was not prejudiced by counsel's allegedly deficient performance, was not an unreasonable application of clearly established federal law as determined by the Supreme Court. As Justice Ginsberg pointed out in her concurrence, the petitioner never claimed that he would not have pleaded guilty absent counsels error, so there was no proof that he would not have entered the plea, as is required for reversal under Hill v. Lockharts prejudice standard. This alone was a sufficient reason to deny relief in this case under the traditional guilty-plea prejudice standard established by the Supreme Court in 1985. Second, the Supreme Court reasoned that it was quite likely that Moores confession to others would have made his police confession superfluous. This reason, as well, is sufficient standing alone to require denial of relief under Hill v. Lockharts prejudice standard. In addition, the Supreme Court found that the state courts decision that pleading guilty early to avoid a capital prosecution without filing motions was a not unreasonable strategy. The Supreme Court threw a number of gratuitous generalities into this decision. It stated: Many defendants reasonably enter plea agreements even though there is a significant probability " much more than a reasonable doubt " that they would be acquitted if they proceeded to trial. (Id. at ___.) It commented that the guilty plea context is different in several ways from the trial context. These comments are irrelevant to the decision of future ineffective assistance cases, because it is well-established that ineffective assistance claims are decided based on the individual facts of the cases. What [m]any defendants do " reasonably or not " is irrelevant to the individual case before the court. The Supreme Court stated: Finally, we reject [without analysis] Judge Berzons concurring suggestion that the standard for prejudice in the guilty plea context should be a reasonable possibility that he would have obtained a better plea agreement but for his counsels errors. The standard established in Hill (1985), that the defendant would not have pleaded guilty controls. (Id. at ___.) This statement is unaccompanied by any analysis, and seems to contradict the implications of Padilla, that a different non-deportable disposition is something competent counsel would seek. It also contradicts the standard for ineffective assistance at sentencing: a different sentence. See Glover v. United States. The Courts impatience with the Circuit appears to have pretermitted its analysis here. There might be an argument that Judge Berzons suggested standard is not clearly established federal law, but that reasoning is not presented in the Courts opinion.

Tooby's California Post-Conviction Relief for Immigrants § 6.69:

GROUNDS " PLEA TO FAILURE TO REGISTER INVALID, SINCE LEAST ADJUDICATED ELEMENTS OF OUT-OF-STATE SEX OFFENSE DID NOT MEET ALL REQUIREMENTS OF ANY CALIFORNIA REGISTRABLE OFFENSE
In re Rodden (June 29, 2010) 186 Cal.App.4th 24, 2010 WL 2584195 (habeas corpus granted, vacating guilty plea to California failure to register as a sex offender, because the least adjudicated elements of the predicate Kentucky sex offense do not meet all of the requirements for any registrable offense in California, so the defendant did not unlawfully fail to register as a sex offender in California).
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Crimes of Moral Turpitude: §9.43
Obstruction of Justice Obstruction of justice.   Padilla v. Gonzalez , 397 F.3d 1016 (7th Cir.... moral turpitude for immigration purposes) ; Knoetze v. U. S. Dept. of State , 634
Aggravated Felonies: §3.5
are not citizens. 8 U.S.C. § 1408; Perdomo-Padilla v. Ashcroft , 333 F.3d 964, 967-69 (9th... United States acquired from Spain . Hampton v. Mow Sun Wong , 426 U.S. 88, 91, 107-13, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); Rabang v. INS , 35 F.3d 1449, 1452 (9th Cir. 1994); Cabebe v. Acheson , 183 F.2d 795, 797-801 (9th... statement of allegiance in a naturalization application, Perdomo-Padilla , 333 F.3d at 972, or by... the standard military oath of allegiance. Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 939-41 (9th... Foreign Sovereign Immunities Act.   See Asemani v. Iran , 266 F.Supp.2d 24 (D.D.C. Apr.... 8 U.S.C. § 1101(a)(22). [4] United States v. Sotelo , 109 F.3d 1446, 1448 (9th Cir. 1997); Carreon-Hernandez v. Levi , 543 F.2d 637, 638 (8th Cir. 1976); Oliver v. INS , 517 F.2d 426 (2d Cir. 1975). [5] United States v. Morin , 80 F.3d 124, 126 (4th Cir. 1996); Asemani v. Iran , 266 F.Supp.2d 24 (D.D.C. Apr. 23, 2003). See, e.g., Lee v. Ashcroft , 216 F. Supp. 2d 51... by life‑long immersion in American society); Hughes v. Ashcroft , 255 F.3d 752 (9th Cir. 2001). [6] See Perdomo-Padilla v. Ashcroft , 333 F.3d 964 (9th Cir.... N. Dec. 586 (BIA 2003) (same); Sebastian-Soler v. U.S. Att’y Gen. , 409 F.3d 1280... make him national of United States); Tovar-Alvarez v. U.S. Att’y Gen. , 427 F.3d 1350... is not a United States national.”); Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 938 (9th... the Immigration and Nationality Act”); United States v. Karaouni , 379 F.3d 1139, 1143 (9th... the standard military oath of allegiance); Abou-Haidar v. Gonzalez , 437 F.3d 206 (1st Cir.... to terminate removal proceedings). [7] United States v. Karaouni , 379 F.3d 1139, 1143 (9th Cir. Aug. 24, 2004). [8] Tovar-Alvarez v. U.S.Attorney General , 427 F.3d 1350 (11th Cir. Oct. 13, 2005); Sebastian-Soler v. U.S. Att’y Gen. , 409 F.3d 1280... him national of United States); United States v. Jean-Baptiste , 395 F.3d 1190 (11th Cir.... convicted until after naturalization). [9] United States v. Karaouni , 379 F.3d 1139, 1143 (9th... § 308, 8 U.S.C. § 1408 ; Perdomo-Padilla v. Ashcroft , 333 F.3d 964, 967-69 (9th... United States acquired from Spain . Hampton v. Mow Sun Wong , 426 U.S. 88, 91, 107-13, 96 S.Ct. 1895 (1976); Rabang v. INS , 35 F.3d 1449, 1452 (9th Cir. 1994); Cabebe v. Acheson , 183 F.2d 795, 797-801 (9th... statement of allegiance in a naturalization application, Perdomo-Padilla , 333 F.3d at 972, or by... the standard military oath of allegiance. Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 939-41 (9th Cir. 2004).”). [10] Marquez-Almanzar v. INS , 418 F.3d 210 (2d Cir.... the United States for immigration purposes); Alwan v. Ashcroft , 388 F.3d 507 (5th Cir.... is insufficient to confer “national” status); Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 938 (9th
Aggravated Felonies: §6.31
[2] Ibid .   See United States v. Padilla , 387 F.3d 1087 (9th Cir. Nov.
