1 JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS CORPUS CAN BE USED TO CHALLENGE DETENTION The

REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of removal, deportation, and exclusion and consolidate such review in the court of appeals. The REAL ID Act, however, did not affect the ongoing availability of habeas corpus to challenge the length or conditions of immigration detention. Since the REAL ID Act’s enactment on May 11, 2005, the courts of appeals have uniformly upheld the right to file a habeas corpus petition to challenge the lawfulness of detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005); DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assuming without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9 (6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006) (unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v. Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks to AILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12, 2007

JUDICIAL REVIEW – QUESTIONS OF LAW Chen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition “question of law” for purpose of judicial review is not limited to questions of statutory construction), revising prior opinion, 434 F.3d 144 (2d Cir. 2006). JUDICIAL REVIEW – AFTER DEPORTATION Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf JUDICIAL REVIEW – BIA JURISDICTION TO ORDER REMOVAL Lazo v. Gonzales, __ F.3d __, 2006 WL 2528553 (2d Cir. Sept. 1, 2006) (where IJ found removability, but granted relief, then BIA reverses grant of relief, BIA has jurisdiction to order noncitizen deported without remand to IJ), following Solano-Chicas v. Gonzales, 440 F.3d 1050, 1053-54 (8th Cir.2006); Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1156 (11th Cir.2003); Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006). Disagrees with MolinaCamacho v. Ashcroft, 393 F.3d 937, 940-41 (9th Cir.2004). JUDICIAL REVIEW – ISSUE EXHAUSTION Zhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (“We are persuaded, both on the language of § 1252(d)(1) and on these authorities, that the exhaustion of 'all administrative remedies available to [an] alien as of right' under 8 U.S.C. § 1252(d)(1) does not require - as a statutory matter - that a petitioner for relief from removal raise to the BIA each issue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. § 1252(d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of subject matter jurisdiction to consider those issues.”). JUDICIAL REVIEW – EXTREME HARDSHIP QUESTION UNDER INA 212(i) Zhang v. Gonzales, ___ F.3d ___, 2006 WL 1901014 (2d Cir. Jul. 12, 2006) (judicial review of

2

whether respondent showed extreme hardship for purposes of adjustment of status under INA § 212(i) is barred as a discretionary determination under 8 U.S.C. § 1252(a)(2)(B)(i)). JUDICIAL REVIEW – JURISDICTION LIMITATION – DISCRETIONARY DECISIONS – DENIAL OF 212(C) WAIVER Avendano-Espejo v. Department of Homeland Sec., __ F.3d __ (2d Cir. May 11, 2006) (court lacks jurisdiction to review discretionary denial of INA § 212(c) relief). http://caselaw.lp.findlaw.com/data2/circs/2nd/0340921p.pdf JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS SUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT REVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONS OF LAW ARE RAISED Bugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denial of adjustment of status and INA § 212(h) waiver on discretionary basis not subject to judicial review; REAL ID Act of 2005, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8 U.S.C. § 1252(a)(2)(B)(i)). http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf JUDICIAL REVIEW – RELIEF – 212(C) RELIEF – CANCELLATION OF REMOVAL – ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUS Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (court did not have jurisdiction to review determination that alien had abandoned her permanent resident alien status for purposes of § 212(c) and cancellation of removal eligibility).
JUDICIAL REVIEW – JURISDICTION OF BIA TO ORDER REMOVAL James v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006) (while the BIA has jurisdiction to order noncitizen removed when IJ found removability, but granted relief, and the BIA then reverses the grant of relief, the BIA does not have jurisdiction to order removal where the IJ initially found noncitizen was not removable, and the BIA reverses; in such case, BIA must remand to IJ), distinguishing Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), following Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-881 (9th Cir. 2003). JUDICIAL REVIEW – RES JUDICATA Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf NOTE: The court here engaged in no analysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), or Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), which specifically prohibit the Government from starting removal proceedings based upon convictions occurring prior to adjustment when the Government was aware of those convictions at the time of adjustment and either granted a waiver (Rafipour), or no waiver was needed since the convictions triggered deportation, but not inadmissibility (Rainford). The noncitizen in this case had 21 total convictions, and had been involved in litigating pro se for a number of years at all court levels.

3
We have stated clearly and without equivocation that an individual who may be deportable for a given offense, but whose status is adjusted is no longer deportable for that offense. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992); Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978); cf. Matter of V-, 1I&N Dec. 273 (BIA 1942).

Medina v. United States, 993 F.2d 499, 503
994, 1003 (5th Cir. 1999).

Moosa v. INS, 171 F.3d

We have held, however, that Congress intended to repeal § 212(c) as of April 1, 1997, and that relief under that section is not available to aliens whose removal proceedings were brought after that date. LaraRuiz, 241 F.3d at 943-44. There are two limited exceptions to this rule, but neither helps Montenegro. First, aliens who pleaded guilty to an aggravated felony before AEDPA’s enactment may apply for § 212(c) relief if they would have been eligible for that relief at the time of their pleas. INS v. St. Cyr, 533 U.S. 289, 326 (2001); Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir. 2000). But this exception does not apply to aliens like Montenegro who chose to go to trial; such aliens did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief. Lara-Ruiz, 241 F.3d at 945; Rankine v. Reno, 319 F.3d 93, 100-02 (2d Cir. 2003) (collecting cases). Second, aliens who conceded deportability before AEDPA’s enactment, with the expectation that they could seek waivers under § 212(c), remain eligible to apply
Anselmo, ID#3105 (1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "covers deportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions." Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc). (2) Although the Board of Immigration Appeals disagrees with the court's holding, the decision of the Ninth Circuit that the EAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of the Ninth Circuit. (3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit.

JUDICIAL REVIEW –

HABEAS CORPUS EVEN AFTER REAL ID ACT Okeezie v. Chertoff, __ F.Supp.2d __, 2006 WL 1280962 (W.D. Tex. May 4, 2006) (noncitizen with aggravated felony convictions was denied CAT by BIA on 2/3/05; with passage of REAL ID Act, on 5/11/05, the criminal alien bar to petition for review with the Fifth Circuit was removed, but the petition was automatically untimely; district court held that to apply REAL ID Act denial of habeas corpus jurisdiction in this case would be unconstitutional under INS v. St. Cyr, as noncitizen would have no means to obtain judicial review of removal order

4 JUDICIAL REVIEW – PETITION FOR REVIEW – VALIDITY OF CHANGE OF AGENCY POSITION When an administrative agency inexplicably departs from past practices, precedents, and/or established procedures, it abuses its discretion. Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) (BIA abused discretion by changing its position without explanation re: § 212(c) tolling period); Gonzalez-Batoun v. INS, 791 F.2d 681 (9th Cir. 1986) (BIA abused discretion when it gave no reason for deviation from past practice); Salehpour v. INS, 761 F.2d 1442 (9th Cir. 1985) (abuse of discretion occurs where agency interpretation is inconsistent with its own regulations); Ke Zhen Zhao v. U. S. DOJ, 265 F.3d 83 (2d Cir. 2000) (an abuse of discretion may be found in those circumstances where the government inexplicably departs from established policies). In Sang Seup Shin v. INS, 750 F.2d 122, 125 (D.C. Cir. 1984), the court noted that although agencies like INS and EOIR do have broad discretion in adjustment cases, they cannot proceed "at whim, shedding [their] grace unevenly from case to case." An agency should explain its departures from settled policies, and it may not unaccountably hold relevant one day considerations it disregarded on another. The INS Operations Instruction 245.5(d) notes that the Service should strive to achieve "more uniform decisions with respect to the exercise of discretion in Section 245 cases." This issue is being adjudicated inconsistently within this District, and inconsistent with INS policy nationwide. JUDICIAL REVIEW – JURISDICTION LIMITATION – QUESTION OF WHAT IJ MAY CONSIDER IN MAKING PSC DETERMINATION IS NOT DISCRETIONARY DECISION Morales v. Gonzales, ___ F.3d ___, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (question of what evidence IJ may consider in making decision whether conviction constitutes PSC is not a discretionary decision, court jdsn under INA 242 (a)2 (d)).

Motion to reopen after removal and illegal reentry is OK LIN v Gonzales.

Murray v. Ashcroft, 321 F. Supp. 2d 385 (D. Conn. 2004), argues that the doctrine of res judicata barred the government from filing additional charges against him following the BIA’s August 6, 2002 opinion
Res judicata or claim preclusion bars a subsequent action “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Cromwell v. County of Sac., 94 U.S. 351, 352 (1877); see 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 131.01 (3d ed. 2006). Claim preclusion is sometimes confused with issue preclusion, which bars a subsequent action on an issue that was actually and necessarily determined in the first action. See 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 132.01[1] (3d ed. 2006). ValenciaAlvarez asserts claim preclusion, not issue preclusion, as it is clear that the BIA’s decision did not actually and necessarily determine whether the underlying conviction concerned a controlled substance.
6

JUDICIAL REVIEW – PETITION FOR REVIEW – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had

5 been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes). JUDICIAL REVIEW – STREAMLINING Padilla-Padilla v. Gonzales, ___ F.3d ___, 2006 WL 2614167 (9th Cir. Sept. 13, 2006) (because BIA issued a streamlined order, it was required to affirm the entirety of the IJ's decision, including the length of the voluntary departure period granted). http://caselaw.lp.findlaw.com/data2/circs/9th/0273627p.pdf JUDICIAL REVIEW – MOTION TO REOPEN – BIA NOT BARRED FROM GRANTING MOTION TO REOPEN REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED – REGULATION DOES NOT BAR CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal). JUDICIAL REVIEW – ABUSE OF DISCRETION – ERROR OF LAW United States v. Almazan-Becerra, ___ F.3d ___, ___, 2006 WL 2129724 (9th Cir. August 1, 2006) ("A district court by definition abuses its discretion when it makes an error of law."), quoting Koon v. United States, 518 U.S. 81, 100 (1996). JUDICIAL REVIEW – PETITION FOR REVIEW – WAIVER OF ARGUMENT BY FAILURE TO RAISE IT IN OPENING BRIEF United States v. Almazan-Becerra, ___ F.3d ___, 2006 WL 2129724 (9th Cir. August 1, 2006) ("The government tried to save the enhancement at oral argument by pointing to a statement of the counsel of Almazan-Becerra suggesting that the charged conduct involved sales. This argument is waived, however, both for the government's failure to raise it in its opening brief, see Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (“on appeal, arguments not raised by a party in its opening brief are deemed waived”), and for its failure to raise it before the district court, see Monetary II Ltd. P'ship v. Comm'r, 47 F.3d 342, 347(9th Cir.1995) (“As a general rule, an appellate court will not consider arguments which were not first raised before the district court, absent a showing of exceptional circumstances”) (internal quotations and citation omitted)."). http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf

JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS JURISDICTION UNDER REAL ID ACT TO REVIEW QUESTION OF LAW WHETHER BIA APPLIED PROPER LEGAL STANDARD TO DETERMINE WHETHER CRIME WAS PARTICULARLY SERIOUS Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (Court of appeals has jurisdiction under REAL ID Act to review question of law whether BIA applied proper legal standard to determine whether conviction constituted a "particularly serious crime" for purposes of withholding of removal).

6 JUDICIAL REVIEW – PETITION FOR REVIEW – DUE PROCESS -- BIAS OF IMMIGRATION JUDGE Reyez-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) (bias of immigration judge her from acting as a neutral fact-finder and prevented her from considering and evaluating evidence relevant to establishing extreme hardship

RELIEF – JUDICIAL REVIEW – LACHES DOCTRINE IS INAPPLICABLE AGAINST THE GOVERNMENT Savoury v. U.S. Attorney General, ___ F.3d ___, ___, 2006 WL 1426950 (11th Cir. May 25, 2006) (doctrine of laches is inapplicable against government who admitted respondent as LPR despite knowledge of a controlled substances conviction, and later sought to exclude him when he arrived from a trip abroad: "Neither this Court nor the Supreme Court has ever indicated that laches applies against the government. Instead, the Supreme Court has stated that, "[a]s a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest." Hibi, 414 U.S. at 8, 94 S.Ct. at 21. We have gone even further, holding that laches "cannot be asserted against the United States in its sovereign capacity to enforce a public right or to protect the public interest." United States v. Arrow Transp. Co., 658 F.2d 392, 394 (5th Cir. Unit B 1981).The INS does act in the public interest when it enforces the immigration laws of this country. Hibi, 414 U.S. at 8, 94 S.Ct. at 21. That is what happened in this case: after years of failing to do so, the INS finally enforce

Koloamatangi, 23 I. & N. Dec. 548d the immigration laws against Savoury. Laches cannot be
asserted to prevent it from doing so.").

Matter of Ayala, 22 I. & N. Dec. 398 (BIA 1998), Matter of T-, 6 I.& N. Dec. 136, 137–38 (BIA 1954 Savoury cites the decision in Matter of G-A-, 7 I. & N. Dec. 274 (BIA 1956), where the BIA exercised its discretion to grant § 212(c) relief to an alien who had lawfully attained permanent resident status and otherwise met the requirements of that provision. Id. at 276. The special inquiry officer had denied § 212(c) relief because he noted that even if it were granted, the respondent would still be subject to deportation under a different section of the INA. Id. at 275. In reversing the denial of § 212(c) relief the BIA explained that once it had “waived” under § 212(c) a ground of inadmissibility based on a criminal conviction, a deportation proceeding would not be instituted based on that same criminal conviction, unless the Attorney General revoked the previous grant of relief. Id. That is not what happened here.

7

Deciding Petitioner’s nationality claim, no genuine issue of material fact can exist about 7 the claim; otherwise, we must transfer the mater to the district court for resolution. 8 U.S.C. § 1252(b)(5)(A)-(B). A genuine issue of fact does exist about whether INS Officer Finnerty actually administered a modified oath of allegiance to Sebastian during his preliminary investigation. This fact, however, is not material: even had Petitioner taken the oath at that time, it would not satisfy the statutory prerequisite for citizenship that Petitioner take the oath of allegiance in “open court.”See 8 U.S.C. § 1448(a) (1988). First Circuit’s decision in Succar, which held that 8 C.F.R. § 245.1(c)(8), the regulation that precludes arriving aliens from seeking adjustment of status in removal proceedings, is invalid. the rationale of Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), hold that the regulation promulgated by the Attorney General, 8 C.F.R. § 245.1(c)(8), which precludes “arriving aliens” from applying for adjustment of status in removal proceedings, is invalid because it is in direct conflict with 8 U.S.C. § 1255(a).4The regulation shows that an alien paroled under 8U.S.C. § 1182(d) remains an “arriving alien” regardless of her parole status. The section also creates two exemptions from the definition of “arriving alien”: 1) aliens paroled into the United States before April 1, 1997, and 2) aliens granted advance parole. However, a plain reading of the regulation clearly shows that both exceptions only exempt these aliens from the definition of “arriving alien” for the purpose of excluding them from expedited removal proceedings under 8 U.S.C. § 1225(b). Accordingly, Delia, as a parolee, was properly deemed an “arriving alien” within the meaning of section 1.1 q

JUD REVIEW applable

1252(a)(2)(D), which states: Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.
JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS CORPUS CAN BE USED TO CHALLENGE DETENTION The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of removal, deportation, and exclusion and consolidate such review in the court of appeals. The REAL ID Act, however, did not affect the ongoing availability of habeas corpus to challenge the length or conditions of immigration detention. Since the REAL ID Act’s enactment on May 11, 2005, the courts of appeals have uniformly upheld the right to file a habeas corpus petition to challenge the lawfulness of detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005);

8

DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assuming without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9 (6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006) (unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v. Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks to AILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12, 2007).
JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION – EQUITABLE TOLLING – ESTOPPEL – DUE PROCESS DaCosta v. Gonzales, __ F.3d __ (1st Cir. May 24, 2006) (court lacks jurisdiction to review claims where BIA was not presented with opportunity to address legal questions raised for the first time on appeal to the circuit court), citing Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005) (circuit courts lack authority "to consider points not squarely raised before the BIA"). http://laws.lp.findlaw.com/1st/051438.html RELIEF – JUDICIAL REVIEW – NO PETITION FOR REVIEW JURISDICTION TO REVIEW DISCRETIONARY DENIAL THAT DOES NOT PRESENT QUESTIONS OF LAW Elysee v. Gonzales, ___ F.3d ___, 2006 WL 390456 (1st Cir. Feb. 21, 2006) (court of appeals has no petition for review jurisdiction under REAL ID Act to review discretionary denial of cancellation of removal for LPRs, under 8 U.S.C. § 1229b(a), where petition fails to present any constitutional or legal questions

JUDICIAL REVIEW – AFTER DEPORTATION Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf

Edwards v. INS, 393 F.3d 299. Edwards held that, in cases in which an alien accrued more than five years’ imprisonment subsequent to an INS denial of § 212(c) relief on the erroneous ground that AEDPA’s amendment or IIRIRA’s repeal of that statute applied retroactively, the alien was entitled to “nunc pro tunc relief” because “agency error would otherwise result in an alien being deprived of the opportunity to seek [§ 212(c)] relief.” Id. at 310-11.6 Hey, state practitioners, we know you regularly seek conditional discharge sentences in all the City/Village/Town courts, especially for non-criminal violation offenses, because of the lack of a term of imprisonment and the lack of supervision that a conditional discharge affords. We know that conditional discharges are regularly offered by prosecutors and imposed by state judges as a way to clear massive New York city, town and village court dockets, and are regularly accepted as a way to quickly resolve a

9

case and to avoid incarceration. And we know a conditional discharge sentence is one of the most lenient sentences permissible under New York law.

Statistical evidence confirms that conditional discharge sentences are given in the overwhelming majority of misdemeanor offenses prosecuted in New York State. (80,000 in the year 2000 and nearly 70,000 in 2001). And, these numbers do not even include the greater number of defendants who received conditional discharge sentences for violation/petty offenses! Compare these numbers to those receiving probation - less than 10,000 in each of the years reported. See Crime and Justice Annual Report 2000 and 2001 at http://criminaljustice.state. ny.us/crimnet/ojsa/cja_00_01/sec3.pdf (last accessed Nov. 15, 2005).

IN THIS ISSUE:
United States V. Ramirez, 421 F.3d 159 (2005) - What State Practitioners Need to Know About the Hazards of Conditional Discharges FPD Fall Seminar Announcement United States Court of Appeals Second Circuit Review
JUDICIAL REVIEW – ISSUE EXHAUSTION Zhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (“We are persuaded, both on the language of § 1252(d)(1) and on these authorities, that the exhaustion of 'all administrative remedies available to [an] alien as of right' under 8 U.S.C. § 1252(d)(1) does not require - as a statutory matter - that a petitioner for relief from removal raise to the BIA each issue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. § 1252(d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of subject matter jurisdiction to consider those issues.”).

JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS SUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT REVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONS OF LAW ARE RAISED Bugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denial of adjustment of status and INA § 212(h) waiver on discretionary basis not subject to judicial review; REAL ID Act of 2005, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8 U.S.C. § 1252(a)(2)(B)(i)). http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf

8 U.S.C. § 1255; 8 C.F.R. § 245a.2(m)(1); Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir. 1995). The IJ explained that 8 C.F.R.

10

§ 245a.2(m)(1) contemplates that an alien who obtains advance parole would be “readmitted,” rather than treated as a newly-arriving alien applying for admission.7Matter of S-O-S-, 22 I. & N. Dec. 107 (BIA 1998); 8 C.F.R. § 245a.2(m) (2002
JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION OF REMOVAL Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. § 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under 8 U.S.C. § 1229b or for adjustment of status under 8 U.S.C. § 1255(i), because they were based on nondiscretionary grounds). http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf JUDICIAL REVIEW – STREAMLINING – THREE JUDGE PANEL Purveegiin v. Gonzales, __ F.3d __ (3d Cir. Jun. 1, 2006) (court has jurisdiction to review question of whether BIA member responsible for an appeal erred in not referring the appeal to a three-member BIA panel). But see, Guyadin v. Gonzales, __ F.3d __ (2d Cir. May 30, 2006). http://caselaw.lp.findlaw.com/data2/circs/3rd/043797p.pdf

JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS JURISDICTION TO CONSIDER CLAIMS OF ABUSE OF DISCRETION AND VIOLATION OF DUE PROCESS IN DENIAL OF REQUEST FOR CONTINUANCE OF REMOVAL PROCEEDING Khan v. Attorney General, ___ F.3d ___, 2006 WL 1377054 (3d Cir. May 22, 2006) (court of appeals jurisdiction to consider arguments that BIA erred in affirming denial of request for continuance of removal hearing as abuse of discretion and as a violation of due process).
JUDICIAL REVIEW – JURISDICTION LIMITATION – NO BAR UNLESS REMOVAL ORDER GROUNDED ON LISTED OFFENSE McAllister v. United States Att’y Gen., __ F.3d __ (3d Cir. Apr. 10, 2006) (for purposes of jurisdictional bar at 8 U.S.C. section 1252(a)(2)(C), a noncitizen is not "removable for reason of having committed [an enumerated] criminal offense" unless the final order of removal is grounded, at least in part, on one of those enumerated offenses). http://caselaw.lp.findlaw.com/data2/circs/3rd/034513p.pdf JUDICIAL REVIEW – PETITION FOR REVIEW – DEFERENCE – QUESTION WHETHER COURT OF APPEALS OWES ANY DEFERENCE TO BIA STREAMLINING RUBBER STAMP APPROVAL OF IMMIGRATION JUDGE DECISION Ng v. Attorney General, ___ F.3d ___, ___ n.4 (3d Cir. Feb. 7, 2006)(open question whether court of appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration Judge's decision: "We have also previously questioned whether a BIA decision is entitled to deference when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. § 1003.1(e)(4). See Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 ["[I]t would seem to be, at the very least, an open question as to whether an IJ's decision affirmed through the streamlining process would be

11 entitled to Chevron deference . . . [D]eferring to the reasoning of an IJ from which the BIA would be free to depart in other cases would seem highly problematic."); cf. Singh, 383 F.3d at 152 ("[T]he BIA, by affirming without opinion, gave no considered and authoritative agency-wide interpretation of the statute . . . .")). http://caselaw.lp.findlaw.com/data2/circs/3rd/044672p.pdf

JUDICIAL REVIEW -- RES JUDICATA EXCEPTION Duvall v. Attorney General, ___ F.3d ___, 2006 WL 278861 (3d Cir. Feb. 7, 2006) (order granting habeas relief from an order of removal is vacated where a litigation error by the INS, resulting in an adverse determination on the issue of alienage during deportation proceedings, did not preclude the government from thereafter seeking to remove the alien based on subsequent criminal acts). http://caselaw.lp.findlaw.com/data2/circs/3rd/044412p.pdf RES JUDICATA

See Hamdan v. Gonzales, 4 6 25 F.3d 1051, 1059-60 (7th Cir. 2005); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703-04 (6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d (“The doctrines of res judicata and collateral estoppel are applicable to administrative proceedings when an agency is acting in a judicial capacity.”); cf. Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (applying res judicata to administrative proceedings); Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir. 1997) (same); SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1463-64 (2d Cir. 1996) (same). But cf. Title v. INS, 322 F.2d 21, 23-24 (9th Cir. 1963) (rejecting application of doctrine to preclude alien from relitigating issue of membership in communist party, previously resolved in denaturalization proceedings), rejected by Kairys, 981 F.2d at 939-41, and distinguished by Fedorenko, 19 I. & N. Dec. at 62-64 (“[W]e do not violate Congress’ intent if we apply collateral estoppel .
JUDICIAL REVIEW – PETITION FOR REVIEW – REAL ID ACT REPEALED ALL JURISDICTIONAL BARS TO PETITION FOR REVIEW OF FINAL REMOVAL ORDERS EXCEPT THOSE REMAINING IN 8 U.S.C. § 1252 Papageorgiou v. Gonzales, __ F.3d __, 2005 WL 1490454 (3d Cir. June 24, 2005) (agreeing with holding of Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2005 U.S. App. LEXIS 9912 (9th Cir. 2005)). JUDICIAL REVIEW – IMMIGRATION JUDGE DECISION CONFLICTED WITH DOCUMENTARY EVIDENCE Zhang v. Gonzales, __ F.3d __ (3d Cir. April 21, 2005) (petition for review granted where Immigration Judge failed to reconcile his decision with the documentary evidence produced by noncitizen respondent). http://caselaw.lp.findlaw.com/data2/circs/3rd/032111p.pdf

12 JUDICIAL REVIEW – RES JUDICATA Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf

JUDICIAL REVIEW – GOOD MORAL CHARACTER Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review). CRIME OF MORAL TURPITUDE – IMMIGRATION CONSEQUENCES – JURISDICTION RESTRICTION Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004) (conviction of one crime of moral turpitude precludes court of appeals from exercising petition for review jurisdiction over final removal order).

JUDICIAL REVIEW – RES JUDICATA – COLLATERAL ESTOPPEL United States v. Castillo-Basa, __ F.3d __, 2007 WL 570326 (9th Cir. Feb. 26, 2007) (doctrine of collateral estoppel, applied in the criminal double jeopardy context, prevents government from charging illegal entrant with perjury where during the initial illegal re-entry prosecution, the government could not find the taped record of the deportation hearing, but later finds the tape after acquittal; “The Double Jeopardy Clause does not only bar a second prosecution on the same charge of which a defendant has been previously acquitted (or convicted). It also prevents the government from seeking to prosecute a defendant on an issue that has been determined in the defendant's favor in a prior prosecution, regardless of the particular offense involved in the earlier trial.”). In some cases, you may also be able to raise retroactivity concerns based on the length of time that has passed since the plea. The St Cyr Court stated that there is no single test for assessing retroactive effect. Thus, while reasonable reliance is one way of establishing a retroactive effect, retroactivity concerns are also raised when time has passed and the affected individuals have developed interest in repose. See, e.g., United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O'Connor, J., concurring) (describing interests of repose in curbing retroactive legislation). Application of a rule that looks only at the length of domicile at the time of the plea would violate these interests by allowing for mandatory deportation of persons who may have pled guilty to an offense a few years after obtaining their lawful permanent residency, but who attained their seven years of lawful domicile long before the enactment of 1996 laws. ILLEGAL REMOVAL OF UNITED STATES CITIZENS Occasionally, persons are placed in removal proceedings, and even removed, even though they are United States citizens. E.g., Diaz v. Reno, 40 F.Supp. 2d 984 (N.D. Ill.1999) (U.S. citizen who had been ordered summarily excluded from the United States mounts several claims related to summary exclusion after returning to the United States) http://209.85.165.104/search?q=cache:O5C0f5l5kxsJ:www.law.nyu.edu/alumni/laa/lecture/docu

13

ments/diaz-bivensclaim.pdf+Diaz+v.+Reno&hl=en&ct=clnk&cd=1&gl=us ; Fierro v. INS, 66 F. Supp. 2d 229 (D. Mass. 1999) (court enjoins removal of individual pend-ing resolution of claim to United States citizenship). JRAD: The core notion, in Massachusetts as in many other jurisdictions, is that a nunc pro tunc order is appropriate primarily to correct the record at a later date to make the record reflect what the court or other body actually intended to do at an earlier date but did not sufficiently express or did not get around to doing through some error or inadvertence. Thus, a clerical mistake in a judgment might be corrected nunc pro tunc when discovered later or a franchise sought as of October 1 might be backdated to that date where the application was timely made Perkins v. Perkins, 114 N.E. 713, 713-14 (Mass. 1917). However, it is clear that there are limits on the court's authority to make retroactive revisions to prior orders. In Perkins itself, the court said that "a defect in a judgment, order or decree which expressed exactly the intention of the court at the time when it was made cannot be remedied by a nunc pro tunc entry." Id. at 714.(1)

CA3 Extends St. Cyr to All Individuals Convicted of a Pre-IIRAIRA Aggravated Felony http://www.aila.org/content/default.aspx?docid=21953 The court held that IIRAIRA's repeal of §212(c) cannot be applied retroactively to preclude from relief otherwise eligible persons convicted of a pre-IIRAIRA aggravated felony, whether by plea or by trial, because the repeal attached new legal consequences to the conviction and resulting sentence. (Atkinson v. Att'y Gen. of the U.S., 3/8/07). AILA Doc. No. 07032661 RELIEF – NON LPR CANCELLATION Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review

RELIEF – NON-LPR CANCELLATION OF REMOVAL – JUDICIAL REVIEW Lopez v. Gonzales, ___ F.3d ___ (7th Cir. Oct. 26, 2005) (while calculation of continuous residence is a statutory issue over which the court has jurisdiction, whether the respondent lacks good moral character is a discretionary issue, over which the court lacks jurisdiction). http://caselaw.lp.findlaw.com/data2/circs/7th/042959p.pdf

14

First Circuit
RELIEF – WAIVERS – 212(H) RELIEF – CANCELLATION – STOP-TIME RULE Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an immigrant “previously . . . admitted . . . as an alien lawfully admitted for permanent residence,” even though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore was “bound,” by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for purposes of cancellation of removal under INA § 240A(a), the phrase “lawfully admitted for permanent residence” to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala because of § 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v. Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html RELIEF – CANCELLATION – STOP TIME RULE IMPERMISSIBLY RETORACTIVE Mulholland v. Ashcroft, __ F.Supp.3d __ (E.D.N.Y. Oct. 25, 2004) (IIRAIRA Stop-Time rule cannot be applied to bar cancellation of removal based upon pre-IIRAIRA conviction of a crime involving moral turpitude). RELIEF – 212(c) – CANCELLATION – STOP-TIME RULE IS NOT TRIGGERED RETROACTIVELY BY A CONVICTION THAT PRECEDED ITS ENACTMENT Gonzalez-Garcia v. Gonzales, ___ F.3d ___, 2005 WL 3047411 (5th Cir. Nov. 16, 2005) (convictions that pre-date the April 1, 1997 effective date of 8 U.S.C. § 1229b(d)(1) [cancellation stop-time rule] do not stop the clock for purposes of cancellation of removal [or former INA § 212(c)]). http://caselaw.lp.findlaw.com/data2/circs/5th/0460385cv0p.pdf NOTE: This is a very strange decision, in that it assumes that the stop-time rule for cancellation of removal applies to applications for relief under former INA § 212(c), and seems to state that cancellation of removal is barred to any LPR convicted of a crime of moral turpitude DETENTION – BOND HEARING FOR "ARRIVING ALIENS" RETURNING ON ADVANCE PAROLE Shahwan v. Certoff, ___ F.Supp.2d ___, 2005 WL 3369991 (N.D. Cal. Dec. 12, 2005) (immigration authorities cannot deny bond hearing under 8 C.F.R. § 1003.19(h)(2)(i)(B) [no bond hearing for "arriving aliens"], to noncitizen granted "advance parole" pending adjustment of status where the noncitizen was not properly notified that accepting advance parole would result in denial of bond without possibility of hearing).

DETENTION – MANDATORY – HABEAS CHALLENGE TO OVERLONG DETENTION If the government stayed the IJ’s bond order based on 8 CFR § 1003.19(i)(2), the "automatic stay" regulation, and has not obtained an "emergency stay" from the BIA, under 8 CFR § 1003.19(i)(1)), then counsel may be able to follow a successful habeas in the Ninth Circuit. See Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. March 1, 2004).

15

The term "arriving alien" is not defined in the Immigration and Nationality Act [INA], but is defined by regulation at 8 C.F.R. 1001.1(q): The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-ofentry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.

DETENTION – MANDATORY DETENTION – INAPPLICABLE TO ARRIVING ALIENS INA § 236 applies only to those who have been "arrested on a warrant" issued by the AG (or DHS). See INA § 236(a). Arriving aliens are only "detained" under INA § 235. They are not "arrested on a warrant." Therefore, INA § 236(c) does not apply to arriving aliens. Thanks to Lisa Brodyaga.

If a noncitizen is held past the 48 hours, or is held on the basis of an illegal "investigatory" hold, s/he can sue the custodial facility for false imprisonment. 8 C.F.R. § 287.7(a) refers to the purpose of the detainer being ICE seeking custody to “arrest and remove” because immediate custody by ICE is impracticable. That appears to essentially require an NTA or ICE warrant of arrest as a basis for the detainer, i.e., just like any other detainer from counties or states based on an outstanding warrant. In practice, however, the detainer precedes issuance of an NTA or Warrant of Arrest. 8 C.F.R. § 287.7(b) lists officers able to issue a detainer. 8 C.F.R. § 287.7(b)(8) includes any other immigration officer needing authority to issue a detainer under INA § 287(d)(3), who is given the authority to issue a detainer. This seems to imply that the statutory authority for a detainer flows from INA § 287(d), which is limited to noncitizens arrested for controlled substance violations. 8 C.F.R. § 287.7(c) requires that state and local law enforcement provide records necessary to determine if issuing detainer/NTA is appropriate. It states “the criminal justice agency requesting such action (issuing detainer) shall” provide said records. That is, authority flows from § INA 287(d) that a detainer only issues when requested by the state or local agency under INA § 287(d) – not that ICE decides to issue a detainer absent a request. 8 C.F.R. § 287.7(d) then allows issuance of the detainer, after a determination by ICE (based on a request from a state and local agency under INA § 287(d).

16

GOOD MORAL CHARACTER Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles: First, the applicant cannot have a conviction on the list enumerated in INA § 101(f), 8 U.S.C. § 1101(f), during the period for which Good Moral Character must be shown, in order to avoid a complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR § 316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction listed on INA § 101(f) committed prior to the beginning of the period during which Good Moral Character must be shown. This second hurdle is not a complete bar to showing Good Moral Character. The agency must weigh positive factors against negative factors. Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986).

JUDICIAL REVIEW – AFTER DEPORTATION Spina v. Department of Homeland Sec., 470 F.3d 116 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf

Obioha v. Gonzales, 431 F.3d 400, 408 (4th Cir. 2005). The Board abuses its discretion when it "fails to offer a reasoned explanation for its decision, distorts or disregards important aspects of the alien’s claim." Malhi v. INS, 336 F.3d 989, 993
JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION OF REMOVAL Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. § 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under 8 U.S.C. § 1229b or for adjustment of status under 8 U.S.C. § 1255(i), because they were based on nondiscretionary grounds). http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf NATURALIZATION – U.S. "NATIONAL" Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (registering with the Selective Service, taking oath of allegiance, and applying for derivative citizenship, without a grant of such application, is insufficient to confer "national" status).

CITIZENSHIP United States citizenship of the respondent can be raised as a defense to removal. Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995). The government bears the heavy burden of proving alienage through "clear, unequivocal, and convincing evidence." Scales v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000) (quoting Woodby v. INS, 385 U.S. 276, 277 (1966)); see also LopezUrenda v. Ashcroft, 345 F.3d 788, 795 (9th Cir. 2003) (citations omitted); 8 U.S.C. § 1229a(c)(3)(A). As the Ninth Circuit has explained, "[t]his burden of proof is ‘much more than a mere preponderance of the evidence.’ The evidence must not leave the issue in doubt." Lim v.

17

Mitchell, 431 F.2d 197, 199 (1970) (citation omitted); see also Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995) (noting that the clear and convincing evidence standard is a "heavier burden than the preponderance of the evidence standard") (citation omitted). Because a United States citizen cannot be removed from the country, reliable proof of alienage in a removal proceeding is constitutionally required. As the Supreme Court has long recognized, "[t]o deport one who . . . claims to be a citizen[ ] obviously deprives him of liberty, . . . [and] may result also in loss of both property and life; or of all that makes life worth living." Agosto v. INS, 436 U.S. 748, 753 (1978) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)); cf. Bridges v. Wixon, 326 U.S. 135, 154 (1945) ("[D]eportation . . . visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness."). Thanks to Jennifer C. Chang for this argument.
Tovar-Alvarez v. U.S.Attorney General, ___ F.3d ___, 2005 WL 2561503 (11th Cir. Oct. 13, 2005) (noncitizen must participate in public citizenship ceremony in order to fully naturalize PARTICULARLY SERIOUS CRIME Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (IJ erred in relying on facts in a Washington appellate court's opinion to determine whether petitioner's prior conviction was for a particularly serious crime, but a large portion of the facts relied upon applied to offenses for which she was not convicted). http://caselaw.lp.findlaw.com/data2/circs/9th/0570672p.pdf RECORD OF CONVICTION – PARTICULARLY SERIOUS CRIME – LIMITED TO RECORD OF CONVICTION Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (“only the record of conviction and sentencing information may be considered in determining whether Morales's conviction was for a particularly serious crime."), citing In re L-S-, 22 I. & N. Dec. 645, 651 (BIA 1999). RELIEF – 212(C)

RELIEF – DATE OF PLEA DETERMINES WHETHER IIRAIRA REPEAL OF 212(C) RELIEF BARS RELIEF Alvarez-Hernandez v. Acosta, ___ F.3d ___, ___ n.19, 2005 WL 375683 (5th Cir. February 17, 2005) ("We find that the date of a plea of guilty, and not the date that judgment of conviction is ultimately entered, is determinative of whether the retroactive application of the IIRIRA bar to an alien’s claim for § 212(c) relief is impermissible under St. Cyr. Accordingly, because he pleaded guilty before the effective date of the IIRIRA, Alvarez is not precluded from seeking § 212(c) relief."). RELIEF – 212(C) RELIEF – RELIANCE INTERESTS Alvarez-Hernandez v. Acosta, ___ F.3d ___, ___ n.19, 2005 WL 375683 (5th Cir. February 17, 2005) ("Our court has recognized the importance placed by the Supreme Court upon protecting the reliance interests of aliens who, prior to the IIRIRA, had waived their trial rights and entered guilty pleas in exchange for an opportunity to apply for § 212(c) relief. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 301 (5th Cir. 2002) (‘The [St. Cyr] Court found that aliens, like St. Cyr, who entered plea agreements with the government before IIRIRA became effective ‘almost certainly’ relied upon the likelihood of receiving a discretionary waiver of deportation from the Attorney General – a possibility that the new IIRIRA provision eliminated - when deciding to forgo their right to a trial.’). Other circuits have likewise noted the importance that protecting reliance interests played in the Court’s St. Cyr decision. See Ponnapula v. Ashcroft, 373 F.3d 480, 492 (3d. Cir. 2004) ("St. Cyr is principally concerned with the reasonable reliance interests

18

of aliens who enter into plea agreements as a class."); Rankine v. Reno, 319 F.3d 93, 102 (2d. Cir. 2003) ("The issue of reliance has played a central role in the Supreme Court’s and the circuit court ‘s reasoning with respect to the retroactivity of the IIRIRA and AEDPA."); Chambers v. Reno, 307 F.3d 284, 289 (4th Cir. 2002) ("In reaching [its] conclusion, the Court focused on an alien’s reasonable reliance on the possibility of discretionary relief under INA § 212(c) as one of the most important factors prompting him to forego trial and enter a plea agreement."); Domond v. INS, 244 F.3d 81, 86 (2d. Cir. 2001) (finding that expectation interests of alien in St. Cyr were "especially strong" when his guilty plea was entered before the effective date of the AEDPA, "because an alien is likely to consider the immigration consequences when deciding whether and how to plead")."). RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005) (noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible for INA § 212(c) relief under INS v. St. Cyr; following rule that seven years for domicile for 212(c) stops at time of application for 212(c)). RELIEF – 212(C) RELIEF – NONCITIZEN ERRONEOUSLY ADMITTED AS LPR WAS NOT ELIGIBLE TO APPLY FOR 212(C) RELIEF Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where INS erroneously granted LPR status to noncitizen who had prior aggravated felony conviction, noncitizen was ineligible for 212(c) relief in removal proceedings). RELIEF – 212(C) RELIEF – LAWFUL DOMICILE – UNREVOKED DOMICILE = LAWFUL DOMICILE EVEN IF LPR WOULD NOT HAVE BEEN GRANTED IF CRIMINAL HISTORY HAD BEEN KNOWN While a noncitizen must be a lawful permanent resident to obtain a waiver under INA § 212(c), and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen who obtained LPR status though amnesty legalization, even though s/he was not technically qualified because of a criminal offense committed while s/he was a temporary resident, should still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and therefore no fraud could have occurred), and the failure of the INS to rescind the temporary status prior to adjustment bars the INS from denying that they are lawful permanent residents now. But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005). If the government mistakenly granted lawful temporary residence to your client, the government's remedy was to terminate the LTR status. See INA sec. 245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec. 216(BIA 1990). Having failed to terminate, your client is a resident. See INA sec. 246; Matter of Belenzo, 17 I. & N. Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status granted under sec.245 or 249). Under the rescission cases and statute, the U.S. can rescind at any time if a noncitizen received LPR status by fraud. After having LPR status for five years the government can't rescind in the absence of fraud. Even if a noncitizen gets LPR status by fraud, she or he can still apply for 212(c) if she or he gets a 237(a)(1)(H) waiver to forgive the fraud. Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993). See also Perez-Enriquez v. Gonzales, 411 F3rd 1079 (9th Cir 2005). Thanks to Dan Kesselbrenner http://www.ilw.com/immigdaily/cases/2005,1227-arellano.pdf

Can dismissed charges be considered,

19

http://209.85.165.104/search?q=cache:ZCl5W02BNSUJ:www.ca3.uscourts.gov/opinarch/05163 2p.pdf+Balogun+v.+Ashcroft,+270&hl=en&ct=clnk&cd=5&gl=us

In United States v. Robinson, 967 F.3d 287 (9th Cir. 1992), the Ninth Circuit concluded that under California law a probation order is not a “judgment” when the imposition of sentence is suspended. See id. at 293. The Ninth Circuit noted that California law provides: “[W]hen a sentencing court grants probation after a conviction, it may suspend the imposition of sentence, in which case no judgment of conviction is rendered, or it may impose sentence and order its execution to be stayed. In the latter case only, a judgment of conviction is rendered.” Id. (citing People v.Arguello,381 P.2d 5,6 (Cal.1963)); see also United States v.Haggerty,85 F.3d 403,406 (8th Cir. 1996) (citing Robinson for the proposition that a probation order is not a judgment). In Stallings’s case, there was no judgment of conviction entered and the appropriate time for revoking his probation and entering judgment has lapsed. See Cal. Penal Code §1203.3(a) (“The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. . . .”); see also In re Perez, 418 P.2d 6, 11 (Cal. 1966) (“If probation was timely revoked, judgment could be imposed at any time thereafter.”); Smith, 90 Cal. Rptr. at 814 (“It is also settled that an order revoking probation, to be valid, must be made within the period fixed in the order of probation. If not revoked within that period, the probation terminates automatically on the last day.”). Accordingly, no valid judgment has been entered against Stallings and, therefore , the enhanced sentence imposed in reliance upon the California conviction was improper.
RELIEF – 212(C) RELIEF – JURY TRIAL BAR Carranza-de Salinas v. Gonzales, 477 F.3d 200 (5th Cir. Jan. 23, 2007) (noncitizen convicted after jury trial is eligible for relief under former INA § 212(c), if the noncitizen can affirmatively establish actual, subjective reliance, i.e., that s/he waited to apply for 212(c) defensively, before an IJ, rather than file affirmatively with the DD); accord, Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004); Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006) (“Restrepo reliance” – or reliance on an affirmative 212(c) possibility-requires an “individualized showing of reliance” that includes a belief that waiting would improve the chances of obtaining the waiver based on a stronger case of rehabilitation or other equities); see Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) (allowing all convicted after jury trial to apply for 212(c) relief). The Carranza argument can be raised in any circuit, and may be especially promising in the Fourth Circuit. See Olatunji v. Ashcroft, 387 F.3d 383, 389-91 (4th Cir. 2004).

20

RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005) (noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible for INA § 212(c) relief under INS v. St. Cyr; following rule that seven years for domicile for 212(c) stops at time of application for 212(c)). RELIEF – 212(c) – LEAVING UNITED STATES WHILE 212(c) PENDING A noncitizen LPR who leaves the United States during removal proceedings does not abandon a request for INA § 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988), LPR respondent was convicted of possession of marijuana, proceedings commenced and LPR conceded deportability as charged in a hearing before the IJ, applied for a 212(c) waiver and the hearing was continued for investigation. Then, the LPR departed the United States for a temporary visit abroad during the course of the pending deportation proceeding in which he had applied for 212(c), and returned to the United States. The IJ terminated proceedings and ruled that the 212(c) waiver application had been abandoned. The BIA held that the IJ erred. The LPR's departure did not interrupt the proceeding, and it could continue, assuming LPR still was deportable on same grounds. The INS did not need to start a new proceeding, but could issue another OSC (NTA) or amend if they chose; and the LPR had not abandoned his application for 212(c). Thanks to Lory Rosenberg for this information. It should be noted, however, that the noncitizen might not be admitted (or admissible) to the United States upon return. See INA § 101(a)(13)(C). On the other hand, this could be a strategy for avoiding Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005) issues. RELIEF – 212(C) RELIEF – GETTING AROUND MATTER OF BLAKE Matter of G-A-, 7 I. & N. Dec. 274 (BIA 1956) (noncitizen in deportation proceedings allowed to apply for INA § 212(c) relief where noncitizen had traveled out of the United States after conviction but before the deportation proceedings, on the theory that the INS should not have admitted the person after the conviction without a 212(c) waiver and that an IJ can grant the 212(c) waiver nunc pro tunc to the prior post-conviction/pre-deportation proceedings entry). See also, Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971).
RELIEF – WAIVERS – 212(H) RELIEF – CANCELLATION – STOP-TIME RULE Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an immigrant “previously . . . admitted . . . as an alien lawfully admitted for permanent residence,” even though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore was “bound,” by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for purposes of cancellation of removal under INA § 240A(a), the phrase “lawfully admitted for permanent residence” to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala because of § 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v. Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html

21
Rainford, ID#3191 A respondent who is convicted of criminal possession of a weapon is deportable under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. II 1990); however, such a conviction does not preclude a finding of admissibility in connection with an application for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (1988), and it may not serve as a ground of deportability if the respondent's status is adjusted to that of a lawful permanent resident. Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978), followed. Matter of V-, 1 I&N Dec. 293 (BIA 1942), distinguished. Gabryelsky, ID#3213 (1) A waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. IV 1992), may be used in conjunction with an application for adjustment of status by an alien who is deportable for both drug and weapons offenses; thus a lawful permanent resident alien who has been convicted of a weapons violation is not ineligible to apply for adjustment of status and may concurrently apply for section 212(c) relief to waive his deportability arising from his drug conviction. (2) Under the regulations at 8 C.F.R. § 245.1(e) (1993), an alien may concurrently apply for adjustment of status and section 212(c) relief. (3) An applicant for adjustment of status is not precluded from concurrently applying for a waiver of inadmissibility under section 212(c) of the Act to waive another deportable offense, even though section 212(c) of the Act would not separately and independently waive all grounds of deportability.

An intent to deceive is not the same as an intent to defraud. In United States v. Regent Office Supply Co., Inc.,88 the Second Circuit Court of Appeals held that "an intent to deceive, and even to induce, may have been shown; but this does not, without more, constitute the 'fraudulent intent' required by the statute."89 Recently, a district court in Missouri, in a bank fraud case, noted that an intent to deceive customers was not the same as an intent to defraud them.90

POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY – RETURN TO PRE-ERROR STAGE OF PROCEEDINGS Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding). http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf POST-CONVICTION – NUNC PRO TUNC ORDER EFFECTIVE Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas court’s nunc pro tunc correction of internally inconsistent criminal judgment was a proper use of nunc pro tunc under Kansas law; as a correction of record made to properly reflect the original judgement, the nunc pro tunc judgment was properly considered by the BIA, and such consideration does not contradict RenteriaGonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) rule that vacated conviction remains a conviction for immigration purposes).

22

Second Circuit
CRIMES OF MORAL TURPITUDE – JUDICIAL RECOMMENDATION AGAINST DEPORTATION – REMEDY FOR IAC AT SENTENCE REQUIRES PLACING DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT OCCURRED, INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED PERIOD Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled). In determining whether nunc pro tun relief could be applied in this case, the court looked at the following issues: 1. Statutory bar: "A court may not award equitable relief in contravention of the expressed intent of Congress. See INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA had granted nunc pro tunc relief in the past, and noted that Congress never amended INA § 212(c) to bar such grants. Id. 2. When nunc pro tunc relief should be afforded: The court stated generally that "where an agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68." Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration context, the court found that nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was erroneously denied the opportunity to apply the relief due to an error on the part of the agency, and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated that the noncitizen, outside an illegal reentry context, did not need to show that a denial of the relief would result in a denial of due process. 3. What error may nunc pro tunc relief be used to correct: Despite arguments that the doctrine of nunc pro tunc may only be used to correct inadvertent errors, and not to remedy a defect in a judgment order, the court held that in the immigration context nunc pro tunc relief was available to correct such defects in the immigration context. Edwards v. INS, 393 F.3d, at 309 n. 12. POST CON - TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF WASHINGTON STATE Washington v. Littlefair, 112 Wash.App. 749, 51 P.3d 116 (2002) (one-year statute of limitations to bring collateral attack equitably tolled from date of plea until defendant first discovered immigration consequences). TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF - OREGON Benitez-Chacon v. State of Oregon, 178 Or. App. 352 (2001) (petition for post conviction relief subject to two year statute of limitations running from date of final judgment).

Non-discretionary actions,

23

however, and purely legal determinations made by the agency, remain subject to judicial review. See, e.g., Sepulveda v. Gonzales, 407 F.3d 59, 63 (2d Cir. 2005) (“[Section]1252(a)(2)(B) does not bar judicial review of nondiscretionary, or purely legal, decisions. . . .”). Determination of eligibility for adjustment of status – unlike the granting of adjustment itself – is a purely legal question and does not implicate agency discretion. The determination at issue here, whether a prior conviction precludes eligibility for adjustment of status, was also at issue in Sepulveda. In that case, the Second Circuit held that statutory restrictions on the jurisdiction of district courts to hear challenges to removal orders and other discretionary actions do not affect the district courts’ “jurisdiction to determine whether [the statutory provision] is applicable, e.g., whether the petitioner is in fact an alien, whether he has in fact been convicted, and whether his offense is one that is within the scope of [one of the enumerated sections].” Sepulveda, 407 F.3d at 63 (citing Santos-Salazar v. U.S. Dep’t of Justice, 400 F.3d 99, 104 (2d Cir. 2005)). The determination at issue here is precisely such a determination: whether under the applicable statutory language as interpreted by the BIA, Pinho was “convicted” so as to render him ineligible for adjustment of status. This is a legal question, not one committed to agency discretion. The agency action at issue here was final and nondiscretionary, it adversely affected Pinho, and it has not been made non-reviewable by statute. Under the APA, therefore, Pinho is “entitled to judicial review” of the AAO’s decision.13 Because the District Court had jurisdiction to review the AAO decision, we have jurisdiction over this appeal under 28 U.S.C § 1291. We exercise plenary review of the District Court’s statutory interpretation, but afford deference to a reasonable interpretation adopted by the agency. See Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003). It is the agency’s burden, however, to establish the facts supporting inadmissibility “by clear, unequivocal and convincing evidence.” See Sandoval v. INS, 240 F.3d 577, 581 (7th Cir
POST CON RELIEF – TEXAS DISTRICT COURTS DISTINGUISH RENTERIA Toledo-Hernandez v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tx.) (Renteria-Gonzalez, 322 F.3d 804 (5th Cir. 2003), inapplicable to convictions vacated on constitutional grounds); Hernandez-Arguello v. Winfrey, No. SA-03-CA-0823-RF (W.D. Tx. 2004) (Same).

24

POST CONVICTION RELIEF – ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST CONVICTION PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlyin g judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's guilt.")

POST CONVICTION RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA – STANDARD OF REVIEW -- ABUSE OF DISCRETION – ERROR OF LAW United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 (9th Cir. July 15, 2004) ("This Court reviews a district court's denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001) (en banc). A district court abuses its discretion when it makes an error of law. See id.; see also Koon v. United States, 518 U.S. 81, 100 (1996) ("A district court by definition abuses its discretion when it makes an error of law.")).
POST CON RELIEF – APPEAL – WAIVER OF APPEAL IN PLEA AGREEMENT DOES NOT BAR COLLATERAL ATTACK RAISING ERRORS IN MEANS BY WHICH PLEA AGREEMENT WAS REACHED Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (waiver of appeal in plea agreement does not bar collateral attack raising errors in means by which plea agreement was reached: "'There is no general bar to a waiver of collateral attack rights in a plea agreement.' Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)). 'However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been produced, here, the plea agreement.' Id. (citations omitted). Where, as here, a petitioner claims a violation of Rule 11 or the ineffectiveness of trial counsel, the Second Circuit has stated that he is not barred under the terms of the plea agreement from bringing a petition to vacate the conviction based on the legal shortcomings of the process in which the waiver was obtained. See id. at 196. Accordingly, the Court will address 'the merits of [the] petition notwithstanding [the petitioner's] general waiver of the right to collaterally attack his conviction.' Id. at 193; see also Lebron v. United States, 267 F. Supp.2d 325, 328 (E.D.N.Y. 2003).").

HABEAS CORPUS - FEDERAL - EXHAUSTION Baldwin v. Reese, 124 S.Ct. 1347 (March 2, 2004) (ineffective assistance of counsel claim not "fairly presented" where petitioner did not complain that ineffective assistance violated federal law; state supreme courts not required to read lower appellate opinions before deciding whether

25

to grant a hearing, courts should be able to rely exclusively on briefs to alert them to issues). Use Note: The Court gave some guidance on presenting issues of federal law in state courts: "A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'" From this statement, it appears that the Court is indicating that a defendant can "federalize" an issue simply by making any reference to "federal law."
POST CON – TENNESSEE – CORAM NOBIS State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A writ of error coram nobis lies "for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial." T.C.A. § 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995

CONVICTION – FINALITY OF CONVICTION – FIFTH AND SEVENTH CIRCUITS DO NOT FOLLOW GENERAL RULE In most circuits, convictions in criminal cases are not considered sufficiently final to permit the initiation of deportation proceedings if an appeal is pending or they are still subject to appeal. Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh Circuits. See Moosa v. INS,171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).
HABEAS CORPUS - FEDERAL - NO EXHAUSTION Galvan v. Alaska Department of Corrections, 397 F.3d 1198 (9th Cir. Feb. 9th 2005) (petitioner failed to fairly present federal ineffective assistance of counsel claim before highest state court when her petition to the Alaska Supreme Court made only passing mention (in distinguishing a state case) of the Sixth Amendment and of federal cases; "Briefing a case is not like writing a poem, where the message may be conveyed entirely through allusions and connotations. Poets may use ambiguity, but lawyers use clarity. If a party wants a state court to decide whether she was deprived of a federal constitutional right, she has to say so."). http://caselaw.lp.findlaw.com/data2/circs/9th/0335083p.pdf

POST CON RELIEF – FEDERAL – SUCCESSIVE HABEAS Hamilton v. Newland, 374 F.3d 822 (9th Cir. July 01, 2004) (district court erred in treating defendant’s motion as successive habeas petition rather than FRCP 60(b)(6) motion). http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA CLAIM NOT BARRED BY FAILURE TO RAISE ON DIRECT APPEAL Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal

26

POST CON – FEDERAL – CAUSE AND PREJUDICE FOR NOT RAISING GROUNDS ON DIRECT APPEAL GROUNDS Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255 claim regarding the voluntariness of a guilty plea made when the petitioner was not properly informed that deportation was absolute).
POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS Isley v. Arizona Dept. of Corr., __ F.3d __ (9th Cir. Sept. 15, 2004) (petition for habeas corpus granted where state petition for post-conviction relief was pending within the meaning of 28 U.S.C. section 2244(d)(2) and entitled defendant to toll one year statute of limitation period for filing federal postconviction relief). http://caselaw.lp.findlaw.com/data2/circs/9th/0315858p.pdf POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS – TOLLING – FILING OF STATE POST CONVICTION RELIEF PETITION Chavis v. Lemarke, ___ F.3d ___ (9th Cir. Aug. 27, 2004) (district court dismissal of federal habeas corpus petition as untimely reversed since statute of limitations was tolled due to filing of state habeas petitions). http://caselaw.lp.findlaw.com/data2/circs/9th/0117072p.pdf

After unsuccessfully attempting to withdraw his plea in state court, Mr. Broomes sought habeas relief from the federal courts pursuant to 28 U.S.C. 2241, arguing his state court conviction was obtained in violation of his Sixth Amendment right to effective assistance of counsel. The magistrate judge issued an order indicating Mr. Broomes must file a petition under 28 U.S.C. 2254 to

challenge a state court conviction. Mr. Broomes thereafter raised the same claim under 2254.(2) Based on a magistrate judge's recommendation and over Mr. Broomes' objection, the district court denied the petition because this circuit had previously rejected a similar argument in Varela v. Kaiser, 976 F.2d 1357 (10th

27
Cir. 1992).

POST CON RELIEF – HABEAS – MOOTNESS AFTER DEPORTATION – DISQUALIFICATION FROM NATURALIZATION CONSTITUTES CONTINUING DAMAGE SUFFICIENT TO PREVENT MOOTNESS EVEN AFTER DEPORTATION State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (as a likely collateral consequence of the conviction, the noncitizen's ability to petition for naturalization is gravely impaired, so the issue is not moot and subject matter jurisdiction is not a bar to the defendant's present appeal from denial of a motion to withdraw the plea). POST CONVICTION RELIEF – HABEAS – IMMIGRATION – DEPORTATION DOES NOT MOOT HABEAS The fact that a noncitizen has been deported does not moot his habeas petition. His future ineligibility for readmission to the United States preserves his Article III standing. See Shittu v. Elwood, 204 F. Supp. 2d 876, 878 (E.D. Pa. 2002); Johnson v. Department of Justice, (Not Reported in F.Supp.2d), 2004 WL 1240695 (E.D. Pa. June 3, 2004).
VEHICLE – FEDERAL – HABEAS – MOOTNESS Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of noncitizen while appeal of district court dismissal of habeas petition was pending in court of appeal did not deprive district court of habeas jurisdiction on remand, and case was not moot, but district court lacked authority to grant any relief beyond vacating defective deportation order. POST CON RELIEF – HABEAS CORPUS – FEDERAL – REMAND FOR EVIDENTIARY HEARING Earp v. Ornoski, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (claim of ineffective assistance for failure to investigate mitigating circumstances merited evidentiary hearing).

POST CON RELIEF – HABEAS – FEDERAL – REVIEW OF STATE CONVICTION PRECLUDED SINCE STATE PETITION REJECTED BY STATE COURT AS UNTIMELY IS NOT PROPERLY FILED UNDER 28 U.S.C. § 2244(d)(2), AND THEREFORE DOES NOT TOLL THE 1-YEAR AEDPA STATUTE OF LIMITATIONS FOR FILING A FEDERAL HABEAS CORPUS PETITION Pace v. DiGuglielmo, ___ U.S. ___, 2005 WL 957194 (April 27, 2005) (federal habeas review of state conviction precluded since state petition rejected by state court as untimely is not properly filed under 28 U.S.C. § 2244(d)(2), and therefore does not toll the 1-year AEDPA statute of limitations for filing a federal habeas corpus petition). http://laws.findlaw.com/us/000/03-9627.html HABEAS CORPUS -- FEDERAL -- INSUFFICIENT FEDERALIZATION Castillo v. McFadden, 370 F.3d 882 (9th Cir. June 1, 2004) (defendant must give state notice that he is bringing federal constitutional claims by referring in appellate briefs to specific provisions of the federal constitution or citing to federal law; raising federal arguments in trial motions insufficient). See Baldwin v. Reese, 125 S.Ct. 1347, 1350 (2004). The court stated that the concluding sentence that stated petitioner's rights under the Fifth, Sixth and Fourteenth Amendments were violated was a "conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal

28 theory, was the first time Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note thoughtful and powerful dissent by Judge Hawkins, pointing out that petitioner did cite federal cases in his argument court erred in treating defendant’s motion as successive habeas petition rather than FRCP 60(b)(6) motion). http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf

POST CON RELIEF – FEDERAL -- CORAM NOBIS – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (affirmative misadvice by defense counsel concerning immigration consequences of disposition of criminal case constitutes ineffective assistance of counsel where counsel said deportation was not a serious possibility, and in fact it became a near certainty.

POST CON RELIEF – FEDERAL -- CORAM NOBIS – STATUTE OF LIMITATIONS – AEDPA STATUTE OF LIMITATIONS FOR 2255 RELIEF DID NOT APPLY TO CORAM NOBIS United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (one-year AEDPA statute of limitations for filing a motion to vacate a judgment under 28 U.S.C. § 2255 did not apply to the filing of a petition for a writ of error coram nobis after custody had expired in the federal criminal case).

POST CON RELIEF – CORAM NOBIS – NEED TO PETITION FOR CORAM NOBIS DIRECTLY IN FEDERAL COURT Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir. June 27, 2005) (district court did not commit error in failing to consider 28 U.S.C. § 2241 habeas to be a petition for coram nobis, because this issue had not been raised in the district court and petitioner provided no authority suggesting that the district court might have a duty to sua sponte raise the issue), distinguishing United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005), in which the Ninth Circuit held that coram nobis relief was available under similar circumstances, because here the petitioner did not file coram nobis in the district court). The court in Resendiz rejected a claim that the district court should have sua sponte construed the petition as a petition for coram nobis, instead of habeas corpus: "Resendiz argues that the district court should not have construed his petition as one under § 2241, but instead should have construed it as a writ of coram nobis, even though Resendiz never asked the court to do so. Because Resendiz did not contend below that his petition should be construed as a writ of coram nobis, and because he provides no authority suggesting that the district court might have a duty to sua sponte raise the issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate court will not hear an issue raised for the first time on appeal."). In footnote 3 to this quotation, the Resendiz court stated: "Our recent decision in United States v. Kwan, No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which we held that coram nobis relief was available under similar circumstances, does not affect our decision. Unlike Kwan,

29 Resendiz did not petition the district court for the writ of coram nobis, but argued instead that the court should have so construed his habeas petition sua sponte following Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) ('We construe the intent of Congress's restoration under the Real ID Act rubric of 'constitutional claims or questions of law' to encompass the same types of issues that courts traditionally exercised in habeas review over Executive detentions'

DRAKES V ZIMINSKY (DRAKES 249) The meaning of forgery” in federal law is ambiguous. Congress has never specifically defined forgery, although it has used the term in numerous statutes outlawing various acts. In some of these statutes, Congress did not specify the requisite culpable intent. See, e.g., 18 U.S.C. § 485 (prohibiting forgery of coins or bars in denominations greater than five cents). In at least twenty other statutes, however, Congress specified that an intent to defraud is required. In four of those statutes, Congress used the term #147;forgery” together with the phrase #147;with intent to defraud,” seemingly indicating that the two need not be joined. See, e.g., 18 U.S.C. § 471 (prohibiting forgery of federal obligations ); 18 U.S.C. § 500 (prohibiting forgery of postal service money orders #147;with intent to defraud”). Thus, in Congress’ view, it may well be [*10] possible to commit #147;forgery” without #147;fraud,” or at least fraud in the ordinary sense of misrepresentation for material gain. See United States v. Cowan, 116 F.3d 1360, 1361-63 (10th Cir. 1997) (had Congress intended to make the intent to defraud an element of 18 U.S.C. § 505, it would have done so expressly).

POST CON RELIEF - GROUNDS - IAC - REMEDY Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir. Jan. 30, 2004) (UNPUBLISHED) (BIA violated due process by waiting six years, until after law had changed to respondent’s detriment, to review Immigration Judge’s originally erroneous finding that expunged misdemeanor weapons conviction constituted conviction for immigration purposes). The BIA must generally apply the law in place at the time the BIA conducts its review. Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999). However, that rule is not absolute where the error effectively denied the noncitizen a meaningful hearing under the law existing when the hearing was held. See, e.g., Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (BIA's failure to correct IJ's error was defect requiring application of law in effect at time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural defect resulting in the loss of an opportunity for statutory relief requires remand for a hearing under former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th Cir. 2000) (ineffective assistance of counsel before IJ required remand for application of law existing at the time of original hearing). Where the BIA’s failure to timely remedy an IJ's error denies respondent the benefit of the law in effect at the time of the original hearing, the only meaningful remedy is to give the respondent a hearing under the law that would have applied, had the BIA not delayed his appeal. Guadalupe-Cruz, 240 F.3d at 1212. POST CON – NEW MEXICO CASE CITATION State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's attorney has "an affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status.").

30

POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS – RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.") POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE PLEA FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel ineffective by failing to file motion in arrest of judgment to challenge guilty plea on grounds that neither written plea of guilty nor in-court colloquy informed defendant that guilty plea might affect immigration status; failure to move in arrest of judgment does not bar challenge to guilty plea if failure to file motion in arrest of judgment resulted from ineffective assistance).

Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required by Ohio Rev. Code § 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate, required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to decide the ineffective assistance claims on their merits, since ineffective assistance of counsel constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to do so."). POST CON RELIEF – GROUNDS – COUNSEL – PLEA BARGAINING IS A CRITICAL STAGE Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (negotiations with the government are a "critical stage" of a prosecution for Sixth Amendment purposes.

2. Misadvice vs. Failure to Advise
POST CON RELIEF – PLEA – NO CONTEST – MOTION TO WITHDRAW – USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil

31

immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA § 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct consequences, it cannot stand if "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business . . . . " Brady v. United States, 397 U.S. at 755 (1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsel’s failure to advise the defendant that he or she will be deported is not "ineffective assistance of counsel," and the trial court’s failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet, as the quoted passage in Brady suggests, and as the federal courts have consistently held over the last three decades, this distinction between "direct" and "collateral" consequences loses all significance when the defendant’s plea results from affirmative misadvice about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the "collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other cases demonstrate, a plea that results from actual misinformation provided to the defendant about its effects is not knowing and voluntary, and cannot be given force. Applying these principles, the federal courts have consistently voided guilty pleas entered – as this one was – on the basis of affirmative misadvice regarding considerations of consequence to the defendant. For example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea induced by material misinformation from the prosecution, court, and defense counsel was

32

involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both the government’s attorney and the district judge confirmed that defendant’s understanding. Id. at 1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397. After the receipt of the pre-sentence report, the defendant moved to withdraw his guilty plea; however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98. The Ninth Circuit determined that the defendant had been misinformed by the court, government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do not believe Toothman was ‘equipped intelligently to accept the plea offer made to him.’" Id. at 1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found that the plea was involuntary. Id. at 1401. Thanks to Don Chairez for the suggestion for this argument.

POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA WHERE DEFENDANT TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY CERTAIN TO DO SO Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting motion to vacate sentence pursuant to 28 U.S.C.§ 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences where defendant was informed only that the conviction "could result in your deportation," where it was certain to do so). POST CON – GROUNDS – INEFFECTIVE ASSISTANCE – IMMIGRATION CONSEQUENCES Rosa v. State of Texas, __ S.W.2d __ (Tex Crim. App. Aug. 25, 2005) (ineffective assistance of counsel for affirmatively misadvising noncitizen defendant of immigration consequences of conviction INEFFECTIVE ASSISTANCE OF COUNSEL -- FALURE TO ADVISE - OREGON Lyons v. Pearce, 298 Or. 554 (1985) (defense counsel has duty to advise defendant of possibility of deportation United States v. Couto, 311 F.3d 179, 187 (2nd Cir. 2002).
POST CON RELIEF - NEW YORK - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES - AFFIRMATIVE MISADVICE - DEFENDANT’S STATEMENT HE WOULD NOT HAVE PLEADED GUILTY IF CORRECTLY ADVISED SUFFICIENT TO REQUIRE A HEARING People v. McKenzie, ___ N.E.3d ___, 2004 N.Y. App. Div. LEXIS 1329 (N.Y. Feb. 9, 2004) (allegation that defendant would not have pleaded guilty if properly advised, sufficient to require hearing on claim of ineffective assistance based on affirmative misadvice concerning immigration consequences).

33

did not have a clear understanding of the likelihood that by entering into the plea bargain proposed, he would be jeopardizing his continuing ability to reside in the United States and his ability to petition for naturalization. Even if we presume that there was a deficiency in counsel’s representation, the defendant has not established the requisite prejudice. In cases in which the conviction has resulted from a guilty plea, a defendant must ‘‘demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial.’’ Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d

2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; ‘‘(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered; ‘‘(4) The plea resulted from the denial of effective assistance of counsel; ‘‘(5) There was no factual basis for the plea

The rationale underlying that precept was succinctly stated in State v. Ginebra, 511 So. 2d 960, 961–62 (Fla. 1987): ‘‘The focus of whether counsel provided constitutionally effective assistance in the context of a [guilty] plea is whether counsel provided his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution’s offer and going to trial. . Our conclusion today is in agreement with the majority of jurisdictions, both federal and state, that have considered the issue of whether the failure to advise a client of the immigration consequences of a guilty plea constitutes ineffective assistance of counsel. See id., 25; United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1869, 123 L. Ed. 2d 489 (1993); United States v. Del Rosario, 902 F.2d 55, 58–59 (D.C. Cir.), cert. denied, 498 U.S. 942, 111 S. Ct. 352, 112 L. Ed. 2d 316 (1990); Santos v. Kolb, 880 F.2d 941, 944–45 (7th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S. Ct. 873, 107 L. Ed. 2d 956 (1990); United

34

States v. George, supra, 869 F.2d 337–38; United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989); United States v. Yearwood, supra, 863 F.2d 7–8; United States v. Campbell, supra, 778 F.2d 768–69; United States v. Gavilan, 761 F.2d 226, 228–29 (5th Cir. 1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975); Government of Virgin Islands v. Pamphile, 604 F. Sup. 753, 756–57 (D.V.I. 1985); Oyekoya v. State, 558 So. 2d 990, 990–91 (Ala. Crim. App. 1989); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (1973); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245 (Ariz. App. 1995); Matos v. United States, 631 A.2d 28, 31–32 (D.C. 1993); State v. Ginebra, 511 So. 2d 960, 962 (Fla. 1987); People v. Huante, 143 Ill. 2d 61, 73–74, 571 N.E.2d 736 (1991); Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987); Daley v. State, 61 Md. App. 486, 490, 487 A.2d 320 (1985); Commonwealth v. Fraire, 55 Mass. App. 916, 917–18, 774 N.E.2d 677 (2002); Alanis v. State, 583 N.W.2d 573, 579 (Minn. 1998); State v. Chung, supra, 210 N.J. Super. 435; People v. Boodhoo, 191 App. Div. 2d 448, 449, 593 N.Y.S.2d 882 (1993); People v. Dor, 132 Misc. 2d 568, 572, 505 N.Y.S.2d 317 (1986); State v. Dalman, 520 N.W.2d 860, 863–64 (N.D. 1994); Commonwealth v. Frometa, 520 Pa. 552, 556, 555 A.2d 92 (1989); State v. Figueroa, 639 A.2d 495, 501 (R.I. 1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah App. 1994), cert. denied, 892 P.2d 13 (Utah 1995); State v. Holley, 75 Wash. App. 191, 198, 876 P.2d 973 (1994), on appeal after remand, 86 Wash. App. 1100 (1997), review denied, 133 Wash. 2d 1032, 950 P.2d 476 (1998); State v. Santos, 136 Wis. 2d 528, 532, 401 N.W.2d 856 (Wis. App. 1987
GROUNDS – INVALID PLEA – FOR UNPRESERVED RULE 11 ERRORS, DEFENDANT MUST SHOW HE WOULD NOT HAVE PLEADED GUILTY United States v. Benitez, 124 S.Ct. 2333 (June 14, 2004) (to vacate plea on grounds of F.R.Crim.P. 11 errors [as distinguished from "structural errors" or fundamental constitutional errors under Boykin v. Alabama, to vacate the plea], and no objection was raised in trial court, defendant must establish reasonable probability that but for error, he would not have pleaded guilty). http://laws.lp.findlaw.com/us/000/03167.html

35

INVOLUNTARY PLEA CLAIM BASED ON MISINFORMATION CONCERNING IMMIGRATION CONSEQUENCES NOT BARRED Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255 claim regarding the voluntariness of a guilty plea made when the petitioner was not properly informed that deportation was absolute). GUILTY PLEAS - FEDERAL - REFUSAL TO ACCEPT In re Vasquez-Ramirez, 443 F.3d 692 (9th Cir. Apr. 6, 2006) (district judge may not reject a guilty plea that satisfies all requirements of FRCP 11(b); but may refuse to abide by plea agreement between defendant and the government; if plea agreement is rejected, judge must allow defendant to withdraw the plea; if defendant maintains the plea the court "‘may dispose of the case less favorably toward the defendant than the plea agreement contemplated.’ Fed. R. Crim. P. 11(c)(5)(C) . . . .").
POST CON RELIEF – FEDERAL – GROUNDS – INVALID PLEA – PREJUDICE STANDARD SAME AS FOR IAC United States v. Monzon, 429 F.3d 1268 (9th Cir. Dec. 7, 2005) (conviction and sentence for possession of a firearm in furtherance of a drug trafficking crime reversed where the court committed plain error when it accepted guilty plea in violation of Federal Rule of Criminal Procedure 11, because court failed to establish a factual basis for believing that the defendant possessed the firearm at least partly for the purpose of protecting the drugs, where the defendant factually denied that intent during the plea colloquy, and the error affected defendant’s substantial rights, defined as a reasonable probability of a different outcome sufficient to undermine confidence in the outcome). http://caselaw.lp.findlaw.com/data2/circs/9th/0330497p.pdf

POST CON – NUNC PRO TUNC ORDERS The government will not necessarily accept nunc pro tunc orders as issued on the nunc pro tunc date. E.g., Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000) (nunc pro tunc order that granted custody to Fierro's father retroactively did not satisfy the custody requirement for automatic citizenship under 8 U.S.C. § 1432(a)); Matter of Cariaga, 15 I & N Dec. 716 (1976) (no "retroactive" adoptions for adjustment purposes). But see Allen v. Brown, 953 F. Supp. 199 (N.D. Ohio 1997) (distinguishing "retroactive" adoptions from "nunc pro tunc" adoptions). Therefore, vacating a conviction, and entering a new plea "nunc pro tunc" will not necessarily be accepted by the immigration authorities or courts as occurring on the nunc pro tunc date

MOTION TO REOPEN – AFTER REMOVAL

36

Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was ordered removed in absentia and removed from the United States. He filed a motion to reopen to rescind the in absentia order based on lack of notice. The IJ denied the motion, concluding that the immigration court lacked jurisdiction because petitioner was outside of the United States. The BIA affirmed the dismissal. The Eleventh Circuit found that petitioner’s motion was governed by 8 C.F.R. § 1003.23(b)(4)(ii), which says that a motion to reopen in absentia proceedings may be made at any time if the person shows that he or she did not receive notice. This regulation does not bar reopening when the person has been removed from the United States. The court noted that Patel v. United States AG, 334 F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the BIA’s dismissal of a motion to reopen because the person was outside of the United States. Patel, however, did not involve a motion to reopen to rescind an in absentia order. AILF Legal Action Center, Litigation Clearinghouse Litigation Clearinghouse Newsletters are posted on AILF’s web page at www.ailf.org/lac/litclearinghouse.shtml.