Criminal Defense of Immigrants: §3.18
are not citizens. 8 U.S.C. § 1408; Perdomo-Padilla v. Ashcroft , 333 F.3d 964, 967-69 (9th... United States acquired from Spain . Hampton v. Mow Sun Wong , 426 U.S. 88, 91, 107-13, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); Rabang v. INS , 35 F.3d 1449, 1452 (9th Cir. 1994); Cabebe v. Acheson , 183 F.2d 795, 797-801 (9th... statement of allegiance in a naturalization application, Perdomo-Padilla , 333 F.3d at 972, or by... the standard military oath of allegiance. Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 939-41 (9th... as American Samoa and Swain’s Island); Marquez-Almanzar v. INS , 418 F.3d 210 (2d Cir.... the United States for immigration purposes); Alwan v. Ashcroft , 388 F.3d 507 (5th Cir.... is insufficient to confer “national” status); Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 938 (9th... Foreign Sovereign Immunities Act.   See Asemani v. Iran , 266 F.Supp.2d 24 (D.D.C. Apr.... 8 U.S.C. § 1101(a)(22). [4] United States v. Sotelo , 109 F.3d 1446, 1448 (9th Cir. 1997); Carreon-Hernandez v. Levi , 543 F.2d 637, 638 (8th Cir. 1976); Oliver v. INS , 517 F.2d 426 (2d Cir. 1975). [5] United States v. Morin , 80 F.3d 124, 126 (4th Cir. 1996); Asemani v. Iran , 266 F.Supp.2d 24 (D.D.C. Apr. 23, 2003).   See, e.g., Lee v. Ashcroft , 216 F. Supp. 2d 51... by life‑long immersion in American society); Hughes v. Ashcroft , 255 F.3d 752 (9th Cir.... 8 U.S.C. § 1408.   See Omolo v. Gonzales , 452 F.3d 404 (5th Cir.... birth or by completing the naturalization process); Perdomo-Padilla v. Ashcroft , 333 F.3d 964 (9th Cir.... N. Dec. 586 (BIA 2003) (same); Sebastian-Soler v. U.S. Att’y Gen. , 409 F.3d 1280... make him national of United States); Tovar-Alvarez v. U.S. Att’y Gen. , 427 F.3d 1350... is not a United States national.”); Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 938 (9th... the Immigration and Nationality Act”); United States v. Karaouni , 379 F.3d 1139, 1143 (9th... the standard military oath of allegiance); Abou-Haidar v. Gonzalez , 437 F.3d 206 (1st Cir.... naturalization process set by Congress); United States v. Sotelo , 109 F.3d 1446, 1448 (9th Cir. 1997); Carreon-Hernandez v. Levi , 543 F.2d 637, 638 (8th Cir. 1976); Oliver v. INS , 517 F.2d 426 (2d Cir. 1975); Dragenice v. Gonzales , 470 F.3d 183 (4th Cir. Dec. 4, 2006). [7] United States v. Karaouni , 379 F.3d 1139, 1143 (9th
Tooby's California Post-Conviction Relief for Immigrants: §4.18
are not citizens. 8 U.S.C. § 1408; Perdomo-Padilla v. Ashcroft , 333 F.3d 964, 967-69 (9th... United States acquired from Spain . Hampton v. Mow Sun Wong , 426 U.S. 88, 91, 107-13, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); Rabang v. INS , 35 F.3d 1449, 1452 (9th Cir. 1994); Cabebe v. Acheson , 183 F.2d 795, 797-801 (9th... statement of allegiance in a naturalization application, Perdomo-Padilla , 333 F.3d at 972, or by... the standard military oath of allegiance. Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 939-41 (9th... as American Samoa and Swain’s Island); Marquez-Almanzar v. INS , 418 F.3d 210 (2d Cir.... the United States for immigration purposes); Alwan v. Ashcroft , 388 F.3d 507 (5th Cir.... is insufficient to confer “national” status); Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 938 (9th... Foreign Sovereign Immunities Act.   See Asemani v. Iran , 266 F.Supp.2d 24 (D.D.C. Apr.... 8 U.S.C. § 1101(a)(22). [4] United States v. Sotelo , 109 F.3d 1446, 1448 (9th Cir. 1997); Carreon-Hernandez v. Levi , 543 F.2d 637, 638 (8th Cir. 1976); Oliver v. INS , 517 F.2d 426 (2d Cir. 1975). [5] United States v. Morin , 80 F.3d 124, 126 (4th Cir. 1996); Asemani v. Iran , 266 F.Supp.2d 24 (D.D.C. Apr. 23, 2003).   See, e.g., Lee v. Ashcroft , 216 F. Supp. 2d 51... by life‑long immersion in American society); Hughes v. Ashcroft , 255 F.3d 752 (9th Cir.... 8 U.S.C. § 1408.   See Omolo v. Gonzales , 452 F.3d 404 (5th Cir.... birth or by completing the naturalization process); Perdomo-Padilla v. Ashcroft , 333 F.3d 964 (9th Cir.... N. Dec. 586 (BIA 2003) (same); Sebastian-Soler v. U.S. Att’y Gen. , 409 F.3d 1280... make him national of United States); Tovar-Alvarez v. U.S. Att’y Gen. , 427 F.3d 1350... is not a United States national.”); Reyes-Alcaraz v. Ashcroft , 363 F.3d 937, 938 (9th... the Immigration and Nationality Act”); United States v. Karaouni , 379 F.3d 1139, 1143 (9th... the standard military oath of allegiance); Abou-Haidar v. Gonzalez , 437 F.3d 206 (1st Cir.... naturalization process set by Congress); United States v. Sotelo , 109 F.3d 1446, 1448 (9th Cir. 1997); Carreon-Hernandez v. Levi , 543 F.2d 637, 638 (8th Cir. 1976); Oliver v. INS , 517 F.2d 426 (2d Cir. 1975); Dragenice v. Gonzales , 470 F.3d 183 (4th Cir. Dec. 4, 2006). [7] United States v. Karaouni , 379 F.3d 1139, 1143 (9th
Post-Conviction Relief for Immigrants: §5.79
of error coram nobis in United States v. Morgan, [7] holding that coram nobis relief... relief. [12]   [1] See United States v. Morgan , 346 U.S. 502 (1954); B.... Id. at 511-512.   See also Ybarra v. United States , 461 F.2d 1195 (9th Cir. 1972); United States v. Khalaf , 116 F.Supp. 2d 210 (D.... (2d ed. 1991). [4] See United States v. Johnson , 237 F.3d 751, 755 (6th... proceeding if it had been known.”); Blanton v. United States , 94 F.3d 227 (6th Cir. 1996); Moody v. United States , 874 F.2d 1575, 1577-78... U.S. 1081 (1990). [5] See United States v. Sawyer , 239 F.3d 31 (1st Cir. 2001); United States v. Mandanici , 205 F.3d 519, 524 (2d Cir. 2000); United States v. Barrett , 178 F.3d 34, 56 n.20... denied , 528 U.S. 1176 (2000); Foont v. United States , 93 F.3d 76, 79 (2d Cir. 1996); Hager v. United States, 993 F.2d 4, 5 (1st... § 36, p. 165 (1998), citing Byrnes v. United States , 408 F.2d 599, 602... of the sentence”); accord , United States v. Gross , 614 F.2d 365 (3rd Cir.... 925 (1980).   See also United States v. Brown , 413 F.2d 878 (9th Cir.... federal custody) .   Cf. United States v. Morgan , 346 U.S. 502, 512 (1954)... conviction may persist.”). But see United States v. Golden , 854 F.2d 31 (3d Cir.... coram nobis ).    [7] United States v. Morgan , 346 U.S. 502 (1954). [8]... [11] Arkansas, California, Connecticut, Florida, Idaho, Illinois, Kentucky, Maryland, Nebraska, New Mexico, New York, South... These states include Idaho , Illinois , Kentucky , South Dakota , Tennessee , and
Criminal Defense of Immigrants: §2.26
Connecticut, the District of Columbia, Florida, Illinois, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New Mexico,... Rule of Professional Conduct 3-400(A). [4] Nichols v. Keller , 15 Cal.App.4th 1672, 1684, 19
Criminal Defense of Immigrants: §2.25
Connecticut, the District of Columbia, Florida, Illinois, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New Mexico,
Safe Havens: §4.6
8 U.S.C. § 1101(a)(22). [3] United States v. Sotelo , 109 F.3d 1446, 1448 (9th Cir. 1997); Carreon-Hernandez v. Levi , 543 F.2d 637, 638 (8th Cir. 1976); Oliver v. INS , 517 F.2d 426 (2d Cir. 1975). [4] See, e.g., Hughes v. Ashcroft , 255 F.3d 752 (9th Cir.... and Swain’s Island ). [6] United States v. Morin , 80 F.3d 124, 126 (4th Cir. 1996); Asemani v. Iran , 266 F.Supp.2d 24 (D.D.C. April 23, 2003). [7] See Perdomo-Padilla v. Ashcroft , 333 F.3d 964 (9th Cir.
Crimes of Moral Turpitude: §3.19
Offender, or Political Offense exceptions.   [1] Pedroza-Padilla v. Gonzales , 486 F.3d 1362 (9th Cir.... improper. [4] See Catholic Social Services, Inc. v. Thornburgh , 956 F.2d 914 (9th Cir.... 2000); 8 C.F.R. §§ 245a.10-245a.37. [6] Guzman-Andrade v. Gonzales , 407 F.3d 1073 (9th Cir.
Crimes of Moral Turpitude: §2.2
3.19 for more information.   [1] Costello v. INS , 376 U.S. 120 (1964) (person... does occasionally happen.   See, e.g., Diaz v. Reno , 40 F.Supp. 2d 984 (N.D.... after returning to the United States); Fierro v. INS , 66 F. Supp. 2d 229... to the United States.”). [5] United States v. Morin , 80 F.ed 124, 126 (4th Cir. 1996); Asemani v. Iran , 266 F.Supp.2d 24 (D.D.C. Apr. 23, 2003). [6] See, e.g., Alwan v. Ashcroft , 388 F.3d 507 (5th Cir.... application, is insufficient to confer "national" status); Perdomo-Padilla v. Ashcroft , 333 F.3d 964 (9th Cir.
Criminal Defense of Immigrants: §19.88
requires both .   [1] United States v. Izaguirre-Flores , 405 F.3d 270, 275 (5th... 2082 (1986).   See also United States v. Londono-Quintero , 289 F.3d 147 (1st Cir.... are not included.   In United States v. Pallares-Galan , [2] the Ninth Circuit found... U.S.C. §§ 2246(3), 3509(a)(9). [2] United States v. Pallares-Galan , 359 F.3d 1088 (9th Cir. 2004). [3] Id. at 1101-1102. [4] United States v. Izaguirre-Flores , 405 F.3d at 276 (5th... of a minor.   In United States v. Zavala-Sustaita , [1] the Fifth Circuit found... gratification as its purpose.   In Parrilla v. Gonzales , [2] the Ninth Circuit found... abuse of a minor. [1] United States v. Zavala-Sustaita , 214 F.3d 601 (5th Cir. 2000). [2] Parrilla v. Gonzales , 414 F.3d 1038 (9th Cir.... Id . at 1043. [4] United States v. Padilla-Reyes , 247 F.3d 1158, 1163 (11th Cir.... Dec. 991, 992-993 (BIA 1999). [6] Emile v. INS , 244 F.3d 183 (1st Cir.