POST-CON – MOTION TO REOPEN – SUA SPONTE De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.”)

POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was

37

vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated). http://laws.lp.findlaw.com/1st/051895.html

POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated). http://laws.lp.findlaw.com/1st/051895.html

REMOVAL PROCEEDINGS – RES JUDICATA – INS MAY NOT REMAND TO LODGE ADDITIONAL CHARGES Johnson v. Ashcroft, __ F.3d __ (2d Cir. Aug. 5, 2004) (INA may not move to remand case to Immigration Judge in order to lodge additional grounds of removal based upon information that was available at the time of the initial proceeding). http://caselaw.lp.findlaw.com/data2/circs/2nd/032071p.pdf POST CON RELIEF – VACATUR MUST BE PRESENTED TO IMMIGRATION COURT TO BE CONSIDERED ON PETITION FOR REVIEW Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. § 1252(b)(4)(A); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th Cir. 2003) (en banc) (holding BIA violated noncitizen's right to due process, in appeal of decision granting suspension of deportation, when BIA stated it was entirely precluded from considering new evidence bearing on hardship including evidence that, in the eight years intervening between immigration judge's decision and proceedings before BIA, noncitizen's daughter had been diagnosed with serious medical condition for which treatment was likely unavailable if noncitizen was deported).

38

Ninth Circuit

POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence, for Arizona misdemeanor conviction was illegal since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, required remand to the BIA to consider the issue in the first instance; issue could not have been considered earlier, since Arizona court entered 2004 minute entry over six months after initial BIA decision in this case), citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir; 2004) (remanding to BIA to consider in first instance whether petition continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per curiam) (remanding "changed circumstances" issue to BIA for "opportunity to address the matter in the first instance).

POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes).

POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POST-CONVICTION ATTACK Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to

39

reconsider to noncitizen following physical deportation does not apply when criminal conviction that formed a “key part” of the order of removal has been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions are not legally valid, and thus do not bar motions to reopen).

Other

POST-CONVICTION RELIEF – AFTER CONVICTION VACATED New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml. MOTION TO REOPEN – 180 DAY DEALINE SUBJECT TO EQUITABLE TOLLING Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (3d Cir. March 30, 2005) (180 day time limit filing a motion to reopen removal proceeding following in order entered in absentia is in nature of statute of limitations, so as to be subject to equitable tolling) POST-CON – EFFECTIVE VACATUR – AFTER CONVICTION VACATED Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7, 2006) (petition for review of removal order based on two crimes of moral turpitude, followed by state court orders vacating the two convictions, dismissed for failure to exhaust administrative remedies where petitioner did not ask BIA to reopen case in light of the vacated convictions, but instead petitioned the district court for habeas and then the court of appeals for review). http://caselaw.lp.findlaw.com/data2/circs/7th/052697p.pdf

40

Seventh Circuit

MOTION TO REOPEN – SUA SPONTE Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need judicial permission to reopen a case sua sponte after the filing of a petition for review). http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf

10.24 2. Court of Appeals Jurisdiction to Order the Noncitizen to be Readmitted After Conviction Has Been Vacated

Ninth Circuit

MOTION TO REOPEN/RECONSIDER – AFTER DEPORTATION Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation does not apply when criminal conviction that formed a “key part” of the order of removal has been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions are not legally valid, and thus do not bar motions to reopen). DEPORTATION – COLLATERAL ATTACK – PROSECUTORIAL MISCONDUCT – FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR RELIEF – IMMIGRATION AGENCY MUST FOLLOW OWN PROCEDURES – ESTOPPEL

41

Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976) (the INS was estopped from deporting the petitioner because the INS had failed to give a warning that it was required to give by its own regulations); see Scime v. Bowen, 822 F.2d 7, 9 (2d Cir. 1987) (noting that opinion in Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied, 431 U.S. 937 (1977), confined the holding of Corniel-Rodriguez to its facts, "particularly the immigration official's failure to provide petitioner with a warning mandated by federal regulation."); but see: INS v. Miranda, 459 U.S. 14, 18-19 (1982) (unexplained delay in processing does not give rise to estoppel).

ILLEGAL REENTRY – ELEMENTS – DEPORTATION – COLLATERAL ATTACK – PROSECUTORIAL MISCONDUCT – FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR RELIEF – IMMIGRATION AGENCY MUST FOLLOW OWN PROCEDURES Matter of Garcia-Flores, 17 I. & N. Dec. 325 (BIA 1980) ("Where ‘the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures, even where the internal procedures are possibly more rigorous than otherwise would be required.’; Morton v. Ruiz, 415 U.S 199, 235 (1974)."). See also United States v. Caceres, 440 U.S. 741 (1979); Bridges v. Wixon, 326 U.S 135, 152-153 (1945).

42

Some federal courts have found "affirmative misconduct" and applied estoppel against the Government. Fano v. O'Neill, 806 F.2d 1262 (5th Cir. 1987); Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976).

1. Equitable estoppel against the government [9] The government in immigration cases may be subject to equitable estoppel if it has engaged in affirmative misconduct. See Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir. 1986) (outlining elements of equitable estoppel claim against the government); Santiago v. INS, 526 F.2d 488, 492 (9th Cir. 1975) (en banc) (holding in the immigration context that the court continues “to believe that estoppel is available in such cases where the particular facts warrant it”) (citing INS v. Hibi, 414 U.S. 5, 8 (1973)); see also Watkins v. United States Army, 875 F.2d 699, 706-711 (9th Cir. 1989) (en banc) (holding that equitable estoppel could be invoked against the government where the Army affirmatively misrepresented to defendant over a 14-year period that he was qualified for reenlistment despite an ongoing policy that homosexuality constituted a nonwaivable disqualification for reenlistment); Fano v. O’Neill, 806 F.2d 1262, 1265-66 (5th Cir. 1987) (holding that petitioner had adequately stated a claim against the government for affirmative misconduct where he alleged the INS “willfully, wantonly, recklessly, and negligently” delayed in processing his application, suggesting selective treatment). Cf. Miranda v. INS, 459 U.S. 14, 19 (1982) (declining to estop the INS from denying permanent resident status to petitioner who lost his eligibility because of the INS’s delay, concluding that “[p]roof only that the Government failed to process promptly an application falls far short of establishing” affirmative misconduct). The person seeking estoppel against the government also must show that the potential injustice to him outweighs the possibility of damage to the public interest, and must establish the traditional elements for estoppel. See Watkins, 875 F.2d at 707 [10] We conclude that the government should be estopped from relying on Salgado-Diaz’s attempted re-entry to remove him, essentially for the same reasons — and to the same extent — that we have found his due process rights have been violated. That is, if petitioner can, in the evidentiary hearing to which we hold he is entitled, prove that the INS deprived him of his right to have his immigration status determined in the pending deportation proceeding, the government cannot

43

rely on the post-expulsion events its own misconduct set in motion. Adding to our assessment of the equities are the INS’s representations to this court and petitioner that he would have the opportunity to litigate his claims at an evidentiary hearing and, if successful, seek suspension of deportation relief. [11] We also conclude that estoppel against the government here would not “unduly damage the public interest.” Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982) (holding that defendant who was mistakenly granted parole by the govern- ment but had reintegrated into the community was unlikely to threaten the public interest). In this instance, petitioner already met the criteria for eligibility for suspension of deportation at the time of his expulsion to Mexico. The public interest would not be burdened by allowing Salgado-Diaz to have his claim properly considered as if the events arising out of the government’s actions had not occurred. 2. Traditional elements of equitable estoppel [12] Salgado-Diaz also must satisfy the traditional elements of equitable estoppel, which require a showing that (1) the party to be estopped knows the facts; (2) the party intends that his or her conduct will be acted on; (3) the claimant must be ignorant of the true facts; (4) and the claimant must detrimentally rely on the other party’s conduct. See Johnson, 682 F.2d at 872 (holding elements met where the Parole Commission deliberately released defendant, even though he was ineligible for parole). [13] These four elements are satisfied here, assuming Salgado-Diaz’s allegations prove to be true. First, the border agents knew that Salgado-Diaz already was in immigration proceedings at the time he was stopped in San Diego and that he had an upcoming deportation hearing. They also should have known they were violating the Constitution by detaining petitioner solely on the basis of his Hispanic appearance. Gonzalez-Rivera, 22 F.3d at 1450 (“The fact that INS officers receive extensive training in Fourth Amendment law . . . also supports the inference that when an INS officer makes a stop based solely on race, he or she has deliberately violated the law or has acted in conscious disregard of the Constitution.”) (emphasis added). The INS, knowing Salgado’s claims about his San Diego arrest and expulsion and the circumstances of his reentry, further told this court on the first appeal — nearly three years after having instituted removal proceedings — that petitioner would have the opportunity “to litigate his claims regarding the legality of his departure . . . .”
1280 SALGADO-DIAZ v. ASHCROFT

Second, assuming petitioner’s claims to be true, the border agents intended the consequences of their actions — they physically removed Salgado-Diaz from San Diego to Mexico, essentially deporting him without a proceeding. For its part,

44

the INS plainly intended that this court and petitioner would act in accordance with the representations it made that Salgado-Diaz would receive a hearing. Third, Salgado-Diaz did not understand the basis for the border patrol agents stopping or arresting him. He also alleges he did not understand the significance of the documents he was induced to sign, namely that they would lead to his deportation rather than the INS tracking down his pending immigration hearing status. According to Salgado-Diaz, he did attempt to explain he was in proceedings but was arrested and expelled anyway. As for the purported evidentiary hearing, neither this court nor petitioner expected that fact-finding opportunity to be illusory. Finally, the fourth element is met here, where the INS agents’ conduct severely disadvantaged Salgado-Diaz by expelling him to Mexico. The act of taking him out of the country had the effect of changing his immigration status. See Heckler v. Cmty. Health Serv., 467 U.S. 51, 61 (1984) (analyzing detrimental reliance by examining “the manner in which reliance on the government’s misconduct has caused the private citizen to change his position for the worse”). Had he not attempted to return to the United States so he could appear at his pending immigration hearing, he may have lost his chance to assert his eligibility for relief from deportation. Further, petitioner detrimentally relied on assertions by the INS that he should and would receive a hearing on his claims. Our own disposition in the first appeal expressly relied on those assertions.7
7

Given the INS’s representations in the first appeal and our disposition

[14] Given the government’s role in bringing about petitioner’s circumstance — if the petitioner proves the alleged affirmative misconduct — the equities strongly weigh in favor of estopping the government from seeking removal based on petitioner’s reentry. If his story does not hold up, of course, then the basis for his challenge to the 2001 removal order collapses 2. Prejudice [6] Salgado-Diaz must also establish prejudice by showing his rights were violated “in a manner so as potentially to affect the outcome of the proceedings.” Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999) (internal quotations and citations omitted). Clearly, Salgado-Diaz’s arrest and expulsion had a prejudicial impact on his underlying immigration proceedings. The agents’ conduct ultimately prevented him from seeking the type of relief from deportation for which he was eligible before his arrest and expulsion. Had

45

petitioner been given an evidentiary hearing, he might have established that the INS border agents’ conduct was indeed unconstitutional either under the Fourth Amendment or as a matter of due process.

A. Due Process Violation [1] Immigration proceedings, although not subject to the full range of constitutional protections, must conform to the Fifth Amendment’s requirement of due process. United States v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir. 1985). Salgado-Diaz can establish a due process violation by showing that he was denied “a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf.” Colmenar, 210 F.3d at 971 (holding that petitioner’s due process rights were violated when the IJ prevented a full examination of petitioner during hearing); see CastilloVillagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992) (holding that the BIA’s failure to provide petitioners an opportunity to rebut noticed facts violated due process).

In the case of an alien who is convicted of an offense which makes the alien subject to

deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of the conviction.” 8 U.S.C. § 1252(i) (1988)

In considering Petitioner’s laches claim, it is important to make clear what Petitioner is

not arguing. He is not, for example, asserting that the government’s conduct in this case rose to the level of a due process violation. Cf. Singh v. Reno, 182 F.3d 504, 507 (7th Cir. 1999) (finding that an alien had stated a substantial due process claim where the INS filed an Order to Show Cause in 1992, but then “drag[ged] its feet,” despite the alien’s pleas for a hearing, until it finally held a hearing in late 1996, after the AEDPA had abrogated his right to seek 212(c) deportable crime, because, in the INS’s estimation, the alien would be a very strong candidate for 212(c) relief. Cf. Matter of Gordon, 17 I. & N. Dec. 389, 392 (BIA 1980) (noting that an

46

INS District Director “has every right, in fact, a duty, to exercise his prosecutive judgment whether or not to institute a deportation proceeding against an alien . . . . If, in screening the file of, and possibly after consultation with, such an alien, it appears to him that a deportation proceeding would surely result in a grant of section 212(c) relief . . . it would be pointless to institute an expensive, vexatious, and needless deportation proceeding.”). Such an alien might reasonably rely on the INS’s inaction and decide on that basis to make important commitments to his residency in the United States (such as by marrying, establishing a business, and losing ties with his home country) only later to find that, after Congress had eliminated 212(c) relief, the INS seeks to deport him. Under these circumstances—and where Congress’s intent as to the retroactivity of the elimination of 212(c) relief is unclear—an alien might argue with some force that he has demonstrated the kind of reasonable reliance and settled expectations under Landgraf, 511 U.S. at 270, that would render the elimination of 212(c) relief impermissibly retroactive if applied to him. Unlike a laches defenses, this retroactivity argument—which is not before us and as to the validity of which we therefore express no opinion focuses on the reasonableness of a In contrast with the various decisions on laches, it seems settled that the government may, in the appropriate circumstances, be equitably estopped in the immigration context. See, e.g., Rojas-Reyes v. INS, 235 F.3d 115, 126 (2d Cir. 2000); Drozd v. INS, 155 F.3d 81, 90 (2d Cir. 1998); Corniel-Rodriguez v. INS, 532 F.2d 301, 307 (2d Cir. 1976) alien’s reliance on the continued availability of 212(c) relief. As a result, the diligence of the 1 INS’s conduct is not particularly relevant to it. Diligence is, by contrast, crucial to the defense of laches. A party claiming this defense must establish two elements: 1) a lack of diligence by the party against whom the defense is asserted, and 2) prejudice to the party asserting the defense. Costello, 365 U.S. at 282.

47

Petitioner cannot establish either element. We find no lack of diligence in the INS’s decision to institute deportation proceedings three years before the expiration of Petitioner’s twenty-year minimum sentence. If the INS had instituted deportation proceedings immediately after Petitioner’s 1982 murder conviction, or at any time until shortly before the expiration of his minimum term, it might well have been a colossal waste of time. Any number of events might make his later deportation unnecessary or inappropriate. For example, Petitioner might not survive until the end of his long prison term. Conditions in the country to which he would be deported might preclude his immediate deportation upon release, see 8 C.F.R. § 208.17(a) (providing for deferral of removal under the Convention Against Torture, where it is more likely than not that the alien will be tortured if deported), thus making the INS’s resources better used elsewhere. And, the law with respect to deportation of aliens like Petitioner might change so as to make deportation impossible or unlikely. See generally Cheryl Shanks, Immigration and the Politics of American Sovereignty, 1890-1990 (2001) (documenting cycles in immigration policy over the last century). For these and other similar reasons, delay in a case like the one before us, far from indicating a lack of diligence, suggests common sense on the part of the INS. Moreover, it is highly unlikely that Petitioner would have received 212(c) relief, given

United States v. Scott, 394 F.3d 111 (2d Cir. January 11, 2005) (district court erred in denying motion to dismiss indictment on ground that underlying deportation order was invalid because defendant had been prejudiced during deportation proceeding by his counsel's ineffective assistance in failing to move for waiver of deportation under INA § 212(c); entry of underlying deportation order was "fundamentally unfair" within meaning of 8 U.S.C. § 1326(d))
By analogy to the duties of a prosecutor in a criminal case, the TA has a duty of fairness, not deportation. It is in the government's interest that a noncitizen who is eligible for relief and deserving of relief receive relief from deportation. See Berger v. United States, 295 U.S. 78, 88 (1935); ABA Standards Relating to the Prosecution Function.

48

POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence, for Arizona misdemeanor conviction was illegal since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, required remand to the BIA to consider the issue in the first instance; issue could not have been considered earlier, since Arizona court entered 2004 minute entry over six months after initial BIA decision in this case), citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir; 2004) (remanding to BIA to consider in first instance whether petition continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per curiam) (remanding "changed circumstances" issue to BIA for "opportunity to address the matter in the first instance). POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes). Ninth Circuit § 10.24 2. Court of Appeals Jurisdiction to Order the Noncitizen to be Readmitted After Conviction Has Been Vacated MOTION TO REOPEN/RECONSIDER – AFTER DEPORTATION Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation does not apply when criminal conviction that formed a “key part” of the order of removal has been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions are not legally valid, and thus do not bar motions to reopen) 1. The BIA Has Jurisdiction to Reopen Proceedings After Deportation if the Conviction Has Been Vacated POST-CON – EFFECTIVE VACATUR – AFTER CONVICTION VACATED

49

Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7, 2006) (petition for review of removal order based on two crimes of moral turpitude, followed by state court orders vacating the two convictions, dismissed for failure to exhaust administrative remedies where petitioner did not ask BIA to reopen case in light of the vacated convictions, but instead petitioned the district court for habeas and then the court of appeals for review). http://caselaw.lp.findlaw.com/data2/circs/7th/052697p.pdf

2. After the Immigration Judge Issues a Removal Order.

Third Circuit

MOTION TO REOPEN – 180 DAY DEALINE SUBJECT TO EQUITABLE TOLLING Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (3d Cir. March 30, 2005) (180 day time limit filing a motion to reopen removal proceeding following in order entered in absentia is in nature of statute of limitations, so as to be subject to equitable tolling).

VACATE ILLEGAL DEPORTATION ORDER Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of noncitizen while appeal of district court dismissal of habeas petition was pending in court of appeal did not deprive district court of habeas jurisdiction on remand, and case was not moot, but district court lacked authority to grant any relief beyond vacating defective deportation order).
In civil suits a litigant must advance all available evidence and legal arguments relating to a claim or controversy in the context of a single proceeding. Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997). This is because “res judicata bars [future litigation of] all claims that could have been advanced in support of a previously adjudicated cause of action.” Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989). And it is no answer to a claim of res judicata, as distinguished from a claim of collateral estoppel, that no decision was reached previously on the newly-asserted claims. See Leather v. Ten Eyck, 180 F.3d 420, 426 (2d Cir. 1999); see also Corpus Juris Secundum Judgments §§ 758, 803. Applied

50

strictly to immigration proceedings, this would seem to suggest that the government should lodge all known grounds for removal in support of its removability charges, or face the prospect of a future bar. Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir. 2004), that an alien’s removal from the United States does not moot a habeas challenge to the underlying order of removal Johnson v. Ashcroft, 286 F.3d 696, 700 & n.4 (3d Cir. 2002) (citing authorities in support of the proposition that the BIA must be reversed where it ignores its established holdings).

As the Supreme Court declared in Woodby, the ties that legal residents develop to the American communities in which they live and work, should not be lightly severed: This Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.” GamerosHernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)); see also 8 U.S.C. § 1229a(c)(3)(A). “Although we review for reasonable, substantial, and probative evidence in the record as a whole,” we affirm only if “the [agency] has successfully carried this heavy burden of clear, unequivocal, and convincing evidence.” Cortez-Acosta v. INS, 234 F.3d 476, 481 (9th Cir. 2000) (per curiam) (internal citations and quotation marks omitted); see also Nakamoto v. Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004) (explaining that the court must determine “whether substantial evidence supports a finding by clear and convincing evidence”). “Where, as here, the BIA conducts a de novo review and issues its own decision, rather than adopting the IJ’s decision as its own, we review the BIA’s decision.” Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir RES JUD : The United States Supreme Court has defined the doctrine of collateral estoppel as providing that “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153 (1979). The Court has applied the doctrine of collateral estoppel in the context of “an administrative agency…acting in a judicial capacity” as well. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966). Accordingly, circuit courts have given preclusive effect to determinations made by immigration judges in immigration hearings. See Medina v. INS, 993 F.2d 499, 504 (5th Cir. 1993) (concluding that a prior determination that petitioner was a citizen precluded subsequent

51

deportation proceedings, even where the first decision was based on an erroneous factual finding and understanding of the law); Ramon-Sepulveda v. INS, 824 F.2d 749, 750-51 (9th Cir. 1987) (holding that the INS was precluded from seeking deportation of petitioner when it failed to prove that he was an alien in a prior hearing). The fundamental purpose underlying the doctrine is “that one full opportunity to litigate an issue is sufficient.” Hammer, 195 F.3d at 840 “Laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Id. at 282. Dang has not shown a lack of diligence on the part of the government See Hughes v. Santa Fe Int'l Corp., 847 F.2d 239, 241 (5th Cir. 1988) (consent judgments ordinarily do not give rise to collateral estoppel because no issues are actually litigated, consent judgments are only given preclusive effect if the parties manifest such an intention); Restatement of Judgments (Second) When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo. 1994
MOTION TO REOPEN – SUA SPONTE Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need judicial permission to reopen a case sua sponte after the filing of a petition for review). http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf

POST CON RELIEF – VACATING GREATER OFFENSE DOES NOT PRECLUDE RETRIAL ON GREATER OFFENSE EVEN THOUGH CONVICTION ON LESSER INCLUDED OFFENSE IS FINAL United States v. Jose, ___ F.3d ___ (9th Cir. October 19, 2005) (reversal of a conviction on a greater offense, coupled with a final conviction on a lesser included offense, does not preclude retrial of the greater offense when the offenses were charged in the same indictment and tried together in the same original trial). http://caselaw.lp.findlaw.com/data2/circs/9th/0410202p.pdf

POST CON RELIEF – AFTER VACATUR, CRIMINAL COURT CAN RESENTENCE ON REMAINING COUNTS United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of conviction, the trial court has jurisdiction to resentence the defendant on all remaining

52

counts of conviction). Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997); United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v. United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States v. Morris, 116 F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997).

POST CON RELIEF – AFTER VACATUR, DISMISSED COUNTS ARE REINSTATED Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed counts are not reinstated since defendant did not breach plea agreement), with United States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (No. 97-5066) (dismissed counts are reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section 2255 petition, the defendant may be placed in exactly the same position in which he would have been had there been no error in the first instance."), quoting United States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir. 2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006) V. Reopening Removal Proceedings
MOTION TO REOPEN – AFTER REMOVAL Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was ordered removed in absentia and removed from the United States. He filed a motion to reopen to rescind the in absentia order based on lack of notice. The IJ denied the motion, concluding that the immigration court lacked jurisdiction because petitioner was outside of the United States. The BIA affirmed the dismissal. The Eleventh Circuit found that petitioner’s motion was governed by 8 C.F.R. § 1003.23(b)(4)(ii), which says that a motion to reopen in absentia proceedings may be made at any time if the person shows that he or she did not receive notice. This regulation does not bar reopening when the person has been removed from the United States. The court noted that Patel v. United States AG, 334 F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the BIA’s dismissal of a motion to reopen because the person was outside of the United States. Patel, however, did not involve a motion to reopen to rescind an in absentia order.

53

POST-CON – MOTION TO REOPEN – SUA SPONTE De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.”) 4th Amnd. The stop constituted an egregious violation of his Fourth Amendment rights because race was

the motivating factor. According to Hernandez, the other reasons given by the agents to justify the stop were insufficient to establish reasonable suspicion under the law.

Abandonment
Alaka claims that the conclusion that she abandoned her permanent legal resident status is based on legal error, and the Government argues it is a factual question that we do not have jurisdiction to review. In this particular context, we agree with the Government. The basic test for evaluating whether a lawful permanent resident has abandoned that status by virtue of traveling abroad is “whether [the petitioner’s] extended trips outside the United States]constitute ‘temporary visits abroad.’” Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); see also Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003); Ahmed v.Ashcroft, 286 F.3d 611, 612-13 (2d Cir. 2002). A trip is “temporary” if it is (1) “relatively short,” or (2) if not short, the petitioner had “a continuous, uninterrupted intention to return to the United States during the entirety of his visit.” Singh, 113 F.3d at 1514 (internal quotation marks and citations omitted). As to intent, “[t]he issue is not whether the petitioner had the intent to return ultimately, but the intent to return to the United States within a relatively short period.” Id. APPEAL: We review the decision of the IJ, see Soadjede v. Ashcroft , 324 F.3d 830, 832 (5th Cir. 2003), and will reverse only if the decision is

54

not supported by substantial evidence. See Moin v. Ashcroft , 335 F.3d 415, 418 (5th Cir. 2003). Moin v. Ashcroft , 335 F.3d 415, 417 (5th Cir. 2003). “[T]his Court must affirm the decision if there is no error of law and if reasonable, substantial, and probative evidence on the record, considered as a whole, supports the decision’s factual findings.” Id. Under this standard, “the alien must show that the evidence is so compelling that no reasonable factfinder could conclude against it.” Chun v. INS , 40 F.3d 76, 78 (5th Cir. 1994 EAJA: Anselmo, 20 I&N Dec. 25 (1989) Board must follow circuit court precedent in cases arising in the circuit Abdulai v. INS, 239 F.3d 542 (3d Cir. 2001) - generally cited Alternatively, he argues that the statute violates the substantive and due process provisions of the Fifth Amendment of the United States Constitution. Under the immigration laws, exhaustion of administrative remedies is statutorily required only on appeals of final orders of removal. 8 U.S.C. § 1252(d)(1). Exhaustion is not required when a petitioner challenges decisions concerning bond. Further guidance is found in the case law considering whether the IIRIRA retroactively eliminated 212(c) discretionary relief.4 “‘Several courts have concluded that ‘the operative event for determining whether . . . IIRIRA amendments should apply is the actual commission of the crime for which the petitioners now face deportation.’” Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286 295 (E.D. N.Y. 2000) (quoting Dunbar v. INS, 64 F. Supp. 2d 47, 54 (D. Conn.1999)); see also Maria v. McElroy, 68 F. Supp. 2d 206 (E.D. N.Y. 1999).

The Supreme Court has set forth the basic framework for addressing whether a statute has retroactive application: When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions alreadycompleted. If the statute would operate retroactively, our traditional presumption teaches that it does not governabsent clear congressional intent favoring such a result.

55
Matter of Abosi, 24 I&N Dec. 204, Int. Dec. No. 3568 (BIA 2007)

Matter of Abosi, 24 I&N Dec. 204, Int. Dec. No. 3568 (BIA 2007), June 19, 2007: "A returning lawful permanent resident seeking to overcome a ground of inadmissibility is not required to apply for adjustment of status in conjunction with a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000)."

There are two waivers available under INA §212(h)(1). A waiver is available under INA §212(h)(1)(A) if the immigrant

establishes that:
the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a visa, entry or adjustment of status (unless the alien is excludable for prostitution under INA §212(a)(2)(D)(i) or INA §212(a)(2)(D)(ii), in which case the 15 year time period is not required),

1. 2.

the admission to the United States of such alien would not be contrary to the national welfare, safety or security of the United States, and the alien has been rehabilitated.

FALSE PERSONATION FALSE STATEMENT FALSE STATEMENT FALSE STATEMENT FALSE STATEMENT FALSE STATEMENT FALSE STATEMENT

See IMPERSONATION See also FRAUD Calvo-Ahumada v. Rinaldi, 435 F.2d 544 (3d Cir. 1970) 18 U.S.C. § 1546 MT

Matter of Acosta, 14 I. & 18 U.S.C. § 922(a)(6) N. Dec. 338, 1973 WL 29443 (BIA 1973) Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962) Matter of N & B, 2 I. & N. Dec. 206, 1944 WL 5182 (BIA 1944) Matter of B, 1 I. & N. Dec. 121, 1941 WL 7927 (BIA, AG 1941) 18 U.S.C. § 911

MT

18 U.S.C. § 80M, now 18 NMT U.S.C. § 1001 18 U.S.C. § 231 NMT

NMT

FALSE White v. INS, 6 F.3d STATEMENT— 1312 (8th Cir. 1993) CLAIM TO UNITED STATES

MT

56

CITIZENSHIP FALSE Matter of I, 4 I. & N. STATEMENT— Dec 159 (BIA 1950) CLAIM TO UNITED STATES CITIZENSHIP FALSE Matter of K, 3 I. & N. STATEMENT— Dec. 69, 71 (BIA 1947) CLAIM TO UNITED STATES CITIZENSHIP FALSE STATEMENT— CONSPIRACY TO MAKE FALSE STATEMENTS FALSE STATEMENT— DMV APPLICATION 18 U.S.C. § 911; 8 U.S.C. NMT § 746(18)

18 U.S.C. § 911

NMT

Matter of S, 2 I. & N. 18 U. S. C § 80 Dec. 225, 1944 WL 5185 (BIA 1944)

MT

Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993)

Mich. Comp. Laws Ann. § 257.324(1)(e)

MT

FALSE Matter of G, 8 I. & N. STATEMENT— Dec. 315, 1959 WL MATERIALITY 11574 (BIA 1959) NOT AN ELEMENT FALSE STATEMENT— PASSPORT APPLICATION FALSE STATEMENT— PASSPORT APPLICATION Matter of Correa-Garces, 20 I. & N. Dec. 451 (BIA 1992) Matter of B, 7 I. & N. Dec. 342, 1956 WL 10292 (BIA 1956)

18 U.S.C. § 1001

NMT

MT

18 U.S.C. § 1542

MT

FALSE Kabongo v. INS, 837 STATEMENT—TO F.2d 753, 758 (6th Cir. FEDERAL 1988) OFFICER FALSE Matter of Marchena, 12 STATEMENT—TO I. & N. Dec. 355, 1967 FEDERAL WL 14033 (BIA 1967) OFFICER

18 U.S.C. § 1001

MT

18 U.S.C. § 1001

NMT

FALSE Matter of Espinosa, 10 I. 18 U.S.C. § 1001 STATEMENT—TO & N. Dec. 98, 1962 WL FEDERAL 12937 (BIA 1962)

NMT

57

OFFICER FALSE STATEMENT TO GOVERNMENT AGENT Matter of JuradoPennsylvania MT Delgado, 24 I. & N. Dec. Consoldated Statutes Title 29 (BIA Sept. 28, 2006) 18 § 4904(a) MT

FALSE Matter of BM, 6 I. & N. 18 U.S.C. § 1001 STATEMENT—TO Dec. 806, 1955 WL 8757 UNITED STATES (BIA 1955) OFFICIAL FALSE Matter of P, 6 I. & N. 18 U.S.C. § 1001 STATEMENT—TO Dec. 193, 1954 WL 7841 UNITED STATES (BIA 1954) OFFICIAL FALSE Matter of IL, 7 I. & N. 18 U.S.C. § 1001 STATEMENT—TO Dec. 233, 234, 1956 WL UNITED STATES 10262 (BIA 1956) OFFICIAL

MT

MT

FALSE Matter of Di Filippo, 10 Unemployment Insurance NMT STATEMENT— I. & N. Dec. 76, 1962 Act of Canada § 106 A(a) UNEMPLOYMENT WL 12907 (BIA 1962) FRAUD

FORGERY

Matter of Jensen, 10 Canadian Crim. Code I. & N. Dec. 747, 1964 §§ 309(1) and 311 WL 12130 (BIA 1964)

MT

LOG OUT

FORGERY

Matter of M, 9 I. & N. Italian Crim. Code §§ MT Dec. 132, 1960 WL 275, 278, and 284 and 12076 (BIA 1960) Crim. Code of 1930 §§ 476 and 482 Matter of SC, 3 I. & N. Guanajuato, Mexico Dec. 350, 1948 WL Pen. Code article 203 6283 (BIA 1948) MT

FORGERY

FORGERY— See also FRAUD—DOCUMENT FRAUD—PASSPORT APPLICATION FOR FRAUD; FALSE STATEMENT—PASSPORT APPLICATION

58

PASSPORT FORGERY— Matter of MYC, 3 I. & APPLICATION FOR N. Dec. 76, 1947 WL PASSPORT 7055 (BIA 1947) FORGERY— Matter of LR, 7 I. & N. Texas Pen. Code §§ ATTEMPT TO PASS Dec. 318, 1956 WL 979, 996 FORGED 10286 (BIA 1956) INSTRUMENT FORGERY— Matter of Jimenez, 14 POSSESSION OF I. & N. Dec. 442, 1973 FORGERY DEVICES WL 29475 (BIA 1973) WITH INTENT TO COMMIT FORGERY FORGERY— PRESCRIPTION DRUGS FORGERY— UTTERING FORGED UNITED STATES OBLIGATIONS FRAUD NMT

MT

MT

Matter of O’B, 6 I. & Cal. Health and Safety MT N. Dec. 280, 1954 WL Code § 11715 7865 (BIA 1954) U.S. ex rel. Giglio v. 18 U.S.C. §§ 88, 265 Neelly, 208 F.2d 337, 338 (7th Cir. 1954) MT

See also BAD CHECKS; CREDIT CARD OFFENSES; FALSE STATEMENT; TAX OFFENSES Palmer v. INS, 4 F.3d 482 (7th Cir. 1993) Matter of Adetiba, 20 18 U.S.C. § 1341 I. & N. 506 (BIA 1992) Matter of Martinez, 16 I. & N. Dec. 336, 1977 WL 39288 (BIA 1977) 18 U.S.C. § 473 MT

FRAUD

FRAUD

MT

FRAUD

MT

59

FRAUD

Matter of Delagadillo, Chihuahua Code of NMT 15 I. & N. Dec. 395, Social Defense Article 1975 WL 31528 (BIA 367 1975) Matter of Katsanis, 14 I. & N. Dec. 266, 1973 WL 29429 (BIA 1973) Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951) Greek Pen. Code of 1950 Article 386 (Fraud) MT

FRAUD

FRAUD

18 U.S.C. § 88 (now 18 MT U.S.C. § 371), 26 U.S.C. §§ 1155(f), 1440, 1441 (now 26 U.S.C. §§ 2806(f), 3320, 3321) MT

FRAUD— ATTEMPTED

Chanan Din Khan v. Barber, 253 F.2d 547 (9th Cir. 1958) Matter of B, 1 I. & N. German Reich Crim. Dec. 47, 1941 WL Code § 263 7911 (BIA, AG 1941) Matter of Robinson, 16 I. & N. Dec. 762, 1979 WL 44445 (BIA 1979) 18 U.S.C. § 657

FRAUD— ATTEMPTED

NMT

FRAUD—BANK — MISAPPLICATION OF BANK FUNDS FRAUD—CHECK FRAUD

MT

Matter of B, 4 I. & N. Ind. Stats. § 10-2105 Dec. 297, 1951 WL 7003 (BIA 1951)

MT

FRAUD— CONSPIRACY TO DEFRAUD

Matter of P, 3 I. & N. Canadian Crim. Code § MT Dec. 56, 1947 WL 444 7051 (BIA 1947) MT

FRAUD— Matter of G, 7 I. & N. 18 U.S.C. § 88 CONSPIRACY TO Dec. 114, 1956 WL DEFRAUD UNITED

60

STATES FRAUD— CONSPIRACY TO AVOID TAXES FRAUD— CONSPIRACY —INTENT TO DEFRAUD FRAUD—CREDIT CARD

10234 (BIA 1956) Matter of M, 8 I. & N. 18 U.S.C. § 88 (now 18 MT Dec. 535, 1960 WL U.S.C. § 371) 12115 (BIA 1960) Matter of Flores, 17 I. & N. Dec. 225, 1980 WL 121870 (BIA 1980) Matter of Chouinard, Mich. Ann. Stats. § 11 I. & N. Dec. 839, 28.416(1) 1966 WL 14376 (BIA 1966) MT

MT

FRAUD—CREDIT Balogun v. Ashcroft, Ala. Crim. Code § 13A- MT CARD FRAUD AND 270 F.3d 274 (5th Cir. 9-14 FORGERY 2001) FRAUD— White v. INS, 92 F.3d CRIMINAL FRAUD 1195 (Table) (9th Cir. 1996) (unpublished) FRAUD— DOCUMENT FRAUD— CONSPIRACY TO USE FALSE INS DOCUMENTS FRAUD— DOCUMENT FRAUD—FALSE ALIEN REGISTRATION STATEMENT FRAUD— DOCUMENT FRAUD—FALSE Omagah v. Ashcroft, 18 U.S.C. § 371 288 F.3d 254 (5th Cir. April 22, 2002) MT

MT

Matter of C, 1 I. & N. Alien Registration Act NMT Dec. 14 (AG 1941) of 1940

Beltran-Tirado v. INS, 18 U.S.C. § 1546(b)(3) NMT 213 F.3d 1179 (9th

61

EMPLOYMENT DOCUMENT

Cir. 2000)

FRAUD— Matter of Adetiba, 20 42 U.S.C. § 408 DOCUMENT I. & N. Dec. 506 (BIA FRAUD—FALSE 1992) REPRESENTATION OF SOCIAL SECURITY NUMBER, USE OF FRAUD— DOCUMENT FRAUD—FALSE SOCIAL SECURITY NUMBER Beltran-Tirado v. INS, 42 U.S.C. § 213 F.3d 1179 (9th 408(a)(7)(B) Cir. 2000)

MT

NMT

FRAUD— Matter of A, 4 I. & N. Philippine Islands of DOCUMENT Dec. 378, 1951 WL 1911 Pen. Code FRAUD— 7021 (BIA 1951) articles 301 and 300 FALSIFICATION OF COMMERCIAL DOCUMENT FRAUD— DOCUMENT FRAUD— IDENTIFICATION DOCUMENT FRAUD FRAUD— DOCUMENT FRAUD— PASSPORT FRAUD— DOCUMENT FRAUD— PASSPORT

MT

Stevenson v. INS, 246 18 U.S.C. § 1028(a)(2) MT F.3d 676 (Table) (9th Cir. 2000) (unpublished)

See also FALSE STATEMENT—PASSPORT; FORGERY OF APPLICATION FOR PASSPORT

Matter of H, 3 I. & N. 18 U.S.C. § 80 Dec. 236, 1948 WL 6263 (BIA 1948)

MT

62

FRAUD— DOCUMENT FRAUD— PASSPORT—FALSE STATEMENT IN PASSPORT APPLICATION FRAUD— DOCUMENT FRAUD— PASSPORT—USE OF ANOTHER’S PASSPORT FRAUD— DOCUMENT FRAUD— POSSESSION OF FALSE DRIVER’S LICENSE FRAUD— DOCUMENT FRAUD— POSSESSION OF FRAUDULENT IMMIGRATION DOCUMENTS FRAUD— DOCUMENT FRAUD— POSSESSION OF IMPLEMENTS WITH INTENT TO PRODUCE FALSE DOCUMENTS FRAUD— DOCUMENT

Bisaillon v. Hogan, 18 U.S.C. § 1542 257 F.2d 435 (9th Cir. 1958), cert. denied, 358 U.S. 872 (1958)

MT

Matter of G, 1 I. & N. Dec. 73 (BIA 1941)

MT

Montero-Ubri v. INS, Mass. Gen. Laws, c. 90 NMT 229 F.3d 319 (1st Cir. § 24B 2000)

Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992)

NMT

Babafunmi v. United 18 U.S.C. § 1028(a)(5) MT States, 210 F.3d 360 (Table) (4th Cir. 2000)

Matter of Flores, 17 I. 18 U.S.C. § 1426(b) & N. Dec. 225, 1980

MT

63

FRAUD—SALE OF FALSE ALIEN REGISTRATION DOCUMENTS FRAUD— DOCUMENT FRAUD—USE OF FALSE DRIVER’S LICENSE FRAUD—FALSE PRETENSES

WL 121870 (BIA 1980)

Montero-Ubri v. INS, Mass. Gen. Laws, Ch. 229 F.3d 319 (1st Cir. 90, § 24B 2000)

MT

Squires v. INS, 689 F.2d 1276, 1278 n.5 (6th Cir. 1982) Ramirez v. INS, 413 F2d 405 (D.C. Cir.), cert. den., 396 U.S. 929 (1969)

Canadian Crim. Code § MT 319(1)

FRAUD—FALSE PRETENSES

Canadian Crim. Code § MT 451; 22 D.C. Code § 1301

FRAUD—FALSE PRETENSES WITH INTENT TO DEFRAUD

Matter of P, 3 I. & N. Canadian Crim. Code § MT Dec. 56, 1947 WL 573 7051 (BIA 1947)

FRAUD—FOOD Abdelqadar v. 720 ILCS 5/17B-5 STAMPS—ILLEGAL Gonzalez, PURCHASE ___F.3d___, 2005 WL 1540245 (7th Cir. July 1, 2005) FRAUD— Matter of Marino, 15 Italian Pen. Code Art. FRAUDULENT I. & N. Dec. 284, 1975 642 DESTRUCTION OF WL 31498 (BIA 1975) OWN PROPERTY FRAUD— IMMIGRATION —ASSISTING ALIEN FALSELY TO OBTAIN United States ex rel. Popoff v. Reimer, 79 F.2d 513 (2d Cir. 1935)

MT

MT

MT

64

NATURALIZATION FRAUD— Amouzadeh v. 18 U.S.C. § 1425(a) IMMIGRATION— Winfrey, ___ F.3d NATURALIZATION ___,2006 WL 2831020 (5th Cir. Oct. 5, 2006) FRAUD—MAIL Matter of Alarcon, 20 18 U.S.C. § 1341 I. & N. 557 (BIA 1992) Nason v. INS, 394 F.2d 223 (2d Cir. 1968) 18 U.S.C. § 1341 MT

MT

FRAUD—MAIL

MT

FRAUD—SALE OF MISLABELLED OLEO WITH INTENT TO DEFRAUD FRAUD— SECURITIES

Matter of P, 6 I. & N. 21 U.S.C. §§ 331, 333 Dec. 795, 1955 WL (b) 8755 (BIA 1955)

MT

Matter of Canadian Crim. Code, MT McNaughton, 16 I. & § 338(2); 15 U.S.C. §§ N. Dec. 569, 1978 WL 77q(a), 78j(b) 36469 (BIA 1978) MT

FRAUD— McNaughten v. INS, SECURITIES 612 F.2d 457 (9th Cir. —CONSPIRACY TO 1980) AFFECT STOCK PRICE BY FRAUD FRAUD— SECURITIES —POSSESSION OF COUNTERFEIT SECURITIES FRAUD— SECURITIES — Matter of Lethbridge, 18 U.S.C. § 474 11 I. & N. Dec. 444, 445, 1965 WL 12321 (BIA 1965)

NMT

Matter of Acosta, 14 18 U.S.C. § 2314 I. & N. Dec. 338, 1973

MT

65

TRANSPORTATION WL 29443 (BIA 1973) OF FORGED SECURITY FRAUD—STUDENT Izedonmwen v. INS, LOAN 37 F.3d 416 (8th Cir. 1994) Higher Education Act of 1965, § 490(a), 20 U.S.C. § 1097(a) MT

FRAUD—STUDENT Kabongo v. INS, 837 20 U.S.C. § 1097(a) LOAN F.2d 753, 758 n.8 (6th Cir. 1988) FRAUD— SWINDLING

MT

Matter of M, 9 I. & N. Italian Crim. Code of MT Dec. 132, 1960 WL 1889 § 413 and Italian 12076 (BIA 1960) Crim. Code of 1930 § 640 Matter of Afzal, A73- 18 U.S.C. § 2701(a)(1) NMT 042-981 (BIA 2000) (unpublished) MT

FRAUD— TELEPHONE

FRAUD— Matter of DG, 6 I. & Ariz. Employment UNEMPLOYMENT N. Dec. 488, 1955 WL Security Act of 1941 8686 (BIA 1955)

FRAUD— Matter of D, 2 I. & N. Canadian MT UNEMPLOYMENT Dec. 836, 1947 WL Unemployment 7030 (BIA 1947) Insurance Act of 1945 § 67 FRAUD— Matter of LT, 5 I. & N. Cal. Unemployment MT UNEMPLOYMENT Dec. 705, 1954 WL Insurance Act § 101(a) INSURANCE 7953 (BIA 1954) FRAUD—WELFARE Flores v. INS, 66 F.3d 1069 (9th Cir. 1995), opinion withdrawn, 73 F.3d 258 (9th Cir. 1996) MT

66

FRAUD—WELFARE Miller v. United States INS, 762 F.2d 21 (3d

MT

C. 8 U.S.C. 1252(g) Does Not Bar Jurisdiction The Defendants also argue that Section 1252(g) precludes jurisdiction. While Defendants are correct in that Section 1252(g) does remove certain matters from the ambit of judicial review, the section is only applicable in three narrow instances. The matter before the Court does not fit within one of the three instances, Section 1252(g) does not bar jurisdiction. Defendants rely on Gomez-Chavez v. Perryman, 308 F.3d 796 (7th Cir. 2002) in arguing that Section 1252(g) precludes jurisdiction. In Gomez-Chavez, the Seventh Circuit affirmed the decision of the district court, finding that 8 U.S.C. § 1252(g) bars a plaintiff from obtaining an order commanding the INS to adjust his status. Significantly, as Defendants mention, the Seventh Circuit noted that Section 1252(g) applies not only to affirmative actions, but to refusals to act as well. Thus, "an alien attempting to achieve judicial [*12] review of such discretionary measures may not avoid the § 1252(g) bar by...recharacterizing a claim as one challenging a refusal to act." Id. at 800. However, Section 1252(g) only applies to situations "arising from all past, pending, or future exclusion, deportation, or removal proceedings." Reno v.American-Arab AntiDiscrimination Committee, 525 U.S.471, 943 (1999). Thus, although the language of Section 1252(g) which states "...no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General...to adjudicate cases..." appears broad, this is not the case. "Instead this section is to be read narrowly and precisely." Sabhari v. Reno, 197 F.3d 938, 942 (8th Cir. 1999). Section 1252(g) cannot be used to bar jurisdiction because Plaintiffs' adjustment of status application has nothing to do with the deportation process [*1] Appeal from a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) granting a writ of habeas corpus to the petitioner, who had been ordered deported on the basis of a drug conviction and a conviction for attempted weapons possession. The District Court held (i) that petitioner is entitled to pursue § 212(c) relief from deportation because the Immigration and Nationality Technical Corrections Act of 1994 ("INTCA") § 203(c), Pub. L. No. 103-416, 108 Stat. 4305, 4311 (Oct. 25, 1994), codified at 8 U.S.C. §§ 1182, 1251 (1994), does not operate retroactively to bar such relief, and (ii) that the Immigration Judge at petitioner's immigration hearing did not err by failing to recognize that a combined form of § 212(c) relief from deportation and § 245(a) adjustment of

67

status known as "Gabryelsky relief" was available. We hold (i) that relief from deportation under § 212(c) is foreclosed by retroactive application of the INTCA, and (ii) that petitioner should be afforded the opportunity to pursue Gabryelsky relief because the Immigration Judge erred by failing to recognize that such relief was possible. Accordingly, [*2] we grant the writ of habeas corpus and remand to the District Court with instructions to permit the petitioner to pursue Gabryelsky relief before an Immigration Judge. Drax v. Ashcroft, 178 F. Supp. 2d 296, 2001 U.S. Dist. LEXIS 18855 (E.D.N.Y., 2001). DISPOSITION: Affirmed on alternative grounds.

Natz Appl The District Court had jurisdiction under 8 U.S.C. § 1421(c) and 28 U.S.C. § 1331. This Court has jurisdiction of the appeal under 28 U.S.C. § 1291. The scope of our review of a grant of summary judgment is plenary. Fed. Home Loan Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003). Defendants contend that we lack jurisdiction to decide this appeal, inasmuch as the case has been mooted by the naturalization of the named plaintiffs, none of whom are alleging past or present injury from the INS's purported illegal action. Plaintiffs offer a number of arguments in response, some of which seek to preserve jurisdiction so that Plaintiffs can pursue class certification. Because there is no evidence that the INS ever granted Avendano's application as required by 8 U.S.C. § 1446(d) or that Avendano took an oath of allegiance in a public ceremony as required by 8 U.S.C. § 1448, he does not qualify as a naturalized citizen.

Section 1429 of Title 8 did not divest the district court of its jurisdiction. Jurisdiction stripping statutes are interpreted narrowly. Bellajaro asked the district court to grant his application for naturalization on the merits, or alternatively, to declare that he is eligible to naturalize but for the pendency of removal proceedings. Title 8 U.S.C. § 1252(g) provides that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." That provision does not bar the injunction proceeding here, however, because the gravamen of Hovsepian's claim does not arise from

68

the Attorney General's decision or action [*26] to commence proceedings, adjudicate cases, or execute removal orders. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482, 142 L. Ed. 2d 940, 119 S. Ct. 936 (1999), the Supreme Court emphasized that the provision applies only to the discrete listed actions. As the Court noted, "Section 1252(g) was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion." Id. at 485 n.9. In other contexts, we have followed the Court's instruction to interpret § 1252(g) narrowly. See, e.g., Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir. 2001) (holding that § 1252(g) did not bar issuance of a preliminary injunction restricting the implementation of a directive that had halted the grant of suspensions of deportation); Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1149-50 (9th Cir. 2000) (en banc) (rejecting claim that statute deprived the district court of jurisdiction to enter a preliminary injunction); Barapind v. Reno, 225 F.3d 1100, 1109-10 (9th Cir. 2000) (holding that statute does not preclude jurisdiction over habeas petition for stay of asylum [*27] proceedings). Most recently, we held that the consideration of a purely legal question, which does not challenge the Attorney General's discretionary authority, supports jurisdiction. Ali v. Ashcroft, 346 F.3d 873, 878-79 (9th Cir. 2003). Although that holding arose in the context of a habeas petition, while this one does not, the same principle applies here. The district court may consider a purely legal question that does not challenge the Attorney General's discretionary authority, even if the answer to that legal question -- a description of the relevant law -forms the backdrop against which the Attorney General later will exercise discretionary authority. Cf. Spencer Enters., Inc. v. United States, 345 F.3d 683, 689-90 (9th Cir. 2003) (holding that the jurisdictional bar in § 1252(a)(2)(B)(ii) applies only to acts over which a statute gives the Attorney General pure discretion unguided by legal standards or statutory guidelines). adequate opportunity to cross-examine some of the INS's witnesses. Whether a district court possesses the authority to issue an injunction is a question of law that we review de novo. Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 874 (9th Cir. 1999

Section 1252(g) gives the Attorney General exclusive jurisdiction to decide whether to commence deportation proceedings. Reno v. Arab-American AntiDiscrimination Comm., 525 U.S. 471, 482, 142 L. Ed. 2d 940, 119 S. Ct. 936 (1999); Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir. 2001). It states, "No court shall have jurisdiction to hear any … claim … by any alien arising from the decision or action by the Attorney General to commence

69

proceedings, adjudicate cases, or execute removal orders …." § 1252(g). n8 The statute's purpose is "to limit any judicial influence on the Attorney General's decisions regarding the commencement of removal proceedings." Chapinski v. Ziglar, 278 F.3d 718, 720 (7th Cir. 2002); see also AADC, 525 U.S. at 485 (discussing congressional intent in passing § 1252(g)). In Reno v. American-Arab Anti-Discrimination Commission, 525 U.S. 471, 119 S. Ct. 936, 142 L. Ed. 2d 940 (1999), the Supreme Court explained that § 1252(g) was not a general bar, but rather limited judicial review only to a narrow class of discretionary executive decrees, decisions or actions to commence proceedings, adjudicate cases, or execute removal orders. See id. 119 S. Ct. at 943. [*10] 6For this reason, and because they say that habeas [*17] review, if still available after IIRIRA, n7 will come too late to remedy this First Amendment injury, respondents contend that we must construe § 1252(g) not to bar constitutional claims.)
See also Magana-Pizano v. INS, 152 F.3d 1213, 1220 (CA9 1998) (elimination of habeas unconstitutional); Ramallo v. Reno, 325 U.S. App. D.C. 2, 114 F.3d 1210, 1214 (CADC 1997) ( § 1252(g) removes statutory habeas but leaves "constitutional" habeas

05-3384 2 circ colaianni v. INS
The IJ 19 stated that he did not have authority to decide Colaianni’s citizenship claim and was bound by the INS’s determination that Colaianni was not a citizen. Because the BIA affirmed the decision of the IJ without issuing an opinion, we review the IJ’s decision directly. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). An alien must exhaust all available administrative remedies before this Court may review a final order of removal. 8 U.S.C. § 1252(d)(1). However, “a party cannot be required to exhaust a procedure from which there is no possibility of receiving any type of relief.” Theodoropoulos v. INS, 358 17 F.3d 162, 173 (2d Cir. 2004), cert. denied, 543 U.S. 823 (2004). This Court has subject matter jurisdiction over Colaianni’s substantive equal protection claim because the BIA lacked the 19 authority to adjudicate it. See United States v. Gonzales-Roque, 301 F.3d 39, 48 (2d Cir. 2002) (explaining that “constitutional claims lie outside the BIA’s jurisdiction”) jurisdiction over Colaianni’s claim that he is a United States citizen. See 8 U.S.C. § 2 1252(b)(5)(A) (“If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim.” (emphasis 5 added)).

70

Forteau v. Attny Gen 3rd circ 07 BIA abused rules We have previously held that § 1252(a)(2)(B)(I) only deprives courts of jurisdiction to review the BIA’s exercise of discretion regarding its decision to deny cancellation of removal. Menendez-Morachel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.2003)(holding that courts lack jurisdiction to review the BIA’s determination that an alien failed to satisfy the “exceptional and extremely unusual hardship” requirement for cancellation of removal because the hardship determination is discretionary.) This Court retains jurisdiction to review non-discretionary aspects relating to a decision denying cancellation of removal. Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir. 2005)(reviewing whether voluntary departure constitutes a break in continual physical presence making petitioner ineligible for cancellation of removal). Further, under the Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, our jurisdiction has beenexpanded to consider “constitutional claims or questions of law raised upon a petition for review” notwithstanding the jurisdictional limitations of § 1252(a)(2)(B). 8 U.S.C.§ 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 35758 (3d Cir.2005). Thus,we have jurisdiction to review any issues of law relating to the non-discretionary aspects of the BIA’s decision.
The IJ’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

The doctrine of constitutional doubt does not require that §1252(g) be interpreted in such fashion as to permit immediate review of respondents’ selective-enforcement claims. An alien unlawfully in this country has no constitutional right to assert such a claim as a defense against his deportation
AADC

71

7. The court of appeals affirmed both the jurisdictional and merits

rulings of the district court. Pet. App. 1a-21a (AADC III). a. The court held that IIRIRA did not bar the district court from exercising jurisdiction over respondents' claims. It agreed with the government that the new Section 1252(g) applied to the instant case. Pet. App. 7a-8a. The court stated, however, that IIRIRA "would present serious constitutional problems" if it were construed to divest the court of jurisdiction over respondents' suit. Id. at 12a. It explained that the availability of other avenues of review was uncertain (see id. at 12a-15a), and specifically held that transfer to a district court under 28 U.S.C. 2347(b)(3) for resolution of factual issues would not be available in a deportation case. Pet. App. 12a14a. The court also stated that in any event "prompt judicial review of [respondents'] claims was required because violation of [respondents'] First Amendment interests would amount to irreparable injury

Dismissal deprived pet of a judicial forum for his claims
Generally, a crime involves “moral turpitude” if it is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.” Matter of Olquin, 23 I&N Dec. 896, 896 (BIA 2006) (citing Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001)). In determining whether a crime is one involving moral turpitude, we must look to the elements of the statute. See Matter of Torres-Varela, supra, at 84-85. Our determination is necessarily driven “‘by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction.’” Id. at 84 (quoting McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)). If necessary, we also seek guidance from court decisions in the convicting jurisdiction. See Matter of Sanudo, 23 I&N Dec. 968, 970-71 (BIA 2006). Neither the seriousness of a criminal offense, nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude. Matter of Serna, 20 I&N Dec. 579, 581 (BIA 1992). Although as a general rule, a simple assault and battery offense does not involve moral turpitude, an aggravating factor can alter our determination. See, e.g., Yousefi v. U.S. INS, 260 F.3d 318, 326-27 (4th Cir. 2001); Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996); Matter of Danesh, 19 I&N Dec.

72

669 (BIA 1988). Assault and battery offenses requiring the “intentional infliction of serious bodily injury on another have been held to involve moral turpitude because such intentionally injurious conduct reflects a level of immorality that is greater than that associated with a simple offensive touching.” Matter of Sanudo, supra, at 971.

73

The record of conviction in this case, which includes a certified copy of the warrant of arrest, the plea, and the judgment, does not offer any specific facts regarding the conviction. Consulting the conviction documents could therefore provide no information that would lead us to conclude that the respondent was convicted under elements of the Virginia statute that would constitute a crime involving moral turpitude. For this reason, we need not decide whether the statute is divisible or whether we should employ the modified categorical approach, because the result would be the same. See Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999); Matter of Short, 20 I&N Dec. 136, 137-38 (BIA 1989).

The specific provision under which an alien was convicted may or may not be discernible from the record. See Matter of Torres-Varela, supra, at 84-85 (stating that a determination whether a violation of a particular statute is a crime involving moral turpitude requires an objective analysis of the elements necessary to secure a conviction under that statute). In such cases, the conviction will be found to be for a crime involving moral turpitude only if the full range of the conduct prohibited in the statute supports such a finding. See Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses both acts that do and do not involve moral turpitude, a deportability finding based on that statute cannot be sustained. In previous cases we have held that neither the offender’s state of mind nor the resulting level of harm, alone, is determinative of moral turpitude. For example, in Matter of Sanudo, supra, at 972-73, we found that the alien’s California domestic battery offense was not a crime involving moral turpitude because, despite the intent element of the offense, a conviction required only

Crimes committed intentionally or knowingly have historically been found to involve moral turpitude. See Michel v. INS, 206 F.3d 253, 263 (2d Cir.

74

2000); Matter of Perez-Contreras, supra. Moral turpitude may also inhere in criminally reckless conduct, i.e., conduct that reflects a conscious disregard for a substantial and unjustifiable risk. See, e.g., Matter of Franklin, 20 I&N Dec. 867 (BIA 1994) (involuntary manslaughter); Matter of Wojtkow, 18 I&N Dec. 111 (BIA 1981) (second-degree manslaughter); Matter of Medina, 15 I&N Dec. 611 (BIA 1976) (aggravated assault). Fraud is categorized as a crime involving moral turpitude, as are certain other offenses involving acts of baseness and depravity, even though they have no element of fraud or, in some cases, no explicit element of evil intent. See Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA 2001) (noting that such crimes include murder, rape, statutory rape, robbery, kidnaping, voluntary manslaughter, some involuntary manslaughter offenses, mayhem, theft offenses, spousal abuse, child abuse. The specific provision under which an alien was convicted may or may not be discernible from the record. See Matter of Torres-Varela, supra, at 84-85 (stating that a determination whether a violation of a particular statute is a crime involving moral turpitude requires an objective analysis of the elements necessary to secure a conviction under that statute). In such cases, the conviction will be found to be for a crime involving moral turpitude only if the full range of the conduct prohibited in the statute supports such a finding. See Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses both acts that do and do not involve moral turpitude, a deportability finding based on that statute cannot be sustained).
CA2 Expands on "Question of Law" Under INA §242(a)(2)(D) http://www.aila.org/content/default.aspx?docid=23000 The court held that for purposes of jurisdiction under INA §242(a)(2)(D), a "question of law" includes a claim that the IJ applied an erroneous legal standard in making a discretionary determination, as well as a claim that the IJ based his decision on an unambiguous misstatement of pertinent facts in the record. (Khan v. Gonzales

“In due process challenges, there must be a showing of prejudice.” Colindres-Aguilar v. INS, 819 F.2d 259, 261-62 (9th Cir. 1987) (citing Mosseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986) and United States v. NicholasArmenta, 763 F.2d 1089 (9th Cir. 1985)). To establish prejudice, Hernandez-Gil must show that the denial of his right to counsel “potentially [affected] the outcome of the proceedings.” Baltazar-Alcazar, 386 F.3d at 947 (quoting Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000) (alteration in original)
Second Circuit on Stay of Voluntary Departure

"We hold that we have the authority under 28 U.S.C. § 2349(b), as incorporated by reference in 8 U.S.C. § 1252(a)(1), to stay an agency order pending our consideration of a petition for review on the merits, and that nothing in the Immigration and Nationality Act or its implementing regulations strips us of this authority with respect to orders of voluntary departure.We also hold that a BIA order granting voluntary departure with an alternate order of removal is a final order of removal subject to judicial review under 8

75
U.S.C. § 1252. Because, under the customary framework for a stay, the balance of hardships tips decidedly in Thapa's favor, a stay of his voluntary departure order is warranted here." Thapa v. Gonzales, Aug. 16, 2006. CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A Person Is Removed William v. Gonzales (4th Cir. Sept. 6, 2007) Holding: The regulation barring motions to reopen filed after a person departs or is removed, 8 C.F.R. § 1003.2(d), is invalid because it conflicts with the motion to reopen statute. The Board of Immigration Appeals has jurisdiction to adjudicate a motion to reopen filed post-departure

The doctrine of equitable estoppel applies against the government only if it engages in affirmative misconduct going beyond mere negligence. [7] Neither the failure to inform an individual of his or her legal rights, nor the negligent provision of misinformation constitutes affirmative misconduct. In any event, estoppel against the government is unavailable when petitioners have not lost any rights to which they were entitled. The district court also had jurisdiction over the Sulits'equitable estoppel claim under 28 U.S.C. S 2241.2 Section 2241 makes habeas review available to petitioners who are in custody only "in violation of the Constitution or laws or treaties of the United States." Because "the INS is the agency primarily charged by Congress to implement the public policy underlying" the immigration laws, see INS v. Miranda, 459 U.S. 14, 19 (1982), and equitable estoppel is an element of federal common law, see Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812, 821 (9th Cir. 1992), the Sulits' equitable estoppel claim is based on a violation of the "laws" of the United States. See Johnson v. Williford , 682 F.2d 868,871 (9th Cir. 1982) (federal prisoners filing S 2255 habeas petitions may obtain relief under the doctrine of equitable estoppel); see also Weaver v. Maass , 53 F.3d 956, 961 (9th Cir. 1995) (relief under doctrine of equitable estoppel not _______________________________________________________ __________ 2 The Sulits offer a litany of provisions based on

76

which the district court could have exercised its jurisdiction: 28 U.S.C.SS 1131, 1331, 1343, and 2241; 8 U.S.C. SS 1105a and 1329; and the Administrative Procedure Act ("APA"), 5 U.S.C. S 701 et seq. Because we find that we may assert juris-diction pursuant to S 2241, we do not address the numerous other jurisdictional theories asserted. However, we note that 8 U.S.C. S 1329, as amended by IIRIRA, no longer provides the district court with jurisdiction to consider the Sulits' equitable estoppel claim. Cf. Baria v. Reno, 94 F.3d 1335, 1339 (9th Cir. 1996); Jaa v. INS, 779 F.2d 569 (9th Cir. 1986). As amended by IIRIRA, section 1329 only allows the district courts to exercise jurisdiction over all civil actions brought by the United States that arise under the provisions of subchapter 12 of the INA. See IIRIRA S 381(b) (providing that amendment to S 1329 "shall apply to actions filed after the date of the enactment of this Act [Sept. 30, 1996]"). However, nothing in the language of S 1329 forecloses the operation of other jurisdictional mechanisms such as S 2241. See Sabhari v. Reno, 197 F.3d 938,941-42 (8th Cir. 1999). available to state prisoners filing federal habeas petitions);O'Bremski v. Maass, 915 F.2d 418, 423 (9th Cir. 1990). III [4] The Sulits maintain that the INS violated their due process rights by seizing their "green cards" without providing a rescission hearing pursuant to 8 U.S.C. S 1256 and issuing a warrant of deportation despite their adjustment of status.3 "It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 306 (1993). The INS failed to properly notify the Sulits of its intent to rescind their adjustment of status, see 8 U.S.C. S 1256, or to conduct a hearing as required by

77

the INS regulations, see 8 C.F.R. S 246.1, prior to seizing their "green cards." The INS therefore clearly failed to follow its own procedural rules to the extent that it sought to "seize"the Sulits' green cards.
Aliens who obtain adjusted status have a legitimate expectation that their immigration will be permanent. In Fulgencio v. INS, 573 F.2d 596, 598 (9th Cir. 1978) They should not remain constantly at risk for deportation because of preconceived intent, a discretionary factor considered during the adjustment proceeding. http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0256.resp.html

The Third Circuit concluded in Bamidele v. INS, 99 F.3d 557 (1996), that the INS was barred from initiating deportation proceedings against an alien after the lapse of Section 246(a)'s five-year limitations period where the grounds for deporting the alien relate solely to the erroneous grant of an adjustment of status.
As an initial matter, the question of the applicability of the five-year limitations period for rescissions in Section 246(a) to the context of removal proceedings has not recurred with frequency. The issue arises only where: (i) there has been an erroneous adjustment of status, (ii) the sole grounds for removal relate to the erroneous adjustment of status, and (iii) the removal is sought beyond the five-year limitations period for rescinding the adjustment of status. The issue has been squarely implicated in four courts of appeals' opinions -the decision below, the Third Circuit's decision in Bamidele, and the Ninth Circuit's decisions in Monet, 791 F.2d at 754, and Biggs v. INS, 55 F.3d 1398, 1401 & n.3 (1995). In the government's experience, the issue has not arisen with frequency in administrative proceedings. Two reported administrative rulings squarely raise the issue. See In re S-, 9 I. & N. Dec. at 548; In re Belenzo, 17 I & N. Dec. at 374. the INS was required (until the IIRIRA's amendments to Section 246(a) became effective in 1997, see pp. 11-12, infra) to rescind the alien's status before commencing deportation proceedings. See Choe v. INS, 11 F.3d 925, 928-929 n.4 (9th Cir. 1993); In re Saunders, 16 I. & N. Dec. 326 (BIA 1977).
Can the denial of eligibility for discretionary relief at the removal/deportation hearing amount to a denial of due process? Yes, but several Circuits have inexplicably held otherwise. Compare United States v. Perez, 330 F.3d 97, 104 (2d Cir. 2003) (immigration hearing was fundamentally unfair where counsel ineffective assistance was responsible for alien's failure to apply for discretionary

78

relief); United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001) ("[f]ailure to ... inform the alien [of eligbility for discretionary relief] is a denial of due process that invalidates the underlying deportation proceeding") with United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004) (en banc) (holding The line of cases represented by Aguirre-Tello is fundamentally flawed: it is inconsistent with both United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), and United States v. Mendoza-Lopez, 481 U.S. 828 (1987). The premise underlying Aguirre-Tello is that there is no right to discretionary relief. See 353 F.3d at 1205. Aguirre-Tello overlooks the fact that aliens who are eligible for relief have an enforceable right to be considered for that relief: they can compel the Attorney General to exercise his discretion. See Accardi, 347 U.S. at 268. Accord Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003) (holding an alien’s right to seek discretionary adjustment of status is a "vested" right). See also Jideonwo v. INS, 224 F.3d 692, 696-97 (7th Cir. 2000) (retroactive denial of a vested right to the exercise of discretion “is a cognizable claim under the Due Process Clause”). More fundamentally, Mendoza-Lopez affirmed the dismissal of the indictment because the denial of access to discretionary relief resulted in “a complete deprivation of judicial review” of the hearing. Id. at 840; accord id. at 842. Aguirre-Tello and Mendoza-Lopez cannot be reconciled. See United States v. Lepore, __ F. Supp.2d __, 2004 WL 292483, *12-13 (D. Mass. Feb. 12, 2004) (agreeing Ag tello is incosistentv with Mendoza) - See United States v.
Arrieta, 224 F.3d 1076, 1080 (9th 2000) 212 h undocumented.

The Immigration Judge's factual findings serve both as a basis and a boundary for our scope of review. See 8 C.F.R. § 1003. I(d)(3)(i) (2006) (requiring the Board not to engage in de novo review of facts determined by an immigration Judge, but to review whether the findings of an Immigration Judge are "clearly erroneous."). Thus, while our review of the final judgment of an Immigration Judge is under a de novo standard, the degree to which we may disturb an Immigration Judge's decision is affected where an Immigration Judge's factual findings are not "clearly erroneous." If an Immigration Judge has come to factual conclusions which, on the face of the record, are not clearly erroneous, those factual conclusions serve as a boundary under which we operate in our capacity as an appellate reviewing body. Thus, a trier's findings of fact establish a foundation under which we then review legal conclusions at de novo standard. This principle is illustrated in the instant case I do not find clear error with the Immigration Judge's findings that the respondents' visit would be considered a temporary visit abroad and that respondent did not intend to abandon her status as a legal perma anent resident. Patricia A.

returning lawful permanent resident immigrant is charged with inadmissibility based on a criminal conviction prior to April 1, 1997 (IIRIRA general effective date), the person may be able to argue that he or she is not subject to inadmissibility review based on the law in effect prior to IIRIRA. Cf. Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004).

79

Lewis v. Commonwealth
93-CA"000941-MR, 5/6/94 The defendant was charged and convicted of two counts of fraudulent use of a credit card in violation of KRS 434.650 as a result of purchasing tennis shoes from the shoe department and clothes from the men’s department at J. C. Penney’s with an allegedly stolen credit card. Prior to trial and at the close of all the evidence, the defendant argued he could only be charged with one count of fraudulent use of a credit card because KRS434.650 and KRS 434.690 consolidate all fraudulent credit card transactions which occur during a six month period into one offense. The circuit court disagreed. The Count of Appeals agreed with the defendant that the terms of the abovementioned statutes "prohibit and punish a course of conduct over a six-month period, rather than individual acts." After examining the statutes and case law from other states with similar statutes, the Court of Appeals held the defendant "was incorrectly indicted and convicted of two felony counts of fraudulently using a credit card and should have been convicted of[only one count." The defendant’s conviction for the second count of fraudulent use of a credit card was reversed and the case was remanded for resentencing.

INADMISSIBILITY BASED UPON AN ADMISSION – ADMISSIONS INSUFFICIENT PRE1990 Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (government failed to show noncitizen deportable for being inadmissible at entry or adjustment, under INA § 237(a)(1)(A), on the basis that he admitted commission of a controlled substances offense, under current INA § 212(a)(2)(A)(i)(II), since this ground of inadmissibility was not triggered by an admission of commission of the offense until IMMACT 1990, effective November 29, 1990, and noncitizen adjusted status prior to that date).
ADMISSION – LPR SEEKING ADMISSION – BURDEN OF PROOF Sandoval-Loffredo v. Gonzales, ___ F.3d ___ (8th Cir. July 13, 2005) (petitioner claimed that DHS must show, by clear and convincing evidence that returning lawful permanent falls within exception to INA § 101(a)(13)(C); court found that IJ had put burden on DHS in finding petitioner had engaged in alien smuggling, and denied review; court refused to decide whether IJ was correct in placing burden on DHS). http://caselaw.lp.findlaw.com/data2/circs/8th/041977p.pdf

ADMISSIBILITY – RETURNING LAWFUL PERMANENT RESIDENT – RETROACTIVITY – IIRAIRA DEFINITION OF "SEEKING ADMISSION" DOES NOT APPLY RETROACTIVELY TO GUILTY PLEA PREDATING APRIL 1, 1997 Camins v. Gonzales, ___ F.3d ___, 2007 WL 2421466 (9th Cir. Aug. 28, 2007) (Fleuti [Rosenberg v. Fleuti, 374 U.S. 449 (1963)] doctrine, holding noncitizen is not subject to grounds of inadmissibility on return from a trip abroad that is "innocent, casual, and brief" continues to apply where conviction resulted from plea entered prior to April 1, 1997, despite new INA § 101(a)(13)(C)(v), as amended by IIRAIRA § 301(a)(13): "We hold that IIRIRA § 301(a)(13) did abrogate the old INA § 101(a)(13) and the Fleuti doctrine, but that the new law cannot be applied retroactively to LPRs who acted in reasonable reliance on the old law prior to IIRIRA’s effective date."), following INS v St. Cyr, 533 U.S. 289 (2001).