Aggravated Felonies: §5.71
definition requires both . [1] United States v. Izaguirre-Flores , 405 F.3d 270, 275 (5th... 2082 (1986).   See also United States v. Londono-Quintero , 289 F.3d 147 (1st Cir.... are not included.   In United States v. Pallares-Galan , [2] the Ninth Circuit found... U.S.C. §§ 2246(3), 3509(a)(9). [2] United States v. Pallares-Galan , 359 F.3d 1088 (9th Cir. 2004). [3] Id. at 1101-1102. [4] United States v. Izaguirre-Flores , 405 F.3d at 276 (5th... of a minor.   In United States v. Zavala-Sustaita , [1] the Fifth Circuit found... gratification as its purpose.   In Parrilla v. Gonzales , [2] the Ninth Circuit found... of a minor.   [1] United States v. Zavala-Sustaita , 214 F.3d 601 (5th Cir. 2000). [2] Parrilla v. Gonzales , 414 F.3d 1038 (9th Cir.... Id . at 1043. [4] United States v. Padilla-Reyes , 247 F.3d 1158, 1163 (11th Cir.... Dec. 991, 992-993 (BIA 1999). [6] Emile v. INS , 244 F.3d 183 (1st Cir.
Aggravated Felonies: §5.70
First Circuit .   In United States v. Londono-Quintero , [8] the court also rejected...             Second Circuit .   In Mugalli v. Ashcroft , [15] the court found the...             Third Circuit .   In Singh v. Ashcroft, [17] the court stated that it... Fifth Circuit .   In United States v. Izaguirre-Flores , [19] a case defining “sexual... to convict. [25]   In United States v. Zavala-Sustaita , [26] the court analyzed the... Sixth Circuit .   In United States v. Gonzales-Vela , the court found, without any analysis of the definition, that a conviction under a Kentucky statute for sexual contact with a person...             Seventh Circuit .   In Gattem v. Gonzalez , [29] the court also agreed...             Eighth Circuit .   In Mendez-Morales v. INS , [33] the court found, without... Ninth Circuit .   In United States v. Baron-Medina , the court defined sexual abuse... order.” [36]               In United States v. Pallares-Galan , [37] the court defined “abuse”... sentencing guidelines, the court in United States v. Granbois found that a conviction of “sexual... prior Ninth Circuit decision in United States v. Pallares-Galan. [46]               Eleventh Circuit .   In United States v. Padilla-Reyes , [47] the court rejected 18 U.S.C.... any person.”).   See also United States v. Zavala-Sustaita , 214 F.3d 601 (5th Cir.... (BIA Jan. 23, 2006). [8] United States v. Londono-Quintero , 289 F.3d 147 (1st Cir.... 1987). [12] Id. at 154. [13] Emile v. INS , 244 F.3d 183 (1st Cir.... U.S.C. § 2246(3) (emphasis supplied). [15] Mugalli v. Ashcroft , 258 F.3d 52 (2d Cir. July 10, 2001). [16] Id. at 61. [17] Singh v. Ashcroft , 383 F.3d 144 (3d Cir.... 8 U.S.C. § 1101(a)(43)(A). [19] United States v. Izaguirre-Flores , 405 F.3d 270 (5th Cir.... liberties with a child). [25] United States v. Izaguirre-Flores , 405 F.3d at 276. [26] United States v. Zavala-Sustaita , 214 F.3d 601 (5th Cir. 2000). [27] Id . at 604. [28] United States v. Gonzales-Vela , 276 F.3d 763 (6th Cir. 2001). [29] Gattem v. Gonzalez , 412 F.3d 758 (7th Cir.... at 766. [32] Id. 767-768. [33] Mendez-Morales v. INS , 119 F.3d 738 (8th Cir. 1997). [34] United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th Cir. 1999); accord , Cedano-Viera v. Ashcroft , 324 F.3d 1062 (9th Cir.... Penal Code § 288(a). [36] United States v. Baron-Medina , 187 F.3d at 1147 (9th Cir. 1999). [37] United States v. Pallares-Galan , 359 F.3d 1088 (9th Cir.... 1101-1102. [41] Id. at 1100, quoting People v. Lopez , 19 Cal.4th 282, 289, 79... (emphasis in original). [42] Compare with Gattem v. Gonzalez , supra . [43] Compare with United States v. Izaguirre-Flores , supra . [44]   18 U.S.C. § 2244(a)(3). [45] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004), [46] United States v. Pallares-Galan , 359 F.3d 1088 (9th Cir. 2004) [47] United States v. Padilla-Reyes , 247 F.3d 1158 (11th Cir. 2001)... See § 4.6, supra . [2] Tokatly v. Ashcroft , 371 F.3d 613 (9th Cir.
Safe Havens: §7.96
            First Circuit .   In Emile v. INS, a noncitizen convicted of indecent assault... The United States Supreme Court, in Shepard v. United States , [15] overruled United States v. Harris , [16] and reversed United States v. Shepard . [17]   Therefore, Emile is no...             Second Circuit .   In Mugalli v. Ashcroft, the Second Circuit held that in...             Third Circuit .   In Singh v. Ashcroft, [20] the Third Circuit found that...             Fifth Circuit . In United States v. Zavala-Sustaita , [23] the Fifth Circuit analyzed... Sixth Circuit .   In United States v. Gonzales-Vela , the court found that a conviction under a Kentucky statute for sexual contact with a person...             Seventh Circuit .   In Guerrero-Perez v. INS, the Seventh Circuit found in a... was not raised. [30]   In Lara-Ruiz v. INS , the Seventh Circuit found that...             Eighth Circuit .   In Mendez-Morales v. INS , the court found that both... Ninth Circuit .   In United States v. Baron-Medina , a seminal opinion often cited... 7.101, infra .             In United States v. Pereira-Salmeron , a case under the United...                   In United States v. Granbois, another case decided under the Guidelines... prior Ninth Circuit decision in United States v. Pallares-Galan. [39]               In United States v. Pallares-Galan, a case interpreting the aggravated felony... Circuit .   In United States   v. Padilla-Reyes , [42] the Eleventh Circuit held that... another. [6]   See, e.g., United States v. Granbois , 376 F.3d 993 (9th Cir.... abuse of a minor by United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th Cir. 1999) (a USSG aggravated felony case); see also Valdez-Camacho v. Ashcroft , No. 01-71517 (9th Cir. 2004)(unpublished)(an... 10 years.   See also United States v. Zavala-Sustaita , 214 F.3d 601 (5th Cir.... 14, is an aggravated felony). [12] Emile v. INS , 244 F.3d 183 (1st Cir.... U.S.C. § 2246(3) (emphasis supplied). [14] Emile v. INS , 244 F.3d 183, 188 (1st Cir. 2001). [15] Shepard v. United States , ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005). [16] United States v. Harris , 964 F.2d 1234 (1st Cir. 1994). [17] United States v. Shepard , 231 F.3d 56 (1st Cir.... a minor for immigration purposes). [20] Singh v. Ashcroft , 383 F.3d 144 (3d Cir.... 8 U.S.C. § 1101(a)(43)(A). [23] United States v. Zavala-Sustaita , 214 F.3d 601 (5th Cir.... Yang for this analysis. [27] United States v. Gonzales-Vela , 276 F.3d 763 (6th Cir., 2001). [28] Guerrero-Perez v. INS , 256 F.3d 546 (7th Cir. 2001). [29] 720 ILCS 5/12-15(c). [30] R.A.V. v. City of St. Paul , 505... not presented or even envisioned”); United States v. Vroman , 975 F.2d 669, 672 (9th... 996, 113 S.Ct. 1611 (1993); United States v. Faulkner , 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS , 58 F.3d 1355 (9th Cir.... F.3d 934 (7th Cir. 2001). [32] Mendez-Morales v. INS , 119 F.3d 738 (8th Cir. 1997). [33] United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th Cir. 1999); accord, Cedano-Viera v. Ashcroft , 2003 WL 1542642 (9th Cir.... Penal Code § 288(a). [35] United States v. Baron-Medina , 187 F.3d at 1146. [36] United States v. Pereira-Salmeron , 337 F.3d 1148 (9th Cir.... 18 U.S.C. § 2244(a)(3). [38] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004), [39] United States v. Pallares-Galan , 359 F.3d 1088 (9th Cir. 2004) [40] United States v. Pallares-Galan , 359 F.3d 1088 (9th Cir. 2004) [41] See also United States. v. Alvarez-Gutierrez , 394 F.3d 1241 (9th Cir. 2005). [42] United States v. Padilla-Reyes , 247 F.3d 1158, 1160 (11th Cir.... or abusive intent. [10] See United States v. Baron-Medina , supra , and Matter of... of, the record of conviction. [1] Tokatly v. Ashcroft , 371 F.3d 613 (9th Cir.
Criminal Defense of Immigrants: §19.87
First Circuit .   In United States v. Londono-Quintero , [8] the court also rejected...                 Second Circuit .   In Mugalli v. Ashcroft , [15] the court found the...                 Third Circuit .   In Singh v. Ashcroft, [17] the court stated that it... analysis of the definition.   In Stubbs v. DHS , the court specifically found that... Fifth Circuit .   In United States v. Izaguirre-Flores , [19] a case defining “sexual... to convict. [25]   In United States v. Zavala-Sustaita , [26] the court analyzed the... Sixth Circuit .   In United States v. Gonzales-Vela , the court found, without any analysis of the definition, that a conviction under a Kentucky statute for sexual contact with a person...                 Seventh Circuit .   In Gattem v. Gonzalez , [29] the court also agreed...                 Eighth Circuit .   In Mendez-Morales v. INS , [33] the court found, without... Ninth Circuit .   In United States v. Baron-Medina , the court defined sexual abuse... order.” [36]                   In United States v. Pallares-Galan , [37] the court defined “abuse”... sentencing guidelines, the court in United States v. Granbois found that a conviction of “sexual... prior Ninth Circuit decision in United States v. Pallares-Galan. [47]                   However, in United States v. Lopez-Solis , [48] the court applied Pallares-Galan...                 Tenth Circuit .   In Vargas v. DHS , [49] the court did not... Eleventh Circuit .   In United States v. Padilla-Reyes , [50] the court rejected 18 U.S.C.... any person.”).   See also United States v. Zavala-Sustaita , 214 F.3d 601 (5th Cir.... (BIA Jan. 23, 2006). [8] United States v. Londono-Quintero , 289 F.3d 147 (1st Cir.... 1987). [12] Id. at 154. [13] Emile v. INS , 244 F.3d 183 (1st Cir.... U.S.C. § 2246(3) (emphasis supplied). [15] Mugalli v. Ashcroft , 258 F.3d 52 (2d Cir. July 10, 2001). [16] Id. at 61. [17] Singh v. Ashcroft , 383 F.3d 144 (3d Cir.... sexual abuse of a minor). [18] Stubbs v. Attorney General , 452 F.3d 251 (3d... 18 U.S.C. § 3509(a)(8)). [19] United States v. Izaguirre-Flores , 405 F.3d 270 (5th Cir.... liberties with a child). [25] United States v. Izaguirre-Flores , 405 F.3d at 276. [26] United States v. Zavala-Sustaita , 214 F.3d 601 (5th Cir. 2000). [27] Id . at 604. [28] United States v. Gonzales-Vela , 276 F.3d 763 (6th Cir. 2001). [29] Gattem v. Gonzalez , 412 F.3d 758 (7th Cir.... at 766. [32] Id. 767-768. [33] Mendez-Morales v. INS , 119 F.3d 738 (8th Cir. 1997). [34] United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th Cir. 1999); accord , Cedano-Viera v. Ashcroft , 324 F.3d 1062 (9th Cir.... Penal Code § 288(a). [36] United States v. Baron-Medina , 187 F.3d at 1147 (9th Cir. 1999). [37] United States v. Pallares-Galan , 359 F.3d 1088 (9th Cir.... at 1101-1102. [41] See also United States v. Baza-Martinez , 464 F.3d 1010 (9th Cir.... minor). [42] Id. at 1100, quoting People v. Lopez , 19 Cal.4th 282, 289, 79... (emphasis in original). [43] Compare with Gattem v. Gonzalez , supra . [44] Compare with United States v. Izaguirre-Flores , supra . [45] 18 U.S.C. § 2244(a)(3). [46] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004), [47] United States v. Pallares-Galan , 359 F.3d 1088 (9th Cir. 2004) [48] United States v. Lopez-Solis , 447 F.3d 1201 (9th Cir. May 19, 2006). [49] Vargas v. DHS , 451 F.3d 1105 (10th Cir.... constitutes an aggravated felony). [50] United States v. Padilla-Reyes , 247 F.3d 1158 (11th Cir. 2001)... See § 16.7, supra . [2] Tokatly v. Ashcroft , 371 F.3d 613 (9th Cir.