80 ADMISSIBILITY – ARRIVING ALIEN – BURDEN OF PROOF – BURDEN ON GOVERNMENT WHERE APPLICANT HAS COLORABLE CLAIM TO LPR STATUS Matter of Huang, 19 I. & N. Dec. 749, 754 (BIA 1988) ("While the burden of proving admissibility is generally on the applicant in exclusion proceedings, see section 291 of the Act, 8 U.S.C. § 1361 (1982), where an applicant for admission has a colorable claim to returning resident status, the burden is on the Service to show that the applicant should be deprived of his or her status as a lawful permanent resident. Matter of Salazar, 17 I & N Dec. 167 (BIA 1979); Matter of Kane, [15 I & N Dec 258 (BIA 1975)]").

INADMISSIBILITY – RETURNING LPR – BURDEN OF PROOF ON GOVERNMENT WHERE APPLICANT FOR ADMISSION HAS COLORABLE CLAIM TO LPR STATUS An exception to the noncitizen bearing the burden of proof in inadmissibility proceedings occurs when the applicant for admission has a colorable claim to status as a returning lawful permanent resident. In that case, the burden of proof to establish excludability is on the INS. Matter of Kane, 15 I. & N. Dec. 258 (BIA 1975). The government's burden is then to show by clear and convincing evidence that the applicant should be deprived of lawful permanent resident status. See Matter of Huang, 19 I. & N. Dec. 749 (BIA 1988). See also, Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. Aug. 30, 2004) ARRIVING ALIEN – NOT DEPORTABLE = UNSTATED EXCEPTION TO "SEEKING ADMISSION STATUTE" Where LPR who is not deportable briefly leaves the United States, it would arguably violate Substantive Due Process and Equal Protection to consider him or her an arriving alien, and thus inadmissible, and the court must seek a construction of INA § 101(a)(13)(C)(v) which avoids these constitutional problems. Note that INA § 101(a)(13)(C)(v) contains no exceptions for people granted waivers under INA §§ 212(c), 212(i), or former suspension of deportation under § 244. This strengthens the argument that this provision is not all-inclusive, and that another exception is someone who was not removable when s/he left the country. An equal protection claim may be brought to challenge the distinction between LPRs, who committed offenses falling under INA § 212(a)(2) but not under INA § 237(a)(2), who made brief, innocent departures, and those who, on the other hand, committed such offenses, but never departed (or who did depart, but were not stopped at the border upon their return).

The Supreme Court on several occasions has noted the longstanding principle that ambiguities in deportation laws should be construed in favor of the alien. See, e.g., INS v. St. Cyr, 533 U.S. 289, 320 (2001); INS v.Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
DEPORTATION – ADVERSE INFERENCE FROM ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION An immigration court can draw an adverse inference from a noncitizen's assertion of the Fifth Amendment privilege against self-incrimination. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923); United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997). However, where government offers no evidence except respondent's silence, it is insufficient to meet its burden of

81

proof by clear, unequivocal and convincing evidence, and the burden does not shift to respondent. Matter of Guevara, 20 I. & N. Dec. 238 (BIA 1991).

First Circuit
MOTION TO REOPEN – VOLUNTARY DEPARTURE NOT STAYED Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007) (BIA grant of a timely motion to reopen did not vacate the original IJ’s decision finding removability and granting voluntary departure, and did not stay the voluntary departure period, even though it is highly unlike that BIA would reach decision on merits of motion to reopen before voluntary departure period expires; “We read §§ 1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of voluntary departure available only to aliens who agree to give up the fight and leave the country willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006). POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD LEFT THE UNITED STATES Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. § 1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.”) did not invalidate the regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”). POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL PROCEEDINGS Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005). POST-CON – MOTION TO REOPEN – SUA SPONTE De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.”)

82 POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated). http://laws.lp.findlaw.com/1st/051895.html POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated). http://laws.lp.findlaw.com/1st/051895.html NOTE: Under the particular facts of this case, it appears that the deportation order may not have actually been final (see dissent). However, assuming (as the majority did), that the deportation order was final and therefore the holding of the case does not apply outside the context of late motions to reopen/reconsider will limit the reach of this otherwise unfortunate decision.

Second Circuit
BOARD OF IMMIGRATION APPEALS – MOTION TO RECONSIDER – DEFINITION AND STANDARD Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has defined a motion to reconsider as ‘"a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked."’ In re Cerna, 20 I. & N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations establish that a motion to reconsider must specify errors of fact or law in the BIA decision and be supported by relevant authority.") citing 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

Seventh Circuit
MOTION TO REOPEN – SUA SPONTE Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need judicial permission to reopen a case sua sponte after the filing of a petition for review). http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf

Eighth Circuit
MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL PROCEEDINGS Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by granting DHS motion to reopen pursuant to 8 C.F.R. § 1003.23(b)(3) because DHS failed to establish that the evidence submitted

83 with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to the conclusion of removal proceedings).

Ninth Circuit
POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence, for Arizona misdemeanor conviction was illegal since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, required remand to the BIA to consider the issue in the first instance; issue could not have been considered earlier, since Arizona court entered 2004 minute entry over six months after initial BIA decision in this case), citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir; 2004) (remanding to BIA to consider in first instance whether petition continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per curiam) (remanding "changed circumstances" issue to BIA for "opportunity to address the matter in the first instance). POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes). POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POST-CONVICTION ATTACK Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation does not apply when criminal conviction that formed a “key part” of the order of removal has been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and EstradaRosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions are not legally valid, and thus do not bar motions to reopen).

BIA
MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion. The Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings;

84 where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).

Other
POST-CONVICTION RELIEF – AFTER CONVICTION VACATED New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml. REMOVAL – RETURN OF THE WRONGFULLY REMOVED One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal" under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks to Beryl B. Farris, Atlanta.

JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION DOCTRINE – FAILURE TO EXHAUST IS EXCUSED IF RESPONDENT CAN SHOW MISCARRIAGE OF JUSTICE, SUCH AS WHERE CONVICTION ON WHICH DEPORTATION IS BASED DOES NOT CONSTITUTE AN AGGRAVATED FELONY Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (court of appeal can reach claim that controlled substances conviction does not constitute an aggravated felony, under Lopez, even though respondent failed to exhaust before the IJ or BIA because the law was clear against him, under the miscarriage of justice exception to the exhaustion doctrine of 8 U.S.C. § 1252(d)(1)), following Marrero Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004); see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001) (habeas petitioner's failure to exhaust may be excused “when administrative remedies are inadequate” but not where administrative procedures exist to reopen petitioner's case) (internal quotation marks omitted); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (“Even where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction, carved out exceptions.”); Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999) (finding that an exception exists to address “certain constitutional due process claims”).

85

JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may not take administrative notice of facts without affording other party to rebut the inferences drawn from those facts).

INADMISSIBILITY – TIME OF EVALUATION – CRIME OF MORAL TURPITUDE – PETTY OFFENSE EXCEPTION – TIME OF DECISION Admissibility is normally evaluated under the law at the time of the application to enter or adjust status, but if the law has changed between the date of application, and the date of decision, the decision maker will apply law as it exists at the time of the decision. See, e.g., Matter of Alarcon, 20 I. & N. Dec. 557 (BIA 1992) (BIA assesses application for INA § 212(h) waiver of inadmissibility under law at time of decision, not the statute as it existed when the application for the waiver was made); Matter of Alarcon, 20 I. & N. 557 (BIA 1991) (amended statute governs waiver application first filed under earlier version of INA § 212(h)); Matter of Kazemi, 19 I. & N. Dec. 49 (BIA 1984) (intervening regulatory change regarding jurisdiction to review INA § 212(d)(4) waiver application overrides prior BIA precedent to the contrary); Squires v. INS, 689 F.2d 1276, 1280 (6th Cir. 1982) (noncitizen no longer eligible for petty offense exception to inadmissibility, since Canadian Parliament increased maximum punishment for the offense to more than one year); Matter of Farias. Int. Dec. 3269 (BIA 1996) (evaluating eligibility for INA § 212(d)(11) smuggling waiver at time of adjudication). This can work either for or against the applicant. An applicant who was ineligible for a benefit when s/he applied for it may become eligible under new law at the time the fact finder makes her or his decision. On the other hand, if a foreign legislature increases the punishment for an offense, the Board will determine if the applicant qualifies for the petty offense exception by examining the maximum criminal penalty at the time of the application for entry, not the maximum penalty at the time the offense was committed

FRAUD – DIFFERS FROM THEFT Soliman v. Gonzales, __ F.3d __ (4th Cir. Aug. 22, 2005) (fraudulent use of a credit card," in violation of Virginia Code § 18.2-195, with intent to obtain $200.00 in property, is not an aggravated felony theft offense; the BIA erred in finding that

86

fraud offenses necessarily included theft; theft is distinguishable from fraud, in that theft requires the taking of property without consent, while fraud requires an intent to deprive through consent obtained through misrepresentation). http://caselaw.lp.findlaw.com/data2/circs/4th/041990p.pdf THEFT – FRAUD –
DIVISIBILITY – NUGENT ARGUMENT California Penal Code § 484(a) is a divisible statute covering both fraud and theft offenses, which are nearly mutually exclusive. If a fraud victim’s loss did not exceed $10,000, but a sentence of a year or more was imposed, the government might charge a fraud offense as an aggravated felony under the theft category. The government should be required to prove that the record clearly establishes the elements of theft, the definition of which includes a taking of property without consent. For a useful discussion of the difference between the elements of fraud and theft, see Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005). There the Court observed that: When a theft offense has occurred, property has been obtained from its owner "without consent"; in a fraud scheme, the owner has voluntarily "surrendered" his property, because of an "intentional perversion of truth," or otherwise "acted upon" a false representation to his injury. The key and controlling distinction between these two crimes is therefore the "consent" element -- theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained. Id. at 282. Under this definition Cal. P.C. §484(a) would be held divisible, since it includes both fraud and theft offenses. The Third Circuit held that where an offense constitutes both theft and fraud, it must meet both requirements in order to be an aggravated felony: a year’s sentence must be imposed and loss to the victim must be greater than $10,000. Nugent v Ashcroft, 367 F.3d 162 (3rd Cir. 2004
TAX FRAUD A plea to a violation of 26 U.S.C. 7206(2) does not constitute an aggravated felony. INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) ["is described in section 7201 of the Internal Revenue Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000"]). See Evangelista v. Ashcroft, 359 F.3d 145, 149-53 (2004); Lee v. Ashcroft, 368 F.3d 218 (2004) (federal conviction of violating § 7206(a) is not an aggravated felony, since Congress specified only one tax crime (Section 7201) as an aggravated felony). It may be a crime involving moral turpitude. Possible alternative dispositions include a plea to a violation of 26 U.S.C. § 7203 (willful failure to file return supply information, or pay tax), a misdemeanor, and 26 U.S.C. § 7202 (willful failure to collect or pay over tax), a felony. A plea to multiple violations of INA § 274A(a)(1)(A), would constitute a "pattern or practice" violation of INA § 274A(f), 8 U.S.C. 1324a (f), a misdemeanor punishable by a fine of not more than $3,000 for each alien with respect to whom such a violation occurs, imprisonment for not more than six months for the entire pattern or practice, or both.

87

ADJUSTMENT OF STATUS – ADMISSION Aremu v. DHS, ___ F.3d ___, 2006 WL 1668778 (4th Cir. Jun. 19, 2006) (for noncitizen previously admitted to the United States, the date of adjustment of status does not constitute a new “admission” for purposes of determining whether the noncitizen is deportable for having committed a CMT within five years of admission, under INA § 237(a)(2)(A)(i)), overruling Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005). Note: The court cited Abdelqadar v. Gonzalez, 413 F.3d F.3d 668 (7th Cir. 2005), and Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004) as making the same holding, although Shivaraman concerned a noncitizen who (unlike Shanu), had never fallen out of status, and Abdelqadar was arguably dica. The Fourth Circuit explicitly stated that the decision did not reach the issue of whether adjustment of status qualified as an “admission” for a noncitizen who entered the United States illegally, and was therefore never previously admitted. See, e.g., Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001); RosasRamirez, 22 I. & N. Dec. 616 (BIA 1999).
DEPORTABLE BECAUSE INADMISSIBLE AT TIME OF ENTRY OR ADJUSTMENT – COURT MUST LOOK AT LAW AS IT EXISTED AT TIME OF ENTRY/ADJUSTMENT Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (to determine whether a noncitizen is deportable for being inadmissible at entry or adjustment under INA § 237(a)(1)(A), the court must look to the law as it existed at the time of entry or adjustment, not current law Jurisdiction We begin by noting that, although the IJ found Kelava removable for being convicted of an aggravated felony, we are not deprived of jurisdiction to hear his appeal under 8 U.S.C. § 1252(a)(2)(C), because the BIA chose not to address the aggravated felony conviction in its decision, basing its decision solely on the terrorist activity charge. We addressed a similar situation in Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. 2004). There, the IJ found Toro Romero removable for having been convicted of a crime involving moral turpitude and for falsely representing himself as a United States citizen. While § 1252(a)(2)(C) would have prohibited this court's jurisdiction over the moral turpitude removal, the BIA affirmed Toro-Romero's removal only on the false representation ground, expressly declining to decide any other issues raised by Toro-Romero on appeal. Id. at 93233. We explained that our review is limited to the BIA's decision, and the sole ground for the final order of removal was therefore Toro-Romero's false representation. The Court then determined whether the application of the statute would result in a retroactive effect. Id. at 320. The Court noted that a statute has retroactive effect when it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." Id. at 321 (internal quotation marks omitted

88

Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002), is a particularly relevant authority for the primacy of the conduct date. There, the Eighth Circuit held that an immigrant whose illegal conduct pre-dated IIRIRA remained eligible to apply for a discretionary adjustment of status notwithstanding that the same had been eliminated by IIRIRA.

Under BIA precedent, a motion premised on a claim of ineffective assistance of counsel must satisfy three procedural requirements in order to be considered on the merits: (1) it must be supported by an affidavit by the petitioner attesting to the relevant facts; (2) the petitioner must inform counsel of the allegations and allow counsel the chance to respond before the petitioner files the motion; and (3) the motion must state whether a complaint has been filed with the appropriate disciplinary authorities and, if it has not been filed, an explanation as to why it has not been filed. Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988 Nativi-Gomez points out that one court has recognized a due process violation where an alien sought discretionary relief. See Rabiu v. INS, 41 F.3d 879, 883 (2d Cir. 1994). But Rabiu does not discuss Dumschat or consider whether a constitutionally protected liberty interest is implicated where an alien seeks discretionary relief. As this issue was not before the court in Rabiu, we believe Rabiu is of limited utility to our analysis. Nativi-Gomez points out that Rabiu involved a request for statutorily-created relief, the same type of relief, in broad terms, that Nativi-Gomez seeks, but the source of relief sought by an alien is irrelevant.
2

What matters is whether the individual has an expectation of receiving some measure of relief. Here he does not. However broadly and amorphously the concept of constitutionally protected liberty interests has been defined within proceduraldue-process jurisprudence, it does not include statutorily created relief that is subject to the unfettered discretion of a governmental authority. The failure to receive discretionary adjustment-of-status relief does not constitute the deprivation of a constitutionally-protected liberty interest. For this reason, Nativi-Gomez cannot establish that he had a right to due process in his proceedings to obtain this relief. Accordingly, the BIA did not abuse its discretion in affirming the Immigration Judge's dismissal of Nativi-Gomez's motion to reopen,.

89

______________________________
LOG IN

Hibbert v. INS, 554 F.2d 17, 20 (2d Cir. 1977)
Digrado v. Ashcroft, No. 9:01-CV-1359 (N.D.N.Y., Feb. 8, 2002)

(finding deportation order res judicata)

As the Medina Court noted in applying the doctrine of res judicata to the immigration case before it: res judicata precludes a second suit on the same issue between the same parties when there has been a valid and final judgment on that issue; and it makes no difference that the final, valid judgment may have been based on an erroneous factual finding or an erroneous understanding of law, or both. The only considerations for purposes of res judicata is [sic] whether the judgment was final and valid, and there was an opportunity to reach the merits. Here, these requirements were met. 993 F.2d at 504 (emphasis added). The reasoning of United States v. Hernandez-Rodriguez, 170 F. Supp. 2d 700 (N.D. Tex. 2001) is persuasive in considering respondent's res judicata argument. In that case, the petitioner was admitted to the United States as a lawful and permanent resident in 1990. Id. at 701-02. In 1994 he was convicted of sexual assault. Id. at 702. This offense qualified petitioner as an "aggravated felon" for purposes of the immigration law. Id. Over petitioner's objection, the Immigration Judge retroactively applied the amendments to the immigration laws to petitioner's case and ordered him deported. Id. He was deported in 1999. Id.

90

July 27, 2004 Final BIA Decision Overturning Removal Order Based on One Theory Precludes New NTA Based on Different Ground of Removal.
Contents: 1. Introduction: Final BIA Decision Overturning Removal Order Based on One Theory Precludes New NTA Based on Different Ground of Removal. 2. Online Resources Related to Drug Offenses 3. Article Part 1: Res Judicata in Immigration Proceedings 4. Article Part 2: Implications

[1] INTRODUCTION: Final BIA Decision Overturning Removal Order Based on One Theory Precludes New NTA Based on Different Ground of Removal. By: Norton Tooby and Joseph Justin Rollin In Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391 (D. Conn. June 9, 2004), the United States District Court granted federal habeas corpus, holding a second removal order was unlawful, and directed the BIA to vacate the second removal order and terminate removal proceedings against a noncitizen. Although two circuit court decisions have applied the doctrine of res judicata to determinations of citizenship, this is possibly the first published federal decision to apply the doctrine to charges of deportation or inadmissibility in removal proceedings.

[2] ONLINE RESOURCES: Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391 (D. Conn. June 9, 2004), may be viewed without charge at: http://www.ctd.uscourts.gov/Opinions/060904.wwe.murray.pdf Medina v. INS, 1 F.3d 312, denying reh'g of 993 F.2d 499 (5th Cir. 1993), may be viewed without charge at:

91

http://www.ca5.uscourts.gov/opinions/pub/92/92-5305.CV0.wpd.pdf BIA decisions may be viewed without charge at: http://www.usdoj.gov/eoir/vll/intdec/lib_indecitnet.html [3] ARTICLE PART I: Res Judicata in Immigration Proceedings Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391 (D. Conn. June 9, 2004), holds that the doctrine of res judicata applies to charges filed on a Notice to Appear (NTA) or Order to Show Cause. The INS initiated removal proceedings against Murray by charging him as an aggravated felon, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), on the basis of two marijuana convictions. The BIA sustained the noncitizen's appeal from a removal order, and terminated proceedings, finding the convictions did not constitute an aggravated felony. The INS then filed a new NTA on the ground that Murray was deportable as a noncitizen convicted of controlled substance offenses. The new NTA was based upon the two previously charged marijuana convictions, and a third conviction that was in the record at the time of the initial proceedings. The respondent filed a motion to terminate on the basis of a claim that res judicata barred the second NTA. The Immigration Judge denied the motion. The BIA affirmed. The doctrine of res judicata embraces two distinct preclusion concepts: claim preclusion and issue preclusion. See United States v. Shanbaum, 10 F.3d 305 (5th Cir. 1994); see also Robi v. Five Platters, Inc., 838 F.2d 318 (9th Cir. 1988). In either case, the issues may rest on a factual determination, a pure legal issue or a combination of fact and law. See Medina v. INS, 993 F.2d 499 (5th Cir. 1993). Claim preclusion (or "pure res judicata") applies when: 1) the parties in a later action are identical to or in privity with the parties in a prior action; 2) the judgment in the prior action was rendered by a court of competent jurisdiction; 3) the prior action concluded with a final judgment on the merits; and 4) the same claim or cause of action is involved in both suits. Included in the doctrine of claim preclusion is the idea of waiver. "If a party does not raise a claim or a defense in the prior action, that party thereby waives its right to raise that claim or defense in the subsequent action . . . . [T]he effect of a judgment extends to the litigation of all issues relevant to the same claim between the same parties, whether or not raised at trial." United States v. Shaunbaum,

92

10 F.3d at 311 (internal quotation marks and citation omitted). Claim preclusion therefore applies to claims that "were or could have been" raised in the prior action. Allen v. McCurry, 449 U.S. 90, 94 (1980). Issue preclusion (or "collateral estoppel") treats specific issues of fact or law that are validly and necessarily determined between two parties as finally and conclusively decided. Issue preclusion is appropriate where: 1) the issue under consideration in a subsequent action is identical to the issue litigated in a prior action; 2) the issue was fully and vigorously litigated in the prior action; 3) the resolution of the issue was necessary to support the judgment in the prior case; and 4) there are no special circumstances that would render preclusion inappropriate or unfair. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-32 (1979). If these conditions are satisfied, issue preclusion prohibits a party from seeking another determination of the litigated issue in the subsequent action. Id. On petition for habeas corpus, in Murray, the district court applied the doctrine of claim preclusion, or pure res judicata, and held that the immigration authorities were precluded from filing a new NTA charging a different ground of removal that was based upon convictions that were part of the record in the initial proceedings. The court relied upon Medina v. INS, 993 F.2d 499, 503-4, reh'g denied, 1 F.3d 312 (5th Cir. 1993) (precluding INS from bringing a second challenge to finding of United States citizenship), to find that the doctrine of res judicata applied to administrative immigration decisions. The court rejected the INS argument that Medina was distinguishable because that case dealt with a challenge to a finding of citizenship, rather than charges of removal. See also Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir. 1987) (applying res judicata to finding of alienage and denying INS motion to reopen since the basis for the motion was not in fact new evidence). The district court stated: The doctrine [of res judicata] applies equally in the context of immigration proceedings. Medina v. INS, 993 F.2d 499, 503-4 (5th Cir. 1993) (applying res judicata to final, valid judgments of the BIA). As the Fifth Circuit stated: Few legal doctrines are more intrinsic or necessary in our

93

system than res judicata. That doctrine, which provides that a valid and final judgment precludes a second suit between the same parties on the same claim or any part thereof, ensures that litigation will come to an end. Medina v. INS, 1 F.3d 312, 313 (5th Cir. 1993). Respondents argue that res judicata should not apply to immigration removal proceedings involving a criminal alien. However, as Medina warns, carving out a large exception to the res judicata doctrine "would allow the agency to eschew direct appeal -- either inadvertently, through error, or consciously as a strategic decision - then years later, collaterally attack decisions of immigration judges." The Court finds that no exception to the res judicata doctrine is warranted in this context. Res judicata applies to immigration removal proceedings. Here, the second charge is based on same nucleus of operative facts that were known or should have been known when the removal charge based on conviction of an aggravated felony was brought at the first proceeding. All of the facts concerning his drug convictions are related in time, origin and motivation. These underlying facts form a convenient unit for adjudication. Further, it conforms to party expectations that all of the charges against petitioner based on these underlying facts should be resolved in one adjudication. Accordingly, the second charge of removability, which could have been brought in the prior proceeding, was barred by res judicata. Thus, the order of removal is invalid. The Court will grant the petition for habeas corpus relief. Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391 at *2. The court therefore found that the second removal order was contrary to law, and directed the BIA to vacate petitioner's final order of removal and issue an order terminating proceedings. The nearest to a doctrine of res judicata in immigration proceedings thus far comes from the line of cases culminating in Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), and including Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), Matter of Sanchez, 16 I. & N. Dec. 363 (BIA 1977), and Matter of R-G-, 8 I. & N. Dec. 128 (BIA 1958). The BIA has found that Congress allowed for the possibility that noncitizens deported

94

on some basis could be allowed to apply for, and obtain, subsequent readmission to the United States in the future, without having to face a charge of deportation on the same basis as the original charge. Matter of S-, 7 I. & N. Dec. Dec. 536 (BIA 1957). See INA § 212(a)(9) (allowing for admission of certain removed noncitizens after a statutory period). On this basis, the BIA has found in these cases that the INS cannot place a noncitizen in removal proceedings, following the noncitizen's successful [re]adjustment of status after having already been found removable, by charging the noncitizen under the same ground, or a different ground of removal on the basis of the same acts, upon which the initial finding was based. Although the Rainford line of cases may have created a pseudo res judicata doctrine based upon an apparent intent by Congress, this line of cases has so far only dealt with noncitizens seeking adjustment of status following a finding of deportability, and only goes so far as to cover subsequent charges of deportation that are identical to the initial charges, or are based on the same activity.

[4] ARTICLE PART II: Implications There are a number of potential implications of Murray, Medina, and Ramon-Sepulveda: (1) Pure Res Judicata v. Collateral Estoppel: Murray appears to be the first federal published decision to apply the doctrine of claim preclusion (pure res judicata) to immigration proceedings, rather than merely issue preclusion (collateral estoppel). Both Medina and Ramon-Sepulveda were collateral estoppel cases. (2) Implied Waivers: By applying claim preclusion, including the idea of issue waiver, to immigration proceedings, the INS should be required to charge all available removal grounds simultaneously, so as not to harass the noncitizen with piecemeal, successive litigation. (3) Express Waivers: In Medina, the INS argued that res judicata did not apply, as the INS had conceded the respondent's citizenship in the initial proceeding, and therefore the INS did not have an opportunity to litigate the

95

issue during the first proceedings. The court rejected this argument, finding that there was an opportunity to litigate the issue, but the opportunity was waived by the INS. 993 F.2d at 504, n. 18. Given this aspect of res judicata, concessions of legal issues should not be taken lightly. (4) Pre & Post IIRAIRA: Res Judicata may not be applicable in a case where a respondent's initial proceedings were terminated prior to the passage of IIRAIRA, and the INS served a second NTA after IIRAIRA, on the basis of legislative additions to the aggravated felony definition. Unlike the case in Medina, the INS would not have had an opportunity to charge the respondent as an aggravated felon in the first instance. (5) Uncharged Convictions: Murray did not limit its holding to only the two charges that were included in the initial NTA, but also applied claim preclusion res judicata to a third conviction, that was included in the second NTA, but not the first. This means that if the INS charges less than all convictions in a respondent's pre-existing criminal history as finding a basis for an initial charge of removal, the INS loses the opportunity to base a charge on the uncharged convictions after the immigration proceedings have terminated. But see 8 C.F.R. § 1003.30 (INS may file additional charges at any time during proceedings). (6) Multiple CIMTs: This does not mean, however, that the INS cannot use a previously charged conviction in combination with a new conviction to charge a respondent in a subsequent NTA with deportability as a noncitizen convicted of multiple CIMTs. Cf. Matter of Gordon, 20 I. & N. Dec. 52, 56 (BIA 1989) (CIMT conviction previously waived by 212(c) can be used in charging respondent with deportability for multiple CIMTs in combination with subsequent conviction). (7) Errors of Fact or Law: Medina stated that "it makes no difference that the final, valid judgment may be been based on an erroneous factual finding or an erroneous understanding of the law or both. The only considerations for purposes of res judicata is whether the judgment was final, valid, and there was an opportunity to reach the merits." 993 F.2d at 504. Therefore, even if the decision of the immigration judge was based upon some sort of error, res judicata still bars relitigation of the issues presented, or the issues that could have been presented.

96

(8) There may be an argument that the INS cannot charge a respondent with inadmissibility on basis of a conviction, then, after proceedings are terminated and the noncitizen is admitted to the United States, file a second NTA charging the noncitizen with deportation on the basis of the same conviction. As former "exclusion" and "deportation" proceedings have been consolidated into unitary "removal" proceedings, the INS is arguably required to charge both the applicable grounds of inadmissibility and deportability during the initial proceedings. But see Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. 2004) (fact situation: proceedings terminated after petty offense exception found by IJ to apply to returning LPR convicted of CIMT; INS then filed new NTA charging deportability as aggravated felon). Although grounds of deportation do not apply to a noncitizen seeking admission, charging otherwise applicable grounds of deportability in the NTA in cases like Zavala would conform with the concept of consolidated "removal" proceedings, would give the respondent notice of issues, and would promote administrative and judicial economy should the respondent be found not inadmissible

Nevertheless, it is clear that there are situations in which claim preclusion does not prevent the reopening or reconsideration of a final judgment. For example, relief may be had from "final" district court judgments under Federal Rule of Civil Procedure 60. See State Bank of S. Utah v. Gledhill (In re Gledhill), 76 F.3d 1070, 1082 (10th Cir. 1996) (holding that res judicata bars collateral but not direct attacks on a final judgment and that "Rule 60(b) provides a procedural avenue whereby, in appropriate circumstances, a party may assert a direct attack on a final judgment or order"). We see no reason-and Mr. Rana does not present one-that the doctrine of claim preclusion should bar reopening a "final" decision of an agency in accordance with the immigration regulations but allow relief from a "final" judgment of a district court under rule 60

97

Congress may be presumed, when enacting a statute granting to an agency adjudicatory authority, to mandate adherence to the doctrine of collateral estoppel. Id. The INA grants adjudicatory authority to immigration judges and the Board of Immigration Appeals are charged with resolving factual and legal disputes based on an evidentiary record developed by the parties following notice and a hearing. 8 U.S.C. § 1229a(b), (c). These functions are inherently judicial in nature, and properly subject to principles of issue preclusion. See, e.g., United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966) (“When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”). Therefore, the INA will be read to incorporate principles of collateral estoppel if application of the doctrine does not frustrate congressional intent or impede the effective functioning of the agency. Astoria, 501 U.S. at 108-11; Utah Constr., 384 U.S. at 422.

(“Issues of fact litigated and decided in a prior administrative proceeding may have issue preclusive effect on issues of fact presented in a subsequent administrative or judicial action.”); Charles H. Koch, Jr., Administrative Law & Practice § 5.72[1] (2d ed. 1997) (“The doctrines of res judicata and collateral estoppel are applicable to administrative proceedings when an agency is acting in a judicial capacity.”); cf. Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (applying res judicata to administrative proceedings); Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir. 1997) (same); SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1463-64 (2d Cir. 1996) (same). But cf. Title v. INS, 322 F.2d 21, 23-24 (9th Cir. 1963) The INS nevertheless argues that, even if preclusion principles should be read into the INA, collateral estoppel Page 17 See also Restatement (Second) of Judgments § 83 cmt.
7

a (“[Collateral estoppel] applies when a final adjudicative determination by an administrative tribunal is invoked as the basis of claim or issue preclusion in a subsequent action, whether that subsequent action is another proceeding in the same administrative tribunal or is a proceeding in some other administrative or judicial tribunal.”).

98

17 should bar relitigation of an issue only in subsequent proceedings in the federal courts – not in proceedings within the agency itself. It stresses that the decisions in which the Supreme Court has discussed the doctrine, particularly Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104 (1991), involved cases brought in federal court following an adverse agency determination. See id. at 106-07. On this premise, the INS posits that decisions of the agency should be given estoppel effect only in subsequent judicial proceedings There is no basis for this distinction. The doctrine of collateral estoppel has long been understood to apply in all proceedings that may be deemed “adjudicative,” no matter whether the governing entity is a “court” or an “agency.” See Utah Constr., 384 U.S. at 421-22 & n.20 (citing 2 Kenneth Culp Davis, Administrative Law Treatise §§ 18.01-18.12 (1958); I. Groner & H. Sternstein, Res Judicata in Federal Administrative Law, 39 Iowa L. Rev. 300 (1954)); United States v. Int’l Bldg. Co., 345 U.S. 502, 504-05 (1953); Comm’r v. Sunnen, 333 U.S. 591, 597-99 (1948); see also Pearson, 202 U.S. at 284-85. The
7

adversarial system of dispute resolution established in the INA is plainly adjudicatory in character and susceptible to full Page 18 18 application of common law principles of preclusion. See, e.g., Restatement (Second) of Judgments § 83. Nothing in the statute or the legislative history – nor any authority of which this Court is aware – suggests that collateral estoppel should bar relitigation in proceedings before the federal courts, but not in proceedings before the agency itself. Accord Hamdan v. Gonzales, 425 F.3d 1051, 1059-60 (7th Cir. 2005); SantanaAlbarran v. Ashcroft, 393 F.3d 699, 703-04 (6th Cir. 2005); Medina, 993 F.2d at 503-04; Ramon-Sepulveda, 824 F.2d at 750; Restatement (Second) of Judgments § 83, cited with approval in Elliott, 478 U.S. at 798 n.6; Charles H. Koch, Jr., Administrative Law & Practice § 5.72 (2d ed. 1997); 18 James Wm. Moore et al., Moore’s Federal Practice–Civil § 132.03[e] (3d ed. 2001). Requiring the INS to meet its burden of proof at a single hearing is consistent with the statutory scheme, as interpreted by the administering agency, see Fedorenko, 19 I. & N. Dec. at 61, and will not frustrate the goals of Congress. The “lenient presumption in favor of administrative estoppel” holds, see

99

Astoria, 501 U.S. at 108, and the INA will be held to incorporate common law principles of collateral estoppel. B. The question then becomes how the doctrine should be applied in this case. Courts and commentators have consistently recognized that collateral estoppel was borne of equity and is therefore “flexible,” bending to satisfy its underlying purpose in light of the nature of the proceedings. See Nat’l R.R. Passenger Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 528 (3d Cir.
Copyright & Disclaimers Policy

CONVICTION – REQUIREMENTS – CONVICTION DOES NOT EXIST WITHOUT SENTENCE POST CON – AFTER CONVICTION VACATED – IF THERE IS NO NEW SENTENCE, THERE IS NO CONVICTION FOR IMMIGRATION PURPOSES If no sentence has been imposed, the defendant does not have a final conviction for immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937)); United States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992)(citing United States v. Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571 (6th Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes
The doctrine of res judicata proclaims that “a valid and final judgment precludes a second suit between the same parties on the same claim or any part thereof.” Medina v. INS, 993 F.2d 499, 503 (5th Cir. 1993); see also Dye v. U.S. Farm Servs. Agency, 129 Fed. Appx. 320, 322 (7th Cir. 2005) (“Res judicata bars suits where there is a final judgment on the merits; an identity of the issues of the lawsuit; and an identity of the parties or their privies.”). Res judicata (as well as the related principle of collateral estoppel) applies to administrative proceedings such as the adjudication of petitions for relief in immigration courts. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107-08 (1991); Santana-Albarran v. Ashcroft, 393 F.3d 699, 704 (6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164,

100

Although section 11366.5(a) and § 856(a)(2) are very similar, they differ in one important respect: the mens rea requirement for section 11366.5(a) is only "knowingly," while for § 856(a)(2) it is "knowingly and intentionally." "Intentionally" and "knowingly" are terms with traditional meanings in criminal law, and the meanings are different. Cf. Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1067 (9th Cir. 2006) (citations omitted)(noting that generally, "purpose" equates with specific intent, and "knowingly" with general intent). Indeed, CIMT CATG Analysis A categorical analysis requires us to compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition. Id. In doing so, we “cannot examine the underlying facts of the prior offense, but ‘look only to the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Corona-Sanchez, 291 F.3d 1201, 1203, 1212-13 (9th Cir. 2002) (enbanc) (quoting Taylor, 495 U.S. at 602). If the statute of conviction criminalizes conduct that would not satisfy the federal definition of the crime at issue, then the conviction does not qualify as a predicate offense under the categorical approach. Id. at 1203. In short, under the categorical approach, the issue is whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude. See United States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir. 2001). “[T]o satisfy the categorical test, even the least egregious conduct . . . must qualify.” United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006). such behavior may be unwise and socially unacceptable to many, but it is not “inherently base, vile, or depraved,” Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996),or accompanied by a “vicious motive or corrupt mind,”Michel, 206 F.3d at 263. Nor is it “so far contrary to the moral law” as to “give rise to moral outrage.” Navarro-Lopez, 2007 WL 2713211, *6. In short, the conduct discussed does not meet the first Fernandez-Ruiz requirement of being an “act of baseness or depravity contrary to accepted moral standards.”Fernandez-Ruiz, 468 F.3d at 1165-66 13600 QUINTERO-SALAZA [5] If the crime of conviction does not categorically qualifyas a predicate offense under a federal statute, it still may qualify under a modified categorical analysis. Corona-Sanchez,291 F.3d at 1203. Under the modified categorical approach we examine “ ‘documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction’” for removal purposes. Id. (quoting United States v.Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc)).Under the

101

modified categorical approach, if “judicially noticeable facts would allow the defendant to be convicted of an offense other than that defined as a qualifying offense,” it cannot be used as a basis for removal. Id. (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999)). “As we have noted repeatedly, the government has the burden to establish clearly and unequivocally the conviction was based on all of the elements of a qualifying predicate offense.” United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (citing United States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. 2002); United States v. Pimentel- Flores, 339 F.3d 959, 968 (9th Cir. 2003); Corona-Sanchez, 291 F.3d at 1211).
[6]

Here, the only evidence that the government tendered was the fact of conviction. Therefore, absent any other judicially noticeable facts, application of the modified categorical approach does not alter our analysis.
(a) was categorically an "aggravated felony," as defined in 8 U.S.C. § 1101(a)(43)(B), because all behavior prohibited by section 11366.5(a) would also have constituted a violation of 21 U.S.C. § 856(a)(2). Although section 11366.5(a) and § 856(a)(2) are very similar, they differ in one important respect: the mens rea requirement for section 11366.5(a) is only "knowingly," while for § 856(a)(2) it is "knowingly and intentionally." "Intentionally" and "knowingly" are terms with traditional meanings in criminal law, and the meanings are different. Cf. Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1067 (9th Cir. 2006) (citations omitted)(noting that generally, "purpose" equates with specific intent, and "knowingly" with general intent). Indeed, in People v. Sanchez, 33 Cal. Rptr. 2d 155, 158 (Ct. App. 1994), a California court recognized that the lack of a specific intent requirement in section 11366.5(a) differentiated it from another, more general, state drug law. ... Accordingly, Eudave- Mendez's California conviction does not fall categorically within 21 U.S.C. § 856(a)(2), and thus cannot constitute an "aggravated felony" on the basis of being a "drug trafficking crime," 18 U.S.C. § 924

CA2 Finds BIA Must Give Opportunity to Rebut Administratively Noticed Facts http://www.aila.org/content/default.aspx?docid=23542 The court held that the BIA erred when it failed to give Petitioner notice of its intention to consider the fact that the Mislosevic regime had been dismantled. The court also held that the BIA erred in failing to give Petitioner the opportunity to rebut this administratively noticed fact

102

before issuing its decision. (Burger v. Gonzales, 8/17/07). AILA Doc. No. 07101262

TUESDAY, AUGUST 01, 2006

Cabrera-Perez: IJ May Not Order Deportation For Arriving In Court Slightly Late
Cabrera-Perez v. Gonzales No. 05-3896 Precedential August 1, 2006 http://www.ca3.uscourts.gov/opinarch/053896p.pdf Immigration judges must remember they are appointed, not anointed. The Third Circuit in very strong language ordered that immigration judges must allow someone in deportation proceedings to be heard in their case even if they were slightly tardy for a hearing. In this case, the government frequently warned someone that she had to bring witnesses at her next, major hearing. A witness got to her house late so they set off from home a bit late and got a bit lost driving in downtown Newark, NJ. Her attorney arrived exactly on time but by the time she got to the courtroom, she was around 20 minutes late. The IJ had ordered her deported and when she asked the court staff to get the judge to try to be heard, they refused. They tried to reopen the case and, depressingly, the IJ refused to reopen it and the BIA upheld the judge's decision on appeal. The case had to go all the way up to the Third Circuit to do justice and allow her case to be heard on the merits. Sadly, this is not the first time someone was ordered deported for arriving slightly late, the IJ refused to reopen, the BIA affirmed, and a circuit court had to step in and do the right thing. Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (reopening where 20 minutes late but IJ was still in the courtroom working on other cases); Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir. 2005) (reopening where 20 minutes late and IJ was either still in the courtroom or had

103

just left and still nearby); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) (reopening where two hours late due to late arrival of personally-hired interpreter after IJ failed to get an interpreter at prior court appearance that led the immigrant to think she had to bring her own interpreter). The legal rule is that due process rights exist in immigration cases and the IJ and BIA abused their discretion by refusing to reopen the case for minimal tardiness when the IJ was either still in the courtroom or had recently left but was still nearby. Especially when there was no history of the person arriving late in the case. The Third Circuit used strong language, saying they would "expect nothing less from immigration judges who sit in this circuit" to reopen such cases and that just like the Fifth Circuit said in Alarcon-Chavez, immigration judges must "remember they are appointed, not anointed."

Beltran-Tirado, 213 F.3d at 1183. The Ninth Circuit disagreed, holding that the use of another’s social security card to work and establish credit in the United States, as Beltran had done, did not constitute a CIMT. Id. at 1184. The court relied heavily on the legislative history of 42U.S.C. § 408(d), now recodified at § 408(e), which was added by amendment in 1990. Id. at 1183. That section provides that aliens who have been granted permanent resident status under amnesty or registry statutes are exempted from prosecution for certain past misuses of false social security numbers. 42 U.S.C. § 408(e); see Beltran-Tirado, 213 F.3d at 1183. As the Ninth Circuit noted, Congress’s conference committee report states, The Conferees intend that this exemption apply only to those individuals who use a false social security number to engage in otherwise lawful conduct . . . The Conferees believe that individuals who are provided exemption from prosecution under this proposal should not be considered to have exhibited moral turpitude with respect to the exempted acts for purposes of determinations made by the Immigration and Naturalization Service

104 Monjaraz-Munoz v. INS, 327 F.3d 892, 896 (9th Cir. 2003). Under similar circumstances in MonjarazMunoz, the Ninth Circuit stated: The role of an attorney . . . is especially important. For the alien unfamiliar with the laws of our country, an attorney serves a special role in helping the alien through a complex and completely foreign process. It is therefore reasonable for an alien to trust and rely upon an attorney’s advice to such an extent that if an alien fails to show up to a hearing because of an attorney, we can say that this is an exceptional circumstance “beyond the control of the alien.” Id at 897; see also Iturribarria v. INS, 321 F.3d 889, 901 (9th Cir. 2003) (“One reason that aliens . . . retain legal assistance in the first place is because they assume that an attorney will know how to comply with the procedural details that make immigration proceedings so complicated.”).

Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 712 (6th Cir. 2004) (BIA abuses its discretion when it ignores its ownprecedent); Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th Cir. 2003) (same); Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002) (“Although an agency can change or adapt its policies, it acts arbitrarily if it departs from its established precedents without ‘announcing a principled reason’ for the departure.”); Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996) (“[A]dministrative agencies must apply the same basic rules to all similarly situated supplicants. An agency cannot merely flit serendipitously from case to case, like a bee buzzing from flower to flower, making up the rules as it goes along.”); Salameda v. INS, 70 F.3d 447, 450 (7th Cir. 1995) (“An agency may not abandon an interpretation without an explanation . . . . Agencies do not have the same freedom as courts to change direction without acknowledging and justifying the change.”); Davila-Bardales v.INS, 27 F.3d 1, 5 (1st Cir. 1994) (requiring BIA to “confront the issue squarely and explain why the departure is reasonable” when it departs from its own precedents).
5
6 We

decline the Government’s invitation to affirm the IJ’s decision on the grounds that Galvez has not shown that he was prejudiced byhis counsel’s performance. First, In re Grijalva-Barrera, 21 I. &N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an “exceptional circumstance” justifying rescission of an in absentia removal order. Second, we may not affirm an agency decision on reasons other than those it provided. Dong Sik Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (en banc) (court may not affirm BIA’s decision on reasoning other than that adopted by the BIA

The scope of review of a removal order entered in absentia is limited by 8 U.S.C. § 1229a(b)(5)(D) to: (1) the validity of the notice provided to the alien, (2) the reasons for the alien’s not attending the proceeding, and (3) whether or not the alien is removable. The first and third issues have been conceded by Lin, confining this review to her reasons for failing to attend the second hearing Aliens facing removal are entitled to Due Process under the United States Constitution. Abdulai, 239 F.3d at 549. Due Process requires: (1) fact finding based on a record produced before the decision maker and disclosed to the alien, (2) the opportunity to make arguments on her

105

own behalf, and (3) the right to an individualized determination of her interests. Id. at 549. The denial of Lin’s motion to reopen did not implicate any of these rights. 212c blake gave teeth to the admonition of Judge Learned Hand: “It is well that we should be free to rid ourselves of those who abuse our hospitality; but it is more important that the continued enjoyment of that hospitality once granted, shall not be subject to meaningless and irrational hazards.” DiPasquale v. Karnuth, 158 F.2d 878, 879 (2d Cir. 1947).
PETITIONERS ARE NOT ELIGIBLE FOR NUNC PRO TUNC RELIEF. 1. Standard of Review Although, this Court reviews the BIA’s legal conclusions de novo, it must defer to the BIA’s reasonable interpretations of the INA. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). When the BIA has adopted and affirmed an IJ’s decision, this Court reviews the IJ’s decision directly. Selami v. Gonzales, 423 F.3d 621, 624-25 (6th Cir. 2005) (citing Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003)). This Court need not defer, however, to an IJ’s interpretation of the INA that conflicts with BIA precedent. See Rodriguez-Roman v. INS, 98 F.3d 416, 427 (9th Cir. 1996) (declining to defer to an IJ’s interpretation of the INA adopted by the BIA in a per curiam opinion that conflicted with BIA precedent). 2. Analysis
1

The IJ incorrectly determined that she did not have the authority to issue a nunc pro tunc order granting Petitioners a waiver pursuant to the 1993 version of § 212(i). The IJ’s interpretation of the 1996 amendments to the INA as abolishing her authority to issue nunc pro tunc orders for waivers of inadmissibility was unreasonable in light of BIA case law on nunc pro tunc orders. Nonetheless, we deny the petition for review because Petitioners are not eligible for a nunc pro tunc order granting a waiver of removability pursuant to the 1993 version of § 212(i). a. Nunc Pro Tunc Relief A nunc pro tunc order is an order that has retroactive legal effect. Black’s Law Dictionary 1097 (7th ed. 1999). The BIA has long used nunc pro tunc orders to remedy the harshness of United States immigration laws. Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004) (citing Matter of L, 1 I. & N. Dec. 1 (A.G. 1940); Matter of T, 6 I. & N. Dec. 410, 413 (BIA 1954); Matter of A, 3 I. &

106

N. Dec. 168, 172-73 (BIA 1948)). Among other uses, the BIA has issued nunc pro tunc orders to retroactively legalize an alien’s admission into the United States thereby eliminating the grounds for deporting the alien. Matter of L, 1 I. & N. Dec. at 1; Matter of T, 6 I. & N. Dec. at 413-14; Matter of A, 3 I. & N. Dec. 172-73. For example, in the Matter of T, the BIA issued a nunc pro tunc order waiving an alien’s perjury as grounds for deportation, despite the fact that the version of the INA in effect at the time the BIA issued the order did not authorize such a waiver. Matter of T, 6I. & N. Dec. at 413-14. The BIA reasoned that the version of the INA in effect when the alien entered the United States authorized a waiver, and thus that the BIA had the authority to issue a retroactive order granting waiver based on the former version of the INA. Id. Although the INA does not explicitly confer the power to issue nunc pro tunc orders on the BIA, the BIA has interpreted the INA to implicitly confer such power. See Matter of L, 1 I.&.N. at 5-6. In 1940, the BIA concluded that Congress did not intend for immigration laws to operate in a “capricious and whimsical fashion,” and that Congress therefore must have intended to allow the Attorney General to have discretion to correct errors through retroactive orders. Id. The BIA has held that the power to issue nunc pro tunc orders has survived numerous amendments of the INA, including amendments that restrict the availability of discretionary waivers. See Matter of T, 6 I. Page 7 No. 04-3829 Patel, et al. v. Gonzales Page 7 & N. Dec. at 413-14 (granting a waiver nunc pro tunc where the petitioner was not eligible for discretionary relief under the current version of the INA due to an amendment to the INA restricting the availability of waiver); see also In re Po Shing Yeung, 21 I. & N. Dec. 610, 624 (BIA 1997)(Rosenberg, Board Member, concurring in part and dissenting in part). As explained by the Second Circuit in Edwards,The BIA has, through much of § 212(c)’s history, explicitly deemed it appropriate to award § 212(c)’s waivers nunc pro tunc. And, despite multiple amendments and a recodification of the statute, Congress has not expressly countermanded this long-standing practice. Congressional reenactments, when made in the light of administrative interpretations of this kind, go a long way to precluding the INS’s current contention [that the 1996 restrictions on availability of the § 212(c) waiver evince a congressional intent to preclude nunc pro tunc grants of § 212(c) waivers based on the pre-1996 version of § 212(c)]. Edwards, 393 F.3d at 309-10 (internal citations omitted). Although the BIA has the authority to issue nunc pro tunc orders, it only issues such orders in two situations: (1) where the only ground of deportability or inadmissibility would thereby be eliminated; and (2) where the alien would receive a grant of adjustment of status in connection with the grant of any appropriate waivers. In re Felipe Garcia-Linares, 21 I. & N. Dec. 254, 259 (BIA1996); Matter of Roman, 19 I. & N. Dec. 855, 857 (BIA 1988). In its earlier cases, the BIA also weighed the equities, including how long the Petitioner had resided in the United States and whether the Petitioner had family living in the United States. Matter of T, 6 I. & N. Dec. at 41314; Matter of A, 3 I. & N. Dec. at 171-72. Contrary to Respondent’s assertion, the BIA does not grant nunc pro tunc orders only where

107

the DHS (formerly the INS) erred causing an alien prejudice. Respondent mistakenly relies on cases in which federal courts have granted, or ordered the BIA to grant, nunc pro tunc orders, and not cases in which federal courts have remanded to allow the BIA to determine whether to grant nunc pro tunc relief. (Resp’t Br. 24 (citing Edwards, 393 F.3d at 310).) In contrast, BIA case law indicates that the BIA has authority under the INA to issue nunc pro tunc orders even where there is no clear agency error. Matter of T, 6 I. & N. Dec. at 413-14; Matter of A, 3 I. & N. Dec. at 171-72; see also Yeung, 21 I. & N. Dec. at 624 (Rosenberg, Board Member, concurring in part and dissenting in part). Respondent offers no reason or authority suggesting that the standard appropriate in federal court is also the standard appropriate for the DHS. The standard employed by federal courts should not be imposed on the BIA and overrule its longstanding precedent. It makes persuasive sense that the power of the BIA to enter nunc pro tuncorders is greater than that of federal courts. Unlike the BIA, Congress did not entrust the federal courts to implement the INA but rather to insure that the DHS and BIA act within their statutory authority under the INA. Where there is no agency error, this Court has no reason to be involved in immigration cases. In contrast, the BIA may reasonably determine that a nunc pro tunc order is necessary to effectively implement the goals of the INA even where the DHS has not erred. Therefore, the authority of the BIA to issue a nunc pro tunc order need not be interpreted to be identical to that of federal courts in immigration cases. b. As Applied in This Case Here, the IJ incorrectly assumed that she did not have the authority to issue a nunc pro tunc order granting Petitioners a discretionary waiver pursuant to the 1993 version of the INA. The IJ reasoned that the 1996 amendments to the INA eliminated § 212(i) waivers for parents of United States citizens, and thereby also eliminated the DHS’s authority to issue nunc pro tunc orders Page 8 No. 04-3829 Patel, et al. v. Gonzales Page 8 granting such waivers. Although the IJ’s reasoning has facial appeal, it is unreasonable because it conflicts with BIA precedent. Rodriguez-Roman, 98 F.3d at 427 (declining to defer to IJ and BIA decisions in conflict with BIA precedent). Therefore, this Court will not defer to the IJ’s interpretation of the INA and will instead follow the long-standing interpretation of the INA articulated by the BIA. As noted above, the BIA has interpreted amendments to the INA restricting the availability of discretionary waivers of deportation not to eliminate its authority to issue nunc pro tunc orders granting such waivers. See Matter of T, 6 I. & N. Dec. at 413; see also Edwards, 393 F.3d 299. Thus, the DHS has the authority to issue nunc pro tunc orders granting waivers under the pre-1996 version of the INA even though Congress has eliminated such waivers. See id. Nonetheless, this Court will not grant the petition for review. Although the IJ has the authority to issue nunc pro tunc orders granting waiver under the 1993 version of the INA, and such relief would eliminate the sole grounds for removing Petitioners, Petitioners are not eligible for such relief. When Petitioners entered the United States in 1993, their son, Sanjay Herat, was not yet a United States citizen. Consequently, in 1993, Petitioners were not eligible for a

108

discretionary waiver under the 1993 version of § 212(i). Thus, the IJ does not have the authority to grant such relief under the 1993 version of § 212(i). See Matter of T, 6 I. & N. Dec. at 413 (granting a discretionary waiver nunc pro tunc to an alien who qualified for the waiver at his time of entry). III. CONCLUSION For the reasons set forth above, we DENY the petition for review. JUDICIAL REVIEW – BIA APPEAL – ADMINISTRATIVE NOTICE Burger v. Gonzales, __ F.3d __, 2007 WL 2331944 (2d Cir. Aug. 17, 2007) ("This Court recently held that if the Board of Immigration Appeals (“BIA”) intends to take administrative notice of potentially dispositive facts, it must warn a petitioner and provide the petitioner with an opportunity to respond before it denies a motion to reopen on the basis of those facts. See Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court declined to resolve the related question whether due process requires this same result before the BIA enters a final order of removal on the basis of administratively noticed facts. We now address this question and hold that it does.")
JUDICIAL REVIEW – EVIDENCE – FACT FINDING BY BIA Forteau v. U.S. Atty. Gen'l., __ F.3d __ (3d Cir. Jul. 20, 2007) ("The BIA simply ignored [the IJ's factual] findings and replaced them with its own version of the facts. ... Because the BIA did not defer to the IJ’s factual findings and review them for clear error, and because the BIA engaged in its own independent factfinding, we ... summarily grant the petition for review and remand for further proceedings

MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion. The Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings; where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).

109

JUDICIAL REVIEW – PETITION FOR REVIEW – NUNC PRO TUNC AUTHORITY Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. Jun. 4, 2007) (court of appeal's equitable nunc pro tunc authority could not be used to fix the type of error that occurred when BIA denied petitioner's initial application for a waiver of removal under former INA § 212(c) based on an erroneous interpretation of statute; “the BIA, on the other hand, has a long history of employing nunc pro tunc to backdate proceedings and orders where the error was not clerical or where there was no error at all. . . . The BIA’s use of nunc pro tunc . . . is based on a statutory commitment of authority to use back-dating measures where the BIA deems it appropriate.”), compare with Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. 2004) (extending BIA’s nunc pro tunc powers to allow appellate court to use nunc pro tunc in immigration context as well). See also, Fernandes-Pereira v. Gonzales, 417 F.3d 38 (1st Cir. 2005).
JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS – ABUSE OF DISCRETION Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("An abuse of discretion may be found where the BIA's decision 'provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.'"), quoting Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted). To challenge a removal, an alien must show: (1) the removal hearing was fundamentally unfair; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review; and (3) the procedural deficiencies caused the alien actual prejudice.Lopez-Ortiz,313F.3d at 229.Demonstration of prejudice requires the alien to show a reasonable likelihood that, but for the errors complained of, he would not have been removed. United States v. BenitezVillafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999). Petitioners argue the district court erred in characterizing Nguyen’s claim as one for a due process right to discretionary relief from a removal order, when to the contrary he claims a due process right to a hearing on whether he warrants the discretionary § 212(c) waiver. See Arevalo v. Ashcroft, 344 F.3d 1, 15 1st circ Nguyen claims that his liberty is restrained, in violation of his Fifth Amendment right to due process, by the Government’s action in denying his claim to relief from removal When determining whether a statute of limitations is jurisdictional or merely a time limitation subject to equitable tolling, the Supreme Court has recognized that, while several

110

factors must be examined, the main purpose of the inquiry is to discover congressional intent behind the statute. See Shendock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (“[A]ttachment of the label ‘jurisdiction’ to a statute’s filing requirements without examination of its language and structure, as well as the congressional policy underlying it, would be an abdication of our duty to interpret the language of a statute in accordance with Congress’s intent in passing it.”); Ramadan v. Chase Manhattan Corp.,156 F.3d 499, 501 (3d Cir. 1998)

CRIMES OF MORAL TURPITUDE – JUDICIAL RECOMMENDATION AGAINST DEPORTATION – REMEDY FOR IAC AT SENTENCE REQUIRES PLACING DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT OCCURRED, INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED PERIOD Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable

nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as
if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled). In determining whether nunc pro tun relief could be applied in this case, the court looked at the following issues: 1. Statutory bar: "A court may not award equitable relief in contravention of the expressed intent of Congress. See INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA had granted nunc pro tunc relief in the past, and noted that Congress never amended INA § 212(c) to bar such grants. Id. 2. When nunc pro tunc relief should be afforded: The court stated generally that "where an agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68." Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration context, the court found that nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was erroneously denied the opportunity to apply the relief due to an error on the part of the agency, and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated that the noncitizen, outside an illegal reentry context, did not need to show that a

111

denial of the relief would result in a denial of due process. 3. What error may nunc pro tunc relief be used to correct: Despite arguments that the doctrine of nunc pro tunc may only be used to correct inadvertent errors, and not to remedy a defect in a judgment order, the court held that in the immigration context nunc pro tunc relief was available to correct such defects in the immigration context. Edwards v. INS, 393 F.3d, at 309 n. 12.

Due Process /switch of IJ
Our reading of the administrative record leaves us convinced that the IJ cared little about the evidence and instead applied whatever rationale he could muster to justify a predetermined outcome. See Kerciku, 314 F.3dat 918 (finding violation of procedural due process where IJ first made up his mind about alien’s claims and refused to listen to testimony). The flaws in the IJ’s opinion call into question the fairness of the proceedings,and since we cannot be confident that Bosede’s hearing comported with statutory requirements or met minimum standards of due process, Bosede is entitled to a new one. See Floroiu v. Gonzales, 481 F.3d 970, 976 (7th Cir. 2007).And to avoid repetition of the same mistakes the third time around, we urge the agency to refer this case to a different immigration judge. See Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004).

RELIEF – LPR CANCELLATION – CONTINUOUS PRESENCE – NEW PERIOD STARTS WITH ADMISSION AFTER COMMISSION OF OFFENSE Okeke v. Gonzales, ___ F.3d ___ (3d Cir. May 18, 2005) (new period of continuous physical presence in the United States begins with lawful reentry to the United States after commission of an offense). http://caselaw.lp.findlaw.com/data2/circs/3rd/031831p.pdf

Sinotes-Cruz v. Gonzalez, 468 F.3d 1190 (9th Cir. Nov. 2006) (permanent stop time rule for cancellation of removal cannot be applied retroactively to convictions occurring prior to the effective date of IIRAIRA, therefore allowing a person to apply for cancellation despite a conviction of a crime of moral turpitude that occurred during the first seven years of physical presence). To determine whether application of part B of § 1229b(d)(1) to the seven-year continuous residence requirement of § 1229b(a)(2) would be impermissibly retroactive in Sinotes-Cruz’s case, we look to the two-part analysis of Landgraf v. USI Film Products, 511 U.S. 244 (1994). The first step is to determine whether Congress has given a clear indication that the law is to be applied retroactively. St. Cyr, 533 U.S. at 316. The standard for finding such a clear indication is a “demanding one.” Id. The statutory language must be so clear that it “could sustain only one interpretation.” Id. at 317 (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)); see also Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2428 (2006). “Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, Landgraf, 511 U.S., at 264, . . . there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve.” St. Cyr, 533 U.S. at 320 n.45. If the language is “ambiguous with respect to retroactive application,” we proceed to the second step of Landgraf. See id. at

112

320. [10] At the second step, we determine whether the statute would have an impermissible retroactive effect. “A retroactive effect, as defined in Landgraf, is one that ‘would impair rights a party possessed when he acted, increase a party’s liability SINOTES-CRUZ v. GONZALES 18727 for past conduct, or impose new duties with respect to transactions already completed.’ ” Jimenez-Angeles, 291 F.3d at 601 (quoting Landgraf, 511 U.S. at 280). “The inquiry into whether a statute operates retroactively demands a commonsense, functional judgment about ‘whether the new provision attaches new legal consequences to events completed before its enactment.’ ” St. Cyr, 533 U.S. at 321 (quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (quoting Landgraf, 511 U.S. at 270)) (internal quotation marks omitted). [11] Applying Landgraf’s first step, we hold that part B of § 1229b(d)(1) is ambiguous with respect to its retroactivity. As the Court pointed out in St. Cyr, numerous other provisions of IIRIRA expressly state that they have retroactive application. 533 U.S. at 318-20, 320 n.43. For example, IIRIRA § 321(b), 8 U.S.C. § 1101(a)(43), states that IIRIRA’s new definition of “aggravated felony” applies to “conviction[s] . . . entered before, on, or after” the enactment of IIRIRA. Id. at 319-20. By contrast, the text of § 1229b(d)(1)(including part B) says nothing whatsoever about retroactive application. Basing our analysis solely on the text of § 1229b(d)(1), we would have no trouble concluding that it is ambiguous with respect to its retroactive application

JUDICIAL REVIEW – HARDSHIP AS DISCRETIONARY ISSUE Barnaby-King v. US Dep't of Homeland Sec., 485 F.3d 684 (2d Cir. May 10, 2007) (prior case finding hardship to be a discretionary issue not subject to judicial review, Jun Min Zhang v. Gonzales, 457 F.3d 172 (2d Cir.2006), may no longer be binding precedent in this court, in light of Xiao Ji Chen, 471 F.3d 315, 319 (2d Cir.2006).

JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS SUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT REVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONS OF LAW ARE RAISED Bugayong v. INS, 442 F.3d 67 (2d Cir. Mar. 15, 2006) (per curiam) (denial of adjustment of status and INA § 212(h) waiver on discretionary basis not subject to judicial review; REAL ID Act of 2005, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8 U.S.C. § 1252(a)(2)(B)(i)). http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf

JUDICIAL REVIEW – STREAMLINING – BIA & IJ OPINION CONSIDERED TOGETHER Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (“When the BIA issues a short opinion adopting an IJ’s decision, we review the two decisions together, including the portions [of the IJ’s decision] not explicitly discussed by the BIA.”).
JUDICIAL REVIEW – HABEAS – RIPENESS Edwards v. INS, ___ F.3d ___, 2004 U.S. App. LEXIS 26335 (2d Cir. December 17, 2004) (Unpublished) (petitioner's claims are ripe for judicial review, even though she will not become eligible for release from

113 criminal custody until 2006, since the determination of her claims may take that long in any event and may be necessary to proceed now to avert possibility of mandatory immigration detention pending litigation of the immigration claims after the criminal custody release date), distinguishing Simmonds v. INS, 326 F.3d 351 (2d Cir. 2003)(holding immigration claims not yet ripe where petitioner would not be released from criminal custody for 10 years, because the law governing the immigration consequences of the criminal disposition might well change in the meantime. JUDICIAL REVIEW – EVIDENCE – FACT FINDING BY BIA Forteau v. U.S. Atty. Gen'l., __ F.3d __ (3d Cir. Jul. 20, 2007) ("The BIA simply ignored [the IJ's factual] findings and replaced them with its own version of the facts. ... Because the BIA did not defer to the IJ’s factual findings and review them for clear error, and because the BIA engaged in its own independent factfinding, we ... summarily grant the petition for review and remand for further proceedings.").

JUDICIAL REVIEW – PETITION FOR REVIEW – NUNC PRO TUNC AUTHORITY Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. Jun. 4, 2007) (court of appeal's equitable nunc pro tunc authority could not be used to fix the type of error that occurred when BIA denied petitioner's initial application for a waiver of removal under former INA § 212(c) based on an erroneous interpretation of statute; “the BIA, on the other hand, has a long history of employing nunc pro tunc to backdate proceedings and orders where the error was not clerical or where there was no error at all. . . . The BIA’s use of nunc pro tunc . . . is based on a statutory commitment of authority to use back-dating measures where the BIA deems it appropriate.”), compare with Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. 2004) (extending BIA’s nunc pro tunc powers to allow appellate court to use nunc pro tunc in immigration context as well). See also, Fernandes-Pereira v. Gonzales, 417 F.3d 38 (1st Cir. 2005).

JUDICIAL REVIEW – RES JUDICATA Andrade v. Gonzales, 459 F.3d 538 (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf NOTE: The court here engaged in no analysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), or Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), which specifically prohibit the Government from starting removal proceedings based upon convictions occurring prior to adjustment when the Government was aware of those convictions at the time of adjustment and either granted a waiver (Rafipour), or no waiver was needed since the convictions triggered deportation, but not inadmissibility (Rainford). The noncitizen in this case had 21 total convictions, and had been involved in litigating pro se for a number of years at all court levels.

JUDICIAL REVIEW – PETITION FOR REVIEW – STANDARD FOR REVIEW OF DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, 467 F.3d 1185 (9th Cir. November 3, 2006)(court of appeals standard of review of denial of motion to reopen removal proceedings after conviction has been vacated:

114

"We review the BIA's ruling on the motion to reopen for an abuse of discretion and will reverse the denial of the motion to reopen only if the BIA acted “ ‘arbitrarily, irrationally, or contrary to law.’ “ Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)).").
JUDICIAL REVIEW – MOTION TO REOPEN – BIA NOT BARRED FROM GRANTING MOTION TO REOPEN REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED – REGULATION DOES NOT BAR CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal

U.S.C. § 1252(g) states: [N]otwithstanding . . . section 2241 of title 28, United States Code, or any other habeas corpus provision . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. While this provision bars courts from reviewing certain exercises of discretion by the attorney general, it does not proscribe substantive review of the underlying legal bases for those discretionary decisions and actions. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 n.9, 119 S. Ct. 936, 944 n.9 (1999) (“Section 1252(g) was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.”); see also Kwai Fun Wong v. United States, 373 F.3d 952, 964 (9th Cir. 2004) (“[W]e have held that the reference to ‘executing removal orders’ appearing in § 1252(g) should be interpreted narrowly, and not as referring to the underlying merits of the removal decision.”) Here, Madu does not challenge the INS’s exercise of discretion. Rather, he brings a constitutional challenge to his detention and impending removal. See Pet. for Writ of Habeas Corpus at ¶ 21 (alleging that the “detention and imminent deportation of Petitioner are denials of his substantive right to due process . . . .”). Accordingly, section 1252(g) does not apply
RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY OF VOLUNTARY DEPARTURE PERIOD Thapa v. Gonzales, __ F.3d __, 2006 U.S. App. LEXIS 21046 (2d Cir. Aug. 16, 2006) (courts may stay voluntary departure period);

Third Circuit

115

RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY OF VOLUNTARY DEPARTURE PERIOD Obale v. Attorney General, 453 F.3d 151 (3d Cir. 2006) (courts may stay voluntary departure period).
RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY OF VOLUNTARY DEPARTURE PERIOD For more information about stays of voluntary departure during court of appeals review and an overview of the case law in other courts, see AILF’s Practice Advisory, Protecting Voluntary Departure Period During Court of Appeals Review (October 25, 2005) available at http://www.ailf.org/lac/lac_pa_chrono.shtml. RELIEF – VOLUNTARY DEPARTURE – FAILURE TO DEPART Matter of Bozena Zmijewska, 24 I. & N. Dec. 87 (BIA 2007) (BIA lacks authority to apply an “exceptional circumstances” or other general equitable exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure under INA § 240B(d)(1), 8 U.S.C.A. § 1229c(d)(1); noncitizen has not voluntarily failed to depart the United States under INA § 240B(d)(1) when the person, through no fault of his or her own, was unaware of the voluntary departure order or was physically unable to depart within the time granted). RELIEF – VOLUNTARY DEPARTURE Matter of Diaz-Ruacho, 24 I. & N. Dec. 47 (BIA 2006) (noncitizen granted voluntary departure, who subsequently fails to leave and fails to post the voluntary departure bond required by INA § 240B(b)(3), 8 U.S.C. § 1229c(b)(3), is not subject to penalties for failure to depart within the time period specified for voluntary departure, since “posting of a voluntary departure bond is a condition precedent to permission to depart voluntarily. . .”). http://www.usdoj.gov/eoir/vll/intdec/vol24/3546.pdf

RELIEF – WAIVER – 212(C) WAIVER – POST-CONVICTION RELIEF Lawrence v. Gonzales, 446 F.3d 221 (1st Cir. May 5, 2006) (where pre-IIRAIRA conviction was vacated on a basis of legal invalidity, but replaced with a new plea after IIRAIRA that also triggers removal, a waiver under INA § 212(c) is unavailable where the new plea was not entered nunc pro tunc).
RELIEF – 212(C) WAIVER – NONCITIZEN WHO PROCURED LPR STATUS BY FRAUD OR MISTAKE HELD INELIGIBLE TO APPLY FOR 212(C) RELIEF SINCE NOT "LAWFULLY ADMITTED FOR PERMANENT RESIDENCE" De La Rosa v. Dep't of Homeland Sec., 489 F.3d 551 (2d Cir. Jun. 13, 2007) (a lawful permanent resident who has procured her status by fraud or mistake has not been "lawfully admitted for permanent residence" for purposes of section 212(c)). RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005) (noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible for INA § 212(c) relief under INS v. St. Cyr; following rule that seven years for domicile for 212(c) stops at time of application for 212(c)).

116

RELIEF – 212(C) RELIEF – LAWFUL DOMICILE – UNREVOKED DOMICILE = LAWFUL DOMICILE EVEN IF LPR WOULD NOT HAVE BEEN GRANTED IF CRIMINAL HISTORY HAD BEEN
KNOWN

While a noncitizen must be a lawful permanent resident to obtain a waiver under INA § 212(c), and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen who obtained LPR status though amnesty legalization, even though s/he was not technically qualified because of a criminal offense committed while s/he was a temporary resident, should still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and therefore no fraud could have occurred), and the failure of the INS to rescind the temporary status prior to adjustment bars the INS from denying that they are lawful permanent residents now. But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005). If the government mistakenly granted lawful temporary residence to your client, the government's remedy was to terminate the LTR status. See INA sec. 245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec. 216(BIA 1990). Having failed to terminate, your client is a resident. See INA sec. 246; Matter of Belenzo, 17 I. & N. Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status granted under sec.245 or 249). Under the rescission cases and statute, the U.S. can rescind at any time if a noncitizen received LPR status by fraud. After having LPR status for five years the government can't rescind in the absence of fraud. Even if a noncitizen gets LPR status by fraud, she or he can still apply for 212(c) if she or he gets a 237(a)(1)(H) waiver to forgive the fraud. Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993). See also Perez-Enriquez v. Gonzales, 411 F3rd 1079 (9th Cir 2005). Thanks to Dan Kesselbrenner
1. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) In this case, a noncitizen sought to reopen his removal order to apply for cancellation of removal for permanent residents, cancellation for non-permanent residents, and voluntary departure. The BIA held that the respondent was ineligible for cancellation for permanent residents because he was never “lawfully admitted for permanent residence” because he acquired his resident status through fraud. If the respondent in this case had been a spouse, parent, son, or daughter of a United States citizen or lawful permanent resident then he could have filed a waiver under INA section 237(a)(1)(H), which would have made his admission lawful as of the date he acquired it, and allowed him to apply for cancellation of removal for permanent residents. See Matter of SosaHernandez, 20 I&N 758 (BIA 1993) (holding that a noncitizen could file a fraud waiver under former INA § 241(f), which would make her admission lawful as of the date she acquired it enabling her to apply for a 212(c) waiver).

117

NON published BIA=NON precedent=NON binding
An unpublished Board decision does not have a binding effect and does not create a rule of law. Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1991). “Decisions which the Board does not designate as precedents are not binding on the Service or the immigration judges in cases involving the same or similar issues.” Hernandez v. Ashcroft, 345 F.3d 824, 839 n.13 (9th Cir. 2003). “A survey of unpublished BIA decisions shows that they are treated as limited to their facts. They do not serve as authority for later proceedings involving the same issues, nor do they make new law.” Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993); cf. Mead, 533 U.S. at 233 (holding that because agency decision binds only the parties and “stops short of third parties” it lacks lawmaking power). The Board’s unpublished decisions, like this court’s memorandum dispositions, are “more or less, a letter from the court to parties familiar with the facts, announcing the result and essential rationale of the court’s decision.” Hart, 266 F.3d at 1178. They lack, by design, the reasoned and considered indicia required to provide guidance on important questions of law. An unpublished Board opinion is not an authoritative source of the agency’s interpretation of the law. Under the Chevron doctrine, only authoritative agency interpretations are afforded deference. Mead, 533 U.S. at 226-27. Accordingly, the unpublished Board opinions referred to by the court in its February 16, 2006 order do not provide an interpretation of the statute

http://72.14.205.104/search?q=cache:R0zRwB22HEoJ:ilgrp.com/docs/0370244%2520Perez%2520Enriquez%2520Amicus.pdf+Matter+of+Medrano&hl=en&ct=clnk&cd=2 &gl=us

Matter of Virk http://bulk.resource.org/courts.gov/c/F3/295/295.F3d. 1055.01-70055.html
Thus, an alien who, like Virk, obtains permanent resident status through a fraudulent marriage, but subsequently marries a citizen or lawful permanent resident, can be forgiven the fraud and maintain lawful permanent resident status through a § 241(f) waiver of deportation Matter of Manchisi, 12 I. & N. Dec. 132, 137, 1967 WL 13978 (BIA 1967), overruled on other grounds by Matter of Diniz, 15 I. & N. Dec. 447, 1975 WL 31546 (BIA 1975), rev'd by Matter of Da Lomba, 16 I. & N. Dec. 616, 1978 WL 36481 (BIA 1978); see also Matter of Da Lomba, 16 I. & N. Dec. 616, 620, 1978 WL 36481 (BIA 1978) (where alien entered the country with a visa from a fraudulent marriage, and then entered into a bona fide marriage, the BIA held that "when an alien is found deportable on the charge arising out of [the fraudulent marriage], section 241(f) can save him deportation."); Matter of Sosa-Hernandez, 20 I. & N. Dec. 758, 761, 1993 WL 495143 (BIA 1993) (quoting Manchisi, 12 I. & N. Dec. at 137). The BIA has recognized that the INS has incorporated into its Operations Instructions the policy that "an alien who qualifies as a nondeportable alien under the authority of section 241(f) `is thereby cleared of the illegality

118 which attached to the visa and to the entry, and is considered as an alien lawfully admitted for permanent residence.'" Sosa-Hernandez, 20 I. & N. Dec. at 762(quoting Immigration and Naturalization Service Operations Instructions 318.5).