Aggravated Felonies: §5.76
8 U.S.C. § 1101(a)(43)(A). [2] United States v. Yanez-Saucedo , 295 F.3d 991 (9th Cir.... of 18 years old.   In Xiong v. INS , [6] the Seventh Circuit, following... The Ninth Circuit originally decided, in Valencia v. Gonzalez [8] ( Valencia I ) that... the United States Supreme Court in Leocal v. Ashcroft , [10] the court drew a... or her minor ward. See [ Chery v. Ashcroft , 347 F.3d 404, 407 (2d... Id. at 408 ( citing [ Sutherland v. Reno , 228 F.3d 171, 176 (2d... adult authority figures.”) (quoting [ United States v. Velazquez-Overa , 100 F.3d 418, 422 (5th... younger child, see, e.g., [ United States v. Reyes-Castro , 13 F.3d 377,   379... legally incapable of consent. See United States v. Houston , 364 F.3d 243, 247 (5th... under U.S.S.G. §   4B1.2); United States v. Dickson , 346 F.3d 44, 51-52 (2d... of the actor.   (4)   Immigration v. Sentencing Context.   The Ninth Circuit in... and sexually transmitted disease. [ United States v. Asberry , 394 F.3d 712, 717-18 (9th... on society.   See [ Michael M. v. Super. Ct. , 25 Cal .3d 608,... U.S.C. § 1101(a)(43)(F). [2] See, e.g., Chery v. Ashcroft , 347 F.3d 404 (2d Cir.... force will be wielded”), citing United States v. Reyes-Castro , 13 F.3d 377 (10th Cir. 1993); United States v. Wood , 52 F.3d 272, 275 (9th... 116 S.Ct. 217 (1995); cf. United States v. Reve , 241 F.Supp.2d 470 (D.N.J. Jan.... U.S.C. § 16(b)). [3] Cf. United States v. Teeples, 432 F.3d 1110 (9th Cir. Jan... victim was the actor’s daughter); United States v. Martinez-Carillo , 250 F.3d 1101, 1106 (7th... potential risk of physical injury.”). [4] Valencia v. Gonzalez , 439 F.3d 1046 (9th Cir. Mar. 6, 2006). [5] See also United States v. Houston , 364 F.3d 243 (5th Cir. 2004); United States v. Saywers , 409 F.3d 732, 741 (6th Cir. 2005). [6] Xiong v. INS , 173 F.3d 601 (7th Cir.... a crime of violence). [7] United States v. Shannon , 110 F.3d 382 (9th Cir.... definition under U.S.S.G. § 4B1.2). [8] Valencia v. Gonzalez , 406 F.3d 1154 (9th Cir.... Cir. Mar. 6, 2006). [9] United States v. Granbois , 376 F.3d 993 (9th Cir. 2004). [10] Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct.... the commission of the offense). [11] Valencia v. Gonzales , 431 F.3d 673 (9th Cir.... Mar. 6, 2006). [12] See, e.g., Xiong v. INS , 173 F.3d 601, 606 (7th... to as an aggravating factor.”); United States v. Thomas , 159 F.3d 296, 299 (7th... exploitative nature of the crime.”). [13] Valencia v. Gonzalez , 439 F.3d 1046, 1055 (9th... at *5.   See also United States v. Chavarriya-Mejia , 367 F.3d 1249 (11th Cir. Apr. 29, 2004) ( Kentucky rape in the third degree, “statutory rape”... violence” under U.S.S.G. § 2L1.2, as the Kentucky statute assumes lack of consent, and “sexual... physical force against children.”). [15] United States v. Shannon , 110 F.3d 382 (9th Cir.... cases cited in this footnote, United States v. Granbois , [3] and United States v. Periera-Salmeron , [4] were both sentencing cases... however, the court instead cited United States v. Pallares-Galan [6] for the idea that the... aggravated felony. [1] See, e.g., United States v. Chavarriya-Mejia, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (“Because Kentucky law presumes that underage children are incapable... is sexual abuse of a minor.”); Mugalli v. Ashcroft , 258 F.3d 52 (2d Cir. July 10, 2001); United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th... of a minor). [2] But see Gattem v. Gonzalez , 412 F.3d 758 (7th Cir.... exploiting the minor’s vulnerabilities.”). [3] United States v. Granbois , 376 F.3d 993 (9th Cir. 2004). [4] United States v. Periera-Salmeron , 337 F.3d 1148 (9th Cir.... abuse of a minor)”). [6] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004)...   Id. at 60. [9] United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th
Crimes of Moral Turpitude: §3.35
8 U.S.C. § 1229b(b). [3] Compare Hernandez v. Gonzales , 437 F.3d 341 (3d Cir.... relief but for the repeal), with Lopez-Castellanos v. Gonzales , 437 F.3d 848 (9th Cir.... placed into exclusion proceedings. [2] [1] Simeonov v. Ashcroft , 371 F.3d 532 (9th Cir.... NACARA into account). [2] See, e.g., Geach v. Chartoff , 444 F.3d 940 (8th Cir.... meet the statutory requirements for suspension); Tanov v. INS , 443 F.3d 195 (2d Cir.... [1] IIRAIRA § 309(c)(5).   See also Pedroza-Padilla v. Gonzales , 486 F.3d 1362 (9th Cir. May 15, 2007); Casillas-Figueroa v. Gonzales , 419 F.3d 447 (6th Cir.... granted by IJ prior to IIRAIRA); Suassuna v. INS , 342 F.3d 578 (6th Cir.... the stop-time rule).   But see Aoun v. INS , 342 F.3d 503 (6th Cir.... less stringent immigration rules). [2] See Alcaraz v. INS , 384 F.3d 1150 (9th Cir.... Circuit applied the retroactivity analysis in INS v. St. Cyr [1] to find that the... suspension under this decision. [4] [1] INS v. St. Cyr , 533 U.S. 289 (2001)... impermissibly retroactive to certain noncitizens). [2] Lopez-Castellanos v. Gonzales , 437 F.3d 848 (9th Cir. Feb. 16, 2006).   See also A nderson v. Gonzales , 497 F.3d 927 (9th Cir.