RELIEF – 212(c) – LEAVING UNITED STATES WHILE 212(c) PENDING
A noncitizen LPR who leaves the United States during removal proceedings does not abandon a request for INA § 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988), LPR respondent was convicted of possession of marijuana, proceedings commenced and LPR conceded deportability as charged in a hearing before the IJ, applied for a 212(c) waiver and the hearing was continued for investigation. Then, the LPR departed the United States for a temporary visit abroad during the course of the pending deportation proceeding in which he had applied for 212(c), and returned to the United States. The IJ terminated proceedings and ruled that the 212(c) waiver application had been abandoned. The BIA held that the IJ erred. The LPR's departure did not interrupt the proceeding, and it could continue, assuming LPR still was deportable on same grounds. The INS did not need to start a new proceeding, but could issue another OSC (NTA) or amend if they chose; and the LPR had not abandoned his application for 212(c). Thanks to Lory Rosenberg for this information. It should be noted, however, that the noncitizen might not be admitted (or admissible) to the United States upon return. See INA § 101(a)(13)(C). On the other hand, this could be a strategy for avoiding Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005), vacated by Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). Issues

NATIONAL CLAIM
at his 1998 naturalization interview, he swore allegiance to the United States and signed an oath declaration form

Matter of Cruz , 15 I. & N. Dec. 236, 237 (BIA 1975). The BIA held that "prima facie eligibility may be established by an affirmative communication from the Service [USCIS] or by a declaration of a court that the alien would be eligible for naturalization but for the pendency of the deportation proceedings. . . ." Id. (emphasis added).

RELIEF – NATURALIZATION Okafor v. Gonzales, 456 F.3d 531 (5th Cir. Jul. 18, 2006) (signing oath insufficient to confer citizenship; it is necessary to participate in public ceremony pledging allegiance to the United States and renouncing all former allegiances to foreign states and sovereignties).
Circumstances are sufficiently unusual that justice demands his WAIVER be given retroactive effect.

See, e.g., Apokarina v. Ashcroft, 93 Fed Appx. 469, 471-72, 2004 WL 742286 (3dCir. 2004) (reversing and remanding district court’s dismissal of petition) (unpublished decision); Dominguez v.Ashcroft, 2004WL 2632916, at *1 (D. Or. Nov 18, 2004)(reserving decision pending completion of removal proceeding against petitioner);Saad, 2004 WL 1359165, at **1-2 (considering mer-its of the application, but finding applicant otherwise ineligible for citizenship); Ngwana v. Attorney General ofthe United States, 40 F. Supp.2d 319, 322 (D. Md. 1999) (holding INA § 318 limits only Attorney General and does not bar judicial review); Gatcliffe v. Reno, 23 F. Supp.2d 581, 584 (D.VI)

119

Because the court lacks jurisdiction over plaintiff’s claims, the court will not inquire into defendants motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). As opposed to DISMISSED for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

Bellajero
merits of his application for naturalization, a finding of eligibility for naturalization, and an order granting his naturalization application or alternatively, a declaration that he is eligible to naturalize but for the pending removal proceedings. Bellajaro's remaining argument is that triable issues of fact exist which preclude summary judgment, but they have to do with whether he is of good moral character ? not whether the INS correctly denied his naturalization application on the ground that removal proceedings are pending. Grewal v. Ashcroft, 301 F.Supp.2d 692, 696 (N.D.Ohio 2004) (noting that to divest district courts of jurisdiction is particularly problematic when the removal proceeding was initiated after the alien's application for naturalization was denied and he had filed a petition for review in the district court); Ngwana v. Attorney Gen. of the United States, 40 F.Supp.2d 319, 321 (D.Md.1999) (recognizing district court jurisdiction to review a merits-based denial of an application); Gatcliffe v. Reno, 23 F.Supp.2d 581, 582-83 (D.Vi.1998) (same)

8 U.S.C. § 1429 states in relevant part that “no person shall be naturalized against
whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provision of this or any other Act; and no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act.”

CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A Person Is Removed (9/7/2007) The court held that the regulation barring motions to reopen filed after a person departs or is removed is invalid because it conflicts with the motion to reopen statute. The Board of Immigration Appeals has jurisdiction to adjudicate a motion to reopen filed post-departure. AILF appeared as amicus curiae in support of the petitioner. (William v. Gonzales, 9/6/07) AILA Doc. No. 07090771.

120

CA4 Finds Exclusive District Court Jurisdiction Over Natz Applications Under INA §336(b) (8/7/2007) The court held that the timely filing of a request for a district court hearing on a naturalization application under INA §336(b) vests the district court with exclusive jurisdiction over the matter and deprives CIS of jurisdiction to adjudicate an application unless instructed to do so by the court. (Etape v. Chertoff, 8/2/07). AILA Doc. No. 07080767.

CA2 Discusses “Formal Judgment of Guilt” Under INA §101(a)(48)(A) (1/29/2008) The court held that under the plain meaning of “conviction” in INA §101(a)(48)(A), the entry of a “formal judgment of guilt…by a court” occurs when judgment is entered on the docket, not when a defendant pleads guilty. Moreover, the IMMACT90 amendments were not impermissibly retroactive as applied to Petitioner. (Puello v. BCIS, 12/20/07). AILA Doc. No. 08012966 NATIONAL
he signed the affidavit of allegiance to the United States that is part of the citizenship application.

http://www.ailf.org/lac/clearinghouse_brandx.shtml

Affirmative Misconduct
As the Supreme Court has often emphasized, deportation is a drastic measure that may inflict "the equivalent of banishment or exile," Barber v. Gonzales, 347 U.S. 637, 642-43, 74 S.Ct. 822, 825, 98 L.Ed. 1009; Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948); Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 92 L.Ed. 17 (1947), and " result in the loss 'of all that makes life worth living.' " Bridges v. Wixon,326 U.S. 135, 147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945). When such serious injury may be caused by INS decisions, its officials must be held to the highest standards in the diligent performance of their duties. Here, their duty was clear. Unlike the immigrants in Santiago, who had no right to enter the United States when they did, Yoo had an absolute right to a labor certification under the INS's own regulation. INS officials, by their affirmative inaction, deprived petitioner of that right without justification. We have stated that "a person might sustain such a profound and unconscionable injury in reliance on (an official's) action as to require, in accordance with any sense of justice and fair play, that (he) not be allowed to inflict the injury." Schuster v. CIR, 312 F.2d 311, 317 (9th Cir. 1962). Justice and fair play can only be achieved in this case by holding, as we do, that the Government is estopped from denying petitioner the benefit of pre-certification in seeking an adjustment of his status under 8 U.S.C. § 1255. By its maneuvers here, the INS has ensnared petitioner in a "Catch-22" predicament; the Service's conduct is analogous to the entrapment of a criminal defendant and, as such, cannot be countenanced. Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir.2001) (en banc) (holding negligently provided misinformation an alien received from an INS officer could not serve as the basis for equitable estoppel, because the alien must show the INS engaged in "affirmative misconduct," defined as a "deliberate lie" or "a pattern of false promises")

121
A court of appeals does not have the authority to determine the weight to afford to each factor. Id. This court will uphold a denial by the BIA unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular race or group. Bal v. Moyer, 883 F.2d 45, 46 (7th Cir.1989).
B) conditional parole. 8 U.S.C. � 1226(a).(13) The plaintiffs argue that, pursuant to Mathews v. Eldridge, 424 U.S. 319, 334 (1976), due process requires the INS to provide an LPR with notice of his right to parole within the United States(14) and with a parole hearing before the Attorney General decides how to exercise her discretion. Congress, however, has denied the district court jurisdiction to adjudicate deprivations of the plaintiffs' statutory and constitutional rights to parole.(15)

The plaintiffs respond that the Attorney General's parole authority at issue in this case is found not in 8 U.S.C. � 1226, but instead in 8 U.S.C. � 1225(b)(2)(C). Therefore, they argue, the bar on judicial review contained in � 1226(e), which applies only to "this section," does not bar this suit. But � 1225(b)(2)(C) only authorizes the Attorney General to return an applicant for admission to Mexico pending the exclusion proceedings. It is � 1226(a), by contrast, that authorizes her to grant parole within the United States to an LPR subject to removal proceedings. Consequently, an alien's LPR status includes elements of liberty and property rights of which he cannot be deprived without due process of law. For example, the right to seek and engage in employment, to travel, and to qualify for other benefits and entitlements are attributes or inherent characteristics of LPR status. Therefore, the government cannot deprive an LPR of these rights or entitlements or significantly damage them without first affording the LPR due process of law guaranteed by the Fifth Amendment. For instance, the INS and other government agents may not, without affording an LPR such due process of law, (1) confiscate his green card without providing him a reasonably adequate substitute document that will afford him equal access to all attributes of LPR status or (2) deny an LPR readmission. Of course, an LPR can be investigated, arrested, or prosecuted for a crime just as any other alien or citizen. But an LPR cannot be deprived of any of the attendant rights of his status without due process of law, because the Due Process clause of Fifth Amendment does not acknowledge any distinction between citizens and resident aliens. See Galvan v. Press, 347 U.S. 522 (1954) ("[Because] an alien who legally became part of the American community ... is a 'person,' [he] has the same protection for his life, liberty and property under the Due Process Clause as is afforded to a citizen."); Bridges, 326 U.S. at 161 (Murphy, J., concurring) ("None of these provisions acknowledges any distinction between citizens and resident aliens.").

http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=5th&navby=case&no=9940122cv0

122 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=docket&no=04a0149p ZAYED V US : Adopting the approach to statutory interpretation urged upon it by the government — an approach pioneered by the Supreme Court in Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) — the district court elected to follow what it saw as the true intent of Congress without necessarily adhering to the letter of the statutory language. The petition for review was dismissed without prejudice, as we have said, and Ms. Zayed has filed a timely appeal

I think the court has the power to order the AG to Grant my natz application if the court found that CIS erred in : 1- reopening the application based on new derogatory info.Eventhough the NTA has not been filed with the immig court, I was not technically in removal proceedings yet. According to 8 cfr 1239.1(a)

Baez-Fernandez EXHAUSTION NOT REQUIRED IF INJUSTICE manifested v. I.N.S., 385 F. Supp.2d 292, 295 (S.D.N.Y. 2005), which recognized an exception to the exhaustion requirement “where denial of jurisdiction would work a manifest injustice.” The decision in Baez-Fernandez relied on the Second Circuit’s decision in Marrero Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir. 2004), which involved a challenge to an order of removal where a subsequent judicial decision had eliminated the legal basis for the removal order. Although the petitioner had not appealed his deportation order to the Bureau of Immigration Appeals before filing a habeas petition,the Second Circuit concluded, on the unique facts of that case,that failure to consider the petitioner’s claim would work a manifest injustice. Id. at 54. In Baez-Fernandez, which involved an alien whose application for naturalization had been denied because a removal action was pending, the court distinguished Marrero Pichardo on the basis that the plaintiff had not been ordered removed and he appeared to be eligible for a waiver of the grounds of inadmissibility under former § 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c).

HAPEUS / Questions of LAW
It is at least arguable that there is jurisdiction for this claim under 28 U.S.C. § 2241, as neither AEDPA nor IIRIRA abolished the writ of habeas corpus for aliens seeking to challenge certain legal determinations of the BIA. In order for this type of jurisdiction to exist, however, there must be a claim cognizable under 28 U.S.C. § 2241, which limits the writ to claims that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). In addition, as discussed above, “judicial review of final orders of removal is available where the review is limited to pure questions of law and does not touch upon decisions that are under the discretion of the Attorney General.” Moussa, 389 F.3d at 554.

123

8 C.F.R. § 334.5(b) (1992). Under these regulations, the INS appears not to have discretion simply to revoke an application once granted, or to refuse to schedule a successful applicatnt for the taking of the oath, even though information comes to light indicating the application should not have been granted. See Patel v. INS, No. 98CV1937 JCH, 2000 WL 298921 (E.D. Mo. Jan. 20, 2000).

Saba-Bakare contends that the district court has jurisdiction over this action and consequently over his request that it declare him prima facie eligible for naturalization and/or review the USCIS’s determination that he is not prima facie eligible for naturalization.

124 POST CON RELIEF – SENTENCE – VACATION OR REDUCTION OF SENTENCE IS EFFECTIVE FOR IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S REASONS FOR GRANTING IT Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to modify or reduce a criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). http://www.usdoj.gov/eoir/vll/intdec/vol23/3522.pdf

10.31

A. Reopening Removal Proceedings

MOTION TO REOPEN – AFTER REMOVAL Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was ordered removed in absentia and removed from the United States. He filed a motion to reopen to rescind the in absentia order based on lack of notice. The IJ denied the motion, concluding that the immigration court lacked jurisdiction because petitioner was outside of the United States. The BIA affirmed the dismissal. The Eleventh Circuit found that petitioner’s motion was governed by 8 C.F.R. § 1003.23(b)(4)(ii), which says that a motion to reopen in absentia proceedings may be made at any time if the person shows that he or she did not receive notice. This regulation does not bar reopening when the person has been removed from the United States. The court noted that Patel v. United States AG, 334 F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the BIA’s dismissal of a motion to reopen because the person was outside of the United States. Patel, however, did not involve a motion to reopen to rescind an in absentia order. AILF Legal Action Center, Litigation Clearinghouse Litigation Clearinghouse Newsletters are posted on AILF’s web page at www.ailf.org/lac/litclearinghouse.shtml.

First Circuit
MOTION TO REOPEN – APPLICATION FOR RELIEF Palma-Mazariegos v. Gonzales, 504 F.3d 144 (1st Cir. Oct. 2, 2007) (motion to reopen removal proceedings for purpose of applying for relief must be accompanied by application for requested relief). MOTION TO REOPEN – VOLUNTARY DEPARTURE NOT STAYED Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007) (BIA grant of a timely motion to reopen did not vacate the original IJ’s decision finding removability and granting voluntary departure, and did not stay the voluntary departure period, even though it is highly unlike that BIA would reach decision on merits of motion to reopen before voluntary departure period expires; “We read §§ 1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of voluntary departure available only to aliens who agree to give up the fight and leave the country

125 willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006). POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD LEFT THE UNITED STATES Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. § 1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.”) did not invalidate the regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”). POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL PROCEEDINGS Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005). POST-CON – MOTION TO REOPEN – SUA SPONTE De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.”) POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated). http://laws.lp.findlaw.com/1st/051895.html POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated). http://laws.lp.findlaw.com/1st/051895.html

126 NOTE: Under the particular facts of this case, it appears that the deportation order may not have actually been final (see dissent). However, assuming (as the majority did), that the deportation order was final and therefore the holding of the case does not apply outside the context of late motions to reopen/reconsider will limit the reach of this otherwise unfortunate decision.

Second Circuit
MOTION TO REOPEN – SUA SPONTE Cyrus v. Keisler, 505 F.3d 197 (2d Cir. Oct. 19, 2007) (court lacks jurisdiction to review denial of discretionary request for sua sponte motion to reopen). BOARD OF IMMIGRATION APPEALS – MOTION TO RECONSIDER – DEFINITION AND STANDARD Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has defined a motion to reconsider as ‘"a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked."’ In re Cerna, 20 I. & N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations establish that a motion to reconsider must specify errors of fact or law in the BIA decision and be supported by relevant authority.") citing 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

Fourth Circuit
MOTIONS TO REOPEN – DEPORTED NONCITIZENS William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8 U.S.C.] § 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. ... it is evident that 8 C.F.R. § 1003.2(d), containing the post-departure bar on motions to reopen, conflicts with the statute by restricting the availability of motions to reopen to those aliens who remain in the United States. Therefore, we conclude that this regulation lacks authority and is invalid.").

Seventh Circuit
MOTION TO REOPEN – SUA SPONTE Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need judicial permission to reopen a case sua sponte after the filing of a petition for review). http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf

Eighth Circuit
MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL PROCEEDINGS Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by granting DHS motion to reopen pursuant to 8 C.F.R. § 1003.23(b)(3) because DHS failed to establish that the evidence submitted

127 with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to the conclusion of removal proceedings).

Ninth Circuit
POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence, for Arizona misdemeanor conviction was illegal since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, required remand to the BIA to consider the issue in the first instance; issue could not have been considered earlier, since Arizona court entered 2004 minute entry over six months after initial BIA decision in this case), citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir; 2004) (remanding to BIA to consider in first instance whether petition continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per curiam) (remanding "changed circumstances" issue to BIA for "opportunity to address the matter in the first instance). POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes). POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POST-CONVICTION ATTACK Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation does not apply when criminal conviction that formed a “key part” of the order of removal has been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and EstradaRosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions are not legally valid, and thus do not bar motions to reopen).

Eleventh Circuit
MOTION TO REOPEN – BIA Cisneros v. U.S. Attorney Gen., __ F.3d __, 2008 WL 217364 (11th Cir. Jan. 28, 2008) (BIA abused its discretion in failing to examine exceptional circumstances in denying the motion to reopen).

BIA
MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack

128 jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion. The Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings; where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).

Other
POST-CONVICTION RELIEF – AFTER CONVICTION VACATED New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml. REMOVAL – RETURN OF THE WRONGFULLY REMOVED One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal" under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks to Beryl B. Farris, Atlanta. MOTION TO REOPEN – AFTER DEPARTURE FROM UNITED STATES The regulations provide that departure from the United States under an order of deportation, or while a removal order is on appeal to the BIA, shall render the immigration judge’s decision final and bar any motion to reopen or reconsider. 8 C.F.R. §§ 1003.2(d), 1003.4. However, many circuits have challenged the validity of these regulations. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (first sentence of 8 C.F.R. § 1003.2(d) is ultra vires to statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); ReynosoCisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase “is the subject of”); Contreras-Rodriguez v. United States Att’y Gen., 462 F.3d 1314 (11th Cir. 2006) (departure regulation does not apply to in absentia motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir.

129 2003) ("Under 8 C.F.R. § 1003.4, any voluntary departure from the United States following entry of an order of deportation will be deemed to withdraw a pending appeal and to render the order of deportation final."). Thanks to Rachel E. Rosenbloom; Beth Werlin POST CON RELIEF – STATE REHABILITATIVE RELIEF – WYOMING DEFERRED ENTRY OF PLEA AND SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301 (“Without entering a judgment of guilt or conviction, [the court may] defer further proceedings and place the person on probation for a term not to exceed five (5) years.”), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes.

Moral turpitude refers generally to conduct that shocks the public conscience as
being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically Wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.

Departing while appeal is pending : Delagadillo
The respondent, through counsel, argues that his departure from the United States to Cuba renders moot the Service’s appeal of the Immigration Judge’s order terminating deportation proceedings. The respondent maintains that “there is no issue in regard to [his] deportation as he has departed the United States.” According to the respondent, because he is not the appealing party, “his departure cannot be construed as a withdrawal of his appeal under 8 C.F.R. § 3.4. nor can it be construed as selfdeportation because he [prevailed in] this case [before the Immigration Judge] and was not ordered deported.”

Summary JUDGMENT
“A district court’s grant of a summary judgment motion is subject to de novo review . . . . All evidence submitted on the motion is to be construed in the manner most favorable to the nonmoving party.” Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir. 2004) (citations omitted). Summary judgment “should be rendered if the pleadings, the discovery and the disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)

130

Matter Of Espinosa
This Board has been notified by the Service that the respondent has departed the United States. We do not know, however, whether that departure is intended to be temporary or permanent. We held in a recent precedent decision that an alien’s departure from the United States does not serve as a constructive withdrawal of an appeal filed by the Service. Matter of Luis, 22 I&N Dec. 3395, at 8 (BIA 1999). Furthermore, we decided that the Board has, as a matter of prudence, reserved the discretion to dismiss appeals and deny motions as moot. Id. at 9. We find, as we did in Matter of Luis, that the instant case is not moot because a resolution of the Service’s appeal that is adverse to the respondent would have significant legal consequences were the respondent to seek admission to the United States in the future. Furthermore, because the respondent is a lawful permanent resident, the question whether he is entitled to retain that status is not mooted by his mere departure from this country.

KRS 506.120 V KRS 506.080
KRS 506.120 clearly requires proof of a number of facts not required by KRS 506.080. For example, KRS 506.120(1) requires a person to have “the purpose to establish or maintain a criminal syndicate or to facilitate any of its activities,” a requirement not contained within KRS 506.080. According to KRS 506.080(1), if a person engages in conduct to provide someone with the means or the opportunity to commit a crime, his conduct must actually aid that party in committing the crime. In other words, the crime allegedly being facilitated must actually be consummated and committed. See KRS 506.080 (LRC Commentary). No consummation requirement is contained within any of the prohibited acts contained within KRS 506.120(1)(a)-(c). Thus, “each statute requires proof of a fact the other does not.” However, there was testimony that Layton also bought ingredients that were used by the group in the manufacturing of methamphetamine. That conduct alone of providing materials supported a criminal syndicate conviction. Therefore, Layton’s double jeopardy argument must fail.
506.080 Criminal facilitation. (1) A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime. (2) Criminal facilitation is a: (a) Class D felony when the crime facilitated is a Class A or Class B felony or capital offense; (b) Class A misdemeanor when the crime facilitated is a Class C or Class D felony; (c) Class B misdemeanor when the crime facilitated is a misdemeanor.

131

. Facilitation of Aggravated Burglary In 1992, in a Tennessee state court, Sawyers pled guilty to facilitation of a felony or, more specifically, facilitation of aggravated burglary. He argues that the district court erred in classifying this as a "violent felony" under the ACCA. We find, however, that the district court was correct and affirm its holding. A person is a party to a crime in Tennessee "if the offense is committed by the person's own conduct, by the conduct of another for which the person is criminally responsible, or by both." TENN. CODE ANN. § 39-11-401(a). The comments to this section make clear that Tennessee law provides "equal liability for principals, accessories before the fact, and aiders and abettors." Id. § 39-11-401(a) cmt. More specifically, a person is criminally responsible for an offense committed by another so long as he has the appropriate mental state-i.e., an "intent to [*11] promote or assist the commission of the offense, or to benefit in the proceeds"-and solicits, directs, aids, or attempts to aid the person who commits the crime. Id. § 39-11-402(2). "Facilitation of a felony is a lesser-included offense when a defendant is charged with criminal responsibility for the conduct of another." State v. Fowler, 23 S.W.3d 285, 288 (Tenn.2000). "A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility [for the offense,] . . . the person knowingly furnishes substantial assistance in the commission of the felony." TENN. CODE ANN. § 39-11-403(a). Here, Sawyers pled guilty to facilitation of aggravated burglary. "Aggravated burglary occurs when an individual enters a habitation 'without the effective consent of the property owner' and, . . . intends to commit a felony . . . ." State v. Langford, 994 S.W.2d 126, 127 (Tenn.1999)(citing TENN. CODE ANN. §§ 39-14-402 and 39-14-403). Facilitation of aggravated burglary satisfies [*12] the "felony" requirement because it is punishable by more than one year. Specifically, as a class D felony, the crime carries a minimum two year sentence. TENN. CODE ANN. § 40-35-111(b)(4). n2 It is therefore necessary to determine if the crime meets the second requirement under the ACCA. Facilitation of aggravated burglary clearly does not involve the use of explosives or contain an element of force. Thus, it is a "violent felony" only if it is specifically enumerated or falls within the otherwise clause. http://www.lexisone.com/lx1/caselaw/freecaselaw?action=FCLRetrieveCaseDetail&caseID=13&format= FULL&resultHandle=913a1c58b50ee27990afda5f7e0510ee&pageLimit=10&xmlgTotalCount=18&combin edSearchTerm=facilitation+and+mens+rea+and+intent&juriName=Combined%20Federal%20Cases&sou rceFile=GENFED;COURTS This case was tried on the theory that, in the course of his dealings with the cooperating witness, Roy both conspired to and did in fact "conduct[] or attempt to conduct[] a financial transaction involving property represented to be the proceeds of specified unlawful activity" -- to wit, marijuana sales involving the cooperating witness -- "with the intent . . . to promote the carrying on of specified unlawful activity" -- to wit, future marijuana sales to and by that same witness. 18 U.S.C. § 1956(a)(3)(A); 18 U.S.C. § 1956(h). Roy's principal appellate argument is that the district court committed reversible error in informing the jury that Roy could be convicted if he engaged in the actus reus with an intent to promote "or facilitate" the already [*3] referenced marijuana sales. As Roy correctly points out, the

132 statute makes no mention of an intent to "facilitate"; an intent to "promote" is required. Promotion and facilitation are not the same, Roy posits, because one can facilitate something simply by doing nothing, whereas one must engage in affirmative conduct in order to engage in "promotion." Thus, Roy contends, the instruction impermissibly and prejudicially diminished the government's burden of proof. The government's principal response is that, contrary to Roy's protestations, the words "promote" and "facilitate" are synonymous and have been used interchangeably by a number of appellate courts, including this court, in describing the mens rea required by 18 U.S.C. § 1956(c)(3)(A). See United States v. LeBlanc, 24 F.3d 340, 346 (1st Cir. 1994); see also United States v. Panaro, 266 F.3d 939, 949-50 (9th Cir. 2001); United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999); United States v. Paramo, 998 F.2d 1212, 1215-16 (3d Cir. 1993); United States v. Skinner, 946 F.2d 176, 177-78 (2d Cir. 1991). Individual words [*4] usually signify a range of ideas, and we have little trouble agreeing with Roy that, in some contexts, "promotion" and "facilitation" might signify different concepts. Moreover, we may grant for the sake of argument that one sometimes may reasonably be thought to have "facilitated" something without actually doing anything, whereas "promotion" always (or at least nearly always) requires affirmative conduct of some sort. But the question here is not whether "promotion" and "facilitation" are always synonymous; the question is whether, in the context of the jury instructions, there is a reasonable likelihood that the jury understood the district court's use of the word "facilitate" to denote something materially easier for the government to prove than the "promotion" that is required by the statute. See United States v. DeLuca, 137 F.3d 24, 37 (1st Cir. 1998) (collecting cases). Roy says that there is such a reasonable likelihood because the jury instructions "clearly misled the jury as to the level of involvement required to convict Mr. Roy." The argument continues: Had the District Court properly instructed the jury on the meaning of promote, the verdict likely [*5] would have been different. Mr. Roy's actions may have facilitated the narcotics activity, but that certainly does not mean he promoted, or intended to promote, such activity. Unfortunately, based on the District Court's instructions, the jury believed it was enough to convict Mr. Roy if he merely facilitated the activity.But Roy's elaboration of his argument incorrectly assumes that the district court's instruction on promotion or facilitation described the actus reus at which the statute is directed. It did not. As set forth above, the instruction described the actus reus prohibited by the statute as the conducting of (or attempted conducting of) financial transactions involving the proceeds of unlawful activity (here specified to be marijuana sales). The concepts of "promotion" or "facilitation" came into play only in describing the mens rea with which one must have engaged in the actus reus. Thus, contrary to Roy's argument, the jury was not permitted to convict on a showing that Roy somehow inertly facilitated the narcotics activity. Rather, it was asked whether Roy had engaged in affirmative conduct while harboring a specified mens rea: "to promote [*6] or facilitate" the carrying on of the specified narcotics-related activity. Because it is incoherent to say that one engaged in affirmative conduct with an intent to bring about some consequence by means of one's facilitative inaction, we think there is no reasonable likelihood that the jury understood the district court's use of the verb "facilitate" in the jury instructions to denote conduct-free passivity. And because Roy has not suggested any other definition of "facilitate" under which the jury was reasonably likely to have convicted by finding that he engaged in the actus reus with something short of the promotive intent required by the statute, we reject his challenge to the instructions. See DeLuca, 137 F.3d at 37.

133

http://www.lexisone.com/lx1/caselaw/freecaselaw?action=FCLRetrieveCaseDetail&caseID=1&format=F ULL&resultHandle=f3a9a0c96363367e553dfb31714da7f5&pageLimit=10&xmlgTotalCount=1&combined SearchTerm=krs+506.080&juriName=Combined%20Federal%20Cases&sourceFile=GENFED;COURTS

Jensen argues that because she did not actively participate in the sexual abuse, but rather only passively allowed it to occur, her conviction for complicity to commit sexual abuse does not fall within the ambit of offenses which require sex offender registration. Kentucky courts, however, disagree. In Parks v. Commonwealth, 192 S.W.3d 318, 326 (Ky. 2006), the Kentucky Supreme Court distinguished complicity liability from liability for an inchoate offense, such as criminal facilitation, [*10] which carries a reduced penalty because the underlying offense was never actually committed. See KRS 506.080. The Kentucky Supreme Court explained that "unlike an inchoate offense, 'KRS 502.020 does not create a new offense known as complicity.'" Id. at 326 (citing Commonwealth v. Caswell, 614 S.W.2d 253, 254 (Ky. App. 1981)). Rather, as stated earlier by the Kentucky Supreme Court in Wilson v. Commonwealth, 601 S.W.2d 280, 286 (Ky. 1980), "one who is found guilty of complicity to a crime occupies the same status as one being guilty of the principal offense." PARKS v. Commonwealth page 10 http://apps.kycourts.net/supreme/sc_opinions.shtm

Complicity liability under KRS 502 .020 is not an inchoate offense, such as the offenses described in KRS Chapter 506, e.g_, criminal facilitation, KRS 506.080, the offense to which Blakeman and Morris pled guilty. Inchoate offenses carry reduced penalties because the underlying offense was never actually committed. However, unlike an inchoate offense, "KRS 502.020 does not create a new offense known as complicity ." Commonwealth v. Caswell , 614 S.W.2d 253, 254 (Ky. App. 1981). "[O]ne who is found guilty of complicity to a crime occupies the same status as one being guilty of the principal offense." Wilson v.Commonwealth , 601 S.W.2d 280,286 (Ky. 1980) . Smalley attempts to rebut the government’s assertion that his crime was inherently fraudulent by noting that fraud is not part of the language of either § 1952(a) or § 1956(a)(3)(B). The Ninth Circuit has aptly noted, however, that “[e]ven if intent to defraud is not explicit in the statutory definition, a crime nevertheless may involve moral turpitude if such intent is ‘implicit in the nature of the crime.’” Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993) (quoting Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978)); accord In re Flores, 17 I. & N. Dec. 225, 228 (BIA 1980). Smalley stridently disagrees that his offense is implicitly fraudulent and therefore turpitudinous, however, because he analogizes money laundering to the regulatory crime of structuring financial transactions to evade reporting requirements under 31 U.S.C. § 5324, which both the BIA and the Ninth Circuit have held is neither fraudulent nor a

134

CIMT. See Goldeshtein, 8 F.3d at 648; In re L-V-C-, 22 I. & N. Dec. 594,602 (BIA 1999) (following Goldeshtein). our categorical analysis of whether a crime involves moral turpitude, the answer depends upon our analysis of the elements of the crime that the government must prove before 0btaining a conviction

www.probono.net/nationalareasearch/attachment.109695

www.opinions.kycourts.net/sc/2005-SC-000307-MR.pdf

KY Complicity v Facilitation: STRATTON v Comm of KY supreme court The relevant part of the statute criminalizing complicity, KRS KRS 502 .020(1), reads: A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he : (a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or (b) Aids, counsels, or attempts to aid such person in planning or committing the offense; In slight contrast, the statute criminalizing facilitation, KRS 506 .080(1), reads: A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime. The distinction between the applicability of the two statutes depends on the defendant's mental state. See White v. Commonwealth, 178 S.W .3d 470, 489 (Ky. 2005) . Under either statute, the defendant acts with knowledge that the principal actor is committing or intends to commit a crime. Under the complicity statute, the defendant must intend that the crime be committed ; under the facilitation statute, the defendant acts without such intent. Facilitation only requires provision of the means or opportunity to commit a crime, while complicity requires solicitation, conspiracy, or some form of assistance. "Facilitation reflects the mental state of one who is `wholly indifferent' to the actual completion of the crime." Thompkins v. Commonwealth, 54 S.W .3d 147,150-51 (Ky. 2001) (citing Skinner v. Commonwealth, 864 S.W .2d 290, 298 (Ky. 1993) and quoting Perdue v.

135

Commonwealth, 916 S .W.2d 148,160 (Ky. 1995), cert. denied , 519 U .S . 855,117 S . Ct. 151, 136 L. Ed . 2d 96 (1996)). An instruction on facilitation (as a lesser-included offense of complicity) "is appropriate if and only if on the given evidence a reasonable juror could entertain reasonable doubt of the defendant's guilt on the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense." Skinner, 864 S.W .2d at 298. An instruction on a lesser included offense requiring a different mental state from the primary offense is unwarranted, however, unless there is evidence supporting the existence of both mental states . See Taylor v. Commonwealth, 995 S .W.2d 355, 362 (Ky. 1999).
Duran, ID#3101 (1) An immigration judge in deportation proceedings properly denied the respondent's motion to subpoena government records where the respondent failed to comply with the requirements of 8 C.F.R. § 287.4(a)(2) (1984) by not specifically stating what he expected to prove by such documentary evidence and by not affirmatively showing a diligent effort to obtain the records. (2) While a subpoena is not required in the instant proceedings and access should generally be given to a person in immigration proceedings concerning records maintained about himself, the respondent failed to show compliance with the requirements of 8 C.F.R. § 103.21 (1984) which permit such access Matter of Morales 21 / 130 1995

(5) An interlocutory appeal will ordinarily be considered moot upon the alien’s departure under an order of exclusion and deportation, but such an appeal need not be considered moot in each and every circumstance, particularly where the order of exclusion was erroneous and the issue raised has continuing importance to the proper administration of the immigration laws. Matter of Okoh, 20 I&N Dec. 864 (BIA 1994), distinguished. Matter of Brown, 18 I&N Dec. 324, 325(BIA 1982) (holding that an alien may not defeat a Service appealand nullify deportation proceedings by effecting a departure from and subsequent reentry to the United States). We therefore hold that the respondent’s departure from the United States did not serve as a constructive withdrawal of the Service’s appeal.

One of the principal distinctions between facilitation and complicity is that "facilitation requires knowledge that another intends to commit a crime, while complicity requires an intention to promote or facilitate commission of the offense ." Skinner v. Commonwealth , 864 S.W.2d 290, 298 (Ky. 1993). Explained another way, "[f]acilitation reflects the mental state of one who is 'wholly indifferent' to the actual completion of the crime ." Perdue v. Commonwealth, 916 S.W.2d 148, 160 (Ky. 1995).
http://64.233.169.104/search?q=cache:GNCBYewEWuoJ:162.114.92.72/Opinions/2003-SC-000220MR.pdf+krs+506.080&hl=en&ct=clnk&cd=8&gl=us CIMT STATUTe PARTYKA v. AG
http://www.ca3.uscourts.gov/opinarch/042804p.pdf.

136

Whether an alien’s crime involves moral turpitude is determined by the criminal statute and the record of conviction, not the alien’s conduct. Knapik, 384 F.3d at 88,90-91; De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3dCir. 2002). Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute. Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996); Matter of Marchena, 12 I. & N. Dec. 355, 357 (BIA 1967). As a general rule, a criminal statute defines a crime involving “moral turpitude only if all of the conduct it prohibits is turpitudinous
JUV . ADJ and Immigration
The United States continues to attract immigrants from many foreign lands, and lawyers in criminal practice must increasingly be conscious of the immigration status of parties and deportation consequences of criminal proceedings involving alien residents. So far, juvenile delinquency adjudications have not been deemed criminal "convictions" that have negative immigration consequences. (Matter of Ramirez-Rivero, 18 I&N 135 (BIA 1981); Matter of C.M., 5 I&N 327 (BIA 1953).) But the conviction of a juvenile as an adult in a criminal court does meet the law’s requirement and may result in deportation. (Matter of C.M., supra; Morasch v. INS, 363 F.2d 30 (9th Cir. 1966).) One major consequence of the transfer of a youth to trial in adult court is exposure to the likelihood of deportation, depending on the gravity of the offense charged or nature of the sentence imposed. 18 U.S.C. §§
5031-5042

4.1.C Finality of conviction

Before Congress codified the definition of conviction in 1996, the Supreme Court had required that a conviction be final before it could be used in to support a conviction-based ground of deportability.13 Although the BIA has not addressed the issue in a precedent decision since 1996, the Fifth Circuit 14 and Seventh Circuit15 have held that the statutory definition of conviction eliminated the finality requirement. In those circuits that still require finality, a late appeal that is accepted as a direct appeal is not a final conviction for immigration purposes.16
IJ REQ An U is required to inform eligible aliens about the availability of discretionary relief, including voluntary departure; failure to do so is a basis for a remand by the BlA. In re Julio Antonio Cordova, 22 I. & N. Dec. 966, 970-72, 1999 WL 590719 (BlA 1999). Under 8 C.F.R. § 240.11(a)(2) (now 8 C.P.R. § 1240(a)(2)), "[t]he Immigration Judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing." Voluntary departure is one of the "benefits enumerated in this chapter." See 8 C.P.R. §240.26 (now 8 C.F.R. § 1240.26) Moreover, the Board of Immigration Appeals (hereafter "the BIA") requires a remand when an U misinforms or fails to inform an eligible alien about voluntary departure rights, even when the alien is represented by an attorney. Cordova, 22 I. & N. at 966.6 In short, as with § 212(c) relief, the "right to be informed of the possibility" of voluntary departure relief, although the relief itself is not "constitutionally mandated, ... [is] an established right." Copeland, 376 F.3d at 72

Argument against the Wobbler KY statute of Facilitation: (CIMT TEST)

137

1-KRS 506.080 is violated without any requirement that the def. have a specific intent to cause any liability to the victim being defrauded.The statute requires the existance of no state of mind or criminal intent beyond that plainly expressed on the face of the statute. “ The legistlator thought to deter ALL acts by a facilitator that may or may not result in a liability,“whether or not such a consequence was intended or even forseen” Moral turpitude generally requires an evil motive, one doesnot violate …. by merely ………, Rather,one must intentionally engage in a deception or fraud that might fairly be described as noninnocent behavior, even if, in some instances,it might not stem from an evil motive.
2- the crime of facilitation was complete at the time the offense to defraud began. 3- Penalty for Facilitation of a class A is a class B Misd punishable by a max of 90 days in Jail.

4- CIMT is not defined by the INA or in any US code. 5- Intent to defraud shall be focused on the person who commits the actual offense not the facilitator. (min. conduct required should be discussed) http://www.plol.org/Pages/Secure/Document.aspx?d=4mBXPcT15pNzBDKeBxG%2bSw%3d%3d&l=Case s&rp=4 5 cir case of viol facilitation ( immig is a driver of the car in which the pass. Is the drive by shooter) Nguyen V Ashcroft.

Mizrahi v Gonzales Ca2 Solicitation of CS NY penal:
Because every solicitation conviction in New York depends on two statutes to define the minimum conduct proscribed -- the generic statute which defines the actus reus element and the object statute which defines the mens rea element -- when, as in Mizrahi's case, the intent element is supplied by a statute defining the defendant's objective to be a drug crime, the solicitation conviction categorically constitutes "a violation of . . . any law . . relating to a controlled substance." 8 U.S.C. § 182(a)(2)(A)(i)(II). http://www.lexisone.com/lx1/caselaw/freecaselaw?action=FCLRetrieveCaseDetail&caseID=5&format=F ULL&resultHandle=12fbb1fe83a385acefd7112611619fda&pageLimit=10&xmlgTotalCount=16&combine dSearchTerm=facilitation+and+deportation&juriName=Combined%20Federal%20Cases&sourceFile=GE NFED;COURTS

2) Criminal and related grounds (A) Conviction of certain crimes (i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of— (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

PRO SE In Ca2 we construe the briefs of pro se petitioners as raising the strongest arguments that they suggest, Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002);Mcintoch CIMT test Cliché: 3Because the term “moral turpitude” is undefined by statute, this court has been inclined to defer to the Board of Immigration Appeal’s (“BIA’s”) construction. See Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006) (“The BIA has explained that the term ‘moral turpitude’ generally encompasses: ‘conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as

138

an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.’” (quoting Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996))). The conduct that Nguyen pleaded guilty to falls within this definition.

By these standards, we conclude that the crime of malicious mischief as defined by the Washington statute does not rise to the level of either depravity or fraud that would qualify it as necessarily involving moral turpitude. In contrast to the bulk of other nonfraud crimes necessarily involving moral turpitude, malicious mischief is a relatively minor offense. Indeed, one can be convicted of malicious mischief for destroying as little as $250.00 of another's property with an evil wish to annoy. Moreover, malice can be inferred if the act is merely "wrongfully done without just cause or excuse." RCW Sec. 9A.04.110(12). The Washington statute's reach thus extends to include pranksters with poor judgment. Consequently, unlike the crimes of spousal abuse, child abuse, firstdegree incest, and carnal knowledge of a fifteen year old, malicious mischief does not necessarily involve an "act of baseness or depravity contrary to accepted moral standards." Grageda 12 F.3d at 921; cf. Matter of N--, 8 I & N Dec. 466, 468 (BIA 1959) (Delaware malicious mischief statute not a crime necessarily involving moral turpitude).5 As for fraudulent intent, it is undisputed that Washington's malicious mischief statute includes no such element. We therefore conclude that malicious mischief, as defined by RCW Sec. 9A.48.080, is not a crime necessarily involving moral turpitude. 16 The INS resists this conclusion, arguing that if a statute requires an "evil intent, wish, or design to vex, annoy, or injure another person," then the crime necessarily involves moral turpitude. We cannot accept this proposition. It is true that in the fraud context we have placed a great deal of weight on the requirement of an evil intent. But even in this

139

context, we have not held that if a statute requires evil intent, it necessarily involves moral turpitude. We have held only that without an evil intent, a statute does not necessarily involve moral turpitude. See Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.1962) ("A crime that does not necessarily involve evil intent, such as an intent to defraud, is not necessarily a crime involving moral turpitude."). To state the proposition positively, we have held that in the fraud context an evil intent is necessary, but not sufficient, for a crime inevitably to involve moral turpitude. Cf. Gonzalez-Alvarado, 39 F.3d at 246 (holding that "[a] crime involving the willful commission of a base or depraved act is a crime involving moral turpitude, whether or not the statute requires proof of evil intent."). 17 While mental state is an important factor, we reject the contention that all crimes requiring some degree of evil intent are necessarily crimes involving moral turpitude. Here, for example, the Washington statute permits malice (which imports an evil intent) to "be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty." RCW Sec. 9A.04.110(12). Under this definition, evil intent may become much too attenuated to imbue the crime with the character of fraud or depravity that we have associated with moral turpitude. At least outside of the fraud context,6 the bare presence of some degree of evil intent is not enough to convert a crime that is not serious into one of moral turpitude leading to deportation under section 241(a)(4) of the Immigration and Nationality Act. (Rodriguez-herrera, Petitioner, v.INS) http://cases.justia.com/us-court-of-appeals/F3/52/238/573134/ PREJUIDICED IN proceedings: DUE PROCESS See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (reversal of a BIA decision on due process grounds is available where the petitioner suffered prejudice, and the proceeding was “so fundamentally unfair that the alien was prevented from reasonably presenting his case.”) Petitioner argues she was prejudiced by the introduction of the evidence because it provided the basis for her removal. Clearly the evidence hurt Petitioner’s case. But Garcia-Flores does not bar evidence that prejudices a petitioner; the rule bars evidence that prejudices protected interests held by that petitioner Shin v Mukasey: 1252 g/ Equitable estoppel Petitioner argues the government should be estopped from removing her due to Sustaire’s actions. Under 8 U.S.C.§ 1252(g), we have no “jurisdiction to hear any cause or claim

140

by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders . . . .” See also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). However, we have jurisdiction over petitioner’s equitable estoppel claim because it arises from actions taken by a corrupt government employee prior to any decision made by the Attorney General to commence proceedings against her. See Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004) (holding that “§ 1252(g) does not bar review of actions that occurred prior to any decision to ‘commence proceedings’ ”).
SHIN v. MUKASEY 2033

WONG v U S: 1252 (a) (2) (B):
(ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General.... 8 U.S.C. § 1252(a)(2)(B). The government maintains that this provision precludes jurisdiction in this Bivens action over Wong's challenges to the decisions regarding adjustment of status, advance parole or permission to depart without advance parole, and revocation of parole. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (AADC), the Supreme Court interpreted § 1252(g). In the course of doing so, the Court cautioned that we must be careful not to read broadly language in the INA affecting court jurisdiction that is subject to a "much narrower" interpretation. See id. at 478-82, 119 S.Ct. 936. Consistent with that admonition, we have recognized that the § 1252(a)(2)(B) jurisdictional bar is not to be expanded beyond its precise language. For example, decisions made on a purely legal basis may be reviewed, as they do not turn on discretionary judgment. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir.2003) (decision that alien was statutorily barred from petitioning for adjustment of status was not discretionary and could be reviewed notwithstanding § 1252(a)(2)(B)); Montero-Martinez, 277 F.3d at 1143-44 (§ 1252(a)(2)(B) does not preclude jurisdiction over purely legal, and hence nondiscretionary, questions). Moreover, decisions that violate the Constitution cannot be "discretionary," so claims of constitutional violations are not barred by § 1252(a)(2)(B). See Torres-Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir.2001); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). In addition, § 1252(a)(2)(B)(ii) precludes jurisdiction only over decisions as to which discretionary authority is "specified" by statute, not all discretionary decisions. See Spencer Enterprises, Inc., 345 F.3d at 689-90.)

(B) does not preclude the district court from entertaining such claims. B. Section 1252(g) — Review of Decisions or Actions by the Attorney General to Commence Proceedings, Adjudicate Cases, or Execute Removal Orders Section 1252(g) limits judicial review of certain decisions or actions of the Attorney General regarding removal.15 That provision states: Exclusive Jurisdiction. — Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to

141

commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act. 8 U.S.C. § 1252(g). AADC held that § 1252(g) "applies only to three discrete actions that the Attorney General may take: her `decision or action' to `commence proceedings, adjudicate cases, or execute removal orders.'" 525 U.S. at 482, 119 S.Ct. 936. Section 1252(g), consequently, does not bar "all claims relating in any way to deportation proceedings." Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir.2000) (en banc). As AADC noted, "[t]here are of course many other decisions or actions that may be part of the deportation process — such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final deportation order ..., and to refuse reconsideration of that order." AADC, 525 U.S. at 482, 119 S.Ct. 936.
46

Following AADC, we have narrowly construed § 1252(g). For example, we have held that "the reference to `executing removal orders' appearing in [§ 1252(g)] should be interpreted narrowly, and not as referring to the underlying merits of the removal decision." Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir.2002) (citations omitted). Similarly, in Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001), we held that § 1252(g) does not bar judicial review of decisions or actions that occur during the formal adjudicatory process, because they are separate from the "decision to adjudicate." Sulit v. Schiltgen, 213 F.3d 449 (9th Cir.2000), determined that § 1252(g) does not bar the due process claims of aliens alleging that their green cards were improperly seized without a hearing, that the INS failed to provide them with notice requiring them to surrender for deportation, and that their counsel failed to notify them of the issuance of the court's decision. See id. at 452-53 & n. 1; see also Catholic Soc. Servs., 232 F.3d at 1150 (concluding that § 1252(g) does not limit jurisdiction to grant injunctive relief in a class action challenging the INS's advance parole policy). But see Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir.2002) (holding that § 1252(g)'s bar to judicial review of decision whether to commence proceedings precludes review of the decision when to commence proceedings). Characterizing Wong's claims primarily as removal-based, the government urges that they are for the most part barred by § 1252(g). Although her complaint could be read to challenge the constitutionality of the removal itself, Wong has renounced such a broad reading of her ambiguous allegations, stating in her brief that: Plaintiffs' claims [do] not amount to a challenge of the decision of the INS to `commence proceedings,' `adjudicate cases,' or `execute removal orders.' Rather, ... Plaintiffs' claims arise from the discriminatory animus that motivated and underlay the actions of the individual defendants which resulted in the INS's decision to commence removal proceedings and ultimately to remove Plaintiff Wong from the United States.

142

The instant case ... involves claims arising prior to any INS decision `to commence proceedings against Wong, as well as claims that the Defendants placed Wong in a detention situation where she suffered constitutional injury at the hands of third parties. (emphasis added). Wong thus disclaims any challenge to the execution of the removal itself, but rather asserts that her claims implicate only actions other than that removal, or the commencement of proceedings, if any, leading to that removal.16 Wong is correct that § 1252(g) does not bar review of the actions that occurred prior to any decision to "commence proceedings," if any, against her or to execute the removal order, such as the INS officials' allegedly discriminatory decisions regarding advance parole, adjustment of status, and revocation of parole. See Humphries v. Various Fed. USINS Employees, 164 F.3d 936, 944 (5th Cir.1999) ("[W]e would defy logic by holding that a claim for relief somehow `aris[es] from' decisions and actions accomplished only after the injury allegedly occurred.") (second alteration in original). None of these decisions involves the discrete actions enumerated in § 1252(g). C. Section 1252(a)(2)(A) — Jurisdiction to Review Any Cause or Claim Arising From or Relating to Implementation or Operation of an Expedited Removal Order Similarly, the government asserts that § 1252(a)(2)(A), which deals directly with the expedited removal procedure under which Wong was removed, may also be implicated by Wong's claims. Section 1252(a)(2)(A) reads in relevant part: Notwithstanding any other provision of law, no court shall have jurisdiction to review — (i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 235(b)(1) [setting forth procedures for expedited removal], (ii) except as provided in subsection (e), a decision by the Attorney `General to invoke the provisions of such section, [or] (iii) the application of such section to individual aliens, including the determination made [as to eligibility for asylum]. 8 U.S.C. § 1252(a)(2)(A). Subsection (e) provides that no court may "enter declaratory, injunctive, or other equitable relief in any action pertaining to an [expedited removal order]," unless certain exceptions not applicable here apply. 8 U.S.C. § 1252(e)(1)(A). Like § 1252(g), § 1252(a)(2)(A) does not preclude Wong's claims concerning events that occurred prior to the decision to initiate her expedited removal — namely, the claims challenging the adjustment of status, advance parole, and revocation of parole decisions. None of these claims implicates actions covered by § 1252(a)(2)(A). And, as we explained above, Wong has expressly disclaimed interpreting her complaint to include a

143

challenge to her expedited removal, maintaining instead that the complaint challenges only the decisions described above, which preceded her removal.17 We conclude that the district court properly exercised jurisdiction over Wong's claims regarding advance parole, adjustment of status, and parole revocation, as well as over her detention-related claims
We are not precluded, for example, from ruling on constitutional challenges to deportation procedures. See Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir.1998) ("By its terms, [§ 1252(g)] does not prevent the district court from exercising jurisdiction over the plaintiffs' due process claims [because such claims] constitute `general collateral challenges to unconstitutional practices and policies used by the agency.'") (quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991)); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1121 (9th Cir.2001) (holding § 1252(g) did not bar aliens' challenge to INS deportation procedures); Catholic Social Servs. v. INS, 232 F.3d 1139, 1150 (9th Cir.2000) (en banc) (same).

Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007) (noting that “unpublished BIA decisions do not constitute agency interpretations of law warranting Chevron deference”) Aggravated felony Forgery A conviction under this statute is an aggravated felony as a crime related to forgery under 8 U.S.C. § 1101(a)(43)(R) if the sentence is at least one year. In the aggravated felony definition, forgery is not defined. Nor is the there a federal definition of forgery to use as a benchmark. Therefore, courts have reasoned that the common law definition of forgery should be used to determine whether a particular offense is an aggravated felony. The three elements of the common law definition of forgery are: (1) the false making or material alteration (2) with intent to defraud (3) of a writing that, if genuine, might be of legal efficacy). Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005). The common law definition of forgery exactly mirrors the Virginia definition of forgery and therefore, a conviction under this statute is an aggravated felony if the sentence imposed is at least one year 18.2-193 Credit card forgery Elements (1)(a) - with intent to defraud a purported issuer, a person or organization providing money, goods or services or anything else of value, or any other person - falsely makes or falsely embosses a purported credit card or utters such a credit card (1)(b) - not being the cardholding or the person authorized by him - with intent to defraud the issuer, or a person or organization providing money, goods or services or anything else of value, or any other person - signs a credit card (1)(c) - not being the cardholder or the person authorized by him

144

- with intent to defraud the issuer, or a person or organization providing money, goods or services or anything else of value, or any other person - forges a sales draft or cash advance/withdrawal draft - or uses a credit card number of a card of which he is not the cardholder, - or utters, or attempts to employ as true, such forged draft knowing it to be forged Crime involving moral turpitude A conviction under this statute is a crime involving moral turpitude because any conviction under this statute requires fraud as an essential element. See Jordan v. DeGeorge, 341 U.S. 223 (1951). Aggravated felony Forgery A conviction under this statute is a forgery offense and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(R) if the sentence imposed is at least one year. The Virginia definition of credit card forgery matches the common law definition of forgery, which has been used to define the forgery offense in 8 U.S.C. § 101(a)(43)(R). See Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005) (three elements of common law forgery are (1) the false making or material alteration (2) with intent to defraud (3) of a writing that, if genuine, might be of legal efficacy). Fraud offense A conviction under this statute is a fraud offense and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) if the loss to the victim is over $10,000. 8 CFR 3.3 (e) (e) Effect of departure from the United States. Departure from the United States of a person who is the subject of deportation proceedings, prior to the taking of an appeal from a decision in his or her case, shall constitute a waiver of his or her right to appeal. [61 FR 18906, Apr. 29, 1996, as
amended at 66 FR 6445, Jan. 22, 2001] Withdrawal of Appeal

Departure from the United States of a person who is the subject of deportation proceedings subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken. Departure from the United States of a person who is the subject of deportation or removal proceedings, except for arriving aliens as defined in § 1.1(q) of this chapter, subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.[61 FR 18907, Apr. 29, 1996, as amended at 62 FR
10331, Mar. 6, 1997

Third Circuit on statute of limitations "In this immigration case, the Department of Homeland Security seeks to deport an alien based on misrepresentations she made in applying for an adjustment of status more than five years previously. We conclude that a subsequent amendment to the statute did not negate our earlier precedent that the government was required to rescind and begin deportation within five years. Accordingly, we will grant the petition for review." Garcia v. Atty. Gen., Oct. 28, 2008 http://www.ca3.uscourts.gov/opinarch/072164p.pdf
We review the IJ's factual determinations for substantial evidence. n2 See Francis v. Gonzales, 442 F.3d 131, 137 (2d. Cir. 2006). When the Government bears the burden of proof below, the substantial

145 evidence standard is more demanding than in asylum and withholding of removal cases. See id. at 13739. In order to grant Yuhter's petition for review, we "are not required to find that any rational trier of fact would be compelled to conclude that" Yuhter's transcript was authentic, but "we must find that any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and convincing evidence." Id. at 138-39.

Asika v Ashcroft
Third Circuit, Asika contends that the "practical effect" of reading section 246(a) not to apply to deportation in this set of cases would be to "construe it out of existence." See Bamidele v. INS, 99 F.3d 557, 562-65 (3d Cir. 1996). He also argues the Attorney General's contrary interpretation is not due deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), both because the statute is clear and because "a statute of limitations is not a matter within the particular expertise of the INS," see Bamidele, 99 F.3d at 561.

Zaoutis v. Kiley, 558 F.2d 1096, 1100 (2d Cir. 1977) (“If . . . no notice to rescind is filed within the five-year period, the alien may justifiably rely on his adjusted status.”).

AGG. Felony. And 1 yr Sentence:
we have already [*17] concluded that "Congress was sufficiently clear in its intent to include certain crimes with one-year sentences in the definition of 'aggravated felony.'" United States v. Graham, 169 F.3d 787, 788 (3d Cir. 1999), cert. denied 528 U.S. 845, 145 L. Ed. 2d 99, 120 S. Ct. 116 (rejecting the argument that a one-year sentence does not implicate 8 U.S.C. § 1101(a)(43)(G)).

Alford Plea :
As the lnunigration Judge determined,in http://www.bibdaily.com/pdfs/BIAu%208-25-08%20Dennis.pdf Mathew Dennis however, neither offense categorically satisfies the requirements ofits respective aggravated felony category, andthus the charges ofdeportability cannot be sustained absent proof that the respondent's convictions were based on proof of (or admissions to) facts identifying his offenses as aggravated felonies. Where an alien was convicted by means of a plea, as here, an hnmigration Judge conducting such a "modified categorical" inquiry is "generally limited to examining the statutory definition, charging document~ written plea agreement, transcript ofplea colloquy, and any explicit factual finding by the trial judge to which the defendant assented" or which was"confirmed by the defendant." Shepard v. United States, 544 U.S. 13, 16, 26 (2005) (emphasis added Immigration Judge' determined that because the respondent had entered an Alford plea-thereby neither "assent[ingJ" to nor "confirm[ing]" any factual basis for his plea-it was simply not possible to "pare down" his offenses ofconviction to ones encompassed by the elements oftheir respective aggravated felony categories. This result appears to be consistent with-and dictated by-eontroIling Supreme Court precedent.l Thus, we will dismiss the appeal. The appeal is dismissed.

REMOVABILITY UNDER THE INA (2nd Circ ALSOL, http://www.bibdaily.com/pdfs/Alsol%202%2011-14-08.pdf As we recently emphasized, “the INA premises removability not on what

146

an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally

convicted of in a court of law.” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 145 (2d Cir. 2008); see also Rashid v. Mukasey, 531 F.3d 438, 445 (6th Cir. 2008); Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 125 (2d Cir. 2007) (The INA renders “removable an alien who has been convicted of an aggravated felony, not one who has committed an aggravated felony.”) (emphases added) The requirement that an alien be convicted of a removable offense before suffering the consequences under immigration law is precisely what Lopez requires. Under Lopez, an offense that could have been prosecuted -- not necessarily resulting in conviction -- as a recidivist offense is not an offense punishable as a federal felony. The INA and Lopez require an actual conviction for an offense that proscribes conduct that is punishable as a federal felony, not a conviction that could have been obtained if it had been prosecuted. See 8 U.S.C. § 1227(a)(2)(A)(iii) (rendering deportable an alien who has been “convicted of an aggravated felony”); 8 U.S.C. § 1229b(a)(3) (stating that the Attorney General may cancel removal if, inter alia, the alien “has not been convicted of any aggravated felony”). Sentence as defined pre 1996: The enactment of section 101(a)(48)(B) of the Act overrules our previous holding, set forth in Matter of Esposito, 21 I&N Dec. 1 (BIA 1995), wherein we had held that a sentence, for excludability purposes under section 212(a)(10) of the Act, is not “actually imposed” if the sentencing court suspends the imposition of an alien’s sentence. See also Matter of Castro, 19 I&N Dec. 692 (BIA 1988) (holding that when a court suspends the imposition of a sentence, there is no “sentence actually imposed” for purposes of section 212(a)(9) of the Act.)
(The panel will retain jurisdiction in the event review subsequent to the Lavira's administrative proceedings is required.) lavira v AG http://legal.rights.com/F.3d/478/478.F3d.158.05-3334.html Solicitation v Facilitation NY:

Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992). The BIA found that a non-citizen convicted in Arizona of solicitation to possess narcotics was convicted of a CSO. The individual was convicted under a statute which provided that a person is guilty of the offense if he “ ‘commands, encourages, requests or solicits’ another person to engage in criminal activity with the intent to promote or facilitate the commission of the crime.” Under Arizona law solicitation is classified as a preparatory offense (inchoate crime) and the BIA found that the crime is more closely related to attempt, conspiracy and aiding and abetting than it is to misprision of a felony. The BIA noted that under federal law, one who commands, encourages or requests a crime is deemed to be an accomplice and

147

guilty of the substantive offense. The BIA also based its decision of the similarity of the penalties in Arizona for solicitation and for the underlying offense. BUT CONSIDER:

Coronado-Durazo v. I.N.S., 123 F.3d 1322 (9th Cir. 1997). A conviction of solicitation to sell narcotics in Arizona was not a CSO where the solicitation statute specifies a general offense not limited to controlled substance violations. ALSO CONSIDER: United States v. Liranzo, 944 F.2d 73 (2nd Cir. 1991). A New York conviction of criminal solicitation of a narcotics offense was not a “controlled substance offense” for purposes of sentencing as a career offender. The career offender statute defines “controlled substance offense” as “an offense under federal or state law prohibiting the manufacture, import, export, or distribution of a controlled substance . . . or the possession of a controlled substance with the intent to manufacture, import, export, or distribute.” U.S.S.G. 4B1.2(2).
United States v. Dolt, 27 F. 3d 235 (6th Cir. 1994). The Sixth Circuit held that a Florida conviction for solicitation to traffic in cocaine was not a “controlled substance offense” for career offender purposes. The solicitation statute at issue did not require completion or commission of an offense or overt act to complete the crime. The court distinguished solicitation from attempt and also did not accept the government’s contention that solicitation was similar to aiding and abetting. MOTIVE!!! LIMITED PARTICIPATION? (which was specifically mentioned in offender statute).

http://64.233.169.104/search?q=cache:nMZZxR4n3B8J:www.pu bdef.maricopa.gov/newsletter/vol13/ftd0503.pdf+facilitation+a nd+moral+turpitude&hl=en&ct=clnk&cd=66&gl=us
Current BIA case law on facilitation to commit a drug offense in Arizona holds it is a violation “relating to” a controlled substance. See Matter of Del Risco, 20 I. & N. 109, 109 (BIA 1989). However, this opinion predates Coronado- Durazo and might be overruled if the issue came before the BIA again. State case law defines it as an offense of its own (not a lesser included). See State v. Harris, 134 Ariz. 287, 288, 655 P.2d 1339, 1340 (App.1982) (holding crime of facilitation was not a lesser-included offense of burglary or theft). So, facilitation might also be a good plea. Attempt and conspiracy to commit deportable offenses, on the other hand, are specifically included in the immigration laws.

ARS § 13-2002 Forgery Every subsection of this statute includes the element “intent to defraud” and is a CIMT. Solicitation to commit forgery or possession of a forgery device, first subsection, are possible class 6 plea deals that avoid being CIMTs. Forgery with an imposed sentence of at least one year is also an aggravated felony. See In re Aldabesheh, 22 I.&.N. 983 (BIA 1999

IJ prejuidice/Due Process:

148

Zolotukhin, 417 F.3d at 1075 (“The IJ’s prejudgment of the merits of petitioner’s case led her to deny [petitioner] a full and fair opportunity to present evidence on his behalf, including that the IJ excluded the testimony of several key witnesses.”). The IJ violated Hassani’s due process rights, requiring that we remand this case for a new hearing—one in which Hassani would be given a “full and fair opportunity” to present his case, Lopez-Umanzor, 405 F.3d at 1059, and to assert any other grounds that may warrant relief from removal. and that the respondenthas.not met her burden of proof under 8 C.F.R. § 1240.8(d). of showing by a preponderance of the evidence. “[I]t goes without saying that IJs and the BIA are not free to ignore arguments raised by a petitioner.” Sagaydak v.Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). “In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). “[T]his court cannot affirm the BIA on a ground upon which it did not rely.” Ernesto Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000). MOTION TO REOPEN V. RECONSIDER: Doissaint v Mukasey

A motion to reconsider seeks to correct alleged errors of fact or law. 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b). A motion to reopen, on the other hand, is purely fact-based, seeking to present newly discovered facts or changed circumstances since a petitioner’s hearing. 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c). As described by this court: “A motion to reconsider does not present new law or facts, but rather challenges determinations of law and fact made by the BIA. In contrast, a motion to reopen seeks to present new facts that would entitle the alien to relief from deportation.” Mohammed v. Gonzales, 400 F.3d 785, 792 n.8 (9th Cir. 2005). Consequently, the legal basis for the IJ’s denial of Petitioner’s CAT claim— the IJ’s adverse credibility finding—was not before the BIA on Petitioner’s motion to reopen. [3] If and when the BIA realized its error in this it should have reconsidered its original decision and addressed Petitioner’s CAT claim on the merits. See 8 C.F.R.§ 1003.2(a) (“The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.”). The BIA could not, as a procedural shortcut, deny Petitioner’s motion to reopen and proceed as if its legal error had never occurred. 3When neither the BIA nor the IJ makes an adverse credibility finding, we must accept the petitioner’s testimony as true. Knezevic v. Ashcroft, 367 F.3d 1206, 1209 (9th Cir. 2004).

Summary JUDGMENT NATZ: Donaldson v Acosta
We review a district court's grant of summary judgment de novo , applying the same standard as the district court. Shepherd v. Comptroller of Pub. Accounts , 168 F.3d 871, 873 (5th Cir. 1999).

149

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett , 477 U.S.317, 322-23 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,251-52 (1986). When making its determination, the court must draw all justifiable inferences in favor of the nonmoving party. Anderson , 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-88 (1986); Bodenheimer v. PPG Indus. Inc. , 5 F.3d 955, 956 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. Anderson , 477 U.S. at 251. Rather, a factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Merritt- Campbell, Inc. v. RxP Prods., Inc. , 164 F.3d 957, 961 (5th Cir. 1999). http://altlaw.org/v1/cases/104968 we affirm the district court’s dismissal of the mandamus claims on the alternative ground that there is another “adequate remedy available.” See Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir.1989). Lawfull Admission: “alien[’s] [failure to] compl[y] with the substantive legal requirements in place at the time she was admitted for permanent residence,” De La Rosa, 489 F.3d at 553 (emphases added). In order to state a claim upon which relief can be granted, a complaint need only plead “enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).

DEPARTURE OF LPR DURING PROCEEDINGS Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988) (LPR respondent was convicted of poss. marijuana, proceedings commenced, LPR conceded deportability as charged and filed applied for 212(c) waiver; LPR then departed US for temporary visit abroad, and returned to the U.S.; IJ terminated proceeding and ruled that 212(c) was abandoned; BIA revered, holding LPR’s departure did not interrupt proceeding, and it could continue, assuming LPR still was deportable on same grounds; INS did not need to start new proceeding , but could issue another OSC or amend if they chose; and LPR had not abandoned his application for 212(c). 1. Check when NTA was actually FILED with the court; a client is not in

proceedings unless/until it’s filed; if the client leaves before then, proceedings are improvidently begun; 2. If client left after NTA filed, but before finding of removability, not a

150

self-deport; only self-deport if after IJ decision (i.e., appeals and MTRs deemed withdrawn). 3. CBP should realized that a client, returning to the United States is in proceedings, and parole the client in, possibly detaining client if appropriate. 4. ICE Counsel regularly confuses the self-deport provision AFTER

decision with any departure. 5. ICE will need to amend or issue a new NTA to accommodate the new

facts. Thanks to Laura L. Lichter, Esq. for this analysis. CD 4.32; CMT 5.3; AF 3.6; SH 7.6

212 v 237 and equal protection: http://74.125.95.132/search?q=cache:R7wLSR4bRocJ:caselaw.findlaw.com/da ta2/circs/9th/0273951P.pdf+Catholic+Soc.+Servs.,+Inc.+v.+INS,+232&hl=en& ct=clnk&cd=1&gl=us Alvarez- Garcia v. Ashcroft ca9 Illegal Sentence: Hovsepian
At the time of Hovsepian's resentencing, Rule 35(a) provided that "[a] court may correct an illegal sentence at any time." Fed.R.Civ.P. 35(a) (repealed). We have defined an "illegal sentence" as "one which is not authorized by the judgment of conviction, or is in excess of the permissible statutory penalty for the crime, or is in violation of the constitution." United States v. Johnson, 988 F.2d 941, 943 (9th Cir.1993). A mistake of fact of "constitutional magnitude" made by a sentencing court also can render a sentence illegal. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972
Ramos v. Dep't of Homeland Sec., No. 05-10464 Summary Calendar , UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, June 2, 2006, Filed OVERVIEW: Denial of alien's motion for preliminary injunction was affirmed, a alien did not show substantial threat that failure to enjoin detention would result in irreparable injury; nor did he show substantial likelihood of success on merits of his claim, brought under 28 U.S.C.S. § 2241, challenging detention and removal as unlawful. 12. Herrera-Castanola v. Ridge, No. 05-16858 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, October 19, 2006, Argued and Submitted, San Francisco, California ,

151
November 7, 2006, Filed OVERVIEW: Where United States instituted a new removal proceeding against a resident alien before the alien's habeas proceeding was dismissed, the district court erred by holding that the resident alien was not "in custody" for habeas purposes; the resident alien was subject to restraints not shared by the public generally 14. Ricardez-Rivera v. Gonzales, No. 04-71226 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, February 14, 2006, Argued and Submitted, Pasadena, California , October 4, 2006, Filed OVERVIEW: If an alien could prove his allegations of unconstitutional conduct under the Fourth and Fifth Amendment at an evidentiary hearing, the government would be estopped from relying on his attempted reentry to render him removable. Ricardez-Rivera is entitled to

the same remedy if he can prove at an evidentiary hearing that his constitutional rights have been violated. In this case, as in Salgado-Diaz, "[w]e conclude that the doctrine of equitable estoppel precludes the INS from relying on the consequences of its own alleged affirmative misconduct to insulate that misconduct from review." Id. at 1165. Accordingly, if RicardezRivera has alleged and can prove a violation of his constitutional rights, the government would be equitably estopped from introducing evidence of his departure in June 1998, his removals in June 1998 and October 2001, and his attempts at reentry in June of 1998 as well as in October 2001, since that most recent attempt at reentry, which resulted from an expedited removal proceeding based on his prior attempts at reentry, was also a direct consequence of the government's allegedly unconstitutional conduct.
25. Valente-Narcizo v. Gonzales, No. 03-72519 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, July 12, 2005**, Submitted, Pasadena, California** This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)., July 18, 2005, Filed OVERVIEW: An alien was properly deemed ineligible for relief from removal under the former INA § 212(c) because the erroneous adjustment of his status to lawful permanent resident under a special agricultural workers program did not mean that he was lawfully admitted for the purpose of establishing continuous residence.

According to 8 U.S.C. § 1256(a), the INS may rescind the LPR status of any alien within five years if the status was improperly granted. Essentially, Valente asks this court to conclude that the INS was time-barred from initiating removal proceedings against him because it failed to rescind his LPR status within five years
31. Salgado-Diaz v. Ashcroft, No. 02-74187, No. 03-73312 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, November 2, 2004, Argued and Submitted, Pasadena, California , January 31, 2005, Filed OVERVIEW: Failing to afford an alien an evidentiary hearing on his allegations of having been unlawfully stopped and expelled from the U.S., aborting his pending immigration proceedings and the relief available to him, violated his due process rights.