Criminal Defense of Immigrants: §24.2
or admission as an immigrant). [8] Ahmed v. Gonzales , 465 F.3d 806 (7th Cir.... for adjustment once visa became available); Merchant v. US Att’y Gen ., 461 F.3d 1375... fulfilled all requirements).   But see Pede v. Gonzales , 442 F.3d 570 (7th Cir.... not statutorily eligible to adjust). [9] Perez-Vargas v. Gonzales , 478 F.3d 191 (4th Cir.... Reg. , No. 44, pages 10311-10395; Alvarez-Garcia v. Ashcroft , 378 F.3d 1094 (9th Cir.... instead apply to District Director). [4] Scheerer v. United States Att’y Gen ., 445 F.3d... INA § 245(a), and therefore invalid); Zheng v. Gonzalez , 422 F.3d 98 (3d Cir.... is ultra vires to the INA); Succar v. Ashcroft , 394 F.3d 8 (1st Cir.... 8 U.S.C. § 1255(a)). [5] Compare Bona v. Gonzalez , 425 F.3d 663 (9th Cir.... ultra vires to the INA), with Jiang v. Gonzales , 425 F.3d 649 (9th Cir.... not previously made an application. [6] Akhtar v. Gonzales , 450 F.3d 587 (5th Cir.... is not ultra vires to statute); Momin v. Gonzales , 447 F.3d 447 (5th Cir. Apr. 25, 2005); Mouelle v. Gonzalez , 416 F.3d 923 (8th Cir.... 2005) available at http://www.ailf.org/lac/lac_pa_101805.pdf . [8] Mouelle v. Gonzales , 126 S.Ct. 2964 (Mem.) (Jun. 26, 2006) (denying cert. and vacating decision in Mouelle v. Gonzales , 416 F.3d 923 (8th Cir.... See § 15.3, supra. [10] Compare Freeman v. Gonzales , 444 F.3d 1031 (9th Cir.... application as an immediate relative), with Ferry v. Gonzales , 457 F.3d 1117 (10th Cir.... Oct. 19, 2006).   http://www.ailf.org/lac/vawa_2005.pdf [2] Fernandez-Vargas v. Ashcroft , 394 F.3d 881 (10th Cir.... § 245(i), 8 U.S.C. § 1255(i)); Berrum-Garcia v. Comfort , 390 F.3d 1158 (10th Cir.... has been reinstated).   See also Lino v. Gonzales . 467 F.3d 1077 (7th Cir.... any exception to this statute). [3] Mortera-Cruz v. Gonzales , 409 F.3d 246 (5th Cir.... for over one year); accord , Berrum-Garcia v. Comfort , 390 F.3d 1158 (10th Cir. 2004); cf. Lattab v. Ashcroft , 384 F.3d 8, 17 (1st Cir. 2004). But see Acosta v. Gonzales , 439 F.3d 550 (9th Cir.... adjustment of status under INA § 245(i)); Padilla-Caldera v. Gonzales , 453 F.3d 1237 (10th Cir.... United States for over one year).; Acosta v. Gonzales , 439 F.3d 550, 556 n.7... statute. Akhtar , 384 F.3d at 1198.”); Padilla-Caldera v. Gonzales , 426 F.3d 1294 (10th Cir.... aggregate period of over one year); Perez-Gonzalez v. Ashcroft , 379 F.3d 783 (9th Cir. 2004). [4] United States v. Lucio , 428 F.3d 519 (5th Cir.... 18.10, supra . [1] See, e.g., Rashtabadi v. INS , 23 F.3d 1562 (9th Cir.... committed after becoming a TPR.   Perez-Enriquez v, Ashcroft , 383 F.3d 994 (9th Cir. Sept. 9, 2004).   [3] Savoury v. United States Att’y Gen. , 449 F.3d... relief under former INA § 212(c)); Arellano-Garcia v. Gonzales , 429 F.3d 1183 (8th Cir.