152 DUE PROCESS AND 1252 (g):

In Barahona I, we relied upon Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998), cert. denied, 526 U.S. 1003, 119 S. Ct. 1140, 143 L. Ed. 2d 208 (1999), in holding that § 1252(g) did not preclude jurisdiction in this action. Walters involved a class action filed against the Immigration and Naturalization Service ("INS") alleging a denial of due process by inadequate notice of deportation procedures. The suit sought injunctive relief, which the district court granted. On appeal, the government cited § 1252(g) and, as it has in this case, challenged the district court's subject matter jurisdiction. In rejecting this argument, the Walters court [*5] wrote: By its terms, the statutory provision relied upon by the government does not prevent the district court from exercising jurisdiction over the plaintiffs' due process claims

JRAD and Coram Nobis:
The JRAD also prevents use of a conviction to exclude an alien from entering this country. See Santos v. Kolb, 880 F.2d 941, 942 n. 1 & 2 (7th Cir.1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990); United States v. Sanchez-Guzman, 744 F.Supp. 997, 999-1000 n. 5 (E.D.Wash.1990) http://bulk.resource.org/courts.gov/c/F3/26/26.F3d.557.92-2909.html

GOOD MORAL CHARACTER CASELAW:

The fact that Zheng made misrepresentations to the USCIS regarding his manner of entry into the United States does not automatically disqualify him from naturalizing. On the contrary, courts have often found that an alien may still possess good moral character despite misrepresentations the alien has made. See, eg., In re Leibowitz, 49 F. Supp. 953, 954 (D. Ill. 1943) (finding that applicant's use of his older brother's name in obtaining a visa to enter the United States was insufficient evidence of lack of good moral character); [*11] Petition of Zele, 140 F.2d 773, 776 (2d Cir. N.Y. 1944) (considering none of petitioner's false statements in an affidavit signed before naturalization officials to be "important or extensive" and finding "no reason to hold that . . . inconsequential misstatements should brand petitioner a man of such bad moral character as to necessitate his exclusion from the privilege and honor of citizenship); In re Taran, 314 F. Supp. 767, 768 (S.D. Fla.1970) ("[T]he statements at issue [made under oath which proved to be false] . . . are insufficient to taint the petition of Mr. Taran."); In re Camaras, 202 F. 1019, 1020 (D.R.I. 1913) (finding that applicant's omission of the name "Celia" and the inclusion of the name "Ida" in listing the names of his

153

children, and his statement that all his children were residing at Providence, Rhode Island, where in fact one child had not yet been admitted to the United States but was being held by immigration authorities, was insufficient evidence of lack of good moral character as to justify denial of the petition); Polkovitz Petition, 67 Pa. D. & C. 319, 23 Lehigh County L.J. 149, 1949 Pa. D. & C. LEXIS 385, at *5 (Pa. C.P. 1949) (granting a petition for naturalization where an alien made [*12] contradictory statements under oath concerning an illicit relationship formerly existing between himself and a woman by whom he had two children); In re Argento, 159 F. 498, 499 (D.N.Y. 1908) (finding that an alien who procured a naturalization certificate upon a false statement regarding his age and later verified a petition to the court which failed to set forth the fact that he had previously been in possession of a certificate was not precluded from making a new application to establish good moral character).
Zheng's diminished mental capacity also calls into question the assertion that Zheng made misrepresentations with the intent of receiving immigration benefits. See Benton v. Bowen, No. 85-6286, 1986 U.S. Dist. LEXIS 25139, at *13 (E.D. Pa. May 23, 1986) (finding that a woman with an IQ of 46 was incapable of forming intent for purposes of establishing domicile)

Assessing moral character, courts not only take into account whether the misrepresentation was made with the intent to deceive, but also the sophistication of the petitioner, the petitioner's work history, and the petitioner's criminal record. See, eg., In re Argento, 159 F. at 499 (finding petitioner was ignorant of the English language); Polkovitz Petition, 67 Pa. D. & C. 319, 23 Lehigh County L.J. 149, 1949 Pa. D. & C. LEXIS 385 at *5 ("Applicant has worked for one employer for 45 years. We must balance the misdeeds with the good deeds. The court in its discretion should be sufficiently liberal to feel that applicant has now changed his course of life and has become a reputable citizen."); In re Taran, 314 F. Supp.at 768 ("The Court is aware that the lifetime record of petitioner is far from meritorious. The evidence, however, reveals that he has not been arrested or charged with any crime since 1956.").

http://www.bibdaily.com/pdfs/Zheng%2011-1208.pdf
Serna, 20 I&N Dec. 579 (BIA 1992) Possession of Fraud Doc is not CIMT (1) Neither the seriousness of a criminal offense nor the severity of the sentence imposed therefor is determinative of whether a crime involves moral turpitude.

154

(2) A conviction under 18 U.S.C. § 1546 (1982) for possession of an altered immigration document with knowledge that it was altered, but without its use or proof of any intent to use it unlawfully, is not a conviction for a crime involving moral turpitude http://www.usdoj.gov/eoir/vll/intdec/vol20/3188.pdf

The purpose of the

administrative exhaustion requirement is so that the

“administrative agency [may] have a full opportunity to resolve a controversy or correct its own errors before judicial intervention.” Sagermark v. INS, 767 F.2d 645, 648 (9th Cir. 1985). Prejuidice/Ineffective counsel The government argues more adamantly that, regardless of counsel’s deficiencies, Ahmed was not prejudiced.“[P]rejudice results when ‘the performance of counsel was so vinadequate that it may have affected the outcome of the proceedings.’ ” Id. at 793-94 (quoting Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999)). The petitioner does not need to show that she would win on her claims absent her attorneys’deficient performance. Lin, 377 F.3d at 1027. She need only show “plausible grounds for relief.” Id

http://www.bibdaily.com/pdfs/Ahmed%209%2011-19-08.pdf Habeus and detention:
Torres's habeas petition, unlike Iasu's, does not challenge any final order of removal, but challenges his detention prior to the issuance of any such order. Two recent cases explain why this difference is critical. First, we have held that "the jurisdiction-stripping provision [of the REAL ID Act] does not apply to federal habeas corpus petitions that do not involve final orders of removal." Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006). Second, as we concluded recently, "[e]ven post-[REAL ID Act], aliens may continue to bring collateral legal challenges to the Attorney General's detention authority . . . through a petition for habeas corpus." CasasCastrillon v. Dept. of Homeland Security, 535 F.3d 942, 946 (9th Cir. 2008).
5

http://www.plol.org/Pages/Secure/Document.aspx?d=Akpr8Z6NHzQLua1XOv%2FcPQ%3D%3 D&l=Cases&rp=15

155

IJ DUTY TO ADVISE: See section 240B(b)(I) of the Act, 8 U.S.C. § l229c(b)(I); see also 8 C.F.R. § l240.11(a)(2)

(regarding Immigration Judge's duty to inform aliens of avenues of relief available) (2008); Asani v. INS, 154F.3d 719, 727 (7th Cir.1998) (holding that the Immigration Judge must inform alien of rights evenwhere alien is represented by counsel). Due process claims in Fed court/ exhaustion IJ finding

see also Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001) (“The [IJ’s] finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.”). Normally, we have jurisdiction over an alien’s claims only where the alien has raised and exhausted his or her administrative remedies as to that claim. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). However, due process claims are generally exempt from the exhaustion requirement because the BIA does not have jurisdiction to adjudicate constitutional issues. Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990). Thus we review de novo the question of whether Mudric’s procedural due process rights have been violated. Bonhometre, 414 F.3d at 446
Matter of SILVA-TREVINO, 24 I&N Dec. 687 (A.G. 2008)

Matter of SILVA-TREVINO, 24 I&N Dec. 687 (A.G. 2008): (1) To determine whether a conviction is for a crime involving moral turpitude, immigration judges and the Board of Immigration Appeals should: (1) look to the statute of conviction under the categorical inquiry and determine whether there is a “realistic probability” that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude; (2) if the categorical inquiry does not resolve the question, engage in a modified categorical inquiry and examine the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction is inconclusive, consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question. (2) It is proper to make a categorical finding that a defendant’s conduct involves moral turpitude when that conduct results in conviction on the charge of intentional sexual contact with a person the defendant knew or should have known was a child. (3) To qualify as a crime involving moral turpitude for purposes of the Immigration and Nationality Act, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.

156

Statute Construction (A) As is well articulated by courts in this nation, in interpreting the scope of a statute, courts must first discern the statute’s plain meaning. See, e.g., Conn. Nat’l Bank v. Germain, 503 U.S.249, 253-54 (1992); Demarest v. Manspeaker, 498 U.S. 184, 187 (1991). If the statute’s meaning is unambiguous, as is the language of § 1429, the court should apply the law according to its terms. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (holding that where “the statute's language is plain, ‘the sole function of the courts is to enforce it according to its terms.’”) (quoting Caminetti v. United States, 242 U.S. 470,485 (1917)).
The Court’s analysis begins with the language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997).

Mukasey dinner event
Who Yelled 'Tyrant' at Mukasey at Black-Tie Dinner? Turns Out It Was a Judge
Rachel La Corte 12-01-2008 A Washington State Supreme Court judge has admitted that he was the one who stood up and yelled "tyrant!" at U.S. Attorney General Michael Mukasey during a speech in which Mukasey later fainted. Judge Richard Sanders says he was speaking his conscience when he interrupted Mukasey at a blacktie dinner Nov. 20 in Washington, D.C., for The Federalist Society, a conservative legal group. Sanders said he had already left the speech before Mukasey collapsed, and did not learn of it until the next day. In his speech, Mukasey offered a defense against criticisms about the Bush administration's policies in the war on terrorism. Sanders said he "passionately" disagrees with those policies and felt compelled to say so. Sanders, who is a Federalist Society member, said that he wasn't heckling Mukasey, and left shortly after his outburst. "I believe we must speak our conscience in moments that demand it, even if we are but one voice," he said in a statement Tuesday.

157
Sanders initially dodged reporters' questions about the incident this week, refusing to comment on anything he might have said at the event. A video on the Federalist Society's Web site shows that Sanders' outburst came just over 17 minutes into Mukasey's speech, after Mukasey talked about what he said was the "casual assumption among many in media, political and legal circles that the administration's counterterrorism policies have come at the expense of the rule of law." Shortly after that point on the video, a voice is clearly heard yelling: "Tyrant! You are a tyrant!" Mukasey can be seen briefly stopping and looking up from his speech. A few minutes later, Mukasey began shaking and slurring his words. His FBI security detail ran to catch him as he fell. He was released from the hospital the next day and his office said he had suffered a fainting spell. "It should go without saying that, despite our vastly different views on what constitutes upholding the rule of law, I hope he continues to recover and remain in good health," Sanders wrote. Chief Justice Gerry Alexander said Tuesday that he was very concerned about the outburst's potential damage to Sanders' reputation, and to the court. Alexander said he planned to speak privately to Sanders to express his disapproval about the incident, but said he has no authority to discipline him. "People have a First Amendment right to speak, but that's not conduct that I would like to see judges display," Alexander said. Sanders first was elected to the Supreme Court in a 1995 special election, and was re-elected in 1998 and 2004. He next faces voters in 2010.

http://www.law.com/jsp/article.jsp?id=1202426339648

Plain meaning of the statute /US Supreme:
As is well articulated by this Court, in interpreting the scope of a statute, courts must first discern the statute’s plain meaning. See, e.g., Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992); Demarest v. Manspeaker, 498 U.S. 184, 187 (1991). If the statute’s meaning is unambiguous, as is the language of § 2, the court shouldapplythe law according to its terms. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (holding that where “the statute's language is plain, ‘the sole function of the courts is to enforce it according to its terms.’”) (quoting Caminetti v. United States, 242 U.S. 470,485 (1917))

158

159

160

POST CONVICTION RELIEF
LO G OUT

Crimes of Moral Turpitude Chapter 10
News
updated 6/12/08

by Norton Tooby

Resources Free Premium Books/CDs Seminars Services Search About Us Contact Us

Back to Table of Contents

Chapter 10: Post-Conviction Relief § 10.1 I. Introduction Other
CRIMINAL DEFENSE – POST-CONVICTION RELIEF – POST CON RELIEF – APPEALS T. O'Toole, Appeal and Post Conviction Review, in L. FRIEDMAN RAMIREZ,

161

ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 663 (2d ed. 2007).

§ 10.2 II. Elimination of a Conviction First Circuit
POST-CON – EFFECTIVE ORDER – NUNC PRO TUNC Lawrence v. Gonzales, ___ F.3d ___, 2006 WL 1195679 (1st Cir. May 5, 2006) (where pre-IIRAIRA conviction was vacated on a basis of legal invalidity, but replaced with a new plea after IIRAIRA that also triggers removal, a waiver under INA § 212(c) is unavailable where the new plea was not entered nunc pro tunc).

Third Circuit
POST CON RELIEF – EFFECTIVE ORDER Cruz v. Att’y Gen. of the US, ___ F.3d ___ (3d Cir. Jun. 21, 2006) (BIA erred in failing to grant motion to reopen based upon new evidence that conviction upon which removal order was based has been recently vacated). http://caselaw.lp.findlaw.com/data2/circs/3rd/052764p.pdf

Other
POST CON – EFFECTIVE ORDER N. Tooby, Recent Developments Concerning Effective Orders Vacating Convictions, 11 Bender's Imm. Bull. 534 (Jun. 1, 2005).

§ 10.3 A. Vacating the Conviction on a Ground of Legal Invalidity First Circuit
POST CON RELIEF – AFTER VACATUR, FEDERAL COURT MUST RESENTENCE DEFENDANT WHOSE ORIGINAL SENTENCE HAD BEEN ENHANCED BY VACATED CONVICTION United States v. Pettiford, 101 F.3d 199, 200–202 (1st Cir. 1996); United States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996); United States v. Cox, 83 F.3d 336, 339–340 (10th Cir. 1996); United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994) (government conceded Custis allowed defendant to reopen sentencing); United States v. LaValle, 167 F.3d 1255 (9th Cir. 1999); cf. United States v. Fondren, 54 F.3d 533, 535 (9th Cir. 1995).

162

Ninth Circuit
POST CON RELIEF – AFTER VACATUR, CRIMINAL COURT CAN RESENTENCE ON REMAINING COUNTS United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of conviction, the trial court has jurisdiction to resentence the defendant on all remaining counts of conviction). Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997); United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v. United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States v. Morris, 116 F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997). POST CON RELIEF – AFTER VACATUR, DISMISSED COUNTS ARE REINSTATED Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed counts are not reinstated since defendant did not breach plea agreement), with United States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (No. 97-5066) (dismissed counts are reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section 2255 petition, the defendant may be placed in exactly the same position in which he would have been had there been no error in the first instance."), quoting United States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir. 2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006).

Tenth Circuit
POST CONVICTION RELIEF – EFFECTIVE ORDER Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005) (where Government bears the burden in immigration proceedings, the Government must prove by clear, convincing, and unequivocal evidence that a vacated criminal conviction remains a conviction for immigration purposes). In deportation proceedings, the government must prove a noncitizen’s deportability by clear, convincing and unequivocal evidence. 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R § 242.14(a) (1997); 8 C.F.R. § 1240.8 (as amended by 68 Fed. Reg. 9824, 9839 (Feb. 28, 2003); Woodby v. INS, 385

163

U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (requiring "clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true"); Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir. 1985); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (reversing deportation order where smuggling "for gain" had not been established by Woodby v. INS, 385 U.S. 276 (1966) standard). In Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005)(Utah conviction of attempted theft by deception, a third-degree felony, with a suspended sentence and a term of probation, was not sufficiently proved to establish a ground of deportation, because the record of post-conviction proceedings did not establish with sufficient clarity and certainty that the conviction was still in existence), the Tenth Circuit applied the rule of Woodby v. INS, 385 U.S. 276 (1966) to the question whether a conviction had been eliminated, by post-conviction relief, so it no longer triggered a ground of deportation. The court held that the government must establish by clear and convincing evidence that the conviction was still in existence for immigration purposes before a valid removal order could be premised on it. The INS had to prove by "clear and convincing evidence" that petitioner was subject to removal, i.e., that his conviction fell within the aggravated-felony ground of deportation and thus supported removal under 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1229a(c)(3)(A); see Evangelista v. Ashcroft, 359 F.3d 145, 149-50 (2d Cir. 2004); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003). The BIA never acknowledged this burden. On the contrary, as the quoted passage reflects, the BIA approached the case as if petitioner bore the burden of disproving that his conviction qualified him for removal. See also id. at 2 (finding petitioner "failed to establish that his conviction was vacated on the basis of a procedural or substantive defect in the underlying proceedings."). While formal error regarding the ascription of the burden of proof can, in itself, undermine the validity of a BIA decision, see Sandoval, 240 F.3d at 581; Murphy v. INS, 54 F.3d 605, 610, 612 (9th Cir. 1995), that is not the basis of our disposition here. Rather, as explained below, we conclude in more direct fashion that the evidence of record is legally insufficient to satisfy the INS’s stringent burden of proof and, thus, that the order for removal must be reversed. See Sandoval, 240 F.3d at 583 (reversing removal order where record relating to reduction of alien’s initially

164

qualifying conviction to a non-qualifying offense was insufficient to support removal under clear and convincing evidentiary standard); see also Cortez-Acosta v. INS, 234 F.3d 476, 480-83 (9th Cir. 2000) (reversing removal order that had been based on suggestive but inconclusive indications of alien’s removable activity (assisting illegal entry of another alien), "because the weakness of the administrative record does not satisfy the stringent [clear and convincing] evidentiary standard for deportation"). Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005). The court indicated the record before it was susceptible to two inferences: (a) that the felony conviction had been reduced to a misdemeanor, on the basis of an error in the original proceedings, so that it would no longer constitute a felony for immigration purposes, or (b) that the conviction had been reduced solely on the basis of considerations that arose after the conviction first came into existence, such as rehabilition or to avoid immigration consequences, and would therefore still constitute a felony for immigration purposes. The court concluded: Given the vagaries of the evidentiary record and, more importantly, the plain implication of the state statute authorizing reduction of petitioner’s felony conviction to a Class B misdemeanor, we hold "that the INS did not prove by clear, unequivoval, and convincing evidence that [petitioner] was convicted of [a qualifying felony under §§ 1101(A)(43) and 1227(a)(2)(A).]" Sandoval, 240 F.3d at 583. "Thus we are compelled to grant the petition for review, because the weakness of the administrative record does not satisfy the stringent evidentiary standard for deportation." Cortez-Acosta, 234 F.3d at 483. Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132 (10th Cir. Feb. 2, 2005) (footnote omitted). Therefore, the court granted the petition for review, reversed directing the BIA’s decision, and vacated the order for petitioner’s removal. The Eleventh Circuit had previously applied the same standard to rule evidence of a conviction was insufficient to establish a firearms conviction ground of deportation. Adefemi v. Ashcroft, 358 F.3d 828 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003) (BIA could not reasonably have concluded that government showed by clear and convincing evidence that noncitizen had been convicted of firearms offense, so as to be ineligible for 212(c)

165

relief from deportation, where only evidence offered by government was traffic ticket that alleged unlawful possession of firearm, but contained many unfilled blanks, failed to specify basis for fine imposed, and did not explicitly indicate fact of conviction, offense of conviction, or charge to which alien might have pled guilty). The INS had relied exclusively on a single piece of evidence in support of its charge that Adefemi was deportable on the basis of a firearms conviction. This was a two-sided, preprinted document that would be colloquially termed a traffic "ticket." On the front appears a uniform citation form used to charge drivers with moving violations. On the reverse is boilerplate language for use in recording several types of action taken in the City Court of Atlanta, such as the receipt of a plea or the imposition of sentence. The form provides no means of discerning Adefemi’s actual plea in this case: there is no indication that he amended an initial plea of not guilty to one of guilty, nor has anything been written in a space provided for stating the charge to which Adefemi, if he did enter a guilty plea, in fact admitted. Consistent with this ambiguity, none of three boxes printed next to each of three possible pleas-guilty, not guilty, and "nolo cont’d"--have been checked in a separate section of the form. Below the sections bearing Adefemi’s signatures is another section titled "Disposition and Sentence," in which the word "Probation" has been rubber- stamped. Still lower, in a separate section, the number "330.00" has been written on a space for designating a "fine." The next line appears to state that a term of confinement shall be served should payment be defaulted. However, the portion of the form titled "Disposition and Sentence" has been left entirely blank apart from the "Probation" stamp and a second stamp that reads "State Case." Significantly, nothing has been written in spaces specifically reserved for identifying the "Sentence: Amount Fine/Forfeiture $" and the number of "Days (Months) probated." The failure of the Atlanta City Court to complete these sections makes it difficult to interpret the meaning of the "Probation" stamp, since the imposition of a probationary sentence would seem to require that a term of probation be set. [Footnote omitted.] In the absence of additional evidence by which the INS might have clarified the meaning of the

166

form, we do not think this document could allow a reasonable fact finder to conclude that the INS had shown any conviction by clear and convincing evidence. Our conclusion rests on the highly tenuous nature of any inferences drawn from what is in essence nothing more than the front and back of a traffic ticket, with a great many blanks left unfilled. [Footnote omitted.] While the document does indicate a fine of $330, it fails to specify the basis for this penalty. Nowhere does it explicitly indicate the fact of conviction, the offense for which any conviction was entered, or any specific charge to which Adefemi may have pled guilty. Even were we to assume that the clerical stamp reading "Probation" and the reference to a fine are evidence of some kind of conviction, we do not think it can be said that they are clear and convincing evidence of conviction of a firearms offense. The fact that the front side of the document lists such an offense does not mean Adefemi pled to or was convicted of that offense, since he may well have pled guilty to another, lesser offense. The reverse side simply fails to offer any clear guidance as to what this offense may have been. In sum, we think the "clear and convincing" evidentiary standard applicable in deportation proceedings requires something more than this ambiguous ticket before an individual may be "compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification." Woodby, 385 U.S. at 285. We also think a reasonable factfinder would have to conclude that the INS has not shown by clear and convincing evidence that Adefemi was convicted of a firearms offense. Adefemi v. Ashcroft, 358 F.3d 828, 835-837 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003). The court therefore reversed the decision of the BIA and remanded the case for further proceedings consistent with its opinion. The Seventh Circuit, as well, had applied this standard to the question of proof of a conviction to justify deportation. "[I]t is incumbent upon the Government in [deportation] proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence." Woodby

167

v. INS, supra, 385 U.S. at 277, 87 S.Ct. at 484; Garcia v. INS, 31 F.3d 441, 443 n.1 (7th Cir.1994). Where, as here, the Board finds that the INS has met that burden, it is our task to consider whether the deportation order is "supported by reasonable, substantial, and probative evidence." 8 U.S.C. § 1105a(a)(4). See Woodby, 385 U.S. at 282-83, 87 S.Ct. at 486; Rosendo-Ramirez v. INS, 32 F.3d 1085, 1087 (7th Cir.1994). Dashto v. INS, 59 F.3d 697, 701 (7th Cir. 1995) (certificate of conviction that noncitizen had used handgun was not satisfactory proof of weapons charge for purposes of finding him ineligible for discretionary relief, since it was nothing more than clerk of court’s representation on what underlying court records reveal about nature of conviction, and there was no court record which confirmed that noncitizen had in fact used handgun in connection with armed robbery to which he pled guilty). Because the consequences of deportation are so harsh, the government must bear the burden of showing deportability by clear, convincing and unequivocal evidence before removal will be ordered.

Other
POST CONVICTION RELIEF – ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST CONVICTION PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's guilt.")

§ 10.4 1. A Conviction Vacated as Legally Invalid Causes No Immigration Damage

168

First Circuit
POST-CON – EFFECTIVE ORDER De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.”)

Second Circuit
POST CON RELIEF – EFFECTIVE ORDER – COURT'S ORDER GRANTING MOTION TO WITHDRAW A PLEA ELIMINATES A CONVICTION FOR IMMIGRATION PURPOSES Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) (a criminal court's order withdrawing a plea eliminates the conviction for mmigration purposes; an interpretation of the statutory definition [of conviction to the ontrary] appears to lead to the bizarre result that a withdrawn guilty plea would still be a “conviction” for immigration purposes, because the “conviction” would be established on the date of the entry of the plea. We reject this reading because “[a] statute should be interpreted in a way that avoids absurd results.”), citing United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000).

Third Circuit
POST CON RELIEF – EFFECTIVE ORDER Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005) (approving the Board’s distinction between "convictions vacated for rehabilitative purposes and those vacated because of underlying defects in the criminal proceedings").

Fifth Circuit
POST CONVICTION RELIEF – EFFECTIVE ORDER – DHS CONCEDES NONCITIZEN IS NOT REMOVABLE BASED ON VACATED CONTROLLED SUBSTANCES CONVICTION EVEN IN FIFTH CIRCUIT Gaona-Romero v. Gonzales, ___ F.3d ___, 2007 WL 2372357 (5th Cir. Aug. 21, 2007) (per curiam) (since government concedes that noncitizen is no longer removable, because his conviction was vacated as legally invalid,

169

the panel affirmance of the removal order is vacated, the case is remanded to the BIA to permit the government to withdraw its charge of removability pursuant to in Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), and the petition for rehearing is denied as moot). Note: This decision may be used to show that the Government has agreed to follow Pickering, rather than Renteria, even within the Fifth Circuit.

Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – NINTH CIRCUIT FOLLOWS PICKERING TO HOLD CONVICTION VACATED FOR SUBSTANTIVE OR PROCEDURAL DEFECT IS ELIMINATED FOR IMMIGRATION PURPOSES Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (conviction vacated for any procedural or substantive defect has been eliminated for immigration purposes, and cannot trigger removal, whereas conviction vacated for equitable, rehabilitative, or immigration purposes unrelated to the merits of the conviction remains), following Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 454 F.3d 525 (6th Cir. July 17, 2006). POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF – GOVERNMENT BEARS BURDEN OF PROVING CONVICTION STILL EXISTS AFTER VACATUR HAS BEEN ISSUED Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) ("for the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove "with clear, unequivocal and convincing evidence, that the Petitioner's conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e., to avoid adverse immigration consequences.") (original emphasis), citing Pickering v. Gonzales, 454 F.3d 525 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

BIA
POST CON RELIEF – CONVICTION – EFFECTIVE ORDER – CONVICTION VACATED FOR COURT'S FAILURE TO ADVISE DEFENDANT OF POSSIBLE IMMIGRATION CONSEQUENCES OF PLEA IS NO LONGER A CONVICTION FOR IMMIGRATION PUPOPRSES Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006) (conviction vacated pursuant to Ohio Revised Code § 2943.031, for failure of the trial court to advise the defendant of the possible immigration

170

consequences of a guilty plea, is no longer a valid conviction for immigration purposes). http://www.usdoj.gov/eoir/vll/intdec/vol23/3525.pdf

§ 10.5 2. The New Definition of Conviction Did Not Alter This Rule § 10.6 3. The BIA Decision in Matter of Pickering Did Not Alter This Result First Circuit
POST CON RELIEF – EFFECTIVE ORDER Herrera-Inirio v. Gonzales, 208 F.3d 299 (1st Cir.2000) (applying Pickering analysis to vacated convictions, although decision pre-dates Pickering; subsequent dismissal of charges, based solely on rehabilitative goals does not vitiate that original admission).

Third Circuit
POST CON RELIEF – EFFECTIVE ORDER – ARGUMENT THAT VACATED CONVICTIONS ARE NOT CONVICTIONS In Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20, 2005), the Third Circuit held it was reasonable for the BIA to hold that a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes, but that convictions those vacated because of underlying defects in the criminal proceedings are eliminated for immigration purposes. The court established a categorical test for distinguishing between these two types of vacatur: "To determine the basis for a vacatur order, the agency must first look to the order itself. If the order explains the court’s reasons for vacating the conviction, the agency’s inquiry must end there. If the order does not give a clear statement of reasons, the agency may look to the record before the court when the order was entered. No other evidence of reasons may be considered." The court also stated: "We will not accept an interpretation of the Immigration and Nationality Act that permits, let alone requires, speculation by federal agencies about the secret motives of state judges and prosecutors." In Pinho, the court found the state vacatur effectively eliminated the conviction for immigration purposes because "The only basis for the vacatur appearing in the order or the pleadings is Pinho’s

171

ineffective assistance claim." The Third Circuit, however, also stated: "Given the expansive statutory definition of "conviction," and the deference the agency’s interpretation is owed, the agency could have chosen to contend that as a matter of federal law all vacated state convictions remain "convictions" under § 1101(a)(48)(A), whether rehabilitative or substantive. If the agency wishes to adopt this interpretation of the statutory definition it may do so, through rulemaking or adjudication, and it may defend that interpretation before the courts. But the agency has not done so, and it is another matter entirely for the agency to distinguish among vacated convictions based on the reasons for the vacatur, and then to arrogate to itself the power to find hidden reasons lurking beneath the surface of the rulings of state courts. Under the Supremacy Clause, the Department of Homeland Security may, pursuant to statutory authority, properly interpret § 1101(a)(48)(A) to encompass convictions vacated by order of state courts. But it is far from clear that it may rewrite state-court rulings as to the legal basis for those orders. Our Federalism has not yet come to that." (Id. at ___ [emphasis supplied]). If counsel are faced with an argument in immigration or federal court that the statutory definition of conviction, INA 101(a)(48)(A), includes as convictions even those that have been vacated as legally invalid on constitutional grounds such as ineffective assistance of counsel, the following arguments might be a starting point. The suggestion in Pinho that the agency could adopt an interpretation of the statute that included as convictions even those that had been vacated as legally invalid was not part of the holding of the court. This issue was not before the court in Pinho. The language in question is therefore dictum. R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).). In fact, such an interpretation is unsupportable as well as unconstitutional, and should not be adopted. It is unsupportable because the statute and legislative history give no support to this interpretation. Elsewhere in Pinho, the court stated: Nothing in the statute specifically addresses vacated convictions. Clearly they are not convictions that have been withheld. If they are covered, then, it will be under

172

the first disjunct: "a formal judgment of guilt of the alien entered by a court." The statute is entirely silent with respect to the subsequent procedural history of a "judgment entered by a court," and the undoubted congressional purpose of closing the "withheld judgment" loophole tells us nothing whatsoever about what Congress’ purpose was with respect to vacaturs, or whether it had any purpose at all in that regard. (Id. at ___ [footnote omitted].) Since deportation on the basis of a conviction is a drastic result, the agency is not free to create out of whole cloth a statutory interpretation that has no support in the text or legislative history of the statute. Mr. Justice Douglas, speaking for a unanimous Supreme Court, stated: "We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10 (92 L.Ed. 17). It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used." Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948). Reiterating this principle, Chief Justice Warren has written, "Although not penal in character, deportation statutes as a practical matter may inflict ‘the equivalent of banishment or exile,’ . . . and should be strictly construed." Barder v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825, 98 L.Ed. 1009 (1954). While The Court of Appeal for the Ninth Circuit expressed awareness of this principle in Garcia Gonzales, saying, "We are aware, too, that matters of doubt should be resolved in favor of the alien in deportation proceedings, because of the severity of the remedy invoked." Garcia Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965). See also Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. at 384 n.8 (2005) (applying rule of lenity to aggravated felony definition in deportation context). Aside from being an unsupportable interpretation, it would probably be unconstitutional to allow the agency to attach such

173

drastic consequences to a conviction that the law of the case had determined to be unconstitutional. As the court recognized, elsewhere in Pinho: Accepting the distinction between substantive and rehabilitative vacaturs not only gives proper deference to the agency’s interpretation, but also serves to avoid the constitutional problems that might arise under a reading which brings constitutionally protected conduct or constitutionally infirm proceedings into the category of "conviction"-cases, for example, involving an alien who was convicted of conduct subsequently deemed constitutionally protected, or whose conviction was reversed on direct appeal because of insufficient evidence, or whose conviction was vacated on collateral attack because of a plain constitutional defect. The agency does not read the statute as encompassing such situations, however, so these difficult cases have not come before us. Id. at ___, n. 22. Therefore, it would be not only unsupportable but unconstitutional to include as convictions those that had been vacated as legally invalid. The court also stated: "We will not accept an interpretation of the Immigration and Nationality Act that permits, let alone requires, speculation by federal agencies about the secret motives of state judges and prosecutors." In Pinho, the court found the state vacatur effectively eliminated the conviction for immigration purposes because "The only basis for the vacatur appearing in the order or the pleadings is Pinho’s ineffective assistance claim." Suggest petition for rehearing in Pinho to eliminate the following language: "Given the expansive statutory definition of "conviction," and the deference the agency’s interpretation is owed, the agency could have chosen to contend that as a matter of federal law all vacated state convictions remain "convictions" under § 1101(a)(48)(A), whether rehabilitative or substantive. If the agency wishes to adopt this interpretation of the statutory definition it may do so, through rulemaking or adjudication, and it may defend that interpretation before the courts. But the agency has not done so, and it is another matter entirely for the agency to distinguish among vacated convictions based on

174

the reasons for the vacatur, and then to arrogate to itself the power to find hidden reasons lurking beneath the surface of the rulings of state courts. Under the Supremacy Clause, the Department of Homeland Security may, pursuant to statutory authority, properly interpret § 1101(a)(48)(A) to encompass convictions vacated by order of state courts. But it is far from clear that it may rewrite state-court rulings as to the legal basis for those orders. Our Federalism has not yet come to that." (Id. at ___ [emphasis supplied]). The court should grant a petition for rehearing and eliminate this italicized language. This issue was not before the court in Pinho. The italicized language is therefore dictum. R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).) POST CON RELIEF – CONVICTION – VACATUR CATEGORICAL ANALYSIS APPLIED TO PICKERING ISSUE Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20, 2005) (a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes; convictions vacated because of underlying defects in the criminal proceedings are eliminated for immigration purposes; "To determine the basis for a vacatur order, the agency must first look to the order itself. If the order explains the court’s reasons for vacating the conviction, the agency’s inquiry must end there. If the order does not give a clear statement of reasons, the agency may look to the record before the court when the order was entered. No other evidence of reasons may be considered.") http://www.ca3.uscourts.gov/opinarch/043837p.pdf

Sixth Circuit
POST CON RELIEF – EFFECTIVE ORDER –THE DEFENDANT'S MOTIVE IN SEEKING TO VACATE IS IRRELEVANT

175

Pickering v. Gonzales, - 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) ("the motive of the Petitioner in seeking to have his conviction quashed is of limited relevance to our inquiry. See Sandoval v. INS, 240 F.3d 577, 583 (7th Cir.2001). Such motive is relevant only to the extent that the Canadian court relied upon it in quashing the conviction."). JUDICIAL REVIEW – PETITION FOR REVIEW – DISPOSITION – WHERE RECORD CONTAINED INSUFFICIENT EVIDENCE TO ESTABLISH DEPORTABILITY, REMEDY WAS REVERSAL WITHOUT REMAND FOR CONSIDERATION OF ADDITIONAL EVIDENCE Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003). (where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, removal proceedings ordered terminated without remand for consideration of additional evidence). POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) (where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, deportation proceedings ordered terminated without remand for consideration of additional evidence).

Other
POST CON RELIEF – EFFECTIVE ORDER – PICKERING Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Immigration Bulletin 1103 (July 1, 2003).

§ 10.7 4. Full Faith and Credit Precludes Looking Behind the Face of An Order Vacating a Conviction

176

Second Circuit
POST CON RELIEF – EFFECTIVE ORDER – FULL FAITH AND CREDIT Saleh v. Gonzales, ___ F.3d ___, 2007 WL 2033497 (2d Cir. July 17, 2007) (amendment of the removable conviction was secured solely to aid petitioner in avoiding immigration consequences and was not based on any procedural or substantive defect in the original conviction; BIA did not violate full faith and credit by failing to honor the amendment, since postconviction motion stated it was brought for immigration purposes and failed to identify any substantive or procedural defects in the conviction), citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005). POST CON RELIEF – EFFECTIVE ORDER – GOVERNMENT HAS BURDEN OF PROOF OF CONTINUED EXISTENCE OF CONVICTION Saleh v. Gonzales, ___ F.3d ___, ___ n.4, 2007 WL 2033497 (2d Cir. July 17, 2007) ("the Government bears the burden of proving, by clear and convincing evidence, that Saleh is removable . . . ."), citing 8 U.S.C. § 1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006) (per curiam); see also Pickering v. Gonzales, 465 F.3d 263, 268-69 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); CruzGarza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005).

Fifth Circuit
POST-CONVICTION – NUNC PRO TUNC ORDER EFFECTIVE Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas court’s nunc pro tunc correction of internally inconsistent criminal judgment was a proper use of nunc pro tunc under Kansas law; as a correction of record made to properly reflect the original judgement, the nunc pro tunc judgment was properly considered by the BIA, and such consideration does not contradict Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) rule that vacated conviction remains a conviction for immigration purposes).

Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – COMITY AND RESPECT FOR STATE COURTS' DECISIONS – FULL FAITH AND CREDIT The Ninth Circuit has recognized that a proper respect for state and federal courts requires that their orders be considered valid and effective, unless they can be shown to be otherwise. Rashtabadi v. INS, 23 F.3d 1562, 1569 (9th Cir. 1994). In Rashtabadi, the Ninth Circuit acknowledged what the

177

United States Supreme Court stated well more than a century ago: "There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears; and this rule applies as well to every judgment or decree, rendered in the various stages of their proceedings, from the initiation to their completion, as to their adjudication that the plaintiff has a right of action. Every matter adjudicated, becomes a part of their record; which thenceforth proves itself, without referring to the evidence on which it has been adjudged." Id. (quoting Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed 490 (1836) (quotation in original, supporting citations omitted). "Principles of comity, finality and economy all militate in favor of placing the burden of attacking court judgments and orders on the party who seeks to upset them." Id. The Board itself has acknowledged and applied these same principles. See Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000) (rejecting the INS's argument that the Board should go behind a state court vacatur of judgment to determine whether it was entered for purposes of avoiding removal, according full faith and credit to the state court judgment, and relying on 28 U.S.C. § 1738, which requires federal courts to accord full faith and credit to state court judgments). At least where a substantive defect must be found to support a vacatur, Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) does not require a different result. As the Ninth Circuit previously held, "[c]ertain areas of criminal regulation are beyond Congress's reach[,]" even in the immigration arena, which Congress possesses exclusive authority to regulate. Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 - 914 (9th Cir. 2004). The Board has no authority to reach into the merits of a change of plea proceeding; that proceeding was governed by, and carried out pursuant to, state law. Accordingly, the vacatur of a state conviction must be accorded full faith and credit by the Board and by the Court. Thanks to Deborah S. Smith.

BIA
POST CON RELIEF – EFFECTIVE ORDER – MOTION TO REOPEN – BURDEN OF PROOF THAT CONVICTION HAD NOT BEEN VACATED SOLELY FOR

178

IMMIGRATION PURPOSES IS ON RESPONDENT IN MOTION TO REOPEN Matter of Chavez-Martinez, 24 I. & N. Dec. 272 (BIA Aug. 31, 2007) (noncitizen seeking to reopen proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes). http://www.usdoj.gov/eoir/vll/intdec/vol24/3578.pdf Note: It is unclear from the facts of this case whether the noncitizen was charged with inadmissibility or deportability. Therefore it is unclear who bore the original burden of proof. The BIA specifically distinguishes this situation from that when a noncitizen is not yet subject to a final order of removal. The BIA also notes a circuit split on this issue in the motion to reopen context. Compare Nath v. Gonzales, 467 F.3d 1185, 1188-1189 (9th Cir. 2006) with Rumierz v. Gonzales, 456 F.3d 31, 40-41 (1st Cir. 2006).

§ 10.8 Sixth Circuit

5. Analyzing Immigration-Related Grounds

POST CON RELIEF – EFFECTIVE ORDER – CONVICTION VACATED FOR IMMIGRATION REASONS STILL EXISTS Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) ("We hold that the present case is distinguishable from Pickering on the ground that, unlike the petitioner in Pickering, petitioner Sanusi did not raise or argue any colorable legal basis for the vacation of his conviction[, since] it is well settled that there is no obligation to advise a criminal defendant of the collateral immigration consequences of entering a guilty plea."), citing El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002). POST CON RELIEF – EFFECTIVE VACATUR – PICKERING Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) (although a petitioner’s immigration motive for seeking post-conviction relief is not sufficient by itself to hold vacatur ineffective for immigration purposes, there must be some demonstrable legal basis for the vacatur; defendant’s “state court petition and the uncontested order of the Arkansas court with the docket entry--‘On 8-11-03, Milton Dejesus, attorney for defendant, filed a petition for writ of coram nobis. City Attorney had no objection. Judge granted the motion.’--fail to provide the evidence from which it may be reasonably inferred that the writ of coram nobis was granted on any recognized legal ground. On this record, the only reasonable inference that can be drawn is that the conviction was vacated for the sole purpose of relieving Sanusi from deportation.”).

179

http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf "In Morgan, the Supreme Court upheld the availability of coram vobis to a defendant who had not been provided counsel, but who had served his entire sentence. Morgan, 346 U.S. at 512. The Court noted that, with no other remedy being then available and sound reasons for the failure to seek earlier relief, the petitioner was entitled to seek a writ of coram vobis, for "[o]therwise a wrong may stand uncorrected which the available remedy would right." Id. In this case, the wrong suffered by Mohamed cannot stand uncorrected. A defendant's Sixth Amendment rights must be protected, and in this case, the result was that both Mohamed and the Court were unaware of the immigration consequences that would follow from his sentence. Therefore, pursuant to a writ of coram vobis, the Court will amend Mohamed's sentence from a term of two years to a term of three hundred and sixty days, with all time suspended." Commonwealth v. Mohamed, Aug. 18, 2006. Case No. (Criminal) 06-1059 CIRCUIT COURT OF ARLINGTON COUNTY, VIRGINIA 71 Va. Cir. 383 2006 Va. Cir. LEXIS 244

§ 10.9 6. Jurisdiction of the Criminal Court to Issue the Order Vacating the Conviction. § 10.10 7. Grounds for Vacating a Conviction Based on a Plea of Guilty or No Contest BIA
STATE REHABILITATIVE RELIEF – DRUG CASES – NINTH CIRCUIT – LUJAN WORKS DESPITE PRIOR NO-PLEA DIVERSION DISMISSAL "At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program" Cal. Penal Code § 1001.3 et seq. Therefore, under the definition of conviction found at 8 U.S.C. § 1101(a)(48)(a), diversion under the California statute in effect

180

at the time petitioner received the disposition does not constitute a conviction. See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California diversion, held not to be a conviction under Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)). A prior no-plea California diversion disposition therefore does not render a noncitizen disqualified from eligibility for FFOA treatment of a subsequent possession conviction. A disposition of diversion that did not require a plea of guilty or no contest and does not constitute a conviction under 8 U.S.C. § 1101(a)(48)(a). In addition, this disposition does not constitute "a disposition under this subsection [8 U.S.C. § 3607(a)]."

§ 10.11

B. State Rehabilitative Relief

POST CON RELIEF – STATE REHABILITATIVE RELIEF – INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES, AS DISTINGUISHED FROM A CONVICTION THAT HAS BEEN VACATED ON THE MERITS Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115 (1983) (Federal firearms disabilities applied with respect to one who pled guilty to a State offense punishable by imprisonment for more than one year, even if the record of the State criminal proceeding was subsequently expunged following a successfully served term of probation: “expunction under state law does not alter the historical fact of the conviction, . . . does not alter the legality of the previous conviction[,] and does not signify that the defendant was innocent of the crime to which he pleaded guilty”); United States v. Smith, 96 F.3d 1350, 1351 (11th Cir. 1996) (per curiam); United States v. Mejias, 47 F.3d 401, 403-404 (11th Cir. 1995); see also United States v. Norbury, 492 F.3d 1012, 1014-1015 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006). POST CON RELIEF – STATE REHABILITATIVE RELIEF – IIRAIRA NEW DEFINITION OF CONVICTION DID NOT IMPLIEDLY REPEAL THE FEDERAL FIRST OFFENDER ACT E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial interpretation of a statute and to adopt it when it re-enacts a statute without changing it). “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change, see Albemarle Paper Co. v. Moody, 422

181

U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978). "This rule is based on the theory that the legislature is familiar with the contemporaneous interpretation of a statute . . . . Therefore, it impliedly adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v. United States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate Co., 283 U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943); Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New Materials High Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir. 1998), reh'g denied, in banc suggestion declined (Jan. 28, 1999) and cert. dismissed, 120 S.Ct. 394 (1999). Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE STATUTE ANALYSIS – CONJUNCTIVE CHARGES United States v. GarciaMedina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code § 11352(a), properly triggered 16-level sentence enhancement for illegal reentry after deportation since charging to which plea was entered listed offenses in the conjunctive, and plea of guilty was entered to every offense listed within the counts of conviction). NOTE: This decision appears to contradict the decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) (“Where a statute specifies

182

two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.”). The court based its reasoning on the following analysis: In California, a guilty plea admits every element of the offense charged, People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837 (Cal.1981), including all accusations and factors comprising the charge contained in the pleading. People v. Palacios, 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318 (Cal.Ct.App.1997); see People v. Tuggle, 232 Cal.App.3d 147, 154, 283 Cal.Rptr. 422 (Cal.Ct.App.1991) (“By pleading guilty as charged [to an information worded in the conjunctive, charging, “robbery by means of force and fear”], appellant necessarily admitted the force allegation and cannot now escape the consequences of that admission.”) (emphasis added). Thus, “a plea of guilty means guilty ‘as charged’ in the information, and by it ‘all averments of fact are admitted.... The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts.’ “ Arenstein v. Cal. State Bd. of Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357 (Cal.Ct.App.1968) disapproved on other grounds by Barber v. Long Beach Civil Serv. Comm'n, 45 Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4 (Cal.Ct.App.1996) (citations omitted). Accordingly, by pleading guilty to counts one and two as worded, in the conjunctive, Garcia-Medina admitted to several offenses committed on at least two occasions. It is uncontested that most of these offenses qualify as drug trafficking for the purposes of section 2L1.2. Garcia-Medina did not clarify his plea before the California trial court; instead, he admitted every offense listed in the charging document and cannot now escape the consequences of his admission. See People v. Guerrero, 44 Cal.3d 343, 355356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988). United States v. Garcia-Medina, __ F.3d __, __, 2007 WL 2317381 at *3 (8th Cir. Aug. 15, 2007).

Second Circuit
POST CON RELIEF – CONVICTION – EFFECTIVE ORDER – NONCITIZEN REMAINS CONVICTED FOR IMMIGRATION PURPOSES EVEN IF A STATE CONVICTION HAS BEEN VACATED UNDER A REHABILITATIVE STATUTE

183

Saleh v. Gonzales, ___ F.3d ___, 2007 WL 2033497 (2d Cir. July 17, 2007) ("the BIA has reasonably concluded that an alien remains convicted of a removable offense for federal immigration purposes when a state vacates the predicate a conviction pursuant to a rehabilitative statute."), citing Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.2006); Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000), and following Sanusi v. Gonzales, 474 F.3d 341, 342-43 (6th Cir. 2007) (“We deny the petitions for review on the ground that the state court's vacation of Sanusi's conviction was ineffective for immigration purposes because it was done solely for the purpose of ameliorating the immigration consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005). JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may not take administrative notice of facts without affording other party to rebut the inferences drawn from those facts).

Lower Courts of Second Circuit
EXPUNGEMENT – FALSE STATEMENT FOR IMMIGRATION BENEFIT Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007) (the fact that applicant stated that he had not been arrested [after prior indication that he had] was not an intentional misstatement to the government where applicant could have believed that the expungement of the records of those arrests meant that he could state to the government that he had no longer been arrested). http://bibdaily.com/pdfs/Szpak%207-25-07.pdf

Third Circuit
RELIEF – REFUGEE STATUS – CANNOT DEPORT WITHOUT TERMINATING Smirko v. Ashcroft, 387 F.3d 279 (3rd Cir. Oct. 26, 2004) (finding that INA and legislative history suggest that "refugee status" does not end when noncitizen admitted as refugee adjusts status, but continues until refugee status is terminated by the immigration authorities; noncitizens with refugee status cannot be deported for commission of a crime of moral

184

turpitude within five years of entry).

Fourth Circuit
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES – FLORIDA Green v. State, ___ Fla. App. ___, 2005 WL 156724 (4th Dist. January 26, 2005) (defendant suffered sufficient prejudice to make motion to withdraw plea on grounds trial court violated state advisal statute requiring advice to defendant concerning potential immigration consequences of guilty plea, even though deportation proceedings have not yet been begun, since possibility of future deportation proceedings constitutes sufficient "threat of deportation" under Peart v. State, 756 So. 2d 42, 44 (Fla. 2000).)

Fifth Circuit
POST-CON RELIEF – EFFECTIVE VACATUR – FIFTH CIRCUIT Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) (court recognizes the DHS will follow Pickering even in the Fifth Circuit: “we vacated the Discipio I opinion because the Government modified its position and terminated deportation proceedings against Discipio because his conviction had been vacated on procedural and substantive defects, the Government bowing to the BIA's opinion in In re Pickering.FN10 See Discipio II, 417 F.3d at 449-50.”) POST CON – EXPUNGEMENT— FOREIGN Danso v. Gonzales, 489 F.3d 709 (5th Cir. June 15, 2007) (rejecting equal protection argument that noncitizen’s British expungement should be given effect for immigration purposes where noncitizen could hypothetically have availed himself of the expungement procedures set forth in the Federal First Offenders Act (FFOA)). CONVICTION – DEFERRED ADJUDICATION – TEXAS – DEFERRED ADJUDICATION CONSTITUTES A CONVICTION FOR IMMIGRATION PURPOSES Salazar-Regino v. Trominski, ___ F.3d ___ (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal under the BIA law in place at the time the plea of guilty was entered), following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999).

185

http://caselaw.lp.findlaw.com/data2/circs/5th/0341492p.pdf

Lower Courts of Sixth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FIRST OFFENSE DRUG CASES – OPEN QUESTION IN SIXTH CIRCUIT Shurney v. INS, 201 F.Supp.2d 783, 794 (D. Ohio 2001) ("The question before this Court is not whether Lujan-Armendariz should be adopted in this Circuit; the question presented in this proceeding is whether, in light of Lujan-Armendariz, Shurney has a good faith basis to contest his removal and, hence, has a protectible liberty interest in objecting to detention pending removal. Since the Sixth Circuit has yet to rule on Shurney’s contention and another Circuit Court has ruled in a manner favorable to Shurney, this Court cannot conclude that Shurney’s argument is frivolous.").

Seventh Circuit
POST CON RELIEF – CONVICTION VACATED PURSUANT TO EXTRAORDINARY MOTION FOR NEW TRIAL, FOLLOWED BY DISMISSAL OF CHARGES, REMAINED A CONVICTION FOR IMMIGRATION PURPOSES SINCE NONCITIZEN FAILED TO ESTABLISH THAT CONVICTION HAD BEEN VACATED BASED ON A PROCEDURAL OR SUBSTANTIVE DEFECT IN THE UNDERLYING CRIMINAL PROCEEDINGS Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar. 22, 2006) (per curiam) (Georgia conviction of two counts of child molestation, followed by the granting of an extraordinary motion for a new trial, and the State of Georgia's motion to nolle prosse charges, continued to constitute a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), for removal purposes, since noncitizen failed to establish that conviction had been vacated based on a procedural or substantive defect in the underlying criminal proceedings; noncitizen bears burden to show conviction was vacated on a basis of legal invalidity). This decision violates the long-standing rule that the government bears the burden of establishing by clear and convincing evidence every fact necessary to prove deportability. Woodby v. INS, 385 U.S. 276 (1966). CONTROLLED SUBSTANCES – ATTEMPTED SIMPLE POSSESSION CONVICTION EXPUNGED PURSUANT TO A STATE REHABILITATIVE STATUTE CONTINUED TO EXIST AS A GROUND OF DEPORTATION Ramos v. Gonzales, ___ F.3d ___, 2005 WL 1618821 (7th Cir. July 12, 2005) (Nebraska conviction for attempted possession of cocaine, in violation of

186

Neb.Rev.Stat. §§ 28-201, 28-416 (2003), continued to constitute a "conviction," for removal purposes, even though it had been expunged pursuant to a rehabilitative statute, Neb.Rev.Stat. § 29-2264, resulting in an order stating that "the adjudication previously entered by this Court is hereby set aside and nullified, and the Court further orders that all civil disabilities and disqualifications imposed as a result of said adjudication are hereby removed" and a later order stating rehabilitation had not played a part in the order, despite an argument that Equal Protection required granting the same effect to this state court order as would have been granted to an order under the Federal First Offender Act, 18 U.S.C. § 3607), following Gill v. Ashcroft, 335 F.3d 574, 577-78 (7th Cir. 2003). CONVICTION – VACATED ON POST-CONVICTION RELIEF – EFFECTIVENESS OF ORDER VACATING CONVICTION – SEVENTH CIRCUIT AFFIRMS PICKERING RULE-POST CON RELIEF – EFFECTIVE ORDER Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (according Chevron deference to, and affirming rule of Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA June 11, 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), that if a court amends an alien's conviction for reasons solely related to rehabilitation or immigration hardships, as opposed to responding to procedural or substantive defects in the underlying criminal proceedings, then the alien remains "convicted" for immigration purposes). POST CON RELIEF – EFFECTIVE ORDER VACATING CONVICTION – ILLINOIS ORDER AMENDING FELONY CONVICTION OF POSSESSION WITH INTENT TO DISTRIBUTE THC TO MISDEMEANOR POSSESSION OF MARIJUANA WAS INEFFECTIVE TO ELIMINATE THE FORMER CONVICTION FOR REMOVAL PURPOSES, SINCE IT WAS NOT BASED ON A GROUND OF LEGAL INVALIDITY Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (Illinois order amending felony conviction of possession with intent to distribute THC, in violation of Wis. Stat. § 961.41(1m)(h)(1), to misdemeanor possession of marijuana was ineffective to eliminate the former conviction for removal purposes, since it was not based on a ground of legal invalidity).

Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – REHABILITATIVE RELIEF DOES NOT ELIMINATE CONVICTION FOR PURPOSES OF IMPOSING FEDERAL CONTROLLED SUBSTANCE SENTENCE ENHANCEMENT United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was

187

committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). POST CON RELIEF – STATE REHABILITATIVE RELIEF – LOPEZ STRENGTHENS ARGUMENT THAT STATE REHABILITATIVE RELIEF ANALOGOUS TO THE FEDERAL FIRST OFFENDER ACT ELIMINATES QUALIFYING CONVICTIONS FOR IMMIGRATION PURPOSES United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). POST CON RELIEF – STATE REHABILITATIVE RELIEF IS INEFFECTIVE TO ELIMINATE CONVICTION FOR PURPOSES OF CONSTITUTING A PRIOR CONVICTION UNDER THE FEDERAL CONTROLLED SUBSTANCES ACT United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007) (state conviction constitutes prior conviction under federal Controlled Substances Act even if state court expunged conviction by granting state rehabilitative relief); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006) (same); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003)(same); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997) (same); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993) (same). POST-CON – STATE REHABILITATIVE STATUTES – LUJAN – CONVICTION MUST BE EXPUNGED TO AVOID REMOVAL Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Oct. 27, 2004) (although Oregon expungement would erase simple possession conviction, if granted, the immigration authorities may remove noncitizen before expungement is granted; court distinguished between situation where, as here, noncitizen had not yet made any attempt to begin expungement, and

188

where the noncitizen is in process of obtaining an expungement by court order). POST CON RELIEF – STATE REHABILITATIVE RELIEF – STATE EXPUNGEMENT STATUTE DOES NOT HAVE TO BE EQUIVALENT TO FFOA TO ELIMINATE IMMIGRATION CONSEQUENCES OF CONVICTION Under Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994), the state expungement statute does not have to be identical to the FFOA: "We rejected this narrow approach in Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994). Garberding involved Montana's expungement statute, which was not limited to first-time simple drug possession offenses but allowed expungement of a broad range of more serious offenses. Id. at 1189. Considering Garberding's challenge on Equal Protection grounds, we concluded that the INS had no rational basis for treating her differently simply because Montana's statute covered a broader range of offenses than did the FFOA, id. at 1190-91, and held that "persons who received the benefit of a state expungement law were not subject to deportation as long as they could have received the benefit of the federal Act if they had been prosecuted under federal law." Chavez-Perez v Ashcroft, 386 F.3d 1284, 1288 (9th Cir. 2004). This interpretation accepted in Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995), which requires only that the defendant be a simple possession first offender and that a "court has entered an order pursuant to a state rehabilitative statute under which the alien's criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation." Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995). Therefore, the statute expungement statute need not be equivalent to the FFOA if the conduct could have been covered under the FFOA if the case had been prosecuted in federal court, and rehabilitative treatment resulting in dismissal was granted. Thanks to Jonathan Moore.

Tenth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FEDERAL FIRST OFFENDER ACT – CONVICTION EXCLUDES EXPUNGEMENTS Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) ("[T]he First Offender Act, 18 U.S.C. § 3607, permits the expungement of first-time simple drug-possession offenses for all purposes, including immigration adjudications. As the Ninth Circuit noted in Lujan-Armendariz, there is no reason to suppose that Congress repealed the First Offender Act sub silentio. It thus makes sense to read the § 1101(a)(48)(a) definition to

189

exclude expungements."). POST CON RELIEF – STATE REHABILITATIVE RELIEF – WYOMING DEFERRED ENTRY OF PLEA AND SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301 (“Without entering a judgment of guilt or conviction, [the court may] defer further proceedings and place the person on probation for a term not to exceed five (5) years.”), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes). JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION DOCTRINE – FAILURE TO EXHAUST IS EXCUSED IF RESPONDENT CAN SHOW MISCARRIAGE OF JUSTICE, SUCH AS WHERE CONVICTION ON WHICH DEPORTATION IS BASED DOES NOT CONSTITUTE AN AGGRAVATED FELONY Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (court of appeal can reach claim that controlled substances conviction does not constitute an aggravated felony, under Lopez, even though respondent failed to exhaust before the IJ or BIA because the law was clear against him, under the miscarriage of justice exception to the exhaustion doctrine of 8 U.S.C. § 1252(d)(1)), following Marrero Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004); see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001) (habeas petitioner's failure to exhaust may be excused “when administrative remedies are inadequate” but not where administrative procedures exist to reopen petitioner's case) (internal quotation marks omitted); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (“Even where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction, carved out exceptions.”); Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999) (finding that an exception exists to address “certain constitutional due process claims”).

BIA
POST-CONVICTION – EFFECT OF EXPUNGEMENT Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000), even if court expunged first state conviction pursuant to a State’s rehabilitative procedures), citing

190

United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993).

Other
CONVICTION – STATE REHABILITATIVE RELIEF Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been "convicted" for immigration purposes; Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.). http://www.usdoj.gov/eoir/vll/intdec/vol23/3508.pdf CONVICTION – STATE REHABILITATIVE RELIEF Matter of MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code § 1203.4 is still "convicted" for immigration purposes under INA § 101(a)(48)). http://www.usdoj.gov/eoir/vll/intdec/vol23/3507.pdf EXPUNGEMENT - EFFECT ON INADMISSIBILITY People who can benefit from rehabilitative relief eliminating a conviction under Lujan also are protected from being held inadmissible for having made an admission, because of a longstanding BIA rule that where a case is addressed in criminal proceedings and a disposition results that is less than a conviction, the person cannot be found inadmissible for having "admitted" the offense. Neither the prior guilty plea, or even a subsequent admission to INS official, will make them inadmissible for admitting the elements of the offense. See California Criminal Law and Immigration (2004), § 3.8. Thanks to Kathy Brady, ILRC for this analysis. POST CON RELIEF – EXUNGEMENT POST CON RELIEF – EFFECTIVE ORDER VACATING CONVICTION James A.R. Nafziger & Michael Yimesgen, The Effect of Expungement on Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930 (2003). POST CON RELIEF – EXPUNGEMENT – SIMPLE POSSESSION The literal requirements of the Federal First Offender Act are: 18 U.S.C. § 3607 (a) Pre-judgment Probation: If a person found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844)

191

(1) has not, prior to the commission of such offense, been convicted of violating a Federal or State law relating to controlled substances; and (2) has not previously been the subject of a disposition under this subsection. Under this language, it may be possible to obtain a Lujan safe expungement where two simple possession acts and convictions exist if, (1) at the time of commission of the second possession offense, the defendant had not yet been convicted of the first, and (2) both convictions are expunged at the same time. Thanks to Ann Benson for this analysis. STATE ADVISAL STATUTES Even though many state advisal statutes are inaccurate in informing some noncitizens they "may" be deported, when the specific conviction in fact triggers mandatory deportation, there is no workable judicial advisal that correctly advises all noncitizen defendants of the exact immigration consequences of a plea, even to an aggravated felony. For example, a plea to a sexual abuse of a minor misdemeanor might well fall within the petty offense exception and thus allow a LPR married to a USC to adjust status to get a new green card and thus avoid deportation as in Matter of Rainford, 20 I. & N. Dec. 598 (BIA (1992) and Matter of Gabrielsky, 20 I. & N. Dec. 750 (BIA 1993). Thus, in that case, a plea to an aggravated felony would not trigger mandatory deportation. It would be a serious mistake for the court to misadvise the defendant that he will absolutely be deported when there is an easy remedy available to protect against deportation. The court is simply not in any position, without investigating the actual immigration status and prior criminal history of a defendant, and doing research on the specific immigration consequences of the new conviction in light of the prior history, to give the defendant accurate information on the exact immigration consequences of the new conviction. The immigration consequences of any criminal disposition depend on (a) the detailed immigration situation of each individual client, (b) the exact record of conviction in the criminal case, and (c) the defendant's prior record, as well as (d) certain conduct-based grounds of inadmissibility, deportability, and bases for relief or waivers in immigration court. This analysis is beyond the duty or power of the court to give to every noncitizen defendant. The solution is for criminal defense counsel to do this investigation, obtain confidential privileged attorney-client information, verify the exact immigration consequences of each disposition, try to avoid the worst of them if possible, and tell the client what is going on in a confidential attorney-client conference. It is not in the client's interest to inform the prosecutor or court of the exact nature (or even approximate nature) of the confidential and privileged advice defense counsel gives the

192

defendant. The criminal court will breathe a sigh of relief that this is too complicated and not their function; courts will likely be happy to leave it to criminal defense counsel. If the court wants to police defense counsel's performance of their duty to do this, in order to avoid future IAC claims, the court's question should be limited to whether counsel has investigated the actual immigration consequences of the plea and informed the client of them (without specifying what they are) and leaving it at that. As far as the court's advisal goes, the current version is the best the court can realistically do: to tell the defendant, "If you are not a U.S. citizen, this plea might cause your (a) deportation, (b) exclusion, or (c) denial of naturalization or other immigration benefits." POST CON RELIEF – STATE REHABILITATIVE RELIEF – PRIOR NO-PLEA DIVERSION DOES NOT DISQUALIFY NONCITIZEN FROM LUJAN EXPUNGEMENT "At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program" Cal. Penal Code §§ 1001.3 et seq. Therefore, under the statutory definition of conviction INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), diversion under the California "no-plea" diversion statute does not constitute a conviction. See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California no-plea diversion, held not to be a conviction under Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)). A prior no-plea California diversion disposition therefore does not disqualify a noncitizen from eligibility for FFOA treatment under Lujan of a subsequent possession conviction. A disposition of diversion that did not require a plea of guilty or no contest and does not constitute a conviction under 8 U.S.C. § 1101(a)(48)(A). In addition, this disposition does not constitute "a disposition under this subsection." Federal First Offender Act, 8 U.S.C. § 3607(a). SAFE HAVEN – STATE REHABILITATIVE RELIEF – PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT The Federal First Offender Act, 18 U.S.C. § 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.

§ 10.12

C. Judicial Recommendation Against Deportation

Second Circuit

193

POST-CON RELIEF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS FOR AGGRAVATED FELONIES Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (judicial recommendations against deportation prevent deportation based upon an aggravated felony conviction as well as convictions of crimes of moral turpitude). POST-CON – JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS FOR AGGRAVATED FELONIES – RETROACTIVITY Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (deportation may be avoided even as a result of new aggravated felonies, created after repeal of JRAD statute: “[J]ust as respondents may rely on IIRIRA's expanded definition of aggravated felony to argue petitioner's deportability on that ground, petitioner may rely on the same definition to claim JRAD protection from deportation on that ground.”). CRIMES OF MORAL TURPITUDE – JUDICIAL RECOMMENDATION AGAINST DEPORTATION – REMEDY FOR IAC AT SENTENCE REQUIRES PLACING DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT OCCURRED, INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED PERIOD Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled). In determining whether nunc pro tun relief could be applied in this case, the court looked at the following issues: 1. Statutory bar: "A court may not award equitable relief in contravention of the expressed intent of Congress. See INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA had granted nunc pro tunc relief in the past, and noted that Congress never amended INA § 212(c) to bar such grants. Id. 2. When nunc pro tunc relief should be afforded: The court stated generally that "where an agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68." Edwards v. INS, 393 F.3d,

194

at 310. Applying this to the immigration context, the court found that nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was erroneously denied the opportunity to apply the relief due to an error on the part of the agency, and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated that the noncitizen, outside an illegal reentry context, did not need to show that a denial of the relief would result in a denial of due process. 3. What error may nunc pro tunc relief be used to correct: Despite arguments that the doctrine of nunc pro tunc may only be used to correct inadvertent errors, and not to remedy a defect in a judgment order, the court held that in the immigration context nunc pro tunc relief was available to correct such defects in the immigration context. Edwards v. INS, 393 F.3d, at 309 n. 12.

Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF – GOVERNMENT BEARS BURDEN OF PROOF THAT ORDER VACATING CRIMINAL CONVICTION WAS INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen). POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION – BURDEN ON GOVERNMENT TO PROVE RESENTENCING GRANTED SOLELY TO ENABLE COURT TO ISSUE TIMELY JRAD OR ELSE JRAD WOULD BE HELD EFFECTIVE Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all presumptions normally operating in favor of the judgment operate in favor of the validity of a Judicial Recommendation Aagainst Deportation, and the burden is on the government to prove the criminal resentencing was granted solely to enable the court to issue a timely JRAD or else the JRAD would be held effective).

Lower Courts of Ninth Circuit
POST-CON – JUDICIAL RECOMMENDATION AGAINST DEPORTATION

195

People v. Paredes, 72 Cal.Rptr.3d 867 (Cal.App. 4 Dist. Feb. 26, 2008) (agreement of state to JRAD does not constitute an express or implied promise that the conviction will not render the noncitizen deportable; the fact that the federal immigration laws changed retroactively to make 1987 manslaughter conviction deportable as an aggravated felony not sufficient to show that the original 1987 plea agreement had been violated).

§ 10.13

1. Immigration Effects of a JRAD.

Eleventh Circuit
SENTENCE – SENTENCE IMPOSED Hernandez v. U.S. Att’y Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).

Other
POST CON RELIEF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION – IMMIGRATION EFFECT There is a question whether a CMT conviction, for which a JRAD was validly obtained before November 29, 1990, can trigger deportation for multiple CMT convictions when combined with a later (or earlier) second CMT. Immigration counsel could argue that under the former statute, still enforced, deportation cannot be based on a CMT for which a JRAD was granted. The government can argue that the CMT for which a JRAD was granted forms one CMT of a two-CMT deportation ground. They could analogize to those cases that hold if a noncitizen has CMTs that trigger deportation, and then respondent obtains a waiver of deportation for them under former INA § 212(c) waiver, and the client suffers another CMT conviction, the old waived CMT can be combined with the new CMT conviction to trigger deportation for multiple CMTs. The waiver does not eliminate the old CMT. It merely waivers deportation for that ground and that ground only. The two-CMT deportation ground is a different ground, and both CMT convictions continue to exist, and so can trigger deportation. The question would be whether counsel can distinguish those 212(c) cases.

§ 10.14

2. Procedural Requirements.

196

§ 10.15 § 10.16 Ninth Circuit

3. Continuing Validity of Pre-1990 JRADs 4. Ineffective Assistance of Counsel

POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY – RETURN TO PRE-ERROR STAGE OF PROCEEDINGS Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding). http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf

BIA
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS – RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.")

§ 10.17 § 10.18

5. Vacating the Conviction 6. Effective Date

§ 10.19 7. The Government May Not Collaterally Attack a JRAD. § 10.20 § 10.21 Other
POST CON – PARDON – SELECTIVE SERVICE PARDON – VIETNAM WAR The 1977 presidential pardon for violations of the Military Selective Service Act specifically applies to eliminate the commission of such violations as grounds of inadmissibility. Implementation of Presidential Proclamation

8. Bibliography D. Pardon

197

No. 4483 and Executive Order No. 11967 (both effective Jan. 21, 1977), 42 Fed. Reg. 59562 (Nov. 18, 1977). This pardon was cited in Matter of Rahman, 16 I. & N. Dec. 579 (BIA 1978), regarding President Ford's pardon of Vietnam era draft dodgers, particularly regarding LPRs who returned on or before June 1, 1978.

§ 10.22

1. Determination of Whether a Pardon Exists

Seventh Circuit
POST CON RELIEF – PARDON – SUFFICIENCY OF PROOF OF PARDON – NO ERROR IN BIA REFUSAL TO CONSIDER UNCERTIFIED COPY OF GEORGIA PARDON Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar. 22, 2006) (per curiam) (uncertified photocopy of purported pardon was "not sufficiently reliable to meet [] heavy evidentiary burden to reopen proceedings." even though it bore a signature and a seal, because under 8 C.F.R. § 287.6, "an official record or entry . . . when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by the official having legal custody of the record or by an authorized deputy;" although § 287.6 is not the "exclusive" method of authentication, see Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam), noncitizen offered no compelling reason why a properly certified copy of the pardon could was not submitted).

§ 10.23

2. Foreign Pardons.

§ 10.24 III. Reduction of Felony to Misdemeanor Ninth Circuit
SENTENCE – GUIDELINES – WOBBLER – REDUCED SENTENCE IS USED FOR GUIDELINES CALCULATIONS United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a defendant is convicted of an alternative "felony-misdemeanor" or "wobbler," the alternative sentence ultimately executed is the one to be used in guidelines calculations).

§ 10.25 IV. Vacating or Modifying Sentence § 10.26 A. Basic Rule: Most Recent Sentence Governs

198

§ 10.27 B. The New Definition of "Conviction" Does Not Alter This Result BIA
POST CON RELIEF – SENTENCE – VACATION OR REDUCTION OF SENTENCE IS EFFECTIVE FOR IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S REASONS FOR GRANTING IT Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to modify or reduce a criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). http://www.usdoj.gov/eoir/vll/intdec/vol23/3522.pdf

§ 10.28 § 10.29

C. Reducing Sentence D. Grounds to Vacate Sentence

§ 10.30 V. Reopening Proceedings After a Conviction Has Been Vacated Eighth Circuit
POST CON RELIEF – VACATUR MUST BE PRESENTED TO IMMIGRATION COURT TO BE CONSIDERED ON PETITION FOR REVIEW Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. § 1252(b)(4)(A); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th Cir. 2003) (en banc) (holding BIA violated noncitizen's right to due process, in appeal of decision granting suspension of deportation, when BIA stated it was entirely precluded from considering new evidence bearing on hardship including evidence that, in the eight years intervening between immigration judge's decision and proceedings before BIA, noncitizen's daughter had been diagnosed with serious medical condition for which treatment was likely unavailable if noncitizen was deported).

§ 10.31

A. Reopening Removal Proceedings

199

MOTION TO REOPEN – AFTER REMOVAL Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was ordered removed in absentia and removed from the United States. He filed a motion to reopen to rescind the in absentia order based on lack of notice. The IJ denied the motion, concluding that the immigration court lacked jurisdiction because petitioner was outside of the United States. The BIA affirmed the dismissal. The Eleventh Circuit found that petitioner’s motion was governed by 8 C.F.R. § 1003.23(b)(4)(ii), which says that a motion to reopen in absentia proceedings may be made at any time if the person shows that he or she did not receive notice. This regulation does not bar reopening when the person has been removed from the United States. The court noted that Patel v. United States AG, 334 F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the BIA’s dismissal of a motion to reopen because the person was outside of the United States. Patel, however, did not involve a motion to reopen to rescind an in absentia order. AILF Legal Action Center, Litigation Clearinghouse Litigation Clearinghouse Newsletters are posted on AILF’s web page at www.ailf.org/lac/litclearinghouse.shtml.

First Circuit
MOTION TO REOPEN – APPLICATION FOR RELIEF Palma-Mazariegos v. Gonzales, 504 F.3d 144 (1st Cir. Oct. 2, 2007) (motion to reopen removal proceedings for purpose of applying for relief must be accompanied by application for requested relief). MOTION TO REOPEN – VOLUNTARY DEPARTURE NOT STAYED Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007) (BIA grant of a timely motion to reopen did not vacate the original IJ’s decision finding removability and granting voluntary departure, and did not stay the voluntary departure period, even though it is highly unlike that BIA would reach decision on merits of motion to reopen before voluntary departure period expires; “We read §§ 1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of voluntary departure available only to aliens who agree to give up the fight and leave the country willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following

200

Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006). POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD LEFT THE UNITED STATES Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. § 1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.”) did not invalidate the regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”). POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL PROCEEDINGS Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005). POST-CON – MOTION TO REOPEN – SUA SPONTE De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.”) POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated).

201

http://laws.lp.findlaw.com/1st/051895.html POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated). http://laws.lp.findlaw.com/1st/051895.html NOTE: Under the particular facts of this case, it appears that the deportation order may not have actually been final (see dissent). However, assuming (as the majority did), that the deportation order was final and therefore the holding of the case does not apply outside the context of late motions to reopen/reconsider will limit the reach of this otherwise unfortunate decision.

Second Circuit
MOTION TO REOPEN – SUA SPONTE Cyrus v. Keisler, 505 F.3d 197 (2d Cir. Oct. 19, 2007) (court lacks jurisdiction to review denial of discretionary request for sua sponte motion to reopen). BOARD OF IMMIGRATION APPEALS – MOTION TO RECONSIDER – DEFINITION AND STANDARD Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has defined a motion to reconsider as ‘"a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked."’ In re Cerna, 20 I. & N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations establish that a motion to reconsider must specify errors of fact or law in the BIA decision and be supported by relevant authority.") citing 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

Fourth Circuit
MOTIONS TO REOPEN – DEPORTED NONCITIZENS William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8 U.S.C.] § 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. ... it is evident that 8 C.F.R. § 1003.2(d), containing the post-

202

departure bar on motions to reopen, conflicts with the statute by restricting the availability of motions to reopen to those aliens who remain in the United States. Therefore, we conclude that this regulation lacks authority and is invalid.").

Seventh Circuit
MOTION TO REOPEN – SUA SPONTE Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need judicial permission to reopen a case sua sponte after the filing of a petition for review). http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf

Eighth Circuit
MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL PROCEEDINGS Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by granting DHS motion to reopen pursuant to 8 C.F.R. § 1003.23(b)(3) because DHS failed to establish that the evidence submitted with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to the conclusion of removal proceedings).

Ninth Circuit
POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence, for Arizona misdemeanor conviction was illegal since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13707, rendering the twelve-month sentence illegal on its face, required remand to the BIA to consider the issue in the first instance; issue could not have been considered earlier, since Arizona court entered 2004 minute entry over six months after initial BIA decision in this case), citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir; 2004) (remanding to BIA to consider in first instance whether petition continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per curiam) (remanding "changed circumstances" issue to BIA for "opportunity to address the matter in the first instance).

203

POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes). POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POSTCONVICTION ATTACK Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation does not apply when criminal conviction that formed a “key part” of the order of removal has been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions are not legally valid, and thus do not bar motions to reopen).

Eleventh Circuit
MOTION TO REOPEN – BIA Cisneros v. U.S. Attorney Gen., __ F.3d __, 2008 WL 217364 (11th Cir. Jan. 28, 2008) (BIA abused its discretion in failing to examine exceptional circumstances in denying the motion to reopen).

BIA
MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion. The Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings; where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed

204

and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).

Other
POST-CONVICTION RELIEF – AFTER CONVICTION VACATED New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml. REMOVAL – RETURN OF THE WRONGFULLY REMOVED One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal" under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks to Beryl B. Farris, Atlanta. MOTION TO REOPEN – AFTER DEPARTURE FROM UNITED STATES The regulations provide that departure from the United States under an order of deportation, or while a removal order is on appeal to the BIA, shall render the immigration judge’s decision final and bar any motion to reopen or reconsider. 8 C.F.R. §§ 1003.2(d), 1003.4. However, many circuits have challenged the validity of these regulations. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (first sentence of 8 C.F.R. § 1003.2(d) is ultra vires to statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase “is the subject of”); Contreras-Rodriguez v. United States Att’y Gen., 462

205

F.3d 1314 (11th Cir. 2006) (departure regulation does not apply to in absentia motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) ("Under 8 C.F.R. § 1003.4, any voluntary departure from the United States following entry of an order of deportation will be deemed to withdraw a pending appeal and to render the order of deportation final."). Thanks to Rachel E. Rosenbloom; Beth Werlin.

§ 10.32

B. Reopening Criminal Proceedings

Back to Table of Contents

©2005 Norton Tooby. All rights reserved.

Home | News | Free Resources | Books/CDs | Seminars Services | Search | About Us | Contact Us Copyright & Disclaimers Policy

CRIMES OF MORAL TURPITUDE – INTENT REQUIREMENT Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) (a criminal offense must have at least a willfullness requirement to constitute a crime of moral turpitude: "Such crimes “ ‘must be done willfully’ or with ‘evil intent.’ “ Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007) (quoting FernandezRuiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir. 2006)). The requirement of a “willful” or “evil” state of mind has long been recognized by this Court, Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993), Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962), and by other courts of appeals, see Fernandez-Ruiz, 468 F.3d at 1166 (collecting cases). The Second Circuit has observed that a “corrupt scienter is the touchstone of moral turpitude.” Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000)."). CRIMES OF MORAL TURPITUDE – INTENT REQUIREMENT – KNOWLEDGE Mei v. Ashcroft, 393 F.3d 737 (7th Cir. Dec. 29, 2004) (A requirement of willfulness found to be inherent in the aggravated form of evading a police officer, under 625 ILCS 5/11-204, where willfulness is an element of the unaggravated form of the offense, "because the legislature might think that the requirement for the aggravated offense that the defendant has exceeded the speed limit by at least 21 m.p.h. was a proxy for willfulness as well as evidence of increased dangerousness warranting a heavier penalty," and by reference to the jury instructions given in aggravated evading cases; any person who violates this statute "may not want to endanger anyone, but he has to know that he is greatly increasing the risk of an accident (and for the further reason that a fleeing driver is dividing his attention between the road ahead and his pursuer); and he is doing so as a consequence of his deliberate and improper decision to ignore a lawful order of the police."). DETENTION – MANDATORY DETENTION – "WHEN RELEASED" Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA § 101(f)(8), 8 U.S.C. § 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A), the entry of a “formal judgment of guilt . . . by a court” occurs

206 when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that “Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt”); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant “entered a plea of guilty, and the court entered a formal judgment of guilt”).

RELIEF – MANDATORY DETENTION – RETROACTIVITY Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004) (habeas petition, seeking review of his continued detention pursuant to a final order of removal, is granted where IIRAIRA had an impermissible retroactive effect on plaintiff's 1994 guilty plea).

DETENTION – JUDICIAL REVIEW – HABEAS – CUSTODIAN Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. Apr. 17, 2006) (petitioner should have named the warden of the prison in which he was detained as defendant instead of naming DHS officials, the Secretary of Homeland Security and the Attorney General). http://caselaw.lp.findlaw.com/data2/circs/7th/052893p.pdf

DETENTION – ASSIGNING OF DETENTION DISTRICTS Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (DHS may, without following APA requirements of notice and comment, redetermine detention boundaries, even to the extend that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit), reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007), to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006). DETENTION – NONCITIZEN’S ARRESTED IN IDAHO AND MONTANA SUBJECT TO TENTH CIRCUIT LAW Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (noting that DHS has redrawn detention boundaries to subject noncitizens arrested in Idaho and Montana, within the Ninth Circuit, will be placed in removal proceedings in Colorado, in the Tenth Circuit, and therefore subject to Tenth Circuit law), reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007), to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006

DETENTION – BOND – AUTOMATIC STAY Effective Nov. 1, 2006, 8 C.F.R. § 1003.19(i)(2) is a final version of the interim rule first published in 2001 that allows an officer of the DHS to request an automatic stay of release from detention of a noncitizen an immigration judge has found is eligible for release on bond in a Matter of Joseph, 22 I. & N. Dec. 660 (BIA 1999) hearing. The new rule requires the DHS file a form EOIR-43 notice of intent to file appeal within one day of the IJ’s bond decision. The stay will lapse within 10 days unless the DHS actually files

207 an appeal of the bond decision to the BIA. Even if an appeal is filed, the stay will lapse within 90 days from the day the notice of appeal is filed unless the BIA grants a discretionary stay extending the period. 71 Fed. Reg. 57873 (Oct. 2, 2006). DETENTION - CONDITIONS Detention Report: Behind Bars "Between March and July 2006, in response to numerous complaints about conditions of detention, the ACLU-NJ undertook a series of interviews with detainees in the county jails in an effort to shed light on the conditions of confinement. The project resulted in a [May 2007] report, Behind Bars: The Failure of the Department of Homeland Security to Ensure Adequate Treatment of Immigration Detainees." http://www.aclu-nj.org/downloads/051507DetentionReport.pdf RELIEF – DETENTION There’s a new web address for ICE’s Detention Operations Manual (the detention standards): http://www.ice.gov/partners/dro/opsmanual/index.htm ARIZONA IMMIGRATION CONSEQUENCES CHART ONLINE Chart: http://www.ilrc.org/Cal_DIP_Chart_by_section.pdf Notes Accompanying the Chart: http://firrp.org/documents/arizona%20notes%20revised%202005.doc DETENTION – NEW WEBSITE www.detentionwatchnetwork.org DETENTION – ARRIVING ALIEN – DOES REGULATION DEPRIVE IMMIGRATION JUDGE OF JURISDICTION TO DECIDE CONDITIONS OF CUSTODY FOR ARRIVING ALIENS IN REMOVAL PROCEEDINGS The Department of Homeland Security argues that its regulation 8 C.F.R. §1003.19(h) denies to the Immigration Judge jurisdiction to redetermine conditions of custody with respect to [subparagraph (2)(B)] "[a]rriving aliens in removal proceedings, including persons paroled after arrival pursuant to section 212(d)(5) of the Act." The term "arriving alien" is not defined in the Immigration and Nationality Act [INA], but is defined by regulation at 8 C.F.R. 1001.1(q): DETENTION – MANDATORY DETENTION – INAPPLICABLE TO ARRIVING ALIENS INA § 236 applies only to those who have been "arrested on a warrant" issued by the AG (or DHS). See INA § 236(a). Arriving aliens are only "detained" under INA § 235. They are not "arrested on a warrant." Therefore, INA § 236(c) does not apply to arriving aliens. Thanks to Lisa Brodyaga

DETENTION – REMOVAL – ARRIVING ALIENS – REGULATIONS PROVIDE IJ HAS NO JURISDICTION TO SET BOND The regulations divest the Immigration Judges of jurisdiction over bond applications by arriving aliens. 8 C.F.R. §§ 3.19(h)(2)(i)(B), 236.1(c)(11). GOOD MORAL CHARACTER – 180-DAY BAR – PRETRIAL CONFINEMENT LATER CREDITED AGAINST SENTENCE COUNTS AS CONFINEMENT AS A RESULT OF CONVICTION Arreguin-Moreno v. Mukasey, 511 F.3d 1229 (9th Cir. Jan. 14, 2008) (pre-sentence time in custody in a criminal case, which is credited as time served in a sentence imposed after conviction, is considered to be confinement as a result of a conviction for purposes of the 180day Good Moral Character bar of INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).).

208 GOOD MORAL CHARACTER – UNDERPAYMENT OF INCOME TAXES Matter of Locicero, 11 I&N Dec. 805 (BIA 1966) (an individual who had knowingly provided fraudulent information on his income tax returns for two years, by underreporting, was not a person of good moral character). Note: The Board has found that failure to file tax returns is not necessarily a bar to good moral character, citing Matter of T, 1 I&N Dec. 158 (BIA 1941), Matter of Carbajal, Int. Dec. 2765 (Comm. 1978). Thanks to Susan Compernolle

STATUTORY CONSTRUCTION – DECLARES WHAT HAS ALWAYS BEEN THE LAW A judicial decision interpreting a statute does not announce a new rule. For example, INS v. St. Cyr, 533 U.S. 289 (2001) was a case of statutory interpretation. 121 S.Ct. at 2278. As such, its holding did not change the law. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). Rather, St. Cyr “finally decided what [IIRAIRA] had always meant and explained why the [BIA and the] Courts of Appeals had misinterpreted the will of the enacting Congress.” 511 U.S. at 313 n. 12, 114 S.Ct. 1510. JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS CORPUS CAN BE USED TO CHALLENGE DETENTION The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of removal, deportation, and exclusion and consolidate such review in the court of appeals. The REAL ID Act, however, did not affect the ongoing availability of habeas corpus to challenge the length or conditions of immigration detention. Since the REAL ID Act’s enactment on May 11, 2005, the courts of appeals have uniformly upheld the right to file a habeas corpus petition to challenge the lawfulness of detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005); DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assuming without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9 (6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006) (unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v. Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks to AILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12, 2007

Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. May 29, 2007) (petitioner was statutorily ineligible to prove good moral character because he had engaged in alien smuggling). GOOD MORAL CHARACTER – REGULATIONS United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. § 316.10(b)(3)(iii), barring good moral character based on commission of “unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts” is not ultra vires to INA § 101(f); nor is the regulation unconstitutionally vague, as applied to respondent who set fire to own vehicle with intent to defraud insurance company). RELIEF – GOOD MORAL CHARACTER – CONVICTIONS OCCURRING OUTSIDE OF GMC PERIOD CANNOT SERVE AS SOLE BASIS FOR DISCRETIONARY FINDING OF

209

NO GOOD MORAL CHARACTER Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996) (even a serious conviction or set of convictions that that occur outside the statutorily mandated period cannot serve as the sole basis to decline to find good moral character as a matter of discretion). GOOD MORAL CHARACTER Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles: First, the applicant cannot have a conviction on the list enumerated in INA § 101(f), 8 U.S.C. § 1101(f), during the period for which Good Moral Character must be shown, in order to avoid a complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR § 316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction listed on INA § 101(f) committed prior to the beginning of the period during which Good Moral Character must be shown. This second hurdle is not a complete bar to showing Good Moral Character. The agency must weigh positive factors against negative factors. Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986). JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS JURISDICTION TO CONSIDER ARGUMENT THAT IJ'S DENIAL OF CONTINUANCE CONSTITUTED ABUSE OF DISCRETION DESPITE 8 U.S.C. § 1252(a)(2)(C) Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (rejecting argument that 8 U.S.C. § 1252(a)(2)(C) bars judicial review of argument that IJ abused discretion to deny continuance of removal proceedings: "This argument fails for the simple reason that the denial of a continuance is wholly separate and distinct from a “final order of removal” and thus does not lie within the scope of § 1252(a)(2)(C)."). JUDICIAL REVIEW – PETITION FOR REVIEW – DENIAL OF CONTINUANCE – STANDARD OF REVIEW Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (“An IJ would, however, abuse his discretion in denying a continuance if (1) his decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding or (2) his decision-though not necessarily the product of a legal error or a clearly erroneous factual findingcannot be located within the range of permissible decisions.”), quoting Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir. 2006) (internal quotation marks and alterations omitted). JUDICIAL REVIEW – REAL ID ACT – SUSPENSION CLAUSE -- JUDICIAL REVIEW – PETITION FOR REVIEW – 30-DAY DEADLINE – EXTRA 30-DAY GRACE PERIODRuiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. Feb. 14, 2008) (in immigration cases where habeas corpus relief in the U.S. district courts has been eliminated by the REAL ID Act of 2005 for aliens seeking to challenge orders of removal entered against them, the Suspension Clause of the U.S. Constitution is not violated by the REAL ID Act, but a grace period of 30 days from the effective date of the Act should be afforded to those whose petitions were rendered untimely by the provisions of the Act). JUDICIAL REVIEW – DISCRETION Yang v. Mukasey, __ F.3d __, 2008 WL 248542 (2d Cir. Jan. 31, 2008) (court lacks jurisdiction to review question of whether criminal conviction is a crime of moral turpitude where the

210

Immigration Judge also found, independently from the crime of moral turpitude, that the noncitizen was additionally ineligible for qualifying relief as a matter of discretion
JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION REQUIREMENT – JURISDICTIONAL AND CANNOT BE EXCUSED FOR MANIFEST INJUSTICE Valenzuela Grullon v. Mukasey, ___ F.3d ___ (2d Cir. Jan. 7, 2008) (exhaustion requirement is statutory and jurisdictional, and the jurisdictional defect cannot be excused on a ground of manifest injustice).

JUDICIAL REVIEW – STATUTORY INTERPRETATION – STATUTE MUST BE CONSTRUED TO GIVE MEANING TO EACH PART Puello v. BCIS, 511 F.3d 324, ___, (2d Cir. Dec. 20, 2007) (a statute must be construed to give meaning to each part and not render any part superfluous); see Griffiths v. INS, 243 F.3d 45, 53 (1st Cir. 2001) (holding that a notation of “guilty-filed” on the criminal docket could not constitute a conviction under the first prong of the INA conviction definition because “a formal judgment of guilt under the first prong of the definition entails a showing of something beyond a simple finding of guilt . . . . Otherwise the reference in the second prong of the statute to deferred adjudications where either a judge or a jury has ‘found the alien guilty’ would be rendered superfluous.”); Tablie v. Gonzales, 471 F.3d 60, 64 (2d Cir. 2006)(“[A] statute must, if reasonably possible, be construed in a way that will give force and effect to each of its provisions rather than render some of them meaningless.”; Allen Oil Co., Inc. v. Comm’r of Internal Revenue, 614 F.2d 336, 339 (2d Cir. 1980); N.W. Forest Res. Council v. Glickman, 82 F.3d 825, 834 (9th Cir. 1996) (A "statute must be interpreted to give significance to all of its parts. . . . Courts have long followed the principle that statutes should not be construed to make surplusage of any provision."). JUDICIAL REVIEW – DEFERENCE – CRIMES OF MORAL TURPITUDE Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) ("We accord Chevron deference to the BIA's construction of ambiguous statutory terms in immigration law, such as “moral turpitude.” See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Michel v. INS, 206 F.3d 253, 262-65 (2d Cir. 2000) (deferring to the BIA's rule that crimes for which knowledge is an element are generally CIMTs). “However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing ... state criminal statutes, and so we review de novo the BIA's finding that a petitioner's crime of conviction contains those elements which have been properly found to constitute a CIMT.” Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005). Thus, in this case, we defer to the BIA's view that larceny involving a permanent taking amounts to a CIMT, but we review de novo whether Wala's conviction for third-degree burglary under Connecticut law falls within this category. ").

JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS HAS NO AUTHORITY TO ISSUE REMOVAL ORDER IN FIRST INSTANCE Rhodes-Bradford v. Keisler, 507 F.3d 77 (2d Cir. Nov. 7, 2007) (BIA has no authority to issue a removal order in the first instance, after IJ had ordered termination of proceedings).
JUDICIAL REVIEW – BIA APPEAL – ADMINISTRATIVE NOTICE Burger v. Gonzales, __ F.3d __, 2007 WL 2331944 (2d Cir. Aug. 17, 2007) ("This Court recently held that if the Board of Immigration Appeals (“BIA”) intends to take administrative notice of potentially

211 dispositive facts, it must warn a petitioner and provide the petitioner with an opportunity to respond before it denies a motion to reopen on the basis of those facts. See Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court declined to resolve the related question whether due process requires this same result before the BIA enters a final order of removal on the basis of administratively noticed facts. We now address this question and hold that it does.") JUDICIAL REVIEW – HARDSHIP AS DISCRETIONARY ISSUE Barnaby-King v. US Dep't of Homeland Sec., 485 F.3d 684 (2d Cir. May 10, 2007) (prior case finding hardship to be a discretionary issue not subject to judicial review, Jun Min Zhang v. Gonzales, 457 F.3d 172 (2d Cir.2006), may no longer be binding precedent in this court, in light of Xiao Ji Chen, 471 F.3d 315, 319 (2d Cir.2006). JUDICIAL REVIEW – PETITION FOR REVIEW – NONPRECEDENTIAL BIA DECISION NOT ACCORDED CHEVRON DEFERENCE Rotimi v. Gonzales, 473 F.3d 55, 2007 WL 10771 (2d Cir. Jan. 3, 2007) ("[N]onprecedential decision by a single member of the BIA should not be accorded Chevron deference, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), we remand petitioner's case to provide the BIA with the opportunity to construe the “lawfully resided continuously” provisions of § 212(h) in a precedential opinion").

JUDICIAL REVIEW – QUESTIONS OF LAW Chen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition “question of law” for purpose of judicial review is not limited to questions of statutory construction), revising prior opinion, 434 F.3d 144 (2d Cir. 2006).

JUDICIAL REVIEW – AFTER DEPORTATION Spina v. Department of Homeland Sec., 470 F.3d 116 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf JUDICIAL REVIEW – JURISDICTION LIMITATION – DISCRETIONARY DECISIONS – DENIAL OF 212(C) WAIVER Avendano-Espejo v. Department of Homeland Sec., 448 F.3d 503 (2d Cir. May 11, 2006) (court lacks jurisdiction to review discretionary denial of INA § 212(c) relief). http://caselaw.lp.findlaw.com/data2/circs/2nd/0340921p.pdf JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION OF REMOVAL Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. § 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under 8 U.S.C. § 1229b or for adjustment of status under

212 8 U.S.C. § 1255(i), because they were based on nondiscretionary grounds). http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf JUDICIAL REVIEW – HABEAS – RIPENESS Edwards v. INS, ___ F.3d ___, 2004 U.S. App. LEXIS 26335 (2d Cir. December 17, 2004) (Unpublished) (petitioner's claims are ripe for judicial review, even though she will not become eligible for release from criminal custody until 2006, since the determination of her claims may take that long in any event and may be necessary to proceed now to avert possibility of mandatory immigration detention pending litigation of the immigration claims after the criminal custody release date),

AGGRAVATED FELONY – FRAUD OFFENSE – TAX OFFENSE NOT LISTED IN (M)(ii) CAN CONSTITUTE FRAUD OFFENSE AGGRAVATED FELONY UNDER (M)(i) Kawashima v. Gonzales, ___ F.3d ___, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1), qualifies as an “aggravated felony” under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), despite argument that (M)(i) is inapplicable in this case, reasoning that (M)(ii)'s specific reference to § 7201 indicates Congress's intent to exclude all federal tax offenses from the definition of aggravated felonies under the more general subsection (M)(i)). AGGRAVATED FELONIES – TAX OFFENSES – CONVICTIONS OF VIOLATING STATUTES OTHER THAN 26 U.S.C. § 7201 CANNOT CONSTITUTE TAX OFFENSE AGGRAVATED FELONIES UNDER INA § 101(a)(43)(M)(ii) Kawashima v. Gonzales, ___ F.3d ___, ___, n.3, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal convictions for subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1), and aiding and abetting in the preparation of a false tax return, in violation of 26 U.S.C. § 7206(2), cannot qualify as an “aggravated felony” under INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii), because that provision is limited to tax offenses in violation of § 7201); following United States v. Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).

Lower Courts of Ninth Circuit
AGGRAVATED FELONY – FRAUD OFFENSES – LOSS – CALIFORNIA RESTITUTION CANNOT COMPENSATE VICTIM FOR PAIN AND SUFFERING In re Imran Q., 57 Cal.Rptr.3d 233, Previously published at: 149 Cal.App.4th 581, (April 9, 2007) No. B188613 (reversing order that defendant pay close to $18,000 in restitution for injuring the victim in a hit and run, where trial court failed to recognize that some portion of the victim's civil settlement with defendant likely included compensation for the victim's pain and suffering, and the record does not show the parties or court attempted to allocate the settlement between economic damages supporting restitution and pain and suffering, which do not support restitution CRIMES OF MORAL TURPITUDE – FEDERAL FRAUD OFFENSES Ted Cassman and Raphael Goldman, The Federal Mail and Wire Fraud Statutes – Must There be an Intent to Obtain Property, or Merely Deprive? The federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, proscribe “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” (Ibid. [emphasis supplied].) Nowhere do these statutes suggest that

213

the offense could occur if the defendant intended only to “deprive” someone of money or property, rather than “obtain” it. Nevertheless, federal courts have often approved jury instructions that use the word “deprive” instead of “obtain.” For example, the Fifth Circuit’s pattern jury instructions define “scheme to defraud” in the context of these statutes as “any scheme to deprive another of money, property, or of the intangible right to honest services by means of false or fraudulent pretenses, representations, or promises.” Fifth Circuit Criminal Jury Instructions Nos. 2.59, 2.60. Likewise, while the Ninth Circuit Model Criminal Jury Instructions use the word “obtain,” the Ninth Circuit Court of Appeals has itself sometimes carelessly used the word “deprive” in describing the required elements of a mail or wire fraud offense. See, e.g., United States v. Thomas, 32 F.3d 418, 419 (9th Cir. 1994) (stating that, in a mail fraud prosecution, the defendant “must have intended to deprive his victims of money or property”). The difference between obtaining and depriving is not merely semantic. Consider the case of an executive at a publicly-traded company accused of making false statements designed to artificially inflate the price of her company’s stock. The executive in this scenario arguably intends to deprive any person who purchases the stock at the inflated price of money or property. But unless the executive also intends to sell her own stock holdings at the inflated prices, she has not hatched a scheme to obtain money or property from the stock purchasers. Although §§ 1341 and 1343 use the disjunctive “or” between the phrases “scheme or artifice to defraud” and “for obtaining money or property by means of false or fraudulent pretenses, representations, or promises,” the Supreme Court twice has held — based on the history of the mail and wire fraud statutes and the meaning of the term “defraud” — that those phrases are to be read together as defining a single offense. Cleveland v. United States, 531 U.S. 12, 25-26 (2000); McNally v. United States, 483 U.S. 350, 358-359 (1987). Thus, a “deprivation is a necessary but not a sufficient condition” of mail or wire fraud because “only a scheme to obtain money or other property from the victim by fraud violates” those statutes. United States v. Walters, 997 F.2d 1219, 1227 (7th Cir. 1993); see also Monterey Plaza Hotel Ltd. P’ship v. Local 483 of Hotel Employees, Rest. Employees, 215 F.3d 923, 926-27 (9th Cir. 2000) (“The purpose of the mail and wire fraud proscriptions is to punish wrongful transfers of property from the victim to the wrongdoer”); United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989) (“after McNally the elements of mail fraud remain unchanged except that the intent of the scheme must be to obtain money or property, [and] the Court made it clear that the intent must be to obtain money or property from the one who is deceived” (emphasis added)); United States v. Baldinger, 838 F.2d 176, 180 (6th Cir. 1988) (Section 1341 “was intended by the Congress only to reach schemes ‘that have as their goal the transfer of something of economic value to the defendant.’”); United States v. Alsugair, 256 F. Supp. 2d 306, 312 (D.N.J. 2003) (“[I]n addition to an allegation that a defendant deprived a victim of money or property, the mail-fraud statute, 18 U.S.C. § 1341, requires an allegation that the defendant obtained money or property as well.”). [For obvious reasons, this analysis does not apply to fraud charges that allege a scheme to deprive the victim of “honest services” under 18 U.S.C. § 1346.] Unless defense counsel watches carefully, the subtle shift from obtain to deprive can deprive a defendant of the right to have every element of the charged offense proved beyond a reasonable doubt, permitting the government to obtain a conviction on insufficient evidence in mail and wire fraud cases. Defense counsel should consider moving to dismiss charges that allege only a

214

scheme to deprive, as opposed obtain, money and property under 18 U.S. C. §§ 1341 and 1343. Further, counsel should submit instructions that properly define the offense as requiring an intent to obtain money and property in all mail and wire fraud cases. Finally, counsel should make and preserve objections to any jury instructions that suggest that an intent to deprive is sufficient for a mail or wire fraud conviction.

CRIMES OF MORAL TURPITUDE – DEPORTATION FOR SINGLE CMT – NOLO PLEA NOT SUFFICIENT BY ITSELF TO SHOW OFFENSE “COMMITTED” WITHIN FIVE YEARS OF ADMISSION United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) (federal conviction under 8 U.S.C. § 1253(b) for willful failure to comply with a term of release under supervision -- which required that he not “commit any crimes” -- is reversed where misdemeanor nolo contendere convictions were legally insufficient to support his conviction, because a nolo contendere plea is not an admission of guilt to the underlying crime, a conviction based on such a plea does not prove that he "commit[ted] any crimes;" the convictions should not have been admitted under Federal Rules of Evidence 410, 803(22), or 803(8) for the purpose of proving that he actually committed the underlying crimes charged). http://caselaw.lp.findlaw.com/data2/circs/9th/0630011p.pdf

DEPORTABLE BECAUSE INADMISSIBLE AT TIME OF ENTRY OR ADJUSTMENT – COURT MUST LOOK AT LAW AS IT EXISTED AT TIME OF ENTRY/ADJUSTMENT Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (to determine whether a noncitizen is deportable for being inadmissible at entry or adjustment under INA § 237(a)(1)(A), the court must look to the law as it existed at the time of entry or adjustment, not current law).

215

LO G OUT

Post-Conviction Relief for Immigrants - Chapter 5
News
updated 6/12/08

by Norton Tooby

Resources Free Premium Books/CDs Seminars Services Search About Us Contact Us

Back to Table of Contents

Chapter 5: Vehicles for Vacating a Conviction § 5.1 I. Introduction: 3 Requirements for Successful PostConviction Relief § 5.2 § 5.3 Effect § 5.4 Invalidity § 5.5 A. Practical Requirements 1. Matching the Vehicle to the Immigration 2. Matching the Vehicle to the Ground of Legal 3. Choosing a Vehicle that Works

216

Ninth Circuit
POST CONVICTION RELIEF – FEDERAL – EXPUNGEMENT NOT AVAILABLE AS A VEHICLE FOR POST CON RELIEF United States v. Crowell, ___ F.3d ___ (9th Cir. June 30, 2004) (federal proceedings for expungement of federal convictions are unavailable for the purpose of collaterally attacking the validity of the conviction). http://caselaw.lp.findlaw.com/data2/circs/9th/0330041p.pdf

§ 5.6 Other

4. Timing of Post-Conviction Relief

NO SANCTIONS FOR DHS DELAY IN FILING NTA FOLLOWING CONVICTION There is no statute of limitations requiring the federal immigration authorities to begin deportation proceedings within a certain time after a deportable conviction occurs. It is true that federal statute provides that "the Attorney General shall begin any removal proceedings [in the case of an alien who is convicted of an offense which makes the alien deportable] as expeditiously as possible after the date of the conviction." (INA § 239(d)(1), 8 U.S.C. § 1229(d)(1).) The following subsection, however, makes clear Congress' intent not to "create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person." (INA § 239(d)(2), 8 U.S.C. § 1229(d)(2).) The DHS is thus free to initiate deportation proceedings against a noncitizen 5, 10, 25 years, or more after the deportable conviction has occurred. E.g., Atkinson v. Attorney General of U.S., 479 F.3d 222 (3d Cir. 2007) (deportation proceedings begun in June, 1997, on the basis of a Dec. 1991, conviction of conspiracy to distribute a controlled substance: six-year delay); Toia v. Fasano, 334 F.3d 917 (9th Cir. June 30, 2003) (removal proceedings first begun in 1997 on the basis of a 1989 conviction: eightyear delay); Matter of Brevia, 23 I. & N. Dec. 766 (BIA 2006), aff’d, BrievaPerez v. Gonzales, 482 F.3d 356 (5th Cir. 2007) (deportation proceedings begun in February, 2003, on the basis of a 1995 conviction of unauthorized use of a motor vehicle: eight-year delay). There is no legal protection whatsoever against government delay in the initiation of removal proceedings. (INA § 239(d)(2), 8 U.S.C. § 1229(d)(2).)

217

§ 5.7 § 5.8 § 5.9 Other

B. General Considerations 1. Developing a Strategy 2. Obtaining the Relief: General Procedure

CRIM DEF – NEGOTIATING WITH PROSECUTORS POST CON RELIEF – NEGOTIATING WITH PROSECUTORS Some issues to cover when negotiating with prosecutors, either to obtain a safe plea bargain that will not result in adverse immigration consequences, or when trying to negotiate the reopening of a case via post conviction relief for the same purposes, would be the following: (1) It is legitimate to negotiate dispositions in light of the immigration consequences to the defendant and innocent family and friends; (2) Prosecutorial discretion is broad enough to take into account totality of the circumstances; (3) It is not proper or realistic to act as if the immigration consequences do not exist; (4) There is a public interest only in punishing the defendant, but not in punishing his or her innocent family; (5) The victim very often has a strong interest in avoiding the deportation of the defendant, e.g., in DV cases to preserve the parent-child relationship and continue to obtain child support from the defendant, which would terminate upon deportation; (6) It is appropriate to differentiate between good guys and bad guys, and to reward defendants who successfully turn their lives around by offering flexibility in plea bargaining to avoid immigration consequences, or in negotiating post-conviction relief for the same purpose, and (7) It serves the common interest in fairness to give the defendant accurate advance notice of all consequences, including the important immigration consequences, of the plea so the defendant can make an informed decision.

§ 5.10 Equities

3. 10sion Between Strength of Ground and

§ 5.11 4. Adverse Criminal Consequences of Setting Aside Conviction

218

§ 5.12 5. Vacating a Conviction Will Not Avoid Conduct-Based Immigration Consequences § 5.13 6. Ex Post Facto Laws and Obtaining the Benefit of Changes in the Law Second Circuit
EX POST FACTO – CONTROLLING DATE – LAST DATE OF THE OFFENSE ALLEGED IN THE CHARGE United States v. Broderson, 67 F.3d 452 (2d Cir. 1995); U.S.S.G. § 1B1.11(b), comment (n.2) (for Ex Post Facto purposes, controlling date is the last date of the offense, as alleged in indictment).

§ 5.14 II. Federal Vehicles for Vacating a Conviction § 5.15 A. Motion to Withdraw Plea

Ninth Circuit
POST CON RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA United States v. Ross, 511 F.3d 1233 (9th Cir. Jan. 14, 2008 ) (a conviction and 188-month sentence following a guilty plea to conspiracy to distribute crack is affirmed in part and remanded in part where: 1) a failure to advise defendant of the standard of proof during the plea colloquy did not constitute plain error; 2) there was no abuse of discretion in denying defendant's motion to withdraw his guilty plea; and 3) a remand was warranted pursuant to Ameline). POST CON RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA MADE ON GROUND COURT FAILED TO ADVISE DEFENDANT OF REASONABLE DOUBT STANDARD PROPERLY DENIED United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) (rejecting argument that the district court abused its discretion when it denied the motion to withdraw the guilty plea, since defendant claims his intention to plead guilty to the offense while retaining the right to litigate the drug quantity constitutes a “fair and just reason” for withdrawing his plea under Federal Rule of Criminal Procedure 11(d)(2)(B), since the court had informed him “by pleading guilty, you are agreeing to the base amount” and the defendant agreed with the factual basis including drug quantity stated by the government).

219

POST CON RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA – DEFENDANT'S STATEMENTS DURING PLEA COLLOQUY ENTITLED TO STRONG PRESUMPTION OF VERACITY United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) ("Statements made by a defendant during a guilty plea hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea. United States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir.2001) (giving “substantial weight” to a defendant's in-court statements in determining whether a guilty plea was voluntary); United States v. Anderson, 993 F.2d 1435, 1438 (9th Cir.1993) (“[S]tatements made by a criminal defendant contemporaneously with his plea should be accorded great weight because [s]olemn declarations made in open court carry a strong presumption of verity.”) (internal quotation omitted)."). POST CONVICTION RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA – STANDARD OF REVIEW -- ABUSE OF DISCRETION – ERROR OF LAW United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 (9th Cir. July 15, 2004) ("This Court reviews a district court's denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001) (en banc). A district court abuses its discretion when it makes an error of law. See id.; see also Koon v. United States, 518 U.S. 81, 100 (1996) ("A district court by definition abuses its discretion when it makes an error of law.")).

§ 5.16

1. Procedural Requirements

POST CON – FEDERAL – RULE 33 MOTION TO VACATE — TIME LIMITS Eberhart v. United States, ___ U.S. ___ (October 31, 2005) (Federal Rule of Criminal Procedure 33, which allows a district court to vacate any judgment and grant a new trial if the interest of justice so requires, is an inflexible claim-processing rule, and the Seventh Circuit incorrectly construed its time limitations as jurisdictional). http://laws.findlaw.com/us/000/04-9949.html

Ninth Circuit
POST CONVICTION RELIEF – VEHICLES – SUA SPONTE MOTION TO VACATE GUILTY PLEA In re Ellis, ___ F.3d ___ (9th Cir. Feb. 04, 2004) (district court lacks sua sponte authority to vacate a previously entered and accepted guilty plea; upon rejecting the plea agreement, the only course available for the district court under FRCP rule 11 is to advise the defendant of his rights,

220

including the right to withdraw the guilty plea). http://caselaw.findlaw.com/data2/circs/9th/0170724p.pdf

§ 5.17 Ninth Circuit

2. Grounds

POST-CON RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA – GROUNDS – INNOCENCE United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 *3 (9th Cir. July 15, 2004 (Noncitizen request to withdraw plea to violation of 18 U.S.C. § 1326(a), illegal reentry, on the basis that Immigration Judge failed to inform noncitizen of possible relief under INA § 212(c), and therefore initial deportation was improper, is essentially an assertion of actual innocence). POST-CONVICTION RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA – GROUNDS United States v. Ortega-Ascanio, ___ F.3d ___, 2004 WL 1575244 (9th Cir. July 15, 2004) (defendant may withdraw guilty plea after district court accepts plea, but before sentencing if defendant can show fair and just reason for withrawal, including inadequate plea colloquy, newly discovered evidence, intervening circumstances, or any other reason for withdrawing plea that did not exist when plea was entered).

§ 5.18 § 5.19

3. Immigration Consequences B. Direct Appeal

Eighth Circuit
JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS MAY NOT CONSIDER NON-RECORD MATERIAL SUBMITTED FOR THE FIRST TIME ON APPEAL Gebremaria v. Ashcroft, __ F.3d __ (8th Cir. Aug. 2, 2004) (IIRAIRA § 309(c)(4)(B) bars consideration of material not included in the record from the immigration court proceeding, including proof of noncitizen’s medical condition where noncitizen was aware of the condition during the initial proceedings). http://caselaw.lp.findlaw.com/data2/circs/8th/032492p.pdf

221

Ninth Circuit
POST CON RELIEF – APPEAL – FEDERAL – MAGISTRATE MAY ISSUE CERTIFICATE OF APPEALABILITY Hanson v. Mahoney, ___ F.3d ___ (9th Cir. Jan. 10, 2006) (federal magistrate judges who adjudicate habeas petitions by consent of the parties have authority to issue certificates of appealability). APPEALS - FAILURE OF GOVERNMENT TO ARGUE HARMLESSNESS United States v. Gonzalez-Flores, __ F.3d __ (9th Cir. Aug., 12, 2005) (the burden to that an error was harmless is on the government; reversal is required where harmlessness is not shown by a preponderance of the evidence). See United States v. Seschillie, 310 F.3d 1208, 1214-16 (9th Cir. 2002). Here government advanced no argument that the evidentiary error was harmless. "Usually when the government fails to argue harmlessness, we deem the issue waived and do not consider the harmlessness of any errors we find. See, e.g., United States v. Varela-Rivera, 279 F.3d 1174, 1180 (9th Cir. 2002); United States v. Vallejo, 237 F.3d 1008, 1026 (9th Cir. 2001), amended by 246 F.3d 1150. This approach makes perfect sense in light of the nature of the harmless-error inquiry: it is the government's burden to establish harmlessness, and it cannot expect us to shoulder that burden for it. However, we recognize that no interest is served -- and substantial time and resources are wasted -- by reversal in those unusual cases in which the harmlessness of any error is clear beyond serious debate and further proceedings are certain to replicate the original result." JUDICIAL REVIEW – HABEAS – IMMIGRATION CASES Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2004), reh’g en banc denied __ F.3d __, 2004 WL 151667 (9th Cir. 2004) (doctrine of issue preclusion prevents noncitizens from filing habeas corpus to challenge whether an offense is an aggravated felony, since the same issue was raised in determining whether the court had jurisdiction to hear the case on petition for review; twelve circuit judges dissented to denial of rehearing, arguing that the decision cuts off habeas to most immigrants seeking the petition).

Tenth Circuit
POST CON RELIEF – DIRECT APPEAL – FEDERAL – MOOTNESS – DIRECT APPEAL PROPERLY DISMISSED AS MOOT AFTER DEFENDANT HAD BEEN REMOVED FROM THE UNITED STATES US v. Vera-Flores, __ F.3d __, 2007 WL 2247660 (10th Cir. Aug. 7, 2007) (appeal of a sentence for possession of a firearm by an illegal alien is

222

dismissed where defendant's removal from the United States mooted his appeal).

§ 5.20

1. Procedural Requirements

Second Circuit
POST CON RELIEF – FEDERAL -- APPEAL – MOOTNESS – DEPORTATION OF APPELLANT DID NOT RENDER APPEAL FROM SENTENCE MOOT United States v. Hamdi, ___ F.3d ___, 2005 WL 3366948 (2d Cir. Dec. 12, 2005) (completion of sentence and deportation of defendant do not render his appeal from sentence moot).

Ninth Circuit
APPEALS - FEDERAL - CHALLENGE TO SUFFICIENCY OF INDICTMENT United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal challenging whether indictment alleges sufficient facts to state an offense because such challenge must await final judgment after trial; court refused to treat appeal as mandamus, since trial court did not clearly err) Use Note: Mandamus appears to be the appropriate vehicle for redress if indictment is fatally flawed.

§ 5.21 Sixth Circuit

2. Filing a Late Notice of Appeal

CONVICTION – FINALITY – OUT OF TIME APPEAL – PENDENCY OF REQUEST FOR LATE APPEAL DOES NOT AFFECT FINALITY OF CONVICTION United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (request to begin belated appeal does not affect finality of a conviction).

Ninth Circuit
POST CON RELIEF – APPEAL – OUT OF TIME APPEAL Johnson v. United States, 362 F.3d 636 (9th Cir. April 2, 2004) (second petition brought to challenge sentence not barred under "successive rule" by first habeas petition, brought to challenge counsel's failure to file notice of appeal). POST CON RELIEF – APPEAL – OUT OF TIME APPEAL Johnson v. United States, __ F.3d __ (9th Cir. April 2, 2004) (First habeas

223

petition, brought only to challenge trial counsel failure to file notice of appeal, did not bar second "successive" petition challenging petitioner's sentence; successful 2255 petition, utilized to obtain out-of-time appeal, does not render subsequent collateral challenge "second" or "successive" under AEDPA). http://caselaw.lp.findlaw.com/data2/circs/9th/0116947p.pdf

§ 5.22

3. Attacking a Waiver of Appeal

Lower Courts of Second Circuit
POST CON RELIEF – APPEAL – WAIVER OF APPEAL IN PLEA AGREEMENT DOES NOT BAR COLLATERAL ATTACK RAISING ERRORS IN MEANS BY WHICH PLEA AGREEMENT WAS REACHED Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (waiver of appeal in plea agreement does not bar collateral attack raising errors in means by which plea agreement was reached: "'There is no general bar to a waiver of collateral attack rights in a plea agreement.' Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)). 'However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been produced, here, the plea agreement.' Id. (citations omitted). Where, as here, a petitioner claims a violation of Rule 11 or the ineffectiveness of trial counsel, the Second Circuit has stated that he is not barred under the terms of the plea agreement from bringing a petition to vacate the conviction based on the legal shortcomings of the process in which the waiver was obtained. See id. at 196. Accordingly, the Court will address 'the merits of [the] petition notwithstanding [the petitioner's] general waiver of the right to collaterally attack his conviction.' Id. at 193; see also Lebron v. United States, 267 F. Supp.2d 325, 328 (E.D.N.Y. 2003).").

Ninth Circuit
POST CON – APPEAL – WAIVER OF PRE-PLEA ISSUES BY ENTRY OF PLEA United States v. Castillo, ___ F.3d ___ (9th Cir. Sept. 22, 2006) (appeal from conviction by guilty plea for being an illegal alien in possession of a firearm dismissed where defendant's entry of an unconditional guilty plea deprived the appeals court of jurisdiction to consider his pre-plea constitutional claims, and that jurisdictional defect is not waivable by the government).

224

http://caselaw.lp.findlaw.com/data2/circs/9th/0530401p.pdf POST CON RELIEF – FEDERAL – APPEAL – WAIVER OF APPEAL VALID BECAUSE PLEA VALID United States v. Pacheco-Navarette, ___ F.3d ___, 2005 WL 3502055 (9th Cir. Dec. 23, 2005) (appeals from convictions and sentences following guilty pleas to being noncitizens in possession of a firearm are dismissed for lack of jurisdiction where appeal waivers were not invalid since nothing about the plea process was unlawful). http://caselaw.lp.findlaw.com/data2/circs/9th/0410396p.pdf POST CON RELIEF – FEDERAL – APPEALS – WAIVER OF APPEAL United States v. Speelman, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (stipulation in plea agreement that defendant "knowingly, expressly and voluntarily waives the right to contest either the conviction or the sentence or the application of the sentencing guidelines in any postconviction proceeding including any proceeding under 28 U.S.C. section 2255" held insufficient to show that he waived his right to directly appeal his sentence, since: "In common legal usage, the term 'post conviction proceeding' refers to a collateral challenge to a judgment or sentence, as opposed to a direct appeal."). POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO ADVISE – WAIVERS OF POST-CONVICTION RELIEF Washington v. Lampert, 422 F.3d 864 (9th Cir. Sept. 6, 2005) (ineffective assistance where trial counsel failed to explain consequences of the stipulated sentencing agreement, and the effect of waivers of postconviction relief) http://caselaw.lp.findlaw.com/data2/circs/9th/0435381p.pdf POST CON RELIEF – DIRECT APPEAL – WAIVER OF APPEAL POST CON RELIEF – GROUNDS – GUILTY PLEA WAIVES GROUNDS United States v. Lopez-Armenta, __ F.3d __ (9th Cir. March 10, 2005) (defendant's challenge to the district court's denial of his motion to suppress is dismissed since he waived his right to appeal pretrial constitutional defects when he entered an unconditional guilty plea). http://caselaw.lp.findlaw.com/data2/circs/9th/0410081p.pdf POST CON RELIEF – DIRECT APPEAL – WAIVER OF APPEAL – WAIVER INEFFECTIVE SINCE INEFFECTIVE ASSISTANCE INVALIDATED PLEA AGREEMENT POST CON RELIEF – DIRECT APPEAL -- CLAIM OF INEFFECTIVE ASSISTANCE PROPERLY RAISED ON DIRECT APPEAL AFTER APPEAL WAIVER United States v. Jeronimo, __ F.3d __ (9th Cir. Feb. 23, 2005) Court lacks

225

jurisdiction to entertain appeals where there is a valid and enforceable waiver of right to appeal. United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999). Appellate court reviews de novo whether defendant has waived right to appeal by entering into plea agreement and validity of such a waiver. United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir. 2003). Waiver of appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004); United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir. 1998). Here, defendant waived all grounds, including whether the trial court abused discretion in refusing to let him withdraw his plea. Record on direct appeal insufficient to determine whether agreement was knowingly and voluntarily made. Matter should be raised in habeas. Note Berzon, J. dissent: "the majority offends logic with a basic ‘chicken and egg’ scenario: It relies on a waiver whose validity is contingent upon the answer to a legal question to preclude the consideration of that very legal question." Trial counsel left defendant uninformed about a certain legal fate (sentencing as career criminal) and instead affirmatively indicated a lower sentence was possible than was actually the case. This issue could and should be dealt with on direct appeal, as the evidence had been presented to the trial court during the plea withdrawal hearing and the government did not dispute it. Ed. Note: Judge Berzon is absolutely right. There is absolutely no point in wasting everyone’s time and money raising an issue on habeas that can easily be reached on direct appeal. POST CON – APPEALS – WAIVER – COMPETENT BUT SUICIDAL DEFENDANT Dennis v. Budge, __ F.3d __ (9th Cir. Aug. 5, 2004) (fact that defendant has mental disorder that causes defendant to choose execution over appeal does not show defendant lacks capacity to make rational choice, as long as mental disorder does not affect defendant’s capacity to appreciate options and choose among them) POST CONVICTION RELIEF – APPEAL – WAIVER OF APPEAL – WAIVER OF APPEAL AS TO ANY ASPECT OF SENTENCE WAIVED APPEAL OF VALIDITY OF SUPERVISED RELEASE RESTRICTIONS United States v. Joyce, ___ F.3d ___ (9th Cir. February 3, 2004) (plea agreement waiving right to appeal conviction and "any aspect of the sentence imposed," precludes defendant from appealing restrictions imposed as special conditions of supervised release). http://caselaw.lp.findlaw.com/data2/circs/9th/0230423p.pdf

226

§ 5.23 Other

4. Immigration Consequences

POST CONVICTION RELIEF – DIRECT APPEAL –ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST CONVICTION PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's guilt.")

§ 5.24 § 5.25

a. Effect of Reversal of Conviction b. Finality Of Decision

Lower Courts of Fifth Circuit
CONVICTION – DATE OF CONVICTION IS DATE PUNISHMENT IMPOSED Donaldson v. United States, __ F.Supp.2d __, 2005 WL 1248879 (S.D. Tex. April 26, 2005) (noncitizen found guilty by jury of an aggravated felony offense [simple possession] on November 13, 1989, but sentenced [to deferred adjudication] on January 19, 1990, was found to have been "convicted" on January 19, 1990, and was therefore permanently barred from naturalization for inability to show good moral character).

Ninth Circuit
POST CON RELIEF – FINALITY OF ORDER VACATING CONVICTION The DHS is arguing that if the prosecution appeals a trial court order vacating the criminal judgment against the defendant, the immigration court can continue to treat the case as if the conviction is still in effect. Immigration counsel could try the argument that a trial-court conviction is

227

treated as existing in criminal court, even though an appeal is pending, but of course that is not true in immigration court: a conviction on appeal is not treated as final in immigration court until the appeal is over with. Immigration counsel could try the judicial economy argument, that 95% of appeals in criminal cases are unsuccessful, so it is grossly unfair to deport the respondent before the appeal is over because 95% of the time it will have been a mistake, but the prosecution could break down that statistic into defense appeals (95% lost) and prosecution appeals (67% won). The Ninth Circuit in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), stated that Congress cannot be thought to intend that a noncitizen should be deported when a delay until probation has expired will bring an effective expungement. The BIA in Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980), held that the IJ has discretion to continue a deportation hearing to allow the respondent to get an expungement where the expungement will solve the problem. These decisions could be used to argue that the IJ should at least continue the removal proceeding to see if the deportable conviction still exists at the termination of the appeal. This last is a stronger argument if the prosecution's grounds for appeal is weak. It would be possible to file a habeas petition in United States District Court, under 28 U.S.C. § 2241, and argue that the prosecution is not likely to prevail on the appeal, and therefore the DHS is not likely ultimately to win a deportation order, and the deportation proceeding should therefore be stayed until the criminal appeal has been completed.

BIA
CONVICTION – FINALITY OF CONVICTION – FIFTH AND SEVENTH CIRCUITS DO NOT FOLLOW GENERAL RULE In most circuits, convictions in criminal cases are not considered sufficiently final to permit the initiation of deportation proceedings if an appeal is pending or they are still subject to appeal. Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh Circuits. See Moosa v. INS,171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).

§ 5.26 § 5.27

5. Negotiating a Better Result On Appeal C. Habeas Corpus

228

Second Circuit
POST CONVICTION RELIEF – NO PETITION FOR REVIEW JURISDICTION OVER HABEAS PETITION CHALLENGING CONVICTION Sandher v. Gonzales, ___ F.3d ___ (2d Cir. March 15, 2007) (dismissing habeas petition that challenged criminal conviction, and had been transferred from district court to court of appeals under REAL ID Act of 2005 § 106 since section 106 does not apply to habeas petitions challenging a criminal conviction). http://caselaw.lp.findlaw.com/data2/circs/2nd/064262p.pdf

Ninth Circuit
POST-CON HABEAS CORPUS - FEDERAL - EVIDENCE OF ACTUAL INNOCENCE Smith v. Baldwin, 466 F.3d 805 (9th Cir. Oct. 24, 2006) (petitioner raising claim of actual innocence, and that state coerced principal witness into not testifying, may pursue federal habeas even though he did not comply with all the procedural prerequisites, holding petitioner met Schlup standard after according disputed witness' statements the benefit of the presumption of truthfulness), citing Schlup v. Denno, 513 U.S. 298, 315 (1995). POST CON RELIEF – HABEAS – FEDERAL Buckley v. Terhune, ___ F.3d ___, 2005 WL 147437 (9th Cir. Jan. 25, 2005) (grant of habeas corpus reversed where state court's determination of facts not unreasonable under AEDPA). http://caselaw.lp.findlaw.com/data2/circs/9th/0355045p.pdf JUDICIAL REVIEW – HABEAS – IMMIGRATION CASES Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2004), reh’g en banc denied __ F.3d __, 2004 WL 151667 (9th Cir. 2004) (doctrine of issue preclusion prevents noncitizens from filing habeas corpus to challenge whether an offense is an aggravated felony, since the same issue was raised in determining whether the court had jurisdiction to hear the case on petition for review; twelve circuit judges dissented to denial of rehearing, arguing that the decision cuts off habeas to most immigrants seeking the petition).

§ 5.28

1. General Requirements

POST CON RELIEF – SUFFICIENCY OF PRESERVATION OF CONSTITUTIONAL CLAIM Dye v. Hofbauer, ___ U.S. ___ (October 11, 2005) (denial of habeas corpus

229

petition reversed where the Court of Appeals incorrectly ruled that prosecutorial misconduct claim was presented improperly). http://laws.findlaw.com/us/000/04-8384.html POST CON RELIEF – HABEAS – FEDERAL Brown v. Payton, __ U.S. __ (March 22, 2005) (grant of habeas relief to defendant is reversed where Ninth Circuit's decision was contrary to the limits on federal habeas review imposed by the Antiterrorism and Effective Death Penalty Act). http://laws.findlaw.com/us/000/03-1039.html HABEAS CORPUS - FEDERAL - EXHAUSTION Baldwin v. Reese, 124 S.Ct. 1347 (March 2, 2004) (ineffective assistance of counsel claim not "fairly presented" where petitioner did not complain that ineffective assistance violated federal law; state supreme courts not required to read lower appellate opinions before deciding whether to grant a hearing, courts should be able to rely exclusively on briefs to alert them to issues). Use Note: The Court gave some guidance on presenting issues of federal law in state courts: "A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'" From this statement, it appears that the Court is indicating that a defendant can "federalize" an issue simply by making any reference to "federal law." POST CON RELIEF – HABEAS – FEDERAL – REQUIREMENT OF EXHAUSTION OF FEDERAL CLAIM IN STATE COURT Baldwin v. Reese, 124 S.Ct. 1347 (March 02, 2004) (prisoner seeking habeas failed to exhaust state remedies by failure to "fairly present" federal claim to state court).

Second Circuit
POST CON RELIEF – FEDERAL – HABEAS – CORAM – 2241 – 2255 Grullon v. Ashcroft, 374 F.3d 137 (2d Cir. June 30, 2004) (doctrine that second § 2255 petitions may be considered motion to amend previous pending petition also applies to second § 2241 petitions). See Ching v. United States, 298 F.3d 174 (2d Cir. 2002).

Lower Courts of Sixth Circuit

230

POST CON – TENNESSEE – CORAM NOBIS State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A writ of error coram nobis lies "for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial." T.C.A. § 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995).").

Ninth Circuit
POST CON RELIEF – HABEAS – SUCCESSIVE HABEAS Carrington v. United States, ___ F.3d ___, 2007 WL 2597326 (9th Cir. Sept. 11, 2007) (sentences for drug offenses are affirmed where: 1) the statutory limits on second or successive habeas petitions do not create a gap in the post-conviction landscape that can be filled with common law writs; 2) Booker does not apply to cases on collateral review; 3) Booker did not lower sentencing ranges, nor was Booker an action "by the Sentencing Commission", therefore 18 U.S.C. section 3582(c)(2) does not apply; and 4) petitioners did not present the exceptional circumstances and equities necessary for a grant of extraordinary relief). POST CON RELIEF – HABEAS CORPUS – FEDERAL – CONSTITUTIONAL CHALLENGE TO AEDPA REJECTED Crater v. Galaza, 491 F.3d 1119 (9th Cir. July 9, 2007) (Anti-Terrorism and Effect Death Penalty Act is not unconstitutional restriction on habeas relief: "the Act does not preclude this Court from entertaining an application for habeas corpus relief, although it does affect the standards governing the granting of such relief."). POST CON RELIEF – HABEAS CORPUS – FEDERAL - BURDEN TO DEMONSTRATE STATE PROCEDURAL RULE IS NOW ADEQUATE King v. LaMarque, ___ F.3d ___ (9th Cir. Sept. 20, 2006) (after federal court has found a state procedural rule inadequate (here the timeliness rule of In re Clark (1993) 855 P.2d 729), burden falls on the government to show that the rule is now adequate). http://caselaw.lp.findlaw.com/data2/circs/9th/0515757pv2.pdf POST CON RELIEF – FEDERAL – SUCCESSIVE PETITION DISMISSED – INSUFFICIENT SHOWING OF ACTUAL INNOCENCE Stephens v. Herrera, ___ F.3d ___(9th Cir. Sept. 13, 2006) (habeas petition dismissed because showing of actual innocence was insufficient within the meaning of Bousley v. United States, 523 U.S. 614, 623 (1998) to overcome

231

the successive-petition bar of 28 U.S.C. § 2255). http://caselaw.lp.findlaw.com/data2/circs/9th/0456232p.pdf HABEAS CORPUS - FEDERAL - MIXED PETITION Jackson v. Roe, __F.3d __ (9th Cir. Sept. 23, 2005) (federal court must stay mixed petition while petitioner exhausts unexhausted claims pending before California Supreme Court), following Rhines v. Weber, 125 S.Ct. 1528 (2005). POST-CON NATIONAL - HABEAS CORPUS - FEDERAL - SHOWING REQUIRED FOR HEARING Earp v. Stokes, 423 F.3d 1024 (9th Cir. Sept. 8, 2005) (Petitioner alleged facts warranting evidentiary hearing on claim that prosecutor committed prejudicial misconduct by dissuading a witness from testifying, and on claim that defense counsel was ineffective in failing to sufficiently investigate mitigation evidence. Petitioner presented colorable claims and had never received evidentiary hearing on them in state court.) HABEAS CORPUS - FEDERAL - DISMISSING MIXED PETITION Jefferson v. Budge, 419 F.3d 1013 (9th Cir. Aug. 16, 2005) (district court erred in dismissing dismiss mixed habeas petition without first offering petitioner the options provided in Rose v. Lundy, 455 U.S. 509 (1982) (choice of exhausting his unexhausted claims by returning to state court, or abandoning those claims and pursuing the remaining exhausted claims in federal court)). HABEAS CORPUS - FEDERAL - EXHAUSTION FAILURE Castillo v. McFadden, __ F.3d __, 2005 WL 427893 (9th Cir. Feb. 24, 2005) (petitioner failed to exhaust state remedies because in his brief to the state appellate court he did not apprise that court that he was making a federal constitutional claim; citation to either a federal or state case involving the legal standard for a federal constitutional violation would have been sufficient to establish exhaustion [Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003)]; general claim of denial of "fair trial," without citation to federal or federally-based authority is not sufficient). Ed. Note: this is a case where the state judge admitted a videotape of defendant’s interrogation and later in the trial said, "In my 19 years on the trial bench, I have never ever admitted a tape like that in evidence. I’ m really concerned about it." The court then opined that its decision would "never hold up if there is any appeal, never in a million years." Note powerful Hawkins, J. dissent: "Castillo consistently complained of the use of the videotape in evidence and the correspondingly obvious prejudicial impact. And make no

232

mistake about it, the tape is powerful evidence; so potent that all the curative instructions in the world could not erase its impact. I would, therefore, reach the merits and grant the petition." I fear that this is yet another example of the Ninth Circuit avoiding relief to deserving defendants based on hyper-technical legal reasoning. I hope this is not a sign of things to come. Use Note: the majority’s action in ducking the issue does not excuse state trial counsel’s failure to properly brief it. It’s not that hard to throw in some federal constitutional cases, folks! HABEAS CORPUS - FEDERAL - NO EXHAUSTION Galvan v. Alaska Department of Corrections, 397 F.3d 1198 (9th Cir. Feb. 9th 2005) (petitioner failed to fairly present federal ineffective assistance of counsel claim before highest state court when her petition to the Alaska Supreme Court made only passing mention (in distinguishing a state case) of the Sixth Amendment and of federal cases; "Briefing a case is not like writing a poem, where the message may be conveyed entirely through allusions and connotations. Poets may use ambiguity, but lawyers use clarity. If a party wants a state court to decide whether she was deprived of a federal constitutional right, she has to say so."). http://caselaw.lp.findlaw.com/data2/circs/9th/0335083p.pdf HABEAS CORPUS – FEDERAL – FAIR PRESENTATION Casey v. Moore, __ F.3d __ (9th Cir. Oct. 12, 2004) (sixth amendment hearsay claims not "fairly presented" to state court since defendant cited only state constitution; "A petitioner must present a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state." Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998)). POST CON RELIEF – FEDERAL – SUCCESSIVE HABEAS Hamilton v. Newland, 374 F.3d 822 (9th Cir. July 01, 2004) (district court erred in treating defendant’s motion as successive habeas petition rather than FRCP 60(b)(6) motion). http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf HABEAS CORPUS -- FEDERAL -- INSUFFICIENT FEDERALIZATION Castillo v. McFadden, 370 F.3d 882 (9th Cir. June 1, 2004) (defendant must give state notice that he is bringing federal constitutional claims by referring in appellate briefs to specific provisions of the federal constitution or citing to federal law; raising federal arguments in trial motions insufficient). See Baldwin v. Reese, 125 S.Ct. 1347, 1350 (2004).

233

The court stated that the concluding sentence that stated petitioner's rights under the Fifth, Sixth and Fourteenth Amendments were violated was a "conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory, was the first time Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note thoughtful and powerful dissent by Judge Hawkins, pointing out that petitioner did cite federal cases in his argument. HABEAS CORPUS – FEDERAL – SECOND HABEAS NOT SUCCESSIVE Johnson v. United States, 362 F.3d 636 (9th Cir. April 2, 2004) (second petition brought to challenge sentence not barred under "successive rule" by first habeas petition, brought to challenge counsel's failure to file notice of appeal).

§ 5.29

2. Federal Habeas Corpus

POST CON RELIEF – HABEAS – FEDERAL – DEFERENCE DUE TO STATE COURT Bell v. Cone, 125 S.Ct. 847, 73 USLW 3428 (January 24, 2005) (a grant of a writ of habeas corpus was improper where it failed to accord to the state court the deference required by 28 U.S.C. § 2254(d)). http://laws.lp.findlaw.com/us/000/04394.html

Second Circuit
JUDICIAL REVIEW – HABEAS – ABUSE OF THE WRIT Esposito v. Ashcroft, ___ F.3d ___, 2004 WL 2966589 (2d Cir. Dec. 23, 2004) (affirming district court order dismissing second habeas petition, which sought to relitigate issues rejected in first action, where petitioner had failed to appeal the initial habeas denial, on grounds of "abuse of the writ").

Lower Courts of Second Circuit
POST CON RELIEF – FEDERAL – INEFFECTIVE COUNSEL – NO BAR FOR FAILURE TO PURSUE IAC CLAIM ON DIRECT APPEAL Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) ("A motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). In § 2255 proceedings, the Supreme Court has recognized the rule of procedural default or "exhaustion" of federal remedies. Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994).

234

Generally, the rule bars the presentation of a claim through a writ of habeas corpus where the petitioner failed properly to raise the claim on direct review. Id. If the claim has not been presented on direct review, the procedural bar may be waived only if the petitioner establishes (1) "cause" for the waiver and shows "actual prejudice" from the alleged violations or (2) "actual innocence." Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611 (1998); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998); see also Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 266768, 91 L. Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 2643-44, 91 L. Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506-07, 53 L. Ed.2d 594 (1977); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). Further, the traditional procedural default rule generally does not apply to ineffective assistance of counsel claims. Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690; 155 L. Ed. 2d 714 (2003). In Massaro, the Supreme Court held that ineffective assistance claims are appropriately litigated in the context of a collateral challenge in the district court and not on direct appeal. Id. at 504-05; accord United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9, 124 S.Ct. 2333, 159 L. Ed. 2d 157 (2004). This is so because the trial record is not developed precisely for the object of litigating the ineffective assistance claim, but instead is devoted to issues of guilt or lack of guilt. Massaro, 538 U.S. at 504-05, 123 S. Ct. 1690; 155 L. Ed. 2d 714."). POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA CLAIM NOT BARRED BY FAILURE TO RAISE ON DIRECT APPEAL Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal). POST CON – FEDERAL – CAUSE AND PREJUDICE FOR NOT RAISING GROUNDS ON DIRECT APPEAL GROUNDS Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255 claim regarding

235

the voluntariness of a guilty plea made when the petitioner was not properly informed that deportation was absolute).

Ninth Circuit
HABEAS CORPUS - FEDERAL - SECOND HABEAS NOT SUCCESSIVE Johnson v. United States, __ F.3d __ (9th Cir. April 2, 2004) (First habeas petition, brought only to challenge trial counsel failure to file notice of appeal, did not bar second "successive" petition challenging petitioner's sentence; successful 2255 petition, utilized to obtain out-of-time appeal, does not render subsequent collateral challenge "second" or "successive" under AEDPA). http://caselaw.lp.findlaw.com/data2/circs/9th/0116947p.pdf

Other
POST-CON – HABEAS CORPUS – ACTUAL INNOCENCE House v. Bell, __ F.3d __ (Jun. 12, 2006) (defendant successfully made the stringent showing required by the actual-innocence exception to procedural default rules). http://laws.lp.findlaw.com/us/000/048990.html

§ 5.30 Ninth Circuit

3. The Petition Must Be Timely Filed

POST CON RELIEF – HABEAS CORPUS – FEDERAL – NEW PETITION FILED AFTER DISMISSAL WITHOUT PREJUDICE FOR FAILURE TO EXHAUST DOES NOT RELATE BACK TO DATE OF FILING OF ORIGINAL PETITION Rasberry v. Garcia, ___ F.3d ___ (9th Cir. May 25, 2006) (habeas petition filed after district court dismissed previous petition without prejudice for failure to exhaust state remedies does not relate back to the date of filing of original habeas petition). http://caselaw.lp.findlaw.com/data2/circs/9th/0315854p.pdf POST CON – FEDERAL – HABEAS – TIMELINESS United States v. Lafromboise, ___ F.3d ___ (9th Cir. October 26, 2005) (court of appeals vacated denial of plaintiff's motion for habeas relief as untimely, where district court's judgment in underlying criminal proceedings is not yet final and the one-year limitations period has not begun to run). http://caselaw.lp.findlaw.com/data2/circs/9th/0335853p.pdf

236

POST CON – HABEAS – FEDERAL – SECOND FILING RELATES BACK TO DATE OF ORIGINAL FILING Anthony v. Cambra, __ F.3d __ (9th Cir. Dec. 15, 2000) (district court accepted resubmitted habeas petition containing only exhausted claims nunc pro tunc to date of original petition; court had improperly denied initial petition containing both exhausted and inexhausted claims).

§ 5.31 a. Federal Habeas Corpus and the AEDPA Statute of Limitations Ninth Circuit
POST CONVICTION RELIEF – FEDERAL HABEAS – STATUTE OF LIMITATIONS – ABUSE OF DISCRETION TO FAIL TO STAY PETITION TO ALLOW EXHAUSTION Olvera v. Giurbino, 371 F.3d 569 (9th Cir. June 08, 2004) (abuse of discretion where district court failed to allow defendant to stay habeas petition so he could properly exhaust claims without having his petition bared by the statute of limitations). http://caselaw.lp.findlaw.com/data2/circs/9th/0256134p.pdf

§ 5.32

i. The Starting Date

POST CON RELIEF – HABEAS – FEDERAL Evans v. Chavis, ___ U.S. ___ (Jan. 10, 2006) (court of appeals decision that California prisoner's request for federal appellate review, made three years after a lower state court ruled against him, was timely under AEDPA, is reversed where the circuit court departed from the Supreme Court's interpretation of the AEDPA as applied to California's system in Carey v. Saffold, 536 U. S. 214 (2002)).

§ 5.33

ii. Statutory Tolling

POST CON RELIEF – HABEAS – FEDERAL – STATUTE OF LIMITATIONS – STATE’S WAIVER OF STATUTE OF LIMITATIONS DEFENSE EXCUSED WHERE THERE WAS NO INTELLIGENT WAIVER ON THE STATE’S PART AND ONLY AN EVIDENT MISCALCULATION OF TIME Day v. McDonough, ___ U.S. ___ (Apr. 25, 2006) (affirming dismissal of a habeas petition as untimely under AEDPA one-year statute of limitations, since district court had discretion to correct the state’s erroneous computation sua sponte when there was no intelligent waiver on the state’s part and only an evident miscalculation of time).

237

http://laws.lp.findlaw.com/us/000/041324.html Perhaps this principle can be applied to excuse violations of the AEDPA statute of limitations on the part of the petitioner, since due process requires procedural rules be applied evenhandedly to the prosecution and defense. See Wardius v. Oregon, 412 U.S. 470, 474 (1973) (procedural rules must cut both ways, since due process "speak[s] to the balance of forces between the accused and his accuser."). POST CON RELIEF – HABEAS CORPUS – FEDERAL – STATUTE OF LIMITATIONS – TOLLING BETWEEN STATE PETITIONS Evans v. Chavis, ___ U.S. ___ (Jan. 10, 2006) (though California has no statutory period for filing a challenge to a denial of a habeas petition, three-year delay between adverse ruling and request for appellate review was not a "reasonable time" within the meaning of In re Harris (1993) 5 Cal.4th 813, 828, n.7; state high court's denial "on the merits" did not mean that it considered the petition timely; Supreme Court suggests that the California court might define what it means by "reasonable time," and strongly suggests that 30 to 60 days are the magic numbers). POST CON RELIEF – HABEAS – FEDERAL – REVIEW OF STATE CONVICTION PRECLUDED SINCE STATE PETITION REJECTED BY STATE COURT AS UNTIMELY IS NOT PROPERLY FILED UNDER 28 U.S.C. § 2244(d)(2), AND THEREFORE DOES NOT TOLL THE 1-YEAR AEDPA STATUTE OF LIMITATIONS FOR FILING A FEDERAL HABEAS CORPUS PETITION Pace v. DiGuglielmo, ___ U.S. ___, 2005 WL 957194 (April 27, 2005) (federal habeas review of state conviction precluded since state petition rejected by state court as untimely is not properly filed under 28 U.S.C. § 2244(d)(2), and therefore does not toll the 1-year AEDPA statute of limitations for filing a federal habeas corpus petition). http://laws.findlaw.com/us/000/03-9627.html

Ninth Circuit
POST CON RELIEF – FEDERAL – AEDPA STATUTE OF LIMITATIONS – STATE CONVICTIONS Allen v. Siebert, 128 S.Ct. 2 (9th Cir. Nov. 5, 2007) (when a postconviction petition is untimely under state law, "that [is] the end of the matter" for purposes of tolling the AEDPA's 1-year statute of limitations for filing a federal habeas petition, and the inquiry does not turn on the nature of the particular time limit relied upon by the state court at issue). POST CON RELIEF – HABEAS CORPUS – FEDERAL

238

King v. Lamarque, ___ F.3d ___ (9th Cir. Jul. 26, 2006) (simply contesting the adequacy of a state rule is sufficient to meet the petitioner's burden, under Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), if the court has previously found the rule to be too ambiguous to bar federal review during the applicable time period). http://caselaw.lp.findlaw.com/data2/circs/9th/0515757p.pdf POST CON RELIEF – FEDERAL – HABEAS – STATUTE OF LIMITATIONS – TOLLING – PROPERLY FILED PETITION Bonner v. Carey, ___ F.3d ___ (9th Cir. Mar. 7, 2006) (California Superior Court denied state petition as untimely when it said that petitioner could have raised the claims in an earlier petition and that there "[wa]s no reason stated for any delay in this regard"; petition was thus never "properly filed" for purposes of the tolling provision of the Antiterrorism and Effective Death Penalty Act of 1996). HABEAS CORPUS – FEDERAL – INTERVAL TOLLING Gaston v. Palmer, 387 F.3d 1004 (9th Cir. Oct. 28, 2004) (petitioner entitled to tolling during time six separate state habeas petitions were pending, including intervals between the dismissal of one application and the filing of next one, because there is no strict time limit on the filing of habeas petitions in the different courts; intervals as long as 307 and 282 days were entitled to interval tolling). POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS Isley v. Arizona Dept. of Corr., __ F.3d __ (9th Cir. Sept. 15, 2004) (petition for habeas corpus granted where state petition for post-conviction relief was pending within the meaning of 28 U.S.C. section 2244(d)(2) and entitled defendant to toll one year statute of limitation period for filing federal post-conviction relief). http://caselaw.lp.findlaw.com/data2/circs/9th/0315858p.pdf POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS – TOLLING – FILING OF STATE POST CONVICTION RELIEF PETITION Chavis v. Lemarke, ___ F.3d ___ (9th Cir. Aug. 27, 2004) (district court dismissal of federal habeas corpus petition as untimely reversed since statute of limitations was tolled due to filing of state habeas petitions). http://caselaw.lp.findlaw.com/data2/circs/9th/0117072p.pdf POST CON -- HABEAS CORPUS -- FEDERAL -- TOLLING DURING STATE REVIEW ROUNDS Chavis v. LeMarque, ___ F.3d ___ (9th Cir. 2004) (AEDPA one-year statute of limitations for 28 U.S.C. § 2254 habeas proceedings tolled while second

239

round of state post-conviction petitions were pending, even though they were denied on procedural grounds, since state court's ultimate decision on a particular petition does not affect whether that petition is "pending" while court considers it). See also Carey v. Saffold, 536 U.S. 214, 219-21 (2002) (time gap between petitions viewed under California's "reasonableness" standard rather than strict time limit; question is whether petitioner unreasonably delayed filing in next court). A petition is considered pending during one full round of state review, which includes petitions in Superior Court, the Court of Appeal, and the state Supreme Court. During subsequent rounds of state petitions, the statute of limitations is tolled while each petition is pending, but not between petitions. AEDPA time starts to run 31 days after the state supreme court denies the final petition. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002).