Criminal Defense of Immigrants: §19.92
  On the other hand, in Rivas-Gomez v. Gonzales , [2] the Ninth Circuit defined... “crime of violence.” [11]   In Silva v. Gonzales , [12] the First Circuit also... 8 U.S.C. § 1101(a)(43)(A); see also Mattis v. Reno , 212 F.3d 31, 34-35 (1st... 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A). [2] Rivas-Gomez v. Gonzales , 441 F.3d 1072 (9th Cir.... § 163.355. [5] The court cited Valencia v. Gonzales , 439 F.3d 1046 (9th Cir.... 19.92(B), infra . [this section] [6] Rivas-Gomez v. Gonzales , 441 F.3d at 1075 (emphasis... § 19.9, infra . [8] See Gonzales v. Duenas-Alvarez , 549 U.S. ___, 127 S.Ct....   Id. at 60. [10] United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th... 2L1.2 (11/1/06), Application Notes 1(B)(iii). [12] Silva v. Gonzales , 455 F.3d 26 (1st Cir.... of 18 years old.   In Xiong v. INS , [6] the Seventh Circuit, following... The Ninth Circuit originally decided, in Valencia v. Gonzalez [8] ( Valencia I ) that... the United States Supreme Court in Leocal v. Ashcroft , [10] the court drew a... or her minor ward. See [ Chery v. Ashcroft , 347 F.3d 404, 407 (2d... Id. at 408 ( citing [ Sutherland v. Reno , 228 F.3d 171, 176 (2d... adult authority figures.”) (quoting [ United States v. Velazquez-Overa , 100 F.3d 418, 422 (5th... younger child, see, e.g., [ United States v. Reyes-Castro , 13 F.3d 377,   379... legally incapable of consent. See United States v. Houston , 364 F.3d 243, 247 (5th... under U.S.S.G. §   4B1.2); United States v. Dickson , 346 F.3d 44, 51-52 (2d... of the actor.   (4)   Immigration v. Sentencing Context.   The Ninth Circuit in... and sexually transmitted disease. [ United States v. Asberry , 394 F.3d 712, 717-18 (9th... on society.   See [ Michael M. v. Super. Ct. , 25 Cal .3d 608,... U.S.C. § 1101(a)(43)(F). [2] See, e.g., Chery v. Ashcroft , 347 F.3d 404 (2d Cir.... force will be wielded”), citing United States v. Reyes-Castro , 13 F.3d 377 (10th Cir. 1993); United States v. Wood , 52 F.3d 272, 275 (9th... 116 S.Ct. 217 (1995); cf. United States v. Reve , 241 F.Supp.2d 470 (D.N.J. Jan.... U.S.C. § 16(b)). [3] Cf. United States v. Teeples, 432 F.3d 1110 (9th Cir. Jan... victim was the actor’s daughter); United States v. Martinez-Carillo , 250 F.3d 1101, 1106 (7th... potential risk of physical injury.”). [4] Valencia v. Gonzalez , 439 F.3d 1046 (9th Cir. Mar. 6, 2006). [5] See also United States v. Houston , 364 F.3d 243 (5th Cir. 2004); United States v. Saywers , 409 F.3d 732, 741 (6th Cir. 2005). [6] Xiong v. INS , 173 F.3d 601 (7th Cir.... a crime of violence). [7] United States v. Shannon , 110 F.3d 382 (9th Cir.... definition under U.S.S.G. § 4B1.2). [8] Valencia v. Gonzalez , 406 F.3d 1154 (9th Cir.... Cir. Mar. 6, 2006). [9] United States v. Granbois , 376 F.3d 993 (9th Cir. 2004). [10] Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct.... the commission of the offense). [11] Valencia v. Gonzales , 431 F.3d 673 (9th Cir.... Mar. 6, 2006). [12] See, e.g., Xiong v. INS , 173 F.3d 601, 606 (7th... to as an aggravating factor.”); United States v. Thomas , 159 F.3d 296, 299 (7th... exploitative nature of the crime.”). [13] Valencia v. Gonzalez , 439 F.3d 1046, 1055 (9th... omitted). [14] U.S.S.G. § 4B1.2(a)(2). [15] Valencia v. Gonzalez , 439 F.3d, at 1053.   See also United States v. Chavarriya-Mejia , 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (Kentucky conviction of rape in the third degree,... violence” under U.S.S.G. § 2L1.2, as the Kentucky statute assumes lack of consent, and “sexual... physical force against children.”). [16] United States v. Shannon , 110 F.3d 382 (9th Cir.... cmt. 1(B)(iii). [21] See, e.g., United States v. Alvarado-Hernandez , 465 F.3d 188 (5th Cir.... of violence” for this purpose); United States v. Perez-Pena , 453 F.3d 236 (4th Cir. Jun. 30, 2006). [22] United States v. Lopez-Solis , 447 F.3d 1201 (9th Cir.... cases cited in this footnote, United States v. Granbois , [4] and United States v. Periera-Salmeron , [5] were both sentencing cases... however, the court instead cited United States v. Pallares-Galan [7] for the idea that the... month of each other).   In Afridi v. Gonzales , [12] the court found that... [14]                   However, in United States v. Lopez-Solis , [15] the court found that... definition of “abuse” used in United States v. Pallares-Galan [17] to find that consensual sex... case.   [1] See, e.g., United States v. Chavarriya-Mejia, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (“Because Kentucky law presumes that underage children are incapable... is sexual abuse of a minor.”); Mugalli v. Ashcroft , 258 F.3d 52 (2d Cir. July 10, 2001); United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th... of a minor). [2] But see Gattem v. Gonzalez , 412 F.3d 758 (7th Cir.... Id . at 1229. [4] United States v. Granbois , 376 F.3d 993 (9th Cir. 2004). [5] United States v. Periera-Salmeron , 337 F.3d 1148 (9th Cir.... abuse of a minor)”). [7] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004)...   Id. at 60. [9] United States v. Baron-Medina , 187 F.3d 1144, 1146 (9th... of New York Press, 2004). [12] Afridi v. Gonzales , 442 F.3d 1212 (9th Cir.... 991, 995 (BIA 1999). [15] United States v. Lopez-Solis , 447 F.3d 1201 (9th Cir.... under the California statute. [17] United States v. Pallares-Galan , 359 F.3d 1088, 1100 (9th... § 16.8, supra . [19] United States v. Lopez-Solis , 447 F.3d at 1209-1210.   See also Afridi v. Gonzales , 442 F.3d at 1216 (“Because... permissible we defer to it.”). [20] Afridi v. Gonzales , 442 F.3d at 1215. [21]
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