§ 5.34 First Circuit

iii. Equitable Tolling

POST CON RELIEF – STATUTE OF LIMITATIONS Neverson v. Farquharson, 366 F.3d 32 (1st Cir. May 4, 2004) (28 U.S.C. § 2244(d)(1) statute of limitations is not jurisdictional, and therefore can be subject to equitable tolling). http://laws.lp.findlaw.com/1st/031385.html

Ninth Circuit
POST CON RELIEF – FEDERAL – STATUTE OF LIMITATIONS – EQUITABLE TOLLING Harris v. Carter, 515 F.3d 1051 (9th Cir. Feb. 8, 2008) (reversing district trial court's order of dismissal of a petition for a writ of habeas corpus as untimely, and remanding where equitable principles require tolling of the AEDPA's statute of limitations in this rare case in which petitioner relied on the circuit court's legally erroneous holding in determining when to file a federal habeas petition). POST CON RELIEF – FEDERAL – HABEAS – STATUTE OF LIMITATIONS -EQUITABLE TOLLING – LACK OF ADEQUATE LAW LIBRARY Roy v. Lampert, ___ F.3d ___ (9th Cir. Sept. 22, 2006) (federal habeas petitions dismissed as untimely by district court remanded for evidentiary hearing on equitable tolling claims where petitioners made sufficient allegations that they pursued their claims diligently and faced

240

extraordinary circumstances once they were transferred to an Arizona prison facility which allegedly had a woefully deficient law library. http://caselaw.lp.findlaw.com/data2/circs/9th/0435514p.pdf POST CON RELIEF – FEDERAL – HABEAS – EQUITABLE TOLLING – DEFICIENT LAW LIBRARY Roy v. Lampert, ___ F.3d ___ (9th Cir. Jul. 12, 2006) (reversing dismissal of petitioners' federal habeas petitions as untimely, and ordering evidentiary hearing on their equitable tolling claim, where they made sufficient allegations that they pursued their claims diligently and faced extraordinary circumstances once they were transferred to an Arizona prison facility which allegedly had a woefully deficient law library). http://caselaw.lp.findlaw.com/data2/circs/9th/0435514p.pdf POST CON – HABEAS CORPUS – FEDERAL – HEARING ON TOLLING Roy v. Lampert, __ F.3d __ (9th Cir. July 12, 2006) (petitioners entitled to evidentiary hearing regarding claim that because they were transferred to a prison with a "woefully deficient law library," statute of limitations should be equitably tolled). HABEAS CORPUS - FEDERAL - TOLLING DUE TO PRISON'S FAILURE TO PROVIDE LAW LIBRARY MATERIALS Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 7, 2006) (evidentiary hearing required to determine if prison's failure to provide Spanish-language materials and assistance to Spanish-speaking inmates constituted extraordinary circumstance justifying tolling of one-year period for filing federal habeas petition); distinguishes Kane v. Garcia Espitia, 126 S. Ct. 407, 408 (2005) (per curiam) (denial of access to a law library cannot provide a basis for a pro se petitioner's habeas relief) because Mendoza only involves the tolling of an AEDPA deadline, not grant of habeas relief. POST CON RELIEF – HABEAS CORPUS – FEDERAL – STATUTE OF LIMITATIONS – EQUITABLE TOLLING Rasberry v. Garcia, ___ F.3d ___ (9th Cir. May 25, 2006) (equitable tolling of federal habeas statute of limitations is not justified by lack of sophistication of pro se petitioner, standing alone, as an extraordinary circumstance). http://caselaw.lp.findlaw.com/data2/circs/9th/0315854p.pdf POST CON RELIEF – HABEAS CORPUS – FEDERAL – STATUTE OF LIMITATIONS – EQUITABLE TOLLING WHILE PETITIONER IN SEGREGATION Espinoza-Matthews v. People of the State of California, ___ F.3d ___ (9th Cir. Dec. 28, 2005) (petitioner in administrative segregation for his own

241

protection who was denied access to his legal materials was entitled to equitable tolling [extraordinary circumstances beyond a prisoner's control making it impossible to file a petition on time] of the one-year AEDPA statute of limitations to file federal habeas corpus under 28 U.S.C. § 2254). POST CON RELIEF – FEDERAL – HABEAS – STATUTE OF LIMITATIONS – EQUITABLE TOLLING Espinoza-Matthews v. People of California, ___ F.3d ___, 2005 WL 3535129 (9th Cir. Dec. 28, 2005) (reversing dismissal of defendant’s petition for a writ of habeas corpus from his conviction as untimely, since defendant is entitled to equitable tolling where he was denied access to his legal materials for a period of time). http://caselaw.lp.findlaw.com/data2/circs/9th/0456805p.pdf POST CON RELIEF – FEDERAL – HABEAS United States v. Battles, 362 F.3d 1195 (9th Cir. March 30, 2004) (equitable tolling applies to one year time limitation in 28 U.S.C. § 2255). http://caselaw.lp.findlaw.com/data2/circs/9th/0015134p.pdf POST-CONVICTION RELIEF – FEDERAL – HABEAS United States v. Battles, __ F.3d __ (9th Cir. March 30, 2004) (Equitable tolling applies to one year time limitation in 28 U.S.C. § 2255). http://caselaw.lp.findlaw.com/data2/circs/9th/0015134p.pdf

§ 5.35

4. The Requirement Of Custody

POST CON RELIEF – HABEAS – FEDERAL – PROPER CUSTODIAN In Rumsfeld v. Padilla, __ U.S. __, 2004 WL 1432135 (June 6, 2004) (habeas is limited to the "immediate custodian"; proper respondent to habeas is "the person" with ability to produce prisioner’s body before court, i.e. the warden of facility where prisoner is being held, not Attorney General or other remote supervisory official).

First Circuit
CRIM DEF – SENTENCE – DEPORTATION DOES NOT AUTOMATICALLY TERMINATE PAROLE FOR PURPOSES OF CRIMINAL HISTORY SCORE United States v. Carrasco-Mateo (1st Cir. November 23, 2004) (deportation does not automatically terminate defendant’s existing parole term or status for purposes of calculating criminal history score). http://laws.lp.findlaw.com/1st/03-1553.html

242

Third Circuit
JUDICIAL REVIEW – HABEAS CORPUS – CUSTODY REQUIREMENT – NO CUSTODY AFTER REMOVAL FROM UNITED STATES Kumarasamy v. Att’y Gen. of the US, __ F.3d __ (3d Cir. Jun. 23, 2006) (petitioners who have already been removed from the United States do not satisfy the "in custody" requirement for habeas corpus jurisdiction). http://caselaw.lp.findlaw.com/data2/circs/3rd/052323p.pdf

Tenth Circuit
POST CONVICTION RELIEF - HABEAS - FEDERAL - CUSTODY REQUIREMENT Broomes v. Ashcroft, __ F.3d __ (10th Cir. Feb. 17, 2004) (petitioner cannot collaterally attack an expired state court conviction under 28 U.S.C. § 2241 or 2254); accord, Drakes v. INS, 330 F.3d 600, 605-606 (3d Cir., cert. denied, 124 S.Ct. 541 (2003); Contreras v. Schiltgen, 151 F.3d 906, 907-908 (9th Cir. 1998); Neyor v. INS, 155 F.Supp.2d 127, 138-139 (D.N.J. 2001). http://laws.findlaw.com/10th/026419.html

§ 5.36 Ninth Circuit

a. Registration Requirements as Custody

POST CON RELIEF -- EX POST FACTO – REGISTRATION REQUIREMENT DOES NOT CONSTITUTE PUNISHMENT, SO MAY BE APPLIED RETROACTIVELY TO OFFENSE COMMITTED PRIOR TO STATUTORY CHANGE Hatton v. Bonner, ___ F.3d ___ (9th Cir. Jan. 27, 2004) (amendment to Penal Code § 290, requiring registration for persons convicted of violating Penal Code § 220 [assault with intent to commit oral copulation], could be applied retroactively to defendant who committed offense prior to the amendment, because registration is not punishment), citing Smith v. Doe, 123 S. Ct. 1140 (2003).

§ 5.37 Second Circuit

b. Immigration Custody

POST CON RELIEF – FEDERAL – HABEAS – CUSTODY – IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY UNDER 28 USC 2254 United States v. Ogunwomoju, 512 F.3d 69 (2d Cir. Jan. 7, 2008) (a petitioner in immigration custody or under an order of removal as a

243

consequence of his criminal conviction is not "in custody" within the meaning of 28 U.S.C. § 2254 for purposes of habeas corpus jurisdiction).

Ninth Circuit
POST CONVICTION RELIEF – HABEAS – FEDERAL – CUSTODY – IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY SUFFICIENT TO GRANT FEDERAL HABEAS JURISDICTION SUFFICIENT TO CHALLENGE LEGAL VALIDITY OF CONVICTION UNDERLYING DEPORTATION PROCEEDINGS Resendiz v. Kovensky, ___ F.3d ___, 2005 WL 1501495 (9th Cir. June 27, 2005) (immigration custody does not constitute custody sufficient to grant federal habeas jurisdiction sufficient to challenge legal validity of conviction underlying deportation proceedings, after AEDPA and IIRAIRA, so a petitioner may not collaterally attack his state court conviction in a 28 U.S.C. § 2241 petition against the INS). http://caselaw.lp.findlaw.com/data2/circs/9th/0355136p.pdf

§ 5.38 Second Circuit

c. Mootness

JUDICIAL REVIEW – FEDERAL – HABEAS – MOOTNESS – REMOVAL DID NOT RENDER MOOT HABEAS ACTION CHALLENGING REMOVAL ORDER ON BASIS THAT CONVICTION DID NOT CONSTITUTE AN AGGRAVATED FELONY Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (removal of respondent did not render moot a federal habeas action under 28 U.S.C. § 2241 challenging validity of removal order on basis of aggravated felony, since he can show some 'collateral consequence' ... meaning 'some concrete and continuing injury other than the now-ended [threat of removal]' to establish a live case or controversy; noncitizen convicted of a crime of moral turpitude may seek cancellation of removal and thereby avoid permanent inadmissibility, only if he is not an aggravated felon; fact that noncitizen removed as aggravated felon causes ongoing damage sufficient to create case and controversy). POST CON RELIEF – HABEAS CORPUS – MOOTNESS – DEPORTED AGGGRAVATED FELON PRESENTS LIVE CONTROVERSY Swaby v. Ashcroft, 357 F.3d 156 (2nd Cir. Feb. 3, 2004) (lifetime bar from reentrying the United States due to aggravated felony conviction is collateral consequences which creates live controversy).

244

Lower Courts of Second Circuit
POST CON RELIEF – HABEAS – MOOTNESS AFTER DEPORTATION – DISQUALIFICATION FROM NATURALIZATION CONSTITUTES CONTINUING DAMAGE SUFFICIENT TO PREVENT MOOTNESS EVEN AFTER DEPORTATION State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (as a likely collateral consequence of the conviction, the noncitizen's ability to petition for naturalization is gravely impaired, so the issue is not moot and subject matter jurisdiction is not a bar to the defendant's present appeal from denial of a motion to withdraw the plea).

Lower Courts of Third Circuit
POST CONVICTION RELIEF – HABEAS – IMMIGRATION – DEPORTATION DOES NOT MOOT HABEAS The fact that a noncitizen has been deported does not moot his habeas petition. His future ineligibility for readmission to the United States preserves his Article III standing. See Shittu v. Elwood, 204 F. Supp. 2d 876, 878 (E.D. Pa. 2002); Johnson v. Department of Justice, (Not Reported in F.Supp.2d), 2004 WL 1240695 (E.D. Pa. June 3, 2004).

Fifth Circuit
VEHICLE – FEDERAL – HABEAS – MOOTNESS Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of noncitizen while appeal of district court dismissal of habeas petition was pending in court of appeal did not deprive district court of habeas jurisdiction on remand, and case was not moot, but district court lacked authority to grant any relief beyond vacating defective deportation order).

§ 5.39

5. Procedure

POST CON RELIEF – US SUPREME COURT – FEDERAL HABEAS RULES DO NOT LIMIT STATE COURT AUTHORITY TO REMEDY TEAGUE NONRETROACTIVE VIOLATIONS Danforth v. Minnesota, 128 S.Ct. 1029 (Feb. 20, 2008) (rule of Teague v. Lane, 489 U. S. 288 (1989), does not limit the authority of state courts to give broader effect to new rules of criminal procedure than is required by Teague). HABEAS CORPUS – FEDERAL – POWER TO DISMISS ON OWN MOTION Day v. McDonough, __ U.S. ___ (Apr. 25, 2006) (district court had the

245

power (after giving petitioner notice and a chance to respond) to dismiss a state habeas petition for untimeliness even though the State erroneously agreed it was timely. If the waiver by the State had been deliberate, it would have been an abuse of discretion to dismiss it, but here it was just an error). POST CON RELIEF – HABEAS – FEDERAL – APPEAL – CERTIFICATE OF APPEALABILITY Tennard v. Dretke, 124 S.Ct. 2562 (June 24, 2004) (district court should have issued certificate of appealability, because reasonable jurist could have found district court's assessment of constitutional claims relating to defendant's low IQ of 67 debatable or wrong). http://laws.lp.findlaw.com/us/000/02-10038.html POST CONVICTION RELIEF – HABEAS – FEDERAL HABEAS – STATE CONVICTION – WARNING TO PRO SE PLAINTIFF Pliler v. Ford, 124 S.Ct. 2441 (June 21, 2004) (no requirement that district court warn pro se plaintiff bringing habeas petition that it could not consider motions to stay unless plaintiff dismissed unexhausted claims, or that if he chose to dismiss the claims, they would be time-barred if raised in the future). http://laws.lp.findlaw.com/us/000/03221.html

First Circuit
POST CON – HABEAS – EXHAUSTION REQUIREMENT Sayyah v. Farquharson, ___ F.3d ___, 2004 WL 1921824 (1st Cir. Aug. 30, 2004) (bar judicial review of final removal orders unless noncitizen has exhausted all administrative remedies to which s/he has a right, under 8 U.S.C. § 1252(d), applies to bar habeas corpus petitions as to unexhausted claims).

Ninth Circuit
POST CON RELIEF – HABEAS CORPUS – FEDERAL – SUFFICIENCY OF EVIDENCE AT CLOSE OF CASE-IN-CHIEF LaMere v. Slaughter, 458 F.3d 878 (9th Cir. Aug. 8, 2006) (habeas relief properly denied, despite claims under In re Winship, 397 U.S. 358 (1970), and Jackson v. Virginia, 443 U.S. 307 (1979), on the grounds that the prosecution failed to introduce sufficient evidence of guilt during case-inchief, since Winship and Jackson do not apply to a motion for directed verdict of acquittal at the close of the case-in-chief; court on habeas looks

246

at all the evidence presented to determine if it was sufficient). POST CON RELIEF – HABEAS CORPUS – FEDERAL – REMAND FOR EVIDENTIARY HEARING Earp v. Ornoski, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (claim of ineffective assistance for failure to investigate mitigating circumstances merited evidentiary hearing). HABEAS CORPUS - FEDERAL - NO WAIVER OF PROCEDURAL DEFAULT OBJECTION Morrison v. Mahoney, __ F.3d __, 2005 WL 418563 (9th Cir. Feb. 23, 2005) (state did not waive procedural default argument by moving to dismiss first petition on statute of limitations grounds, and then waiving that defense when the case was returned to the district court after a successful appeal; procedural default doctrine "bars federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement." [Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996) (internal quotations omitted)]; the petitioner can avoid the effect of a procedural default by showing cause and prejudice or manifest injustice [Martinez-Villareal v. Lewis, 80 F.3d 1301, 1307 (9th Cir. 1996)]; it must be raised by the government in its first responsive pleading, but the motion to dismiss was not a responsive pleading). HABEAS CORPUS - FEDERAL - EXPANSION OF RECORD Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. Feb. 16, 2005) (district court properly refused petitioner’s request to expand the record under Rule 7 of rules governing 28 U.S.C. section 2254 cases with his own declaration, on the grounds that petitioner had failed to comply with section 2254(e)(2), requiring that petitioner show the factual predicate could not have been discovered previously). HABEAS CORPUS - FEDERAL - PROCEDURAL DEFAULT Henderson v. Lampert, 396 F.3d 1049 (9th Cir. Jan. 28, 2005) (petition was "second or successive" petition barred by 28 U.S.C. section 2244(b)(1), where petition raised same claims raised in earlier petition that was dismissed on state procedural default grounds (which constitutes a decision on the merits), and petitioner failed to challenge first petition’s dismissal). GUILTY PLEAS - HABEAS - HEARING REQUIRED United States v. Howard, ___ F.3d ___ (9th Cir. Aug. 25, 2004) (district court should have permitted defendant to develop these claims on habeas

247

petition more fully in an evidentiary hearing; claim must be "so palpably incredible or patently frivolous as to warrant summary dismissal" to justify refusal of an evidentiary hearing); citing United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). http://caselaw.lp.findlaw.com/data2/circs/9th/0216228p.pdf POST CON – HABEAS – STATUTE OF LIMITATIONS – AMENDMENT RELATES BACK TO DATE OF ORIGINAL FILING Felix v. Mayle, 379 F.3d 612 (9th Cir. Aug. 09, 2004) (amendment to habeas petition to include new claim relates back to date of filing of original petition, and therefore avoids one year limitation under AEDPA).

§ 5.40 § 5.41

6. Immigration Consequences D. Coram Nobis

POST CON RELIEF – FEDERAL CORAM NOBIS At common law, the writ of error coram nobis was used as a device for correcting fundamental errors in both civil and criminal cases. United States v. Morgan, 346 U.S. 502, 508 (1954). Although use of the writ was suspended in civil cases in federal courts, the writ has nevertheless survived to redress an ongoing injustice in a criminal case, and is available even after the defendant has completed serving his sentence. Id. at 508511 [writ of coram nobis is available to void a judgment in a criminal case which was obtained in violation of the United States Constitution]. A writ of error coram nobis is "essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction." United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000). Relief under a writ of coram nobis "is strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid." Ibid. Thus, the writ of error coram nobis is limited to defects in a criminal case which sap the proceeding of any legal validity and is intended to prevent substantial civil disabilities attached to a wrongful criminal conviction. United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988); see also Phelps Dodge Corp. v. Guerra, 92 N.M. 47, 50 (1978) [where Rule 60 is properly invoked "it should be liberally construed for the purpose of doing substantial justice"]. To obtain coram nobis relief, a petitioner must demonstrate that: (1) there are circumstances compelling such action to achieve justice; (2) sound

248

reasons exist for failure to seek appropriate relief earlier; (3) the petitioner continues to suffer legal consequences from his conviction that can only be remedied by granting of the writ; and (4) the error is fundamental. United States v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002); see also Foundation Reserve Insurance Co. v. Martin, 79 N.M. 737, 449 P.2d 339 (Ct.App. 1968) [Rule 60(B)(6) vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice]. Thanks to Tova Indritz.

Ninth Circuit
POST CON RELIEF – FEDERAL – CORAM NOBIS – LACHES United States v. Riedl, ___ F.3d ___, 2007 WL 2230256 (9th Cir. Aug. 6, 2007) (laches argument that government has not been prejudiced by tardiness "would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final." "It is irrelevant that the government has not established prejudice as to Riedl's void-for-vagueness claim because the doctrine of laches only becomes applicable once a petitioner has satisfied the second coram nobis requirement."). POST CON RELIEF – FEDERAL -- CORAM NOBIS – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (affirmative misadvice by defense counsel concerning immigration consequences of disposition of criminal case constitutes ineffective assistance of counsel where counsel said deportation was not a serious possibility, and in fact it became a near certainty).

§ 5.42 Ninth Circuit

1. Procedure

POST CON RELIEF – CORAM NOBIS – NEED TO PETITION FOR CORAM NOBIS DIRECTLY IN FEDERAL COURT Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir. June 27, 2005) (district court did not commit error in failing to consider 28 U.S.C. § 2241 habeas to be a petition for coram nobis, because this issue had not been raised in the district court and petitioner provided no authority suggesting that the district court might have a duty to sua sponte raise the issue), distinguishing United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005), in which the Ninth Circuit held that

249

coram nobis relief was available under similar circumstances, because here the petitioner did not file coram nobis in the district court). The court in Resendiz rejected a claim that the district court should have sua sponte construed the petition as a petition for coram nobis, instead of habeas corpus: "Resendiz argues that the district court should not have construed his petition as one under § 2241, but instead should have construed it as a writ of coram nobis, even though Resendiz never asked the court to do so. Because Resendiz did not contend below that his petition should be construed as a writ of coram nobis, and because he provides no authority suggesting that the district court might have a duty to sua sponte raise the issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate court will not hear an issue raised for the first time on appeal."). In footnote 3 to this quotation, the Resendiz court stated: "Our recent decision in United States v. Kwan, No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which we held that coram nobis relief was available under similar circumstances, does not affect our decision. Unlike Kwan, Resendiz did not petition the district court for the writ of coram nobis, but argued instead that the court should have so construed his habeas petition sua sponte." POST CON RELIEF – FEDERAL -- CORAM NOBIS – STATUTE OF LIMITATIONS – AEDPA STATUTE OF LIMITATIONS FOR 2255 RELIEF DID NOT APPLY TO CORAM NOBIS United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (one-year AEDPA statute of limitations for filing a motion to vacate a judgment under 28 U.S.C. § 2255 did not apply to the filing of a petition for a writ of error coram nobis after custody had expired in the federal criminal case).

Other
POST CON RELIEF – FEDERAL – CORAM NOBIS May v. People of Guam, 2005 Guam 17, 2005 WL 2654274 (Oct. 18, 2005) (trial court erred in failing to recharacterize a habeas corpus petition, filed after custody had expired, as a petition for a writ of error coram nobis, but error was harmless since coram nobis would have been properly denied because it was presented too late, over 24 years after the conviction occurred, with no valid explanation for the delay).

§ 5.43

2. Grounds

250

Lower Courts of Second Circuit
POST CON RELIEF – FEDERAL – CORAM NOBIS Qiao v. United States, ___ F.Supp.2d ___, 2007 WL 4105813 (S.D.N.Y., Nov. 15, 2007) ("Qiao has shown that (1) his guilty plea was the product of ineffective assistance of counsel and as such, should be set aside to "achieve justice"; (2) his administrative efforts challenging the designation of his 1999 conviction as an aggravated felony constitute "sound reasons . . . for [his] failure to seek appropriate earlier relief"; and (3) the removal proceedings brought by DHS against Qiao cause him "to suffer legal consequences from his conviction that may be remedied by granting of the writ." Id. at 90. Accordingly, Qiao's petition for a writ of error coram nobis is granted, and Qiao's conviction and sentence for mail fraud and conspiracy to commit mail fraud is hereby vacated."). http://bibdaily.com/pdfs/Qiao%2011-15-07.pdf

Ninth Circuit
POST CON RELIEF – FEDERAL – CORAM NOBIS United States v. Walgren, 885 F.2d 1417 (9th Cir. Sept. 13, 1989) (federal mail fraud conviction vacated on coram nobis, since mail fraud conviction rests upon the fundamental error that it was commission of a fraud that was not a crime and defendant met other requirements of coram nobis).

Lower Courts of Ninth Circuit
POST CON RELIEF – FEDERAL – CORAM NOBIS Korematsu v. United States, 584 F. Supp. 1406 (D. Cal. 1984) (granting petition of coram nobis filed by American citizen of Japanese ancestry to vacate 1942 conviction for being in a place from which all persons of Japanese ancestry were excluded pursuant to a civilian exclusion order, where Government deliberately omitted relevant information and provided misleading information before the court concerning whether the actions taken were reasonably related to the security and defense of the nation and the prosecution of the war, where Government failed to rebut petitioner's certificate setting forth collateral consequences he believed he suffered and would continue to suffer as result of the 1942 conviction and where Government failed to rebut petitioner's showing of timeliness).

§ 5.44

3. Immigration Consequences

251

Ninth Circuit
POST CON RELIEF – FEDERAL -- GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE – PREJUDICE – LOSS OF OPPORTUNITY FOR FAVORABLE EXERCISE OF DISCRETION United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (defense counsel's ineffective assistance of counsel, in failing to notify the defendant when, prior to sentence, the law changed and in fact deportation changed from a mere possibility to a near certainty, was prejudicial where the defendant could have made a motion under F.R.Crim.P. 32(e) to withdraw the plea and attempted to renegotiate the disposition in light of the new legal consequences, or attempted to obtain a sentence of two days less, and lost the opportunity for a favorable exercise of discretion).

§ 5.45 § 5.46

E. Audita Querela F. All Writs Act

§ 5.47 III. State Vehicles for Vacating a Conviction
POST CONVICTION RELIEF – AMENDING RECORD OF CONVICTION TO SPECIFY AMOUNT OF MARIJUANA 30 GRAMS OR LESS In some states, it is possible to file a joint motion with the prosecution asking the criminal court for a stipulated and amended sentence order that amends the record of conviction to specify the actual amount of marijuana to be less than 30 grams. This has been effective in immigration court to qualify the conviction for the exception to the controlled substances deportation ground and should also be effective in qualifying the conviction for a waiver of inadmissibility under INA § 212(h). Thanks to Jeff Joseph.

Other
POST CON – WASHINGTON STATE forms to vacate misdemeanors (and juvenile convictions) may be found at: http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=38

§ 5.48 § 5.49

A. Motion to Withdraw Plea 1. Motions Prior to Judgment

252

§ 5.50

a. Procedure

Lower Courts of Tenth Circuit
POST CON – UTAH – STATUTE OF LIMITATIONS – 30-DAY DEADLINE TO FILE MOTION TO WITHDRAW GUILTY PLEA State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (under Utah Code Ann. § 77-13-6(2)(b) (1999), defendant must file motion to withdraw guilty plea within 30 days after entry of plea; phrase "entry of the plea" refers to date of conviction, which generally occurs at sentencing, not at date of plea colloquy). See State v. Ostler, 31 P.3d 528 (2001).

§ 5.51 § 5.52 Second Circuit

b. Grounds c. Immigration Consequences

POST CON RELIEF – EFFECTIVE ORDER – COURT'S ORDER GRANTING MOTION TO WITHDRAW A PLEA ELIMINATES A CONVICTION FOR IMMIGRATION PURPOSES Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) (a criminal court's order withdrawing a plea eliminates the conviction for mmigration purposes; an interpretation of the statutory definition [of conviction to the ontrary] appears to lead to the bizarre result that a withdrawn guilty plea would still be a “conviction” for immigration purposes, because the “conviction” would be established on the date of the entry of the plea. We reject this reading because “[a] statute should be interpreted in a way that avoids absurd results.”), citing United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000).

§ 5.53 § 5.54 § 5.55 § 5.56 § 5.57 Statute

2. Motions After Judgment a. Procedure b. Grounds c. Immigration Consequences B. Motion to Vacate for Violation of State Advisal

253

Lower Courts of Fifth Circuit
POST CON RELIEF – TEXAS – STATE ADVISAL STATUTE Hwang v. State, 2004 WL 585000 (Tex.App. March 25, 2004) (trial court erred by not informing appellant that guilty plea could result deportation, as required under Texas Code of Criminal Procedure article 26.13).

Other
GROUNDS – VIENNA CONVENTION Article 36 of the Vienna Convention on Consular Relations (21 U.S.T. 77, TIAS 6820), can be used to attempt to suppress a confession, or vacate a guilty plea, in a criminal or immigration case, in light of the LaGrand and Avena decisions. LaGrand Case (Germany v. U.S.), 2001 I.C.J. 104 (June 27) available at http://www.icjcij.org/icjwww/idocket/igus/igusframe.htm; Avena and Other Mexican Nationals (Mexico v. United States of America), 2003 I.C.J. 128, http:www.icjcji.org/icjwww/ipresscom/ipress2003/ipress2003-45--mus-20031223.htm (as visited February 5, 2004). Madej v. Schomig, 223 F.Supp.2d 968 (N.D. Ill. 2002), recognizes the impact of LaGrand: "After LaGrand, however, no court can credibly hold that the Vienna Convention does not create individually enforceable rights. The International Court of Justice was quite clear on that point, announcing that 'Article 36, paragraph 1, creates individual rights.' LaGrand Case, 2001 I.C.J. 104, at P 77." The impact of Avena can be seen by what happened in the capitol case, Torres v. Mullin, 124 S.Ct. 562 (2003), in which the defendant received a stay, a parole recommendation for clemency, and a commutation, based on Avena and the VCCR. Many police departments have incorporated the Vienna Convention's requirement that the arresting officer inform a noncitizen arrestee of his right to contact his consulate, so counsel may have the argument that the officer violated his duties imposed upon him by his own training manual or department regulations as well as the Vienna Convention. POST CON RELIEF – STATE ADVISAL STATUTE – MASSACHUSETTS M.G.L. c. 278 sec. 29D: § 29D. Conviction upon plea of guilty, nolo contendere or an admission to sufficient facts; motion to vacate The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of

254

guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States. If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization. CREDIT(S) Added by St.1978, c. 383. Amended by St.1996, c. 450, § 254; St.2004, c. 225, § 1, eff. Oct. 27, 2004. POST CON RELIEF – NEW MEXICO – STATE REHABILITATIVE RELIEF See New Mexico Statutes, Annotated § 31-20-13 (1978). POST CON RELIEF – STATE ADVISAL STATUTE – IOWA Iowa Rule of Criminal Procedure 2.8(2)(b) provides in relevant part: Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following: ... (3) That a criminal conviction, deferred judgment, [*5] or deferred sentence may affect a defendant's status under federal immigration laws.

§ 5.58

1. Procedure

255

§ 5.59

2. Grounds

Lower Courts of First Circuit
POST CON RELIEF – STATE – MASSACHUSETTS – RECORD OF CONVICTION – STATE ADVISAL STATUTE – EXPUNGEMENT Commonwealth v. Rodriguez, 802 N.E.2d 1039 (Mass. Feb. 10, 2004) (Massachusetts pretrial probation is not considered conviction for state purposes, therefore statutory requirement to warn of immigration consequences under G. L. c. 278, § 29D, are not required for such disposition, even if the disposition would be a conviction for federal immigration purposes).

§ 5.60 § 5.61 § 5.62 § 5.63 § 5.64 § 5.65

3. Immigration Consequences C. Nonstatutory Motion to Vacate 1. Nature of the Motion 2. Procedure 3. Immigration Consequences D. Direct Appeal

Lower Courts of Second Circuit
POST CON RELIEF – NEW YORK – APPEAL – DEPORTED DEFENDANT UNAVAILABLE TO OBEY MANDATE OF COURT SO APPEAL DISMISSED People v. Diaz, ___ N.Y.2d ___ (Ct. App. Sept. 19, 2006) (appeal dismissed without prejudice as, although defendant has been involuntarily deported, he is nevertheless unavailable to obey the mandate of the court). http://caselaw.lp.findlaw.com/data/ny/cases/app/mot881mem06.pdf

§ 5.66 § 5.67 Sixth Circuit

1. Procedural Requirements 2. Filing a Late Notice of Appeal

CONVICTION – FINALITY – OUT OF TIME APPEAL – PENDENCY OF REQUEST FOR LATE APPEAL DOES NOT AFFECT FINALITY OF CONVICTION

256

United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (request to begin belated appeal does not affect finality of a conviction).

§ 5.68 Ninth Circuit

3. Attacking a Waiver of Appeal

POST CON RELIEF – APPEAL – WAIVER OF APPEAL – VALIDITY United States v. Castillo, __ F.3d __, 2007 WL 2120232 (9th Cir. Jul. 25, 2007) (a valid guilty plea containing a waiver of the right to appeal does not deprive the court of jurisdiction over an appeal; procedural rules of court [such as Rule 11] cannot expand or contract the jurisdiction of the courts themselves or the lower courts).

§ 5.69 § 5.70 § 5.71 Other

4. Immigration Consequences a. Effect of Reversal of Conviction b. Finality Of Decision

POST CON RELIEF – ORDER VACATING CONVICTION – IMMIGRATION EFFECT OF GOVERNMENT APPEAL FROM ORDER VACATING CONVICTION – OREGON The DHS has argued that a conviction still exists in Oregon, despite the trial court's order vacating a conviction on a ground of legal invalidity, where the prosecution is appealing the grant of post-conviction relief. O.R.S § 138.610 states: "An appeal taken by the State stays the effect of the judgment or order in favor of the defendant, so that the release agreement and security for release is held . . . but if in custody the defendant may be released . . . ." The DHS argues therefore, a conviction still exists under Oregon law until the defendant wins on appeal. POST CON – TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF – WASHINGTON STATE See § 2.28

§ 5.72 E. Habeas Corpus and Post-Conviction Relief Petitions

257

§ 5.73

1. General Requirements for Issuance

Lower Courts of Ninth Circuit
CAL POST CON – REQUIREMENT OF OBJECTION IN TRIAL COURT In re Seaton (2004) ___ Cal.4th ___ (claims of constitutional error, even when clear and fundamental and striking at the heart of the process, that were not raised at trial may not be raised in habeas proceeding, unless ineffective assistance of counsel is shown or the facts were not known at the time of trial). http://caselaw.findlaw.com/data2/californiastatecases/s067491.doc

§ 5.74 Ninth Circuit

2. Timeliness

POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY – RETURN TO PRE-ERROR STAGE OF PROCEEDINGS Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding). http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf

Lower Courts of Ninth Circuit
TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF - OREGON Benitez-Chacon v. State of Oregon, 178 Or. App. 352 (2001) (petition for post conviction relief subject to two year statute of limitations running from date of final judgment).

BIA
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS – RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.")

258

§ 5.75 First Circuit

3. The Requirement of Custody

CAL POST CON – HABEAS CORPUS – CUSTODY -- DEFENDANT CAN CHALLENGE CONSTITUTIONALITY OF STATE CONVICTION BY HABEAS CORPUS, THOUGH DIRECT CUSTODY HAS EXPIRED, IF HE IS RESTRAINED OF HIS LIBERTY IN FEDERAL IMMIGRATION CUSTODY SOLELY ON ACCOUNT OF THE CONVICTION People v. Villa, ___ Cal.App.4th ___, 2007 WL 706941 (1st Dist. March 9, 2007) (noncitizen in federal immigration custody solely as a result of a California criminal conviction may properly file a petition for habeas corpus in criminal court on the basis of ineffective assistance of counsel, even though actual and constructive California criminal custody resulting from that conviction has expired, petitioner was not entitled to that relief here because he did not allege that he is in custody or restrained of his liberty solely on account of the California conviction, and therefore did not adequately allege a basis for habeas corpus relief), disagreeing with In re Azurin (2001) 87 Cal.App.4th 20 (a petitioner may not use habeas corpus where a California conviction provides the sole basis for confinement in a federal deportation proceeding).

Second Circuit
POST CON RELIEF – FEDERAL – HABEAS – CUSTODY – IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY UNDER 28 USC 2254 United States v. Ogunwomoju, 512 F.3d 69 (2d Cir. Jan. 7, 2008) (a petitioner in immigration custody or under an order of removal as a consequence of his criminal conviction is not "in custody" within the meaning of 28 U.S.C. § 2254 for purposes of habeas corpus jurisdiction).

§ 5.76 § 5.77 § 5.78

4. Procedure 5. Immigration Consequences F. Coram Nobis

Lower Courts of Fourth Circuit
POST CON RELIEF – VIRGINIA – CORAM NOBIS Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 Va. Cir. LEXIS 244

259

(County Circuit Ct. Aug. 18, 2006) (Virginia coram vobis relief granted on claim of ineffective assistance of counsel since both defendant and court were unaware of immigration consequences at the time of plea, so sentence amended from two years to 360 days). http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf POST CON RELIEF – VIRGINIA – CORAM VOBIS – SENTENCE REDUCTION GRANTED FOR IMMIGRATION PURPOSES AFTER CUSTODY EXPIRED SINCE DEFENDANT HAD NO REASON TO SUSPECT THE PROBLEM EARLIER – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18, 2006) (granting writ of coram vobis, reducing sentence from two years to 360 days, thereby entitling petitioner to discretionary relief in the immigration courts, after custody had expired, since petitioner had no reason to suspect the advice was faulty any earlier than when he was placed into removal proceedings upon returning to the United States).

Lower Courts of Eleventh Circuit
POST CON RELIEF – CORAM NOBIS – RAISING IAC CLAIM ON CORAM NOBIS – NATIONAL REVIEW Ten states— Alabama, Arizona, Florida, Illinois, Indiana, Mississippi, Missouri, New York, South Carolina, and Utah--allow or have allowed ineffective assistance of counsel claims to be raised on coram nobis. Alabama, McKinney v. State, 511 So.2d 220 (Ala. 1987) (coram nobis relief granted on grounds convicted person received ineffective assistance of counsel when pleading guilty); Arizona, State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966) (coram nobis is proper remedy for claim that guilty pleas were entered in violation of right to effective assistance of counsel); Florida, Wells v. State, 788 So. 2d 200 (Fla. 2001) (ineffective assistance of counsel claim was properly raised in coram nobis petition); Moreno v. State, 592 So. 2d 1226 (Fla. Dist. Ct. App. 4th Dist. 1992) (coram relief granted where guilty plea resulted from ineffective assistance of counsel); Dugart v. State, 578 So. 2d 789 (Fla. Dist. Ct. App. 4th Dist. 1991) (a claim of ineffective assistance of counsel may support a petition for coram nobis); Illinois, People v. McManus, 66 Ill. App. 3d 986, 23 Ill. Dec. 774, 384 N.E.2d 568 (3d Dist. 1978) (coram nobis relief granted where direct appeal from conviction had been dismissed due to attorney’s neglect); Indiana, Dobson v. State, 242 Ind. 267, 177 N.E.2d 395 (1961) (competency of counsel claim on coram nobis); Douglas v. State, 234 Ind. 621, 130 N.E.3d 465 (1955) (coram nobis petition does not allege that trial counsel was incompetent);

260

Mississippi, Baker v. State, 358 So.2d 401 (Miss. 1978)(entry of guilty plea under mistaken advice by counsel if properly pleaded and supported by sufficient facts makes out case for relief under coram nobis); Missouri, Ramsey v. States, 767 S.W.2d 572 (Mo. Ct. App. E.D. 1988) (Rule 27.26 motion treated as a petition for a writ of coram nobis allows for claim of ineffective assistance of counsel where facts show deficient performance of counsel and prejudice); New York, Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001) (coram nobis remains available only in the context of ineffective assistance of appellate counsel on direct appeal); People v. Keebler, 15 A.D.3d 724, 789 N.Y.S.2d 547 (3d Dep’t 2005), leave to appeal denied, 4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 (2005) (challenges to adequacy of appellate counsel can only be entertained in a common law coram nobis proceeding); South Carolina, State v. Liles, 246 S.C. 59, 142 S.E.2d 433 (1965) (ineffective assistance of counsel claim brought on coram nobis); Utah, State v. Rees, 2003 UT App 4, 63 P.3d 120 (Utah Ct. App. 2003), cert. granted, 73 P.3d 946 (Utah 2003) (coram nobis encompasses not only errors of fact but also legal errors or constitutional or fundamental proportion including a claim of ineffective assistance of appellate counsel). 13 states—Colorado, District of Columbia, Hawaii, Idaho, Maine, New Mexico, North Carolina, Oklahoma, Oregon, Tennessee, Washington, and West Virginia--have not directly decided whether ineffective assistance of counsel can be brought on coram nobis, but leave room to raise the claim. Colorado, only law review cite was given in treatise re: law on coram nobis grounds and it did not work (coram nobis may vacate a conviction obtained in violation of any federal or state constitutional right); District of Columbia, Thomas v. U.S., 271 F.2d 500 (D.C. Cir. 1959) (where a sentence is attacked on grounds outside the record under circumstances where 28 U.S.C. § 2255 is not available, a petitioner has rights in common law writ of coram nobis); Douglas v. U.S., 703 A.2d 1235 (D.C. 1997) (the purpose of coram nobis is to correct errors not due to the defendant’s negligence and which amounts to a miscarriage of justice); Hawaii, Wong v. Among, 52 Haw. 420, 477 P.2d 630 (1970) (coram nobis relief available to correct fundamental errors and where the circumstances compel such action to achieve justice); Idaho, Idaho R. Civ. Proc. 60(b) (catchall provision for relief on coram nobis if there is any other reasons justifying relief from the operation of judgment); Maine, Dwyer v. State, 151 Me. 382, 120 A.2d 276 (1956) (coram nobis is the proper common law vehicle to establish one’s constitutional rights, upon a showing of an unjust deprivation thereof); New Mexico, New Mexico Rule Civil Procedure 1-060(b) (coram nobis relief is available from judgment for mistakes, inadvertence, surprise, inexcusable neglect, fraud, etc. and any

261

other reason justifying relief from the operation of the judgment); State v. Romero, 76 N.M. 449, 415 P.2d 837 (1966)(New Mexico rule 60(b) is identical to Fed. R. Civ. Proc. Rule 60(b) with intent to retain all substantive rights protected by the old common law writs of coram nobis but eliminates the niceties); North Carolina, State v. White, 74 N.C. 220, 162 S.E.2d 473 (1968)(the North Carolina PCHA as now written incorporates habeas corpus, coram nobis, and any other common law or statutory remedy under which a prisoner may collaterally attack his sentence); Oklahoma, Smith v. State, 1967 OK CR 149, 431 P.2d 949 (Okla. Crim. App. 1967) (coram nobis is limited to an error of fact for which the statute provides no other remedy, which was unknown to the court at the time and would have prevented the judgment if known); Oregon, State v. Endsley, 214 Or. 537, 331 P.2d 338 (1958) (coram nobis petition is available to obtain relief in a limited class of cases from conviction obtained in violation of a constitutional right); Tennessee, Tennessee Code Annotated § 40-26-105 (a writ of error will like for subsequently or newly discovered evidence relating to matters that were litigated at trial if such evidence would have resulted in a different judgment at trial); Harris v. State, 102 S.W.3d 587 (Tenn. 2003) (the grounds for seeking a writ of error coram nobis are not limited to specific categories, but may be based upon any newly discovered evidence relating to matters litigated at trial); Washington, Wash. Super. Ct. Crim. R. 7.8(b) (coram nobis is allowed for mistakes, inadvertence, fraud, newly discovered evidence etc. and any other reason justifying relief from the operation of judgment); State v. Zavala-Reynoso, 127 Wash. App. 119, 110 P.3d 827 (Div. 3 2005) (a judgment may be vacated for any other reason justifying relief, but is limited to extraordinary circumstances not otherwise covered by Rule 7.8(b) and where relief did not otherwise exist at time of judgment); West Virginia, State ex rel. Richey v. Hill, 216 W. Va. 155, 603 S.E.2d 177 (2004) (coram nobis is available when habeas corpus is not, i.e., when the petitioner is no longer incarcerated but is of limited scope, it does not reach prejudicial misconduct in the course of the trial). Unclear whether five states--Georgia, Maryland, Pennsylvania, Rhode Island, and Wisconsin—may or might have allowed an ineffective assistance of counsel claim to be raised on coram nobis. Georgia, South v. State, 72 Ga. App. 79, 33 S.E.2d 23 (1945) (the purpose of coram nobis is to correct an error of fact not apparent on the record and where the defendant has been deprived of a defense to which he could not have made at his trial) Note: the writ of coram nobis will not lie where there is another adequate remedy--IAC must be brought on direct appeal); Maryland, Skok v. State, 361 Md. 52, 760 A.2d 647 (2000) (the grounds for challenging a conviction

262

via coram nobis must be of constitutional, jurisdictional, or fundamental character and the petitioner must be suffering or facing significant collateral consequences from the conviction) Note: coram nobis cannot be used if another statutory or common law remedy is available – in Maryland, the UPCPA is used to raise an IAC claim; Pennsylvania, Com. v. Orsino, 197 Pa. Super. 306, 178 A.2d 843 (1962)(purpose of coram nobis is to correct errors of fact and not of law which if known at the time judgment was rendered would have prevented it) Note: coram nobis may not be used as a substitute for an appeal or as a motion for a new trial; Rhode Island, State v. Lanoue, 117 R.I. 342, 366 A.2d 1158 (1976) (coram nobis petition is appropriate procedure for raising newly discovered evidence claim attacking probation and deferred sentence revocation); Wisconsin, Jessen v. State, 95 Wis. 2d 207, 290 N.W.2d 685 (1980) (the purpose of coram nobis is for the trial court to correct an error of fact which was unknown at the time of trial and if known would have prevented the judgment); Houston v. State, 7 Wis. 2d 348, 96 N.W.2d 343 (1959) (coram nobis not available where another remedy would lie, such as where habeas would afford a proper and complete remedy) Note: habeas corpus is the proper remedy for raising an IAC claim.

§ 5.79 Other

1. Procedure

POST CON RELIEF – FEDERAL – CORAM NOBIS – CUSTODY – STATUTE OF LIMITATIONS Where a federal defendant files a federal petition for coram nobis relief, the issue may arise whether a federal defendant who has completed his BOP term and has since been in ICE detention is deemed to be concurrently on Supervised Release (the federal equivalent of parole). If so, s/he is in federal custody and therefore must use 28 U.S.C. § 2255, instead of federal coram nobis. If not, then there is no federal custody, and no 2255 jurisdiction, and no barrier to using federal coram nobis. While the administrative practice is to accord ICE detainees Supervised Release credit, the statute does not require it so it is possible to argue that the administrative practice may be ultra vires. Thanks to James Smith.

§ 5.80 Sixth Circuit

2. Grounds

263

POST CON RELIEF – STATE VEHICLES - CORAM NOBIS Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) (“‘The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment.’ “ Clorid v. State, 182 S.W.3d 477, 479 (Ark.2004) (quoting State v. Larimore, 17 S.W.3d 87, 93 (Ark.2000)). “ ‘Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid’ “ and “ ‘[t]he mere naked allegation that a constitutional right has been invaded will not suffice.’ “ Id. (quoting Larimore, 17 S.W.3d at 93). “The writ of error coram nobis is an extraordinary writ, known more for its denial than its approval.” Echols v. State, 201 S.W.3d 890, 893 (Ark.2005)”).

§ 5.81 § 5.82

3. Immigration Consequences G. Audita Querela

Back to Table of Contents

©2005 Norton Tooby. All rights reserved.

Home | News | Free Resources | Books/CDs | Seminars Services | Search | About Us | Contact Us Copyright & Disclaimers Policy

264

265

by Norton Tooby

POST-CONVICTION RELIEF FOR IMMIGRANTS was published on February 1, 2004 and is updated monthly on these pages.

Other Relevant Resources
These are other resources available with your subscrption that pertain to Post-Conviction Relief for Immigrants.

Deportation Grounds Checklist

Buy This Book

Summary Table of Contents
Click the sections listed below to view recent case law pertinent to each section respectively. See the Detailed Table of Contents (pdf) to view all section headings for this book.

Chapter 1 : Introduction and Overview
§ 1.1 § 1.4 I. Origins of the Problem IV. Overview of Post-Conviction Relief

Chapter 2 : Evaluating the Chances of Obtaining Post-Conviction Relief
§ 2.27 § 2.28 c. Attacking State Convictions 2. Time Limits Within Which Actions for State

Chapter 3 : Investigating the Case
§ 3.3 § 3.6 § 3.8 § 3.9 A. Special Considerations A. Check for Unknown U.S. Citizenship IV. Obtaining Information on “Equities” or Reasons Client Should be Allowed to Remain in the U.S V. Obtaining Information About the Criminal Case

266

Post-Conviction Relief for Immigrants - Chapter 6
News
updated 6/12/08

LO G O UT

by Norton Tooby

Resources Free Premium

Books/CDs Seminars Services Search About Us Contact Us

Back to Table of Contents

Chapter 6: Grounds for Vacating the Conviction § 6.1 I. Geography of the Field DC Circuit
POST CON RELIEF – GUILTY PLEA WAIVES CLAIMS United States v. Delgado-Garcia, ___ F.3d ___ (D.C. Cir. July 23, 2004) (defendants’ alien smuggling convictions affirmed on appeal; initial, unconditional pleading of guilty to charged crimes acted as waiver of defendants' subsequent due process and maritime law claims). http://caselaw.lp.findlaw.com/data2/circs/dc/033060a.pdf

267

§ 6.2 II. Violations of the Right to Counsel Lower Courts of Second Circuit
POST CON RELIEF – GROUNDS – DIRECT CONSEQUENCES – IMMIGRATION CONSEQUENCES HELD NOT TO BE DIRECT CONSEQUENCES – CONNECTICUT State v. Irala, 68 Conn. App. 520 (Conn. App. May 5, 2002) ("the impact of a plea's immigration consequences on a defendant, while potentially great, is not of constitutional magnitude and cannot transform this collateral consequence into a direct consequence of the plea." (Internal quotation marks omitted)).

§ 6.3

A. Denial of Counsel

POST CON RELIEF – GROUNDS – COUNSEL – RIGHT TO COUNSEL OF CHOICE United States v. Gonzalez-Lopez, __ U.S. __ (Jun. 26, 2006) (trial court's erroneous deprivation of criminal defendant's choice of counsel not subject to harmless-error analysis and entitles the defendant to reversal of his conviction). http://laws.lp.findlaw.com/us/000/05352.html POST CON RELIEF – GROUNDS – RIGHT TO COUNSEL – RIGHT TO COUNSEL OF CHOICE United States v. Gonzalez-Lopez, 548 U.S. ___, 126 S.Ct. 2557 (2006) (Sixth Amendment entitles a criminal defendant to retain counsel of his choice; where trial court denies defendant the right to be represented by counsel of choice, it is structural error requiring automatic reversal without showing of prejudice).

Fifth Circuit
POST-CON RELIEF – EFFECTIVE VACATUR – FIFTH CIRCUIT Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) (court recognizes the DHS will follow Pickering even in the Fifth Circuit: “we vacated the Discipio I opinion because the Government modified its position and terminated deportation proceedings against Discipio because his conviction had been vacated on procedural and substantive defects, the Government bowing to the BIA's opinion in In re Pickering.FN10 See Discipio II, 417 F.3d at 449-50.”)

Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – DEFENDANT'S RIGHTS AT ATTORNEY COMPETENCY HEARING Hovey v. Woodward, ___ F.3d ___ (9th Cir. Aug. 11, 2006) (a hearing conducted by the judge into defense attorney's competency to represent the defendant is not a critical stage of the proceedings at which the defendant had a right to be represented

268

by unconflicted counsel and to be present). COUNSEL - REFUSAL TO PROCEED WITH OR WITHOUT United States v. Massey, __ F.3d __ (9th Cir. 2005) ("Massey attempted to hinder his trial by declining every constitutionally recognized form of counsel while simultaneously refusing to proceed pro se. A defendant may not abuse the Sixth Amendment in this way: tactics such as those employed by Massey amount to an unequivocal waiver of the right to counsel. United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994); United States v. Hardy, 941 F.2d 893, 896-97 (9th Cir. 1991)." COUNSEL – SELF-REPRESENTATION – REQUEST FOR COUNSEL AT SENTENCING Robinson v. Ignacio, 360 F.3d 1044 (9th Cir. March 10, 2004) (state trial court denial of request for counsel at sentencing by defendant who had represented himself during trial violated Sixth Amendment) POST CON RELIEF - GROUNDS - SENTENCE - DENIAL OF COUNSEL Robinson v. Ignacio, 360 F.3d 1044 (9th Cir. March 10, 2004) (Sixth Amendment right to counsel violated when trial court denied timely request for representation at sentencing on erroneous basis that once waived, the right to counsel cannot be reasserted). http://caselaw.lp.findlaw.com/data2/circs/9th/0217298p.pdf

Lower Courts of Ninth Circuit
CAL POST CON – GROUNDS – RIGHT TO COUNSEL OF CHOICE Rhaburn v. Superior Court, 140 Cal.App.4th 1566 (2006) (trail court cannot remove appointed counsel (public defender’s office) where office previously represented a prosecution witness when individual attorney assigned to represent the current defendant did not “have a ‘direct and personal’ relationship with the witness . . . .”). CAL POST CON – GROUNDS – INEFFECTIVE COUNSEL – DENIAL OF RIGHT TO DISCHARGE RETAINED COUNSEL AND OBTAIN APPOINTED COUNSEL People v. Ortiz, 51 Cal.3d 975 (1990) (defendant has the right to discharge retained counsel without a showing of incompetency, conflict or other cause; defendant also has right to then be represented by court appointed counsel if defendant is indigent at that time). CAL POST CON – GROUNDS – INEFFECTIVE COUNSEL – DENIAL OF RIGHT TO DISCHARGE RETAINED COUNSEL AND OBTAIN APPOINTED COUNSEL People v. Ortiz, 51 Cal.3d 975 (1990) (defendant has the right to discharge retained counsel without a showing of incompetency, conflict or other cause; defendant also has right to then be represented by court appointed counsel if defendant is indigent

269

at that time).

§ 6.4

1. Representation by Non-Counsel

Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – COUNSEL OF CHOICE United States v. Ensign, 491 F.3d 1109 (9th Cir. July 5, 2007) (district court's refusal to allow attorney to represent defendant pro hac vice did not violate constitutional right to counsel of choice).

§ 6.5

2. Invalid Waiver of Right to Counsel

GROUNDS - RIGHT TO COUNSEL - INVALID WAIVER - NO NEED WARN OF DANGERS Iowa v. Tovar, 124 S.Ct. 1379 (March 8, 2004) (trial court must inform unrepresented defendants of nature charges against him, right to counsel regarding plea, and range of allowable punishments for plea to be "knowing and intelligent,"; trial court does not need to inform accused that viable defense will be overlooked, or that he will lose opportunity to obtain independent opinion on whether it is wise to plead guilty). http://laws.lp.findlaw.com/us/000/02-1541.html

Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – INVALID WAIVER OF COUNSEL – FAILURE TO ADVISE DEFENDANT AND ENSURE UNDERSTANDING OF NATURE OF OFFENSE RENDER WAIVERS INVALID United States v. Forrester, ___ F.3d ___, ___ (9th Cir. July 6, 2007) (federal convictions reversed on grounds that waiver of right to counsel was not knowing and intelligent, and that the Sixth Amendment was violated, when he was allowed to proceed pro se after district court failed to inform him of the nature of the conspiracy charge, or ensure he understood the charge or that this charge is "a particularly complex and confusing allegation to defend against."), following United States v. Dujanovic, 486 F.2d 182, 186 (9th Cir.1973) (“We cannot visualize a less minimal requirement than the District Court shall not grant a request to waive counsel ... without ... determining on the record that the demand to waive counsel ... is competently and intelligently made with understanding of the nature of the charge ....”). POST CON RELIEF – GROUNDS – COUNSEL – INVALID WAIVER OF COUNSEL – ERRONEOUSLY OVERSTATING DIRECT PENAL CONSEQUENCES OF CONVICTION RENDERS WAIVER INVALID SINCE ERROR REQUIRES AUTOMATIC REVERSAL WITHOUT HARMLESS ERROR ANALYSIS United States v. Forrester, ___ F.3d ___, ___ (9th Cir. July 6, 2007) (federal convictions

270

reversed on grounds that waiver of right to counsel was not knowing and intelligent, and that the Sixth Amendment was violated, when he was allowed to proceed pro se after district court failed accurately to "describe the “possible penalties” faced by Forrester. Id. The court told him that he faced 10 years to life in prison, whereas he actually faced the materially different sentence range of zero to 20 years in prison."; even though court erroneously overstated defendant's exposure, automatic reversal was required because court cannot engage in harmless error analysis for this type of error), following United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) (“[T]he failure to meet the requirements for a valid Faretta waiver constitutes per se prejudicial error, and the harmless error standard is inapplicable.”); United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994) (invalid Faretta waiver “requires automatic reversal of a defendant's conviction”); United States v. Balough, 820 F.2d 1485, 1490 (9th Cir. 1987) ; cf. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis.”); cf. United States v. Keen, 96 F.3d 425, 429-30 (9th Cir.1996) (“Regrettably, given the overwhelming evidence of Keen's guilt and the inconvenience a retrial would impose ... this discussion appears insufficient.... [He] is entitled to a reversal and an opportunity to make an informed and knowing choice.”). POST CON RELIEF – GROUNDS – COUNSEL – SELF-REPRESENTATION COUNSEL - SELFREPRESENTATION - DENIAL BASED ON LACK OF LEGAL KNOWLEDGE Hirschfield v. Payne, 420 F.3d 922 (9th Cir. Aug. 22, 2005) (state court properly ruled that first Faretta motion was for purposes of delay, but second motion (made after case had to be delayed due to other reasons), which was denied by another judge on the basis that the defendant did not have sufficient legal knowledge to represent himself, was erroneous; because the appellate court did not address the second motion separately, the federal panel reviewed the trial court's oral decision, and found it contrary to clearly established federal law).

§ 6.6 § 6.7

3. Refusal to Allow Self-Representation B. Ineffective Assistance of Counsel

Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL Edwards v. LaMarque, ___ F.3d ___, WL 270118 (9th Cir. Feb. 1, 2007) (reversing grant of habeas on ineffective assistance grounds where, despite a self-proclaimed assertion by trial counsel that his performance was inadequate, a California court was not objectively unreasonable in determining that defendant's counsel made a reasonable, tactical decision to ask the questions that led to his waiver of the spousal

271

privilege). http://caselaw.lp.findlaw.com/data2/circs/9th/0455752p.pdf POST CON RELIEF – GROUNDS – RIGHT TO COUNSEL – CONFLICT OF INTEREST – MISTRIAL AS REMEDY United States v. Elliot, __ F.3d __ (9th Cir. Apr. 18, 2006) (trial court did not err in declaring mistrial when it appeared that defense counsel had previously represented a witness). POST CON RELIEF – INEFFECTIVE ASSISTANCE OF COUNSEL Earp v. Ornoski, ___ F.3d ___, 2005 WL 3440810 (9th Cir. Dec. 16, 2005) (denial of habeas petition reversed where petitioner had never been given an evidentiary hearing on prosecutorial misconduct and ineffective assistance of counsel claims). http://caselaw.lp.findlaw.com/data2/circs/9th/0399005p.pdf RIGHT TO COUNSEL 'Nonetheless, we cannot allow a “myopic insistence on expeditiousness” to render the right to counsel “an empty formality”’ Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) citing Ungar v. Sarfite, 376 U.S. 575 (1964). POST CONVICTION RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – ORIGINAL COUNSEL CANNOT RAISE OWN INEFFECTIVENESS; EXCEPTION TO STATE STATUTE OF LIMITATIONS WHERE IT TAKES MORE TIME TO SEE IF IAC CLAIM EXISTS Leavitt v. Arave, ___ F.3d ___ (9th Cir. June 14, 2004) (original counsel cannot raise own ineffectiveness; exception therefore exists to state post-conviction relief statute of limitations where more time is necessary for independent counsel to determine whether IAC claim exists). http://caselaw.lp.findlaw.com/data2/circs/9th/0199008p.pdf

Other
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE ON APPEAL – STANDARD OF REVIEW – MILITARY COURT United States v. Miller, 63 M.J. 452, 455-456 (U.S. Armed Forces, Aug. 29, 2006) (applying Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)).

§ 6.8 Fifth Circuit

1. Generally - Deficient Performance and Prejudice

POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL Draughon v. Dretke, __ F.3d __, 2005 WL 2404154 (5th Cir. Sep. 30, 2005) (counsel provided ineffective assistance at both the guilt and sentencing phases of trial).

272

http://caselaw.lp.findlaw.com/data2/circs/5th/0470043cv0p.pdf

Ninth Circuit
POST CON RELIEF – HABEAS – PLEA – INEFFECTIVE ASSISTANCE OF COUNSEL Womack v. Del Papa, ___ F.3d ___, 2007 WL 2296781 (9th Cir. Aug. 13, 2007) (habeas denied over claim that petitioner entered an Alford guilty plea to several crimes that was not knowing, voluntary and intelligent because he was deprived of effective assistance of counsel). AGGRAVATED FELONY – COV – CRIMINAL CONTEXT United States v. Tzep-Mejia, __ F.3d __, 2006 WL 2361701 (9th Cir. Aug. 15, 2006) (where sentence following prosecution for illegal re-entry was imposed without reference to the United States Sentencing Guidelines, the reviewing court does not need to determine whether prior criminal offense was a “crime of violence” for sentencing guidelines purposes, since the guidelines did not play a part in determining the sentence). POST CON RELIEF – COUNSEL – INEFFECTIVE ASSISTANCE – FAILURE TO PREPARE WITNESS Hovey v. Woodward, ___ F.3d ___ (9th Cir. August 11, 2006)(counsel's failure to investigate defendant's mental condition at the time of offense and to adequately prepare expert witness sufficiently undermined confidence in verdict so as to require reversal of sentence, where counsel failed to provide crucial psychiatric records to testifying expert, and failed to give him information regarding an unrelated offense, which made the expert look "ill-prepared and foolish."). POST CON – COUNSEL – INEFFECTIVE ASSISTANCE – EFFECT ON GUILTY PLEA Weaver v. Palmateer, __ F.3d __ (9th Cir. July 17, 2006) ("In assessing prejudice [from allegedly ineffective assistance], we do not ask what a defendant might have done had he benefited from clairvoyant counsel;" telling defendant that while he technically could receive probation but probably would not was prudent advice. (Cf, Iaea v. Sunn, 800 F.2d 861, 863-65 (9th Cir. 1986) [ineffective assistance where attorney grossly mischaracterized probable sentence by suggesting, on several occasions, that defendant had "a good chance" of receiving probation and that the chance of an extended sentence was "almost zero," and yet defendant received life sentence]). POST CON RELIEF – GROUNDS – PLEA – INEFFECTIVE ASSISTANCE Hoffman v. Arave, ___ F.3d ___ (9th Cir. Jul. 5, 2006) (affirming in part and reversing in part habeas petition based on ineffective assistance of counsel during pre-trial plea bargaining and during the guilt phase of his murder trial).

273

http://caselaw.lp.findlaw.com/data2/circs/9th/0290004p.pdf POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY – RETURN TO PRE-ERROR STAGE OF PROCEEDINGS Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding). http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – INVALID GUILTY PLEA Lambert v. Blodgett, ___ F.3d ___ (9th Cir. Dec. 28, 2004) (reversing order vacating guilty plea on grounds of ineffective assistance of counsel and lack of knowing, voluntary and intelligent plea, where district court erred in disregarding Washington state courts’ factual findings and conclusions of law). http://caselaw.lp.findlaw.com/data2/circs/9th/0335081p.pdf HABEAS CORPUS - FEDERAL - INEFFECTIVE ASSISTANCE NOT PREJUDICIAL Allen v. Woodford, 366 F.3d 823 (9th Cir. May 6, 2004) ("[Petitioner's] representation at the penalty phase of his trial fell below an objective standard of reasonableness. Trial counsel admits he did nothing to prepare for the penalty phase until after the guilty verdicts were rendered, and even then, in what little time was available, he failed sufficiently to investigate and adequately present available mitigating evidence.") POST CON RELIEF - GROUNDS - IAC - REMEDY Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir. Jan. 30, 2004) (UNPUBLISHED) (BIA violated due process by waiting six years, until after law had changed to respondent’s detriment, to review Immigration Judge’s originally erroneous finding that expunged misdemeanor weapons conviction constituted conviction for immigration purposes). The BIA must generally apply the law in place at the time the BIA conducts its review. Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999). However, that rule is not absolute where the error effectively denied the noncitizen a meaningful hearing under the law existing when the hearing was held. See, e.g., Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (BIA's failure to correct IJ's error was defect requiring application of law in effect at time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural defect resulting in the loss of an opportunity for statutory relief requires remand for a hearing under former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th Cir. 2000) (ineffective assistance of counsel before IJ required remand for application of law existing at the time of original hearing). Where the BIA’s failure to timely remedy an IJ's error denies respondent the benefit of the law in effect at the time of

274

the original hearing, the only meaningful remedy is to give the respondent a hearing under the law that would have applied, had the BIA not delayed his appeal. Guadalupe-Cruz, 240 F.3d at 1212.

Lower Courts of Ninth Circuit
POST-CON – INEFFECTIVE ASSISTANCE AT PRELIMINARY HEARING People v. Carter, __ Cal.4th __ (Cal. Aug, 15, 2005) ("Irregularities in pretrial commitment proceedings require reversal on appeal only where defendant shows he was ‘deprived of a fair trial or otherwise suffered prejudice as a result.’ (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.).").

Lower Courts of Tenth Circuit
POST CON – NEW MEXICO CASE CITATION State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's attorney has "an affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status.").

BIA
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS – RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.")

Other
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – ABA STANDARDS ARE RELEVANT TO A FINDING OF DEFICIENT PERFORMANCE Rompilla v. Beard, ___ U.S. ___, 2005 WL 1421390 (June 20, 2005) (defense counsel's failure to examine file on defendant's prior conviction for rape and assault at sentencing phase of capital murder trial fell below the level of reasonable performance, and such failure was prejudicial to defendant, warranting habeas relief on grounds of ineffective assistance of counsel, placing reliance on ABA Standards, which stated: "It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all

275

avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty." 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.). The Court stated: ""[W]e long have referred [to these ABA Standards] as 'guides to determining what is reasonable.' " Wiggins v. Smith, 539 U.S., at 524, 123 S.Ct. 2527 (quoting Strickland v. Washington, 466 U.S., at 688, 104 S.Ct. 2052), and the Commonwealth has come up with no reason to think the quoted standard impertinent here." (Id. at 2466)). POST CON RELIEF – GROUNDS – COUNSEL – ADVICE CONCERNING IMMIGRATION CONSEQUENCES Brian Bates, Law of the Land: Good Ideas Gone Bad: Plea Bargains and Resident Aliens, 66 Tex. B. J. 878 (November, 2003). POST CON RELIEF – GROUNDS – COUNSEL – IMMIGRATION CONSEQUENCES CRIMINAL DEFENSE – INTRODUCTION Lory Diana Rosenberg, Preventative Lawyering: How Defense Counsel can Defend Immigrants’ Rights, 27 The Champion 43 (Nat'l Ass'n of Criminal Defense Lawyers, March, 2003). POST CON RELIEF – GROUNDS – COUNSEL – ADVICE CONCERNING IMMIGRATION CONSEQUENCES Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697 (2002). POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL David M. Siegel, "My Reputation or Your Liberty (Or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings," 23 Journal of the Legal Profession 85 (1999).

§ 6.9

2. Failure to Conduct Competent Investigation of the Facts

Third Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE Outten v. Kearney, ___ F.3d ___, 2006 WL 2773076 (3d Cir. Sept. 28, 2006) (the limited scope of counsel's capital sentencing investigation of mitigating evidence constituted prejudicial ineffective assistance of counsel, requiring reversal). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO

276

INVESTIGATE MITIGATING EVIDENCE Outten v. Kearney, 464 F.3d 401 (3rd Cir. 2006) (trial counsel failed to conduct reasonably competent investigation into the potential mitigation).

Sixth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE Rolan v. Vaughn, 445 F.3d 671 (6th Cir. 2006) (counsel was ineffective in failing to interview or present two witnesses defendant identified as being able to testify as to self-defense defense). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE MITIGATING EVIDENCE Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006) (counsel failed to conduct any mitigation investigation or present any mitigation evidence the court). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE MITIGATING EVIDENCE Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006) (counsel failed to conduct a thorough investigation or presentation of defendant’s social history or available mitigation). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE MITIGATING EVIDENCE Dickerson v. Bagley, 453 F.3d 690 (6th Cir. 2006) (counsel failed to investigate and present mitigating evidence).

Ninth Circuit
POST CON – GROUNDS – COUNSEL – INEFFECTIVE ASSISTANCE – FAILURE TO INVESTIGATE MITIGATING EVIDENCE Correll v. Schriro, ___ F.3d ___ (9th Cir. Oct. 2, 2006) (counsel rendered ineffective assistance by failing to investigate or present potential mitigating evidence; decision not to do so was not strategic because counsel failed to conduct a sufficient investigation to be able to make an informed decision), citing ABA standards and Rompilla v.Beard, 545 U.S. 374, 125 S.Ct. 2456 (2005). POST-CON - INEFFECTIVE ASSISTANCE - FAILURE TO INVESTIGATE Landrigan v. Schriro, ___ F.3d ___ (9th Cir. Mar. 8, 2006) (colorable claim that counsel's performance in failing to investigate fell below the objective standard of reasonableness and that he was prejudiced thereby required remand for evidentiary

277

hearing). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO CONDUCT REASONABLE INVESTIGATION INTO BACKGROUND OF PROSECUTION WITNESS Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) (defense counsel failed to conduct a reasonable investigation into the background of jailhouse informants). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE Reynoso v. Giurbino, 462 F.3d 1099 (9th Cir. 2006) (counsel was ineffective in failing to investigate whether prosecution witnesses had been offered, or accepted, rewards in exchange for testimony). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE – FAILURE TO REVIEW IMPORTANT RECORDS Frierson v. Woodford, 463 F.3d 982 (9th Cir. 2006) (defendant was prejudiced by ineffective assistance of counsel which resulted from counsel’s failure to review important records). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO PROVIDE ADEQUATE RECORDS TO EXPERT Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) (defense counsel was ineffective in failing to provide defense psychiatrist with records necessary for proper preparation of expert). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – ABA STANDARDS FOR CRIMINAL JUSTICE – FAILURE TO INVESTIGATE OR PRESENT MITIGATING EVIDENCE Correll v. Ryan, 465 F.3d 1006 (9th Cir. 2006) (defense counsel’s failure to investigate or present mitigation at penalty phase required reversal of death sentence, despite personal knowledge of several mitigating factors). GROUNDS – INSUFFICIENCY OF EVIDENCE Chien v. Shumsky, __ F.3d __, 2004 WL 1418015 (9th Cir. June 25, 2004) (habeas granted where evidence supporting perjury conviction for giving misleading information regarding medical credentials found constitutionally insufficient). http://caselaw.lp.findlaw.com/data2/circs/9th/0156320p.pdf

§ 6.10 Ninth Circuit

3. Failure to Research the Law

278

POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – PLEA NEGOTIATIONS – ERRONEOUS ADVICE TO REJECT PLEA BARGAIN BASED ON FAILURE TO RESEARCH THE LAW Hoffman v. Arave, 455 F.3d 926 (9th Cir. 2006) (counsel ineffective by giving incompetent advice regarding prosecution’s plea offer; counsel failed to be fully aware of state of the law in advising defendant whether to accept offer). COUNSEL - INEFFECTIVE ASSISTANCE - MISADVICE Sophanthvong v. Palmateer, ___ F.3d ___ (9th Cir. April 12, 2004) (Counsel not required to predict accurately how courts will resolve disputed issues; advice was at most "mere incorrect prediction" of application of statute and did not amount to "gross mischaracterization of the likely outcome" of plea bargain or trial; Strickland requires only objectively reasonable advice under prevailing professional norms).

§ 6.11 Defenses

4. Failure to Advise the Defendant of the Elements and

§ 6.12 5. Failure to Advise the Defendant of Constitutional Rights at Plea the Plea Ninth Circuit
POST CON RELIEF – FEDERAL – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO MITIGATE Stankewitz v. Woodford, 365 F.3d 706 (9th Cir.), cert. den., 125 S. Ct. 517, 160 L. Ed. 2d 369 (2004) (evidentiary hearing required on claim of denial of effective assistance of counsel based on counsel’s failure to "investigate and introduce available, vital evidence of [defendant’s] childhood of abuse, poverty and institutionalization; his mental deficiencies amounting to borderline retardation; and his drug and alcohol abuse exacerbating his disturbed emotional state, particularly in the days leading up to the killing.").

§ 6.13

6. Failure to Assist the Defendant to Withdraw

Lower Courts of Eighth Circuit
POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE PLEA FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel ineffective by failing to file motion in arrest of judgment to challenge guilty plea on grounds that neither written plea of guilty nor in-court colloquy informed defendant that guilty plea might affect immigration status; failure to move in arrest of judgment

279

does not bar challenge to guilty plea if failure to file motion in arrest of judgment resulted from ineffective assistance).

§ 6.14 Sixth Circuit

7. Failure to Consult the Defendant about an Appeal

POST CON RELIEF – APPEAL – INEFFECTIVE COUNSEL Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required by Ohio Rev. Code § 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate, required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to decide the ineffective assistance claims on their merits, since ineffective assistance of counsel constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to do so.").

Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO FILE NOTICE OF APPEAL POST CON RELIEF – VEHICLES – DIRECT APPEAL – INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO FILE NOTICE OF APPEAL United States v. Sandoval-Lopez, ___ F.3d ___ (9th Cir. June 6, 2005) (defense counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to file a notice of appeal). http://caselaw.lp.findlaw.com/data2/circs/9th/0335594p.pdf

Eleventh Circuit
POST CON RELIEF – FEDERAL – APPEAL – WAIVER OF APPEAL – INEFFECTIVE ASSISTANCE OF COUNSEL Gomez-Diaz v. United States, ___ F.3d ___, 2005 WL 3465538 (11th Cir. Dec. 20, 2005) (2255 motion properly raises claim of ineffective assistance of counsel for failure to file a notice of appeal on request, despite government argument that plea agreement

280

contained waiver of right to appeal from sentence).

§ 6.15 Ninth Circuit

8. Ineffective Assistance of Counsel on Appeal

POST CON RELIEF – GROUNDS – COUNSEL – INEFFECTIVE ASSISTANCE – IAC ON APPEAL Moormann v. Schriro, ___ F.3d ___ (9th Cir. October 13, 2005) (denial of petition for habeas corpus relief reversed where petitioner sufficiently asserted claims of ineffective assistance of appellate counsel). http://caselaw.lp.findlaw.com/data2/circs/9th/0099015p.pdf

§ 6.16 C. Failure to Protect the Defendant Against the Immigration Consequences of the Plea § 6.17 Sixth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – ADVICE OF POTENTIAL IMMIGRATION CONSEQUENCES Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required by Ohio Rev. Code § 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate, required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to decide the ineffective assistance claims on their merits, since ineffective assistance of counsel constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to do so.").

1. Deficient Performance

Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – PLEA BARGAINING IS A CRITICAL STAGE Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (negotiations with the

281

government are a "critical stage" of a prosecution for Sixth Amendment purposes).

§ 6.18

2. Misadvice vs. Failure to Advise

POST CON RELIEF – PLEA – NO CONTEST – MOTION TO WITHDRAW – USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA § 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct consequences, it cannot stand if "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business . . . . " Brady v. United States, 397 U.S. at 755 (1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsel’s failure to advise the defendant that he or she will be deported is not "ineffective assistance of counsel," and the trial court’s failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir.

282

2000). Yet, as the quoted passage in Brady suggests, and as the federal courts have consistently held over the last three decades, this distinction between "direct" and "collateral" consequences loses all significance when the defendant’s plea results from affirmative misadvice about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995); United States v. NagaroGarbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the "collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other cases demonstrate, a plea that results from actual misinformation provided to the defendant about its effects is not knowing and voluntary, and cannot be given force. Applying these principles, the federal courts have consistently voided guilty pleas entered – as this one was – on the basis of affirmative misadvice regarding considerations of consequence to the defendant. For example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea induced by material misinformation from the prosecution, court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both the government’s attorney and the district judge confirmed that defendant’s understanding. Id. at 1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397. After the receipt of the presentence report, the defendant moved to withdraw his guilty plea; however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98. The Ninth Circuit determined that the defendant had been misinformed by the court, government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do not believe Toothman was ‘equipped intelligently to accept the plea offer made to him.’" Id. at 1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found that the plea was involuntary. Id. at 1401. Thanks to Don Chairez for the suggestion for this argument. POST-CON – GROUNDS – FAILURE TO ADVISE POST-CON – DEPORTATION AS A

283

COLLATERAL CONSEQUENCE POST-CON – GROUNDS – FAILURE TO ADVISE POST-CON – DEPORTATION AS A COLLATERAL CONSEQUENCE Sial v. State, 862 N.E.2d 702 (Ind. App. Mar. 16, 2007) ("to succeed as a postconviction petitioner under these circumstances, Sial is required to establish special circumstances or specific facts showing that if his attorney had properly advised him of the penal consequences of a guilty plea-here, deportation-there is a reasonable probability that he would have chosen to proceed to trial.") (emphasis added)

Lower Courts of Second Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – AFFIRMATIVE MISADVICE People v. Michael, 2007 NY Slip Op 27220; 16 Misc. 3d 84; 2007 N.Y. Misc. LEXIS 3814 (May 22, 2007)("Defendant, a native of Pakistan and a lawful permanent resident of the United States, alleged that he entered his guilty plea to sexual abuse in the second degree (Penal Law § 130.60 [2]), a misdemeanor, in reliance upon his trial counsel's misrepresentations that the United States Government usually does not deport persons convicted of misdemeanors and that because defendant had been granted "asylum," he would "not have a problem" with immigration authorities. The People do not dispute that the advice allegedly given to defendant was materially inaccurate in that defendant faces mandatory deportation upon a conviction of an offense involving the sexual abuse of a minor, an "aggravated felony" under Federal deportation law, even though classified a misdemeanor under New York State law (Immigration and Nationality Act § 1101 [a] [43] [A]; § 237 [a] [2] [A] [iii]; United States v Couto, 311 F.3d 179, [*2] 184 [2d Cir 2002]; Zhang v United States, 401 F. Supp. 2d 233, 241-242 [ED NY 2005]; see People v McKenzie, 4 AD3d 437, 439, 771 N.Y.S.2d 551 [2004])."). POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE People v. Michael, 842 N.Y.S.2d 159 (May 22, 2007) (“The People do not dispute that the advice allegedly given to defendant was materially inaccurate in that defendant faces mandatory deportation upon a conviction of an offense involving the sexual abuse of a minor, an “aggravated felony” under Federal deportation law, even though classified a misdemeanor under New York State law”). POST CON RELIEF – INEFFECTIVE ASSISTANCE – IMMIGRATION CONSEQUENCES – CONNECTICUT State v. Aquino, ___ Conn. ___ (Aug. 8, 2006) (claim that criminal defense lawyers obligated to determine client's immigration status and advise of immigration consequences of criminal case dismissed as moot because record does not reflect whether client was deported for aggravated felony or illegal presence; vacating

284

adverse Court of Appeals decision). POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA WHERE DEFENDANT TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY CERTAIN TO DO SO Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting motion to vacate sentence pursuant to 28 U.S.C.§ 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences where defendant was informed only that the conviction "could result in your deportation," where it was certain to do so). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES – GENERAL RULE DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL State v. Aquino, ___ Conn. ___, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) ("Our conclusion today is in agreement with the majority of jurisdictions, both federal and state, that have considered the issue of whether the failure to advise a client of the immigration consequences of a guilty plea constitutes ineffective assistance of counsel. See id., [United States v. Gonzalez, 202 F.3d 20, 24 (1st Cir. 2000)] 25; United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1869, 123 L. Ed. 2d 489 (1993); United States v. Del Rosario, 284 U.S. App. D.C. 90, 902 F.2d 55, 58-59 (D.C. Cir.), cert. denied, 498 U.S. 942, 111 S. Ct. 352, 112 L. Ed. 2d 316 (1990); Santos v. Kolb, 880 F.2d 941, 944-45 (7th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S. Ct. 873, 107 L. Ed. 2d 956 (1990); United States v. George, supra, 869 F.2d 337-38; United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989); United States v. Yearwood, supra, 863 F.2d 7-8; United States v. Campbell , supra, 778 F.2d 768-69; United States v. Gavilan, 761 F.2d 226, 228-29 (5th Cir. 1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975); Government of Virgin Islands v. Pamphile, 604 F. Supp. 753, 756-57, 21 V.I. 348 (D.V.I. 1985); Oyekoya v. State, 558 So. 2d 990, 990-91 (Ala. Crim. App. 1989); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (1973); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245 (Ariz. App. 1995); Matos v. United States, 631 A.2d 28, 31-32 (D.C. 1993); State v. Ginebra, 511 So. 2d 960, 962 (Fla. 1987); People v. Huante , 143 Ill. 2d 61, 73-74, 571 N.E.2d 736, 156 Ill. Dec. 756 (1991); Mott v. State , 407 N.W.2d 581, 583 (Iowa 1987); Daley v. State, 61 Md. App. 486, 490, 487 A.2d 320 (1985); Commonwealth v. Fraire, 55 Mass. App. 916, 917-18, 774 N.E.2d 677 (2002); Alanis v. State, 583 N.W.2d 573, 579 (Minn. 1998); State v. Chung, supra, 210 N.J. Super. 435; People v. Boodhoo, 191 App. Div. 2d 448, 449, 593 N.Y.S.2d 882 (1993); People v. Dor, 132 Misc. 2d 568, 572, 505 N.Y.S.2d 317 (1986); State v. Dalman, 520 N.W.2d 860, 863-64 (N.D. 1994); Commonwealth v. Frometa, 520 Pa. 552, 556, 555 A.2d 92 (1989); State v. Figueroa, 639 A.2d 495, 501

285

(R.I. 1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah App. 1994), cert. denied, 892 P.2d 13 (Utah 1995); State v. Holley, 75 Wn. App. 191, 198, 876 P.2d 973 (1994), on appeal after remand, 86 Wn. App. 1100 (1997), review denied, 133 Wn. 2d 1032, 950 P.2d 476 (1998); State v. Santos, 136 Wis. 2d 528, 532, 401 N.W.2d 856 (Wis. App. 1987)."). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO ADVISE OF ACTUAL IMMIGRATION CONSEQUENCES – CONNECTICUT State v. Aquino, ___ Conn. ___, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (affirming denial of motion to withdraw the plea based on a claim that ineffective assistance of counsel meant the plea was not knowingly and voluntarily entered, since counsel's failure to advise that deportation consequence was mandatory, not merely possible, did not constitute ineffective assistance of counsel because counsel is not required to inform the defendant of collateral consequences, as opposed to direct consequences, of the plea).

Lower Courts of Fourth Circuit
POST CON RELIEF – VIRGINIA – CORAM VOBIS – SENTENCE REDUCTION GRANTED FOR IMMIGRATION PURPOSES AFTER CUSTODY EXPIRED SINCE DEFENDANT HAD NO REASON TO SUSPECT THE PROBLEM EARLIER – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18, 2006) (granting writ of coram vobis, reducing sentence from two years to 360 days, thereby entitling petitioner to discretionary relief in the immigration courts, after custody had expired, since petitioner had no reason to suspect the advice was faulty any earlier than when he was placed into removal proceedings upon returning to the United States).

Lower Courts of Fifth Circuit
POST CON – GROUNDS – INEFFECTIVE ASSISTANCE – IMMIGRATION CONSEQUENCES Rosa v. State of Texas, __ S.W.2d __ (Tex Crim. App. Aug. 25, 2005) (ineffective assistance of counsel for affirmatively misadvising noncitizen defendant of immigration consequences of conviction).

Lower Courts of Sixth Circuit
POST CONVICTION RELIEF - OHIO - INEFFECTIVE COUNSEL - IMMIGRATION CONSEQUENCES State of Ohio v. Creary, __ F.Supp.3d __ (Oh. App. Feb. 26, 2004) (counsel gave affirmative misadvise by advising client to plea guilty on basis that going to trial would

286

result in deportation; court found deportation for aggravated felons to be nearly certain; while court gives considerable deference to lawyer's judgment when advising client about likelihood of outcomes within a range of possibilities, there is no justification for misinforming a client about the state of unambiguous law).

Seventh Circuit
POST CON RELIEF – GROUNDS – COURT OR PROSECUTION AFFIRMATIVE MISADVICE CONCERNING COLLATERAL CONSEQUENCE OF PLEA CAN CONSTITUTE GROUNDS TO VACATE CONVICTION The Seventh Circuit has held that misinformation by the sentencing court regarding the mandatory parole provision in the plea bargain violated due process. See Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding defendant’s due process rights were violated when in the course of making a plea agreement the court misinformed him that he would not have to serve mandatory five-year parole term).

Ninth Circuit
POST CON RELIEF – FEDERAL -- GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE – FAILURE TO ADVISE DEFENDANT WHEN IMMIGRATION CONSEQUENCES CHANGED PRIOR TO JUDGMENT United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (defense counsel rendered ineffective assistance of counsel, by correctly advising the defendant prior to entry of plea concerning immigration consequences of disposition of criminal case that deportation was not a serious possibility, but in failing to notify the defendant when, prior to sentence, the law changed and in fact it became a near certainty, where the defendant could have made a motion under F.R.Crim.P. 32(e) to withdraw the plea and attempted to renegotiate the disposition in light of the new legal consequences). GROUNDS - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES United States v. Wang, 84 Fed.Appx. 950 (9th Cir. Dec. 29, 2003) (Not selected for publication in the Federal Reporter) (affirmative misadvice of defense counsel that plea to submitting false documents to United States Customs Service, in violation of 18 U.S.C. § 542, was ineffective assistance where counsel said immigration consequences were uncertain, but conviction was in fact nearly certain to result in deportation; if defendant not been misled by counsel, reasonable possibility existed that defendant would have gone to trial or plead to lesser offense so as to avoid certain removal as aggravated felon).

Lower Courts of Ninth Circuit

287

POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL State v. Quintero-Morelos, 133 Wn. App. 591 (Jun. 22, 2006) ("The day following sentencing, the judge decided to reduce the sentence by one day, which prevented the defendant's federal deportation, because defense counsel failed at the time of the original sentencing to inform the judge that the defendant was subject to deportation. The question presented is whether the judge had discretionary authority to set aside the judgment on the ground of neglect or carelessness of defense counsel. We conclude that he did and we affirm that exercise of discretion."). POST CON – IAC – AFFIRMATIVE MISADVICE Vega-Gonzalez v. Oregon, __ P.3d __, 2006 WL 1100564 (Apr. 27, 2006) (advice of criminal defense counsel that conviction of an aggravated felony "may" trigger deportation is not affirmative misadvice; although conviction of an aggravated felony is very likely to result in deportation, the DHS could choose not to prosecute or the noncitizen could obtain withholding of removal or relief under the convention against torture). Note: the Ninth Circuit, in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), held that advice concerning possible deportation was affirmative misadvice, where an aggravated felony conviction required mandatory deportation. Federal circuit court decisions, however, are only persuasive, not binding, in state court. INEFFECTIVE ASSISTANCE OF COUNSEL -- FALURE TO ADVISE - OREGON Vega-Gonzalez v. State of Oregon, 191 Or. App. 587 (2004) (where conviction will lead to mandatory deportation, defense counsel required to inform defendant; stating that conviction "may" result in deportation is ineffective assistance of counsel. On July 20, 2004, Oregon Supreme Court granted State's request to review Court of Appeals opinion). INEFFECTIVE ASSISTANCE OF COUNSEL -- FALURE TO ADVISE - OREGON Lyons v. Pearce, 298 Or. 554 (1985) (defense counsel has duty to advise defendant of possibility of deportation)

Lower Courts of Tenth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – FAILURE TO ADVISE – UTAH POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – AFFIRMATIVE MISADVICE – UTAH State v. Rojas-Martinez, 125 P.3d 930, 539 Utah Adv. Rep. 58, 2005 UT 86 (Utah Nov 22, 2005) (advising defendant that guilty plea and conviction for sexual battery "might or might not" lead to deportation is not an affirmative misrepresentation, and thus does not constitute ineffective assistance of counsel). POST CON – NEW MEXICO – INEFFECTIVE COUNSEL – FAILURE TO INVESTIGATE AND

288

ADVISE – AFFIRMATIVE MISADVICE State v. Paredez, ___ N.M. ___ (Aug. 31, 2004) (New Mexico Supreme Court holds criminal defense attorney has "affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status"; both affirmative misadvice and failure to advise can constitute ineffective assistance of counsel). POST CON – NEW MEXICO CASE CITATION State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's attorney has "an affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status."). POST CON – UTAH – GROUNDS – INEFFECTIVE COUNSEL – FAILURE TO ADVISE NOT IAC BECAUSE IMMIGRATION IS A COLLATERAL CONSEQUIENCE State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (counsel’s failure to inform client of deportation consequences of guilty plea, without more, does not fall below objective standard of reasonableness). See also United States v. Couto, 311 F.3d 179, 187 (2nd Cir. 2002). POST CON – UTAH – GROUNDS -- INEFFECTIVE COUNSEL – AFFIRMATIVE MISADVICE CONSTITUTES INEFFECTIVE ASSISTANCE State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (Utah requires affirmative misadvise regarding deportation consequences to find ineffective assistance of counsel; court did, however, cite ABA rules requiring counsel to advise defendant of immigration consequences). POST CON – GROUNDS – INEFFECTIVE COUNSEL – MIGHT V. WILL -- MIGHT OR MIGHT NOT BE DEPORTED IS AFFIRMATIVE MISADVICE FOR AGGRAVATED FELONY State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (counsel’s statement that defendant "might or might not" be deported as result of sexual battery conviction was affirmative misadvise since conviction was aggravated felony under immigration law, virtually mandating deportation without relief).

Lower Courts of Eleventh Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – FAILURE TO ADVISE CONCERNING FOREIGN IMMIGRATION CONSEQUENCES United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995) (defense counsel's failure to advise defendant before plea of adverse Nigerian immigration consequences of plea did not constitute ineffective assistance of counsel).

289

Other
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – FAILURE TO ADVISE Rob A. Justman, The Effects Of AEDPA And IIRIRA On Ineffective Assistance Of Counsel Claims For Failure To Advise Alien Defendants Of Deportation Consequences Of Pleading Guilty To An "Aggravated Felony," 2004 Utah Law Review 701 (2004). POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – IMMIGRATION CONSEQUENCES Ostroff, Jamie. Comment. Are immigration consequences of a criminal conviction still collateral? How the California Supreme Court's decision in re Resendiz leaves this question unanswered. (In re Resendiz, 19 P.3d 1172, Cal. .2000.) 32 Sw. U. L. Rev. 359382 (2003).

§ 6.19

3. Prejudice

Lower Courts of Second Circuit
POST CON RELIEF - NEW YORK - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES - AFFIRMATIVE MISADVICE - DEFENDANT’S STATEMENT HE WOULD NOT HAVE PLEADED GUILTY IF CORRECTLY ADVISED SUFFICIENT TO REQUIRE A HEARING People v. McKenzie, ___ N.E.3d ___, 2004 N.Y. App. Div. LEXIS 1329 (N.Y. Feb. 9, 2004) (allegation that defendant would not have pleaded guilty if properly advised, sufficient to require hearing on claim of ineffective assistance based on affirmative misadvice concerning immigration consequences).

Ninth Circuit
POST CON – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL Davis v. Woodford, ___ F.3d ___ (9th Cir. September 21, 2004) (although counsel rendered ineffective assistance in failing to impeach prosecution witness with evidence that he had lied to a police officer about a traffic ticket -- counsel tried to impeach with the fact of the misdemeanor conviction that followed the lie [but misdemeanor convictions are not admissible for impeachment in California, only the conduct underlying the conviction is] -- but evidence failed to meet the second Strickland prong since the witness had been impeached with other evidence, and "it was almost impossible to believe" this conduct would have made a difference in the outcome of the case). APPEALS - FEDERAL - STRUCTURAL ERROR United States v. Recio, 371 F.3d 1093 (9th Cir. June 15, 2004) (trial court use of

290

criminal conspiracy rule that was later rejected constituted structural error, requiring reversal without specific showing of prejudice); see Sullivan v. Louisiana, 508 U.S. 275, 282 (1993).

§ 6.20 Sixth Circuit

4. The Collateral Consequences Argument

POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FEDERAL RULE -- FAILURE TO ADVISE OF COLLATERAL IMMIGRATION CONSEQUENCES DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL Federal courts consistently have held that deportation is a collateral consequence. For example, in El- Nobani v. United States, 287 F.3d 417, 419 (6th Cir. 2002), the petitioner claimed that his lack of awareness of the deportation consequences rendered his plea involuntary and unknowing. The United States Court of Appeals for the Sixth Circuit disagreed: "A defendant need only be aware of the direct consequences of the plea . . . . A collateral consequence is one that remains beyond the control and responsibility of the district court in which that conviction was entered. . . . It is clear that deportation is not within the control and responsibility of the district court, and hence, deportation is collateral to a conviction. . . . Thus, the fact that petitioner was unaware of the deportation consequences of his pleas does not make his pleas unknowing or involuntary." (Citations omitted; internal quotation marks omitted.) Id. at 421; see also United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003) ("we have held that deportation is a collateral, not direct, consequence of the criminal process"); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) ("we hold that potential deportation is a collateral consequence of a guilty plea"); United States v. Quin, 836 F.2d 654, 655 (1st Cir. 1988) (deportation generally regarded as collateral consequence); United States v. Campbell, 778 F.2d 764, 767 (11th Cir. 1985) ("deportation is a collateral consequence of a guilty plea"); United States v. Russell, 222 U.S. App. D.C. 313, 686 F.2d 35, 39 (D.C. Cir. 1982) (well settled that rule 11 of Federal Rules of Criminal Procedure does not require informing defendant of possibility of deportation); Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.) (deportation is collateral consequence), cert. denied, 429 U.S. 895, 97 S. Ct. 256, 50 L. Ed. 2d 178 (1976); Michel v. United States, 507 F.2d 461, 466 (2d Cir. 1974) (same).

Other
POST CON RELIEF – GROUNDS – INVOLUNTARY PLEA – COLLATERAL CONSEQUENCES – FAILURE TO ADVISE DEFENDANT OF COLLATERAL CONSEQUENCES – STANDARD OF REVIEW – MILITARY COURT

291

United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) (“In the present case, the requirement that Appellant register as a sexual offender is a consequence of his conviction that is separate and distinct from the court-martial process.”).

§ 6.21 § 6.22

a. California Rejects the Collateral b. Further Arguments and Authority

§ 6.23 5. Affirmative Misadvice May Circumvent the Collateral Consequences Argument § 6.24 Ninth Circuit
POST CON RELIEF – FEDERAL – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO MITIGATE Stankewitz v. Woodford, 365 F.3d 706 (9th Cir.), cert. den., 125 S. Ct. 517, 160 L. Ed. 2d 369 (2004) (evidentiary hearing required on claim of denial of effective assistance of counsel based on counsel’s failure to "investigate and introduce available, vital evidence of [defendant’s] childhood of abuse, poverty and institutionalization; his mental deficiencies amounting to borderline retardation; and his drug and alcohol abuse exacerbating his disturbed emotional state, particularly in the days leading up to the killing.").

6. Failure to Investigate Mitigating Facts

§ 6.25 § 6.26 § 6.27 of Trial Fifth Circuit

a. Basic Approach b. Sample Argument 7. Failure to Investigate the Immigration Consequences

POST CON – FEDERAL – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL– INEFFECTIVE REPRESENTATION DURING PLEA BARGAINING – UNDERSTATEMENT OF EXPOSURE AFTER CONVICTION AT TRIAL United States v. Grammas, 376 F.3d 433 (5th Cir. 2004) (denial of effective assistance of counsel in plea negotiations where counsel gave incompetent advice, which misstated the exposure defendant faced at trial, and defendant proceeded to trial instead of entering a guilty plea; case remanded for determination of actual

292

prejudiced, i.e., whether defendant would have pleaded guilty with competent advice and whether he would have received a reduced sentence had he pled guilty).

§ 6.28

D. Conflict of Interest

Ninth Circuit
POST CON – GROUNDS – INEFFECTIVE ASSISTANCE – CONFLICT OF INTEREST Young v. Runnels, ___ F.3d ___ (9th Cir. Jan. 23, 2006) (habeas denial affirmed over ineffective assistance of counsel claim and a conflict of interest claim). http://caselaw.lp.findlaw.com/data2/circs/9th/0316859p.pdf

§ 6.29 Ninth Circuit

1. Multiple Representation of Conflicting Interests

POST CON RELIEF – GROUNDS – COUNSEL – CONFLICT OF INTEREST – COUNSEL PAID BY CODEFENDANT NOT SUBJECT TO ACTUAL, MERELY THEORETICAL, CONFLICT OF INTEREST United States v. Wells, 394 F.3d 725 (9th Cir. Jan. 11, 2005) (fact that co-defendant paid defendant's attorney's fees did not by itself create an actual conflict of interest: the defendant knew who paid the fee, counsel competently represented him, and there was some question whether the defendant paid some of the fee; payment by third party does create a "theoretical division of loyalties," (quoting Mickens v. Taylor, 535 U.S. 162, 171 (2002).) See also Wood v. Georgia, 450 U.S. 261, 268-269 (1981).)) POST CON RELIEF – GROUNDS – RIGHT TO COUNSEL – CONFLICT OF INTEREST Lewis v. Mayle, ___ F.3d ___, 2004 U.S. APP. LEXIS 24595 (9th Cir. Nov. 29, 2004) (conviction vacated due to conflict of interest in retained counsel’s representation of defendant and recent representation of his nephew, who was a prosecution witness, despite signed express waivers of any conflicts, defendant never consulted with independent counsel concerning the wisdom of the waiver or specifics of the potential conflict, and there was no evidence that defendant was ever advised of his counsel’s continuing obligations to his former client; counsel did not impeach the witness with the available criminal history information stemming from his recent representation of the witness (recent felony conviction for driving under the influence and pending felony probation status at the time of trial)).

§ 6.30 2. Conflict of Interest in Failing to Raise Counsel’s Own Ineffectiveness

293

§ 6.31 Ninth Circuit

3. Conflict Between Defendant and Counsel

POST CON RELIEF – GROUNDS – COUNSEL – CONFLICT OF INTEREST Alberni v. McDaniel, __ F.3d __ (9th Cir. Aug. 9, 2006) (case remanded to determine whether defendant's right to conflict-free counsel was violated by trial counsel's cross-examination of a prosecution witness who had been counsel’s client). http://caselaw.lp.findlaw.com/data2/circs/9th/0515570p.pdf POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – CONFLICT OF INTEREST United States v. Elliot, 463 F.3d 858 (9th Cir. 2006) (defense counsel’s representation of a key witness and defendant concerning the same subject matter created at least an appearance of a conflict of interest) POST CON – FEDERAL – HABEAS – INEFFECTIVE COUNSEL Daniels v. Woodford, 428 F.3d 1181 (9th Cir. Nov. 2, 2005) (ineffective assistance of counsel where conflict of interest arose where defense counsel was acting in his own self interest in seeking job with district attorney’s office). http://caselaw.lp.findlaw.com/data2/circs/9th/0299002p.pdf POST CON RELIEF – FEDERAL – GROUNDS – COUNSEL – ERRONEOUS DENIAL OF PRETRIAL MOTION TO SUBSTITUTE COUNSEL ON GROUNDS OF IRRECONCILABLE CONFLICT Plumlee v. Del Papa, ___ F.3d ___ (9th Cir. October 18, 2005) (reversing denial of plaintiff's petition for a writ of habeas corpus where Sixth Amendment rights were violated when the trial judge denied pre-trial motion to substitute counsel on the basis of an irreconcilable conflict). http://caselaw.lp.findlaw.com/data2/circs/9th/0415101p.pdf POST CON – GROUNDS – CONFLICT OF INTEREST Lewis v. Mayle, ___ F.3d ___ (9th Cir. November 29, 2004) (conviction vacated on federal habeas petition reversed where criminal lawyer had actual conflict of interest that adversely affected representation of his client). http://caselaw.lp.findlaw.com/data2/circs/9th/0316152p.pdf

§ 6.32 III. Invalid Guilty Pleas
GROUNDS – INVALID PLEA – FOR UNPRESERVED RULE 11 ERRORS, DEFENDANT MUST SHOW HE WOULD NOT HAVE PLEADED GUILTY United States v. Benitez, 124 S.Ct. 2333 (June 14, 2004) (to vacate plea on grounds of F.R.Crim.P. 11 errors [as distinguished from "structural errors" or fundamental

294

constitutional errors under Boykin v. Alabama, to vacate the plea], and no objection was raised in trial court, defendant must establish reasonable probability that but for error, he would not have pleaded guilty). http://laws.lp.findlaw.com/us/000/03167.html POST CON – WAIVER OF RIGHTS BY IMMIGRANTS Von Moltke v. Gillies, 332 U.S. 708 (1948) (court must make a thorough inquiry before accepting waiver of right to counsel). United States v. Mendez, 102 F.3d 126 (5th Cir. 1997) (waiver of right to jury trial by silence insufficient where defendant was unable to speak English and did not understand United States criminal system).

Lower Courts of Second Circuit
INVOLUNTARY PLEA CLAIM BASED ON MISINFORMATION CONCERNING IMMIGRATION CONSEQUENCES NOT BARRED Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255 claim regarding the voluntariness of a guilty plea made when the petitioner was not properly informed that deportation was absolute). POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA WHERE DEFENDANT TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY CERTAIN TO DO SO Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting motion to vacate sentence pursuant to 28 U.S.C.§ 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences where defendant was informed only that the conviction "could result in your deportation," where it was certain to do so). POST CON RELIEF – GROUNDS – GENERAL TEST FOR VOLUNTARINESS OF PLEA – CONNECTICUT State v. Aquino, ___ Conn. ___, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) ("It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . . . A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. . . . In

295

choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self- incrimination, his right to trial by jury, and his right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable [*13] in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . . We therefore require the record affirmatively to disclose that the defendant's choice was made intelligently and voluntarily." (Citations omitted; internal quotation marks omitted.))

Ninth Circuit
POST CON RELIEF – FEDERAL – STANDARD OF REVIEW OF SUFFICIENCY OF PLEA COLLOQUY United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) ("We review de novo the sufficiency of a Rule 11 plea colloquy. United States v. King, 257 F.3d 1013, 1021 (9th Cir. 2001). A Rule 11 mistake not preserved by timely objection below is subject to plain error review. United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). We review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005)."). GUILTY PLEAS - FEDERAL - REFUSAL TO ACCEPT In re Vasquez-Ramirez, 443 F.3d 692 (9th Cir. Apr. 6, 2006) (district judge may not reject a guilty plea that satisfies all requirements of FRCP 11(b); but may refuse to abide by plea agreement between defendant and the government; if plea agreement is rejected, judge must allow defendant to withdraw the plea; if defendant maintains the plea the court "‘may dispose of the case less favorably toward the defendant than the plea agreement contemplated.’ Fed. R. Crim. P. 11(c)(5)(C) . . . ."). POST CON RELIEF – FEDERAL – GROUNDS – INVALID PLEA – PREJUDICE STANDARD SAME AS FOR IAC United States v. Monzon, 429 F.3d 1268 (9th Cir. Dec. 7, 2005) (conviction and sentence for possession of a firearm in furtherance of a drug trafficking crime reversed where the court committed plain error when it accepted guilty plea in violation of Federal Rule of Criminal Procedure 11, because court failed to establish a factual basis for believing that the defendant possessed the firearm at least partly for the purpose of protecting the drugs, where the defendant factually denied that intent during the plea colloquy, and the error affected defendant’s substantial rights, defined as a reasonable probability of a different outcome sufficient to undermine confidence in the outcome). http://caselaw.lp.findlaw.com/data2/circs/9th/0330497p.pdf

296

§ 6.33 § 6.34 Jury Trial

A. Ineffective Waiver of Jury Trial 1. The Failure to Explain the Nature of the Right to a

Ninth Circuit
POST CON RELIEF – FEDERAL – GUILTY PLEA – GROUNDS – INVALID United States v. Bailon-Santana, 429 F.3d 1258 (9th Cir. Dec. 6, 2005) (conviction vacated due to invalid jury waiver where the district court’s finding that defendant’s lawyer properly translated a jury trial waiver form was not supported by the record). http://caselaw.lp.findlaw.com/data2/circs/9th/0450079p.pdf

§ 6.35 § 6.36 § 6.37

2. Involuntary Waiver of the Right to a Jury Trial B. Ineffective Waiver of Right to Remain Silent C. Ineffective Waiver of Confrontation

GROUNDS - CONFRONTATION VIOLATION The United States Supreme Court revived the Confrontation Clause, and prohibited "testimonial" use of hearsay in probation revocation hearings. Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354 (2004) (hearsay evidence not permitted at probation revocation hearings); Morrissey v. Brewer, 408 U.S. 471, 489, 33 L.Ed.2d 484, 499, 92 S.Ct. 2593 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 786, 36 L.Ed.2d 656, 664, 93 S.Ct. 1756 (1973) (under the due process clause of the federal Constitution, a defendant at a parole or probation revocation hearing generally has the right "to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) . . . ."). It might be permissible, for example, to suspend confrontation when the witness is from out of state. It was just this possibility that led the Court in Gagnon v. Scarpelli to "[emphasize] that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." (411 U.S. at pp. 782-783, fn. 5) Absent unusual circumstances, however, Crawford wipes out the now commonplace use of testimonial hearsay at revocation hearings. This should mean the police officer is present at the hearing, not just his report; the probation officer who actually searched your client must answer your questions about where he found the drugs, not the PO’s deskbound supervisor. Indeed, any witness who has not previously been cross examined will likely have to testify at revocation hearings. By any measure, and not withstanding any future decisions, these exclusions should have a huge impact on revocation proceedings.

297

Of course, Crawford does not exclude all or even most hearsay documents from either trials or revocation hearings. People v. Maki (1985) 39 Cal.3d 707, and many of Maki’s progeny, will probably survive Crawford. In Maki, the court affirmed the admission of copies of a hotel receipt bearing the defendant's name and a car rental invoice bearing his signature at a revocation hearing to establish that he had traveled out of state. Documents such as these, which are not made in anticipation of being used in court, are not testimonial. But it’s less common for the hearing to rest entirely on such documents. This may also mean immigration courts must receive live testimony, and cannot rely on "testimonial" hearsay such as police reports or reports of immigration officers’ observations to sustain conduct-based grounds of deportation or inadmissibility.

Ninth Circuit
POST CON RELIEF – GROUNDS – CONFRONTATION -- CRAWFORD -- RETROACTIVITY Bockting v. Bayer, __ F.3d __, 2005 WL 406284 (9th Cir. Feb. 22, 2005) (Crawford v. Washington, 541 U.S. 36 (2004) retroactively applies to cases on federal habeas review from state conviction; although a new rule, it is both a "watershed rule" and one "without which the likelihood of an accurate conviction is seriously diminished." [Schriro v. Summerlin, 124 S.Ct. 2519 (2004)]).

§ 6.38

D. Failure to Establish Factual Basis

Ninth Circuit
POST CONVICTION RELIEF – GROUNDS – PLEA COLLOQUY United States v. Covian-Sandoval, __ F.3d __ (9th Cir. Aug. 31, 2006) (rejecting claim that plea colloquy was inadequate under FRCP 11 where any such error did not warrant relief under the plain error standard of review). http://caselaw.lp.findlaw.com/data2/circs/9th/0550543p.pdf GROUNDS – INSUFFICIENCY OF EVIDENCE Chien v. Shumsky, __ F.3d __, 2004 WL 1418015 (9th Cir. June 25, 2004) (habeas granted where evidence supporting perjury conviction for giving misleading information regarding medical credentials found constitutionally insufficient). http://caselaw.lp.findlaw.com/data2/circs/9th/0156320p.pdf HABEAS CORPUS – FEDERAL – UNREASONABLE STATE COURT CONCLUSION Taylor v. Maddox, 366 F.3d 992 (9th Cir. May 10, 2004) (state court conclusion that confession obtained from 16-year old defendant was voluntary was objectively unreasonable, as it ignored testimony of defendant's counsel that defendant had called him shortly after confessing; "[F]ailure to take into account and reconcile key

298

parts of the record casts doubt on the process by which the finding was reached, and hence on the correctness of the finding."). PLEA – ALFORD PLEA POST CON RELIEF – GROUNDS – FACTUAL BASIS – INSUFFICIENT FACTUAL BASIS EVEN MORE IMPORTANT FOR ALFORD PLEA When a defendant denies guilt, the court must make a more searching inquiry and the record must reveal a strong factual basis for a finding of guilty. If the defendant’s admissions during the plea colloquy, coupled with the prosecution’s offer of proof, do not cover all of the essential elements of the offense, the plea is arguably invalid on this ground. United States v. Avery, 15 F.3d 816 (9th Cir. 1993), citing North Carolina v. Alford, 400 U.S. 25 (1970); see Banks v. McGougan, 717 F.2d 186, 188 (5th Cir. 1983), citing Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979); Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1983).

Lower Courts of Ninth Circuit
POST CON RELIEF – WASHINGTON – GROUNDS – INSUFFICIENT EVIDENCE TO SUPPORT PLEA State v. Colquitt, ___ Wash. App. ___, 2006 Wash. App. LEXIS 1383 (Jun. 29, 2006) ("The agreement Colquitt entered into to participate in drug court was neither a stipulation that the substance in the underlying charge was a controlled substance, nor a stipulation to the sufficiency of the evidence. And, although he agreed that the police report that included a field test of the substance could be admitted, there were no laboratory test results. We hold that the police report and field test were not sufficient evidence of a controlled substance. We reverse and remand to vacate the conviction.").

§ 6.39

E. Failure to Inform Defendant of the Nature of the Offense

POST CON RELIEF – GROUNDS – INDICTMENT – DEFECTIVE FOR OMISSION TO STATE AN ELEMENT United States v. Resendiz-Ponce, ___ U.S. ___ (Jan. 9, 2007) (Ninth Circuit's decision reversing respondent's conviction for illegally attempting to reenter the United States is reversed where the indictment at issue was not defective for failure to omit an element, and consequently, the Supreme Court did not need to answer the question of whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error). http://laws.lp.findlaw.com/us/000/05998.html

Seventh Circuit
POST CON RELIEF – FEDERAL – GROUNDS – NATURE OF OFFENCE – COURT'S FAILURE TO INFORM ILLEGAL RE-ENTRY DEFENDANT OF SIGNIFICANCE OF AGGRAVATED

299

FELONY DOES NOT JUSTIFY WITHDRAWAL OF THE PLEA, BECAUSE IT IS NOT AN ELEMENT OF ILLEGAL RE-ENTRY AFTER DEPORTATION OFFENCE United States v. Villarreal-Tamayo, ___ F.3d ___, 2006 WL 3055948 (7th Cir. Oct. 30, 2006 ) (court's failure to inform illegal reentry defendant of significance of aggravated felony does not justify withdrawal of the plea, because (1) it is not an element of illegal reentry after deportation offense; (2) it does not define a separate crime, but rather is a penalty provision authorizing an enhanced penalty for violations of 8 U.S.C. § 1326(a)); and (3) the Constitution does not require an enhancement based on recidivism to be treated as an element of the underlying offense), following Almendarez-Torres, 523 U.S. at 244-47; see also United States v. Stevens, 453 F.3d 963, 967 (7th Cir.2006) (“ ‘[T]he district court does not violate a defendant's Sixth Amendment right to a jury trial by making findings as to his criminal record that expose him to greater criminal penalties.’”); United States v. Williams, 410 F.3d 397, 401-02 (7th Cir.2005); United States v. Lechuga-Ponce, 407 F.3d 895, 896-97 (7th Cir.2005) (relying on Almendarez-Torres to state “the fact of a prior conviction need not be proven beyond a reasonable doubt”). POST CON RELIEF – GROUNDS – NATURE OF OFFENSE – COURT'S FAILURE TO EXPLAIN ELEMENTS OF OFFENSE United States v. Jones, 381 F.3d 615, 618-19 (7th Cir. 2004) (affirming district court's denial of motion to withdraw guilty plea premised on a claim that defendant did not understand guilty plea).

Ninth Circuit
APPEALS – FEDERAL – CHALLENGE TO SUFFICIENCY OF INDICTMENT United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal challenging whether indictment alleges sufficient facts to state offense because challenge must await final judgment after trial; appeal does not fit within "collateral order" exception to rule that only final judgments may be appealed; appeal could not be treated as mandamus because trial court did not clearly err).

Lower Courts of Ninth Circuit
POST-CON – MOTION TO WITHDRAW PLEA – GROUNDS – FAILURE TO UNDERSTAND CHARGES OR IMMIGRATION CONSEQUENCES OF PLEA United States v. Zeng, __ F.Supp.2d __, 2007 WL 902380 (N.D.Cal. Mar, 22 2007) (granting motion to withdraw guilty plea where Rule 11 violation occurred because defendant was prevented, through cultural mores, from interrupting his attorney during the guilty plea phase, and defendant did not understand the nature of the charges against him, or the immigration consequences thereof, until he was later able

300

to read a Chinese translation of the plea agreement).

§ 6.40

F. Failure to Inform Defendant of Consequences of Plea

POST CON RELIEF – PLEA – NO CONTEST – MOTION TO WITHDRAW – USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA § 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct consequences, it cannot stand if "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business . . . . " Brady v. United States, 397 U.S. at 755 (1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsel’s failure to advise the defendant that he or she will be deported is not "ineffective assistance of counsel," and the trial court’s failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir.

301

2000). Yet, as the quoted passage in Brady suggests, and as the federal courts have consistently held over the last three decades, this distinction between "direct" and "collateral" consequences loses all significance when the defendant’s plea results from affirmative misadvice about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995); United States v. NagaroGarbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the "collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other cases demonstrate, a plea that results from actual misinformation provided to the defendant about its effects is not knowing and voluntary, and cannot be given force. Applying these principles, the federal courts have consistently voided guilty pleas entered – as this one was – on the basis of affirmative misadvice regarding considerations of consequence to the defendant. For example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea induced by material misinformation from the prosecution, court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both the government’s attorney and the district judge confirmed that defendant’s understanding. Id. at 1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397. After the receipt of the presentence report, the defendant moved to withdraw his guilty plea; however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98. The Ninth Circuit determined that the defendant had been misinformed by the court, government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do not believe Toothman was ‘equipped intelligently to accept the plea offer made to him.’" Id. at 1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found that the plea was involuntary. Id. at 1401. Thanks to Don Chairez for the suggestion for this argument.

302

Seventh Circuit
POST CON RELIEF – GROUNDS – COURT OR PROSECUTION AFFIRMATIVE MISADVICE CONCERNING COLLATERAL CONSEQUENCE OF PLEA CAN CONSTITUTE GROUNDS TO VACATE CONVICTION The Seventh Circuit has held that misinformation by the sentencing court regarding the mandatory parole provision in the plea bargain violated due process. See Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding defendant’s due process rights were violated when in the course of making a plea agreement the court misinformed him that he would not have to serve mandatory five-year parole term).

Lower Courts of Ninth Circuit
POST CON RELIEF – GROUNDS – INVALID PLEA In re Fonseca, 2006 Wash. App. LEXIS 643 (Wash. Ct. App. Apr. 11, 2006) (court vacated plea, because defendant did not enter a knowing, voluntary and intelligent plea because he was not apprised of a direct consequence of the plea that he was ineligible for a sentence under the Drug Offender Sentencing Alternative (DOSA) under RCW 9.94A.660, so it remanded the case for the purpose of allowing Mr. Fonseca the opportunity to elect between plea withdrawal and specific performance).

DC Circuit
POST CON - FEDERAL - PLEA - GROUNDS - INVOLUNTARY United States v. Singh, __ F.Supp.3d __ (D.C. Feb. 24, 2004) (government is not required to inform defendants of collateral immigration consequences of plea, but if prosecutor does have such conversation, the obligation arises not to mislead; plea not voluntary where defendant was confused by government about immigration consequences of taking plea). POST-CONVICTION RELIEF - INVOLUNTARY PLEA - IMMIGRATION CONSEQUENCES MISINFORMED BY COURT AND PROSECUTOR United States v. Singh, __ F.Supp.3d __ (D.C. Feb. 24, 2003) (Plea involuntary where prosecutor and judge informed defendant that deportation was a ‘possibility’, although in fact, deportation was nearly certain as the plea was to an aggravated felony; motion to vacate granted).

Other
POST CON RELIEF – GROUNDS – IMMIGRATION CONSEQUENCES -- JUDICIAL MISADVICE THAT THERE WAS A CHANCE THE DEFENDANT COULD BE DEPORTED, WHEN IT WAS IN FACT A CERTAINTY, CONSTITUTED A VIOLATION OF RULE

303

11 Most cases hold that a court’s misadvice regarding the mandatory minimum and statutory maximum sentences is not detrimental to the defendant and therefore, does not constitute a violation of Rule 11. But see, United States v. Singh, 305 F.Supp.2d 109 (U.S.D.C. 2004) (Rule 11 violated where both presiding judge and the prosecutor misinformed a noncitizen defendant facing an aggravated felony conviction that there was a "chance" that the defendant could face deportation from the United States, "when in fact it was an absolute certainty."). See also, U.S. v. Lewis, (5th Cir. 1989) (in addressing the appropriate remedy for Rule 11 violation, the court agreed with the lower court that there was a Rule 11 violation due to misinformation regarding the maximum special parole term); Spradley v. U.S., 421 F.2d 1043 (5th Cir. 1970) (sentencing court’s discussion of defendant’s eligibility for parole where he was not eligible for parole violated Rule 11). POST CON RELIEF - EFFECTIVE ORDER - GROUNDS -- COLLATERAL CONSEQUENCES EFFECT ON LICENSE "Conviction of a crime is a ground for denying a professional license to any professional regulated by the Business and Professions Code. Bus. & P C §§ 475, 480(a)(1)." Peck, Effect of a Criminal Conviction on Professional Licenses, Chap. 47, in California Continuing Education of the Bar, California Criminal Law – Procedure and Practice § 47.2, p. 1337 (6th ed. 2002). Conviction of a crime is a ground for suspending or revoking a license of anyone licensed by the various acts covered in the Business and Professions Code. Ibid. This specifically applies to real estate sales people. Bus. & Prof. Code § 10177(b). POST-CONVICTION RELIEF - OREGON If the court advised the noncitizen defendant only that s/he "may" be deported as a result of the plea, when the truth is that deportation is mandatory, the Oregon courts will vacate the conviction. Case?

§ 6.41

G. Breach of Plea Bargain

POST CON RELIEF – GROUNDS – BREACH OF PLEA BARGAIN – KEY CASES Santabello v. New York, 404 U.S. 257 (1971) (any promise by the prosecutor which is part of the inducement or consideration for a plea must be fulfilled). United States v. Kramer, 781 F.2d 1380 (9th Cir. 198) (whether something is a "promise" for plea agreement breach purposes is to be viewed by an objective standard). United States v. Revis, 969 F.2d 985 (11th Cir. 1992) (central question in determining whether plea agreement has been breached is how the terms of the agreement were "reasonably understood by the defendant."). United States v. Giorgi, 840 F.2d 1022 (1st Cir. 1988) (government bears burden of clarifying any ambiguity in a plea agreement); United States v. McQueen, 108 F.3d 64 (4th Cir. 1997) (same). United States v. Swineheart, 614 F.2d 853 (3d Cir. 1980) (Government’s plea agreement promises still

304

enforceable even when the promises are couched in terms of the Government’s "sole discretion").

Ninth Circuit
POST CON RELIEF – GROUNDS – PLEA BARGAIN – BREACH IN LATER TRIAL Davis v. Woodford, __ F.3d __ (9th Cir. Apr. 27, 2006) (in 1986 the state expressly agreed to treat the robbery conviction (which was based on 8 robberies) as only one "strike" for purposes of later recidivist sentencing, so counting that conviction as eight "strikes" violated the terms of defendant’s plea agreement; California Supreme Court’s denial of Petitioner’s state habeas petition was based on an unreasonable determination of the facts in the light of the evidence presented in state court, 28 U.S.C. § 2254(d)(2), and involved an unreasonable application of clearly established Supreme Court precedent, Santobello v. New York, 404 U.S. 257 (1971), within the meaning of 28 U.S.C. § 2254(d)(1)). Use Note: interesting procedural move on the defendant’s part. He raised the issue in one habeas petition, apparently filed directly with the California Supreme Court, which, not surprisingly, denied it without comment. So there was no "reasoned state-court decision addressing" his claims, and the Ninth Circuit undertakes independent review of the record. This case emphasizes the absolute importance of obtaining the complete record of a prior conviction, including the transcript of the guilty plea. You never know! POST CON RELIEF – GROUNDS – BREACH OF PLEA AGREEMENT Davis v. Woodford, __ F.3d __ (9th Cir. Apr. 27, 2006) (petition for a writ of habeas corpus from a sentence for being a felon in possession of a firearm and evading a peace officer is granted pursuant to a claim that the use of one of defendant’s convictions as eight separate "strikes" for purposes of California’s Three Strikes Law breached a plea agreement). http://caselaw.lp.findlaw.com/data2/circs/9th/0555164p.pdf GUILTY PLEAS - RESCISSION OF PLEA AGREEMENT BY GOVERNMENT United States v. Transfiguracion, 442 F.3d 1222 (9th Cir. Apr. 5, 2006) (government could not back out of plea agreement in drug case where the defendant has complied with the agreement by cooperating, even though the charges were ultimately dismissed; under rule that ambiguities in contracts "are to be construed unfavorably to the drafter," Black’s Law Dictionary 328 (7th ed. 1999)), the government was stuck with the results of its sloppy plea drafting). POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO ADVISE – WAIVERS OF POST-CONVICTION RELIEF Washington v. Lampert, 422 F.3d 864 (9th Cir. Sept. 6, 2005) (ineffective assistance where trial counsel failed to explain consequences of the stipulated sentencing

305

agreement, and the effect of waivers of post-conviction relief) http://caselaw.lp.findlaw.com/data2/circs/9th/0435381p.pdf

Lower Courts of Ninth Circuit
POST-CON – JUDICIAL RECOMMENDATION AGAINST DEPORTATION People v. Paredes, 72 Cal.Rptr.3d 867 (Cal.App. 4 Dist. Feb. 26, 2008) (agreement of state to JRAD does not constitute an express or implied promise that the conviction will not render the noncitizen deportable; the fact that the federal immigration laws changed retroactively to make 1987 manslaughter conviction deportable as an aggravated felony not sufficient to show that the original 1987 plea agreement had been violated). CAL POST CON – GROUNDS – BREACH OF PLEA AGREEMENT People v. Toscano, ___ Cal.App.4th ___ (2d App. Dist. Nov. 22, 2004) (guilty plea to spousal abuse reversed where trial court breached plea agreement by not permitting defendant to move to strike a prior conviction). http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2004/b172387.html

§ 6.42 § 6.43 § 6.44 § 6.45

H. Promissory Estoppel I. Failure to Disclose Plea Agreement on the Record J. Coercion to Enter Plea K. Failure to Establish Mental Competence to Enter Plea

Ninth Circuit
POST CON RELIEF – GROUNDS – MENTAL INCOMPETENCE Allen v. Calderon, ___ F.3d ___ (9th Cir. May 3, 2005) (district court erred in dismissing habeas petition without appointing a guardian ad litem and counsel to assist the court in evaluating petitioner's mental competence). http://caselaw.lp.findlaw.com/data2/circs/9th/0216917p.pdf POST CON – GROUNDS – COMPETENCY TO STAND TRIAL – STANDARD OF REVIEW OF COURT'S DECISION Davis v. Woodford, ___ F.3d ___ (9th Cir. September 21, 2004) (fact that some of defendant's actions were eccentric not substantial evidence of incompetency; standard is whether reasonable judge would have experienced doubt with respect to defendant's competency to stand trial); De Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976) (en banc).

306

Tenth Circuit
POST CONVICTION RELIEF – GROUNDS – MENTAL COMPETENCE – INVOLUNTARY MEDICATION United States v. Valenzuela-Puentes, ___ F.3d ___ (10th Cir. March 15, 2007) (court order allowing involuntary medication of illegal reentry defendant so as to render him competent to stand trial is reversed where record did not contain evidence from which a conclusion of a substantial likelihood of restoring competency was unavoidable, the district court provided no explanation as to whether or why it had become clearly convinced that defendant could be rendered competent through medication despite his exceptionally low IQ, and it was unclear whether the district court applied the appropriate burden of proof). http://laws.lp.findlaw.com/10th/042283.html

Other
POST CON RELIEF – FEDERAL – GROUNDS – MENTAL COMPETENCY Willstatter, The Federal Criminal Competency System, 30 THE CHAMPION 16 (Jun., 2006).

§ 6.46 L. Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate
POST CON RELIEF – GROUNDS – VIENNA CONVENTION Medellin v. Texas, ___ U.S. ___, 128 S.Ct. 1346 (Mar. 25, 2008) (neither an International Court of Justice case, Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12, nor a memorandum issued by the President of the United States constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions, affirming dismissal of a habeas petition in a death penalty case raising a claim that petitioner was not informed of his Vienna Convention right to notify the Mexican consulate of his detention). POST CON RELIEF – GROUNDS – VIENNA CONVENTION Sanchez-LLamas v. Oregon, 548 U.S. __ (Jun. 28, 2006) (even assuming that the Vienna Convention on Consular Relations creates judicially enforceable rights, suppression is not an appropriate remedy for a violation of Article 36 of the Convention, requiring consulate notification of a noncitizen is placed in criminal proceedings, and a state may apply its regular rules of procedural default to Article 36 claims). http://laws.findlaw.com/us/000/4-10566.html POST CON RELIEF – GROUNDS – VIENNA CONVENTION Medellin v. Dretke, ___ U.S. ___(May 23, 2005) (certiorari to review defendant's

307

habeas corpus petition, alleging violation of Vienna Convention rights, improvidently granted where Texas state courts may provide defendant with the relief he seeks). http://laws.findlaw.com/us/000/04-5928.html POST CON RELIEF – VIENNA CONVENTION Medellin v. Dretke, 544 U.S. 660, 125 S.Ct. 2088 (2005) (per curiam) (United States courts must comply with ruling by International Court of Justice that they must reconsider claims for relief under the Vienna Convention on Consular Relations) POST CON – GROUNDS – VIENNA CONVENTION Mali v. Keeper of Common Jail (Wildenhus’s Case), 120 U.S. 1, 17 (1887) (consult has standing under treaty to bring habeas corpus petition on behalf of foreign national); see also Consulate Gen. Of Mexico v. Phillips, 17 F. Supp. 2d 1318, 1322-23 (S.D. Fla. 1998); People v. Corona, (1989) 211 Cal.App.3d 529, 538; 259 Cal. Rptr. 524. LaGrand (Germany v. USA), 2001 I.C.J. 466 (June 27) (Vienna Convention creates individual rights, not only right of consulate) Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar. 31) (Vienna Convention creates individual rights, not only right of consulate) United States v. Rangel-Gonzales, 617 F.2d 529, 532 (9th Cir. 1980) ("The right established by the [INS] regulation and in this case by the treaty is a personal one . . . . personal rights cannot be abrogated simply because others do not exercise them."). United States v. Chaparro-Alcantara, 37 F. Supp. 2d 1122, 1125 (C.D. Ill. 1999) ("[Defendants] have an individual right to consular notification under Article 36 which in turn grants them standing to object to a violation of that provision."). United States v. Miranda, 65 F. Supp. 2d 1002, 1005 (D. Minn. 1999) (two day period in which authorities failed to notify noncitizen of rights under Convention was in violation of Convention requirement that notification be given "without delay"). United States v. Wendy G., 255 F.3d 761, 766 (9th Cir. 2001) (noncitizen juvenile defendants have right to contact parents or consulate if parents are not available, and the parents or consulate must also be informed of the right to communicate with the juvenile before questioning by the police). POST CON RELIEF – GROUNDS – MISADVICE TO DEFENDANT CONCERNING MATERIAL LEGAL ISSUE AS GROUND TO WITHDRAW THE PLEA Any unconditional guilty plea in federal court must be "knowing and voluntary." McCarthy v. United States, 394 U.S. 459, 464-67 (1969). The basis of a motion to set aside a guilty plea is a showing that the "accused does not understand the nature of the constitutional protections that he is waiving." Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976). The cases that follow support an argument that incorrect judicial advice concerning a fact (such as the effectiveness of a JRAD) that is material to the decision to enter a plea renders the plea involuntary. Mistake in the estimate of appellant’s sentence. United States v. Erskine, 355 F.3d 1161 (9th Cir. Jan. 21, 2004). The Defendant chose to represent himself in court in prosecution for making threats

308

to FBI agents. In course of Feretta v. California, 422 U.S. 806 (1975) hearing to establish that the defendant understood the dangers of self-representation, the court correctly informed the defendant of the specific dangers of self representation, but failed to correctly inform the defendant of the maximum penalty he would face if convicted. The court therefore found that his sixth amendment right to counsel had been violated for failure of the court to ensure that the defendant understood the possible penalties. United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998). Defendant was an INS agent who solicited sexual favors from eight women in exchange for assistance with their immigration documents. Appellant was initially indicted on 11 counts including felony sexual abuse, felony deprivation of rights under color of law and bribery. Appellant agreed to plead guilty in exchange for the government’s filing of a superceding 8-count information. The superceding information changed count one from a felony to a misdemeanor and deleted all references to sexual acts and bodily injuries. The remaining seven counts charged the seeking of sexual favors by a public official. During the plea hearing appellant was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months. The discussion that took place during the plea hearing shows that both the government’s attorney and the district judge confirmed appellant’s understanding. The subsequent pre-sentence report recommended 199 months. After the receipt of the pre-sentence report, appellant moved to withdraw his guilty plea to count one in order to eliminate criminal sexual abuse as the underlying offense. The court denied his motion following a hearing and sentenced him to 109 months. The court of appeal determined that appellant had been misinformed by the court, government counsel and his own counsel that the basic guideline range for all counts would be 10 to 16 months. Because of the misinformation, the appeals court determined that appellant was not " ‘equipped intelligently to accept the plea offer made to him,’ " and found that the plea was involuntary. Mistaken belief that an appeal issue was preserved: United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997). Appellant pled guilty to three immigration offenses (not specified). He filed a motion to dismiss, alleging violations of the Speedy Trial Act. The motion was denied, he entered a guilty plea and was sentenced. During the plea hearing, the record unequivocally indicated that appellant intended to plead guilty on the condition that – and only after having been assured by the court that – he had preserved the speedy trial issues for appeal. He appealed the denial of the speedy trial issues and the government countered by arguing that the guilty plea waived appellant’s right to raise the speedy trial issues on appeal. These facts raise two related issues: 1. When a defendant enters a guilty plea based on his reasonable belief that he has preserved his right to appeal a non-jurisdictional issue, is the plea a conditional one within the meaning of Fed.R.Crim.P. 11?

309

2. If the plea is not conditional, was it still knowingly and voluntarily entered? For a conditional plea, Rule 11 requires, inter alia, the approval of the court, the consent of the government and a writing. The definition of "consent" varies among the circuits. In the 9th Circuit, Rule 11 consent is interpreted to require "unequivocal government acquiescence." See United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986), infra. The appeals court held that, as in this case, silence or inaction by the government does not constitute consent, and found that the plea was unconditional under Rule 11. The appeals court then held that because appellant entered – and the district court accepted – this guilty plea only on the reasonable (but mistaken) belief that appellant had preserved the speedy trial issues for appeal, his plea was, as a matter of law, not knowing and voluntary. The court found that the defendant had been misinformed by the court, government counsel, and his own counsel of the basic guideline range. Judge’s Failure to Explain Nature of the Charges. United States v. Pena, 314 F.3d 1152 (9th Cir. Jan. 9, 2003). The Ninth Circuit held that plain error occurred where the defendant was never informed by the prosecutor or the court of the nature of the offense, in violation of Rule 11. The district court had merely asked whether the defendant had read the plea agreement, and asked the defendant’s counsel whether he understood and agreed with the elements of the offense. The Ninth Circuit found that, except for application of the ‘plain error’ rather than ‘harmless error’ standard, all prior Ninth Circuit case law regarding Rule 11 violations still apply. United States v. Bruce, 976 F.2d 552 (9th Cir. Oct. 1, 1992). Rule 11 requires that "[b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands … the nature of the charge to which the plea is offered…" Fed. R. Crim.P. § 11(c)(1). This procedure is not constitutionally mandated. The determination depends upon the ‘the particular facts of each situation, looking to both the complexity of the charge and the personal characteristics of the defendant,’ bases solely on the basis of the record of the plea proceeding. United States v. Kramer, 781 F.2d 1380 (9th Cir.), cert. denied, 479 U.S. 819 (1986). The judge informed the defendant that he was charged, under a superceding indictment, of "conspiracy to manufacture methamphetamine," when the defendant was actually charged with aiding and abetting a conspiracy to possess a controlled substance with intent to distribute. The Ninth Circuit held both that the district court erred in misstating the charge, and in failing to meet the Rule 11(c)(1) requirement that he be informed of the ‘nature’ of the charge: A trial judge fails to satisfy his obligation under Rule 11 when, as here, he does not fully inform the defendant of the meaning and application of legal argot and other legal concepts that are esoteric to an accused, including the meaning and application of the term

310

conspiracy. United States v. Bruce, 976 F.2d, at 560 (internal citations and quotation marks omitted). Mistaken belief whether a motion could be filed after an unconditional plea. United States v. Cortez, 973 F.2d 764 (9th Cir. 1992). Appellant was charged with distributing and possessing crack within 100 ft of a video arcade. Shortly before his trial, appellant moved for a continuance so that he could prepare a motion to dismiss for selective prosecution. The United States opposed the motion stating that it could properly be heard post-conviction and that it was not therefore necessary to grant a continuance. The court denied appellant’s motion assuring him that he had "the right to make a selective prosecution motion after trial if he was convicted." After the jury was impaneled, appellant pled guilty to both counts. On the day of sentencing, appellant filed the selective prosecution motion. He also filed a motion requesting that "if the court believes that the guilty pleas act as a waiver of the selective prosecution motion, the defendant would then move to withdraw his guilty pleas and enter conditional guilty pleas." The court denied the selective prosecution motion and made no ruling on the motion to withdraw the guilty plea. Appellant was sentenced. The court of appeal found that appellant’s plea was not conditional because the Court and the United States did not acquiesce. (Fed.R.Crim.P. 11) The court furthermore determined that appellant’s unconditional plea was a waiver of his right to appeal on the basis of selective prosecution, When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of Constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea. Tollett v. Henderson, 411 U.S. 258 (1973). However, the court of appeals determined that appellant’s unconditional plea was not knowingly and voluntarily entered into because he believed that his unconditional guilty plea allowed him to appeal his selective prosecution claim. The court wrote, "the discussions at the hearing prior to trial indicate that all parties believed the selective prosecution claim could be made post-conviction." The court clearly distinguished this case from one in which the defendant’s attorney incorrectly predicts the outcome of some aspect of defendant’s case. Here, all parties present including, the district judge, the U.S. Attorney and appellant’s counsel shared the same erroneous belief. Appellant’s plea was set aside. Attorney misrepresented to defendant that a sentence agreement had been made with the judge. Chizen v. Hunter, 809 F.2d 560 (9th Cir. 1986). Appellant was charged with child molesting and pled nolo contendre in exchange for the dismissal of the charge of contributing to the delinquency of a minor. As part of his plea, he signed a Boykin waiver form by which he initialed that his decision to plead had been made freely and voluntarily and that he understood that "regardless of motions or recommendations made by others . . . the sentence will be decided solely by the judge." Before sentencing, appellant moved

311

to withdraw his plea on the grounds that the plea had been induced by his attorney’s assurance that a plea bargain had been struck and that the maximum sentence would be 90 days. His motion to withdraw the plea was summarily denied and he was sentenced to 180 days. The issue on appeal was whether the plea was involuntary because it was based on the misrepresentation of his attorney that the trial judge had committed himself to a particular sentence, notwithstanding that appellant has signed a waiver form. The court distinguished this case from one where appellant’s counsel erroneously predicts favorable consequences. Here, appellant’s plea was involuntary because it was induced by his counsel’s misrepresentations as to what his sentence in fact would be. (Note here that unlike almost every case so far, there is no other party contributing to this mistaken belief. It is defendant’s counsel alone.) United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986). Appellant was indicted for conspiracy to transport and harbor illegal aliens, and for harboring illegal aliens. Before trial, appellant filed a motion to suppress evidence and the district court denied the motion. The government offered appellant a conditional plea agreement where appellant would enter a conditional plea of guilty to count one in return for the government’s dismissal of count two. Appellant would thereby be able to preserve his right to appeal the suppression motion. Appellant and the co-defendant accepted the plea, but the government withdrew the offer before the pleas were entered. The appellant then pled guilty to count one and prepared for trial on count two. Count two was then, sua sponte dismissed by the court. Appellant argues that the government gave sufficient consent to the conditional plea based on the discussion on the record and in writing. The court of appeals found the pre-plea discussions on the record to be vague and "[do] not establish that the government manifested assent to a conditional plea. The government attorney reasonably could have believed, based on the exchange, that appellant was entering an unconditional plea." The appeals court also found the writing to be deficient because it did not specify which pretrial issues would be reserved for appeal. Therefore, the court of appeals found that there was insufficient assent manifested by the government for a conditional plea, and that the plea was therefore unconditional. Based on the same pre-plea conversations between counsel and the court, the appeals court found that appellant did not understand that her plea was unconditional, and it was therefore not knowing and voluntary. Appellant’s sentence was vacated. Temporal scope of an appeal waiver. United States v. Johnson, 67 F.3d 200 (9th Cir. 1995). Appellant was charged with possession of heroin with intent to distribute, and with the importation of heroin. In a written plea agreement, defendant pled guilty to count one. The agreement, acknowledging that count one carried a mandatory minimum sentence of 10 years, stated that appellant waived "the right to appeal any sentence imposed by the district judge." The district court, sua sponte, raised the question of whether appellant could qualify for sentencing under the newly enacted Violent Crime Control and Law Enforcement Act of 1994. The "crime bill" added a section that allowed the

312

court to sentence certain drug offenders without regard to the statutory minimum sentences. The court ultimately concluded that the new section did not apply to appellant because of his criminal history. He was sentenced to the statutory minimum of 10 years. Appellant appealed the sentence claiming that the district court was incorrect in its belief that the new ‘crime bill’ section did not apply to appellant. The government moved to dismiss the appeal on the ground that Johnson waived his right to appeal his sentence. Appellant argues that, although he knowingly and intelligently waived all appealable issues from the sentence based upon the status of the law at the time of his plea and waiver, such voluntary relinquishment of known rights was not intended to encompass, and could not logically extend to, appeal of a sentencing error premised upon a law not yet enacted at the time of the waiver. In this case of first impression, the court of appeal held that appellant’s appeal waiver encompasses appeals arising out of the new law applicable to his sentencing. The appeal’s court found that because the waiver refers to "any sentence imposed by the district judge," and not "any sentence imposed under the laws currently in effect" it is reasonable to find that the waiver includes any new laws enacted after the agreement. The appeals court also concluded that the waiver was knowing and voluntary as to the laws enacted after the waiver was executed. The court wrote that "the fact that [appellant] did not foresee the specific issue that he now seeks to appeal does not place that issue outside the scope of his waiver." (See United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990).

Ninth Circuit
POST CON RELIEF – GROUNDS – VIENNA CONVENTION – VIOLATION OF FEDERAL STATUTE OR TREATY IN STATE COURT PROCEEDINGS A violation of a federal statute or treaty during the state court proceedings may also provide a basis for federal habeas corpus relief. Benitez v. Garcia, 449 F.3d 971 (9th Cir. 2006) (extradition treaty violation). Like violations of the federal Constitution, violations of statutes and treaties should also be preserved in state court. See, e.g., Breard v. Greene, 523 U.S. 371 (1998) (alleged violation of Vienna Convention was procedurally defaulted by failure to raise claim in state court).

Lower Courts of Ninth Circuit
POST CON RELIEF – GROUNDS – VIENNA CONVENTION People v. Mendoza, 42 Cal.4th 686, 171 P.3d 2 (Cal. Nov. 29, 2007) (claim under Vienna Convention on Consular Rights must be brought in habeas corpus petition, nor direct appeal; court rejects claim under the Vienna Convention on Consular Rights on the merits and for lack of claim or proof of prejudice).

313

Tenth Circuit
POST CON RELIEF – GROUNDS – VIENNA CONVENTION De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting argument that the INS's failure to apprise him that he was entitled to communicate with Mexican consular or diplomatic officers under the Vienna Convention and immigration regulations violates Article 36(1)(b) of the Vienna Convention on Consular Relations and 8 C.F.R. § 236.1(e), on grounds the argument was waived because he failed to assert the issue before the IJ, and, in any event, Torres could not show that the violation resulted in any prejudice).

Other
POST CON RELIEF – GROUNDS – VIENNA CONVENTION VIOLATIONS Brook, Joshua A. Note. Federalism and foreign affairs: how to remedy violations of the Vienna Convention and obey the U.S. Constitution, too. 37 U. Mich. J.L. Reform 573598 (2004). POST CON RELIEF – GROUNDS – VIENNA CONVENTION VIOLATIONS Carter, Linda E. Compliance with ICJ provisional measures and the meaning of review and reconsideration under the Vienna Convention on Consular Relations: Avena and Other Mexican Nationals (Mex. v. U.S.). 25 Mich. J. Int’l L. 117-134 (2003). GROUNDS – VIENNA CONVENTION Article 36 of the Vienna Convention on Consular Relations (21 U.S.T. 77, TIAS 6820), can be used to attempt to suppress a confession, or vacate a guilty plea, in a criminal or immigration case, in light of the LaGrand and Avena decisions. LaGrand Case (Germany v. U.S.), 2001 I.C.J. 104 (June 27) available at http://www.icjcij.org/icjwww/idocket/igus/igusframe.htm; Avena and Other Mexican Nationals (Mexico v. United States of America), 2003 I.C.J. 128, http:www.icjcji.org/icjwww/ipresscom/ipress2003/ipress2003-45--mus-20031223.htm (as visited February 5, 2004). Madej v. Schomig, 223 F.Supp.2d 968 (N.D. Ill. 2002), recognizes the impact of LaGrand: "After LaGrand, however, no court can credibly hold that the Vienna Convention does not create individually enforceable rights. The International Court of Justice was quite clear on that point, announcing that 'Article 36, paragraph 1, creates individual rights.' LaGrand Case, 2001 I.C.J. 104, at P 77." The impact of Avena can be seen by what happened in the capitol case, Torres v. Mullin, 124 S.Ct. 562 (2003), in which the defendant received a stay, a parole recommendation for clemency, and a commutation, based on Avena and the VCCR. Many police departments have incorporated the Vienna Convention's requirement that the arresting officer inform a noncitizen arrestee of his right to contact his consulate, so counsel may have the argument that the officer violated his duties

314

imposed upon him by his own training manual or department regulations as well as the Vienna Convention. POST CON RELIEF – GROUNDS – VIENNA CONVENTION The Washington Defender Association Immigration Project has prepared a description of non-citizens' rights under Art. 36(b) of the Vienna Convention on Consular Relations (VCCR), which requires a foreign consulate to be notified when one of its citizens is being detained by government authorities and what are best practices for ensuring compliance with the VCCR). Washington Defender Ass'n Immigration Project, Practice Advisory on the Vienna Convention (available from Ann Benson, Director, defendimmigrants@aol.com). POST CON RELIEF – GROUNDS – VIENNA CONVENTION In order to forestall claims under Article 36 of the Vienna Convention (VCCR) about consular notification, Seattle state prosecutors are trying to get defendants to admit alienage on the record, in court, at arraignment, so the defendant can sign an acknowledgment of having been advised of the right. (Which seems to violate Washington State's own advisal law, which says :"It is further the intent of the legislature that at the time of the plea no defendant be required to disclose his or her legal [i.e., immigration] status to the court." In case the Supreme Court decides that the International Court of Justice was right and there is an individually enforceable right under the VCCR, and it overturns the law of several circuits to hold that there is a judicially enforceable remedy for a violation of this right, these state-court convictions will be safe from attack.

§ 6.47 IV. Violations of the Right to an Interpreter Seventh Circuit
GROUNDS - FLUENCY -- TRANSLATOR Ememe v. Ashcroft, __ F.3d __ (7th Cir. Feb. 12, 2004) (remand to Immigration Judge to determine ability to comprehend questioning at credible fear interview where native Amheric language speaker’s interview was conducted in speaker’s second language, Italian; such issue goes to resolution of not-directly-contradictory inconsistencies between credible fear interview and asylum hearing); see also, He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) ("faulty or unreliable translations can undermine the evidence on which an adverse credibility determination is based").

Other
BIBLIOGRAPHY

315

L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE (2d ed. 2007). CRIMINAL DEFENSE – INTERPRETER M. Carter-Balske, L. Kay & L. Friedman Ramirez, Use of Foreign Language Interpreters, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 35 (2d ed. 2007). CRIMINAL DEFENSE – INTERPRETER M. Marty, Tape Transcription and Translation Guidelines, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 79 (2d ed. 2007). CRIMINAL DEFENSE – INTERPRETER M. van Naerssen, Language Proficiency and Its Relationship to Language Evidence, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 93 (2d ed. 2007).

§ 6.48

A. The Right to an Interpreter in Criminal Proceedings

Sixth Circuit
POST CON RELIEF – GROUNDS – INTERPRETER Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required by Ohio Rev. Code § 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate, required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to decide the ineffective assistance claims on their merits, since ineffective assistance of counsel constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to do so."). POST CON RELIEF – LANGUAGE/CULTURE – MIRANDA United States v. Short, 790 F.2d 464 (6th Cir. 1986) (statements by German defendant found involuntary due to limited language ability and no understanding of US criminal system). United States v. Garibay, 143 F.3d 534, 537 (9th Cir. 1998) (statements by Mexican defendant found involuntary due to language and verbal IQ difficulties). United States v. Castorena-Jaime, 117 F.Supp.2d 1161 (D. Kan. 2000) (defendant’s

316

understanding of English insufficient to comprehend Miranda warning given). United States v. Fung, 780 F. Supp. 115 (E.D.N.Y. 1992) (Chinese defendant not given proper Miranda warning when only asked to read Chinese Miranda card). United States v. Kim, 803 F. Supp. 352 (D. Haw. 1992) (written Miranda warning showing defendant had circled a number of words he did not understand deemed insufficient given defendants limited understanding of English). People v. Mejia-Mendoza, 965 P.2d 777, 778-781 (Colo.1998) (Miranda warning given through interpreter insufficient where interpreter mistranslated warning, did not ask noncitizen if meaning was clear, and reported to police that defendant had waived rights when defendant had not actually done so). People v. Jiminez, 863 P.2d 981 (Colo. 1993) (Miranda waiver invalid where English and Spanish understanding where very limited, and native language did not have a word for legal "right"). State v. Jenkins, 81 S.W.3d 252 (Tenn. Crim. App. 2002) (Miranda warning founds in absence of proof that translation of warning was accurate). State v. Ramirez, 732 N.E.2d 1065 (Ohio Ct. App. 1999) (Spanish translation of Miranda warning was confusing and incomplete). People v. Diaz, 140 Cal.App.3d 813, 820 (Cal. Ct. App.1983) (if native language lacks single word to describes a Miranda right, officer must explain the right until sure the defendant fully understands). State v. Turkenich, 529 N.Y.S.2d 385, 137 A.D.2d 363 (1988) (interrogation of Russian defendant in hospital found coercive when "accentuated by the defendant’s recent immigration to the United States from a country with a vastly different political structure and by his inability to speak or understand the language of his inquisitor."). United States v. Castorena-Jaime, 285 F.3d 916 (10th Cir. 2002) (suggesting police should not use co-defendants to translate Miranda warnings).

Ninth Circuit
POST CON RELIEF – GROUNDS – INTERPRETER – INVALID TRANSLATION OF RIGHT TO JURY TRIAL United States v. Bailon-Santana, ___ F.3d ___ (9th Cir. Dec. 6, 2006) (invalid jury waiver since defendant waived jury after attorney translated waiver form he was not qualified to translate). http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8A8722340251FBF8882570CE008 24A7D/$file/0450079.pdf?openelement POST CON RELIEF – GROUNDS – PLEA AND SENTENCE -- DUE PROCESS – IMMIGRATION COURTS NOT REQUIRED TO PROVIDE TRANSLATION OF HEARING NOTICES Khan v. Ashcroft, 374 F.3d 825 (9th Cir. July 2, 2004) (due process does not require immigration courts to translate notice of hearing into a language respondent understands).

§ 6.49

B. Grounds for Invalidating Conviction for Violation of the

317

Right to an Interpreter Second Circuit
POST CON – GROUNDS – INTERPRETER United States v. Leyba, ___ F.3d ___, 2004 WL 1789677 (2d Cir. Aug. 11, 2004) (counsel required to ensure that non-English speaking defendant understand right to proceed pro se or seek new counsel, the substance of filed motion, and consequences of failure to respond to motion before court will rule on the motion).

Eighth Circuit
POST CON RELIEF – GROUNDS – INTERPRETER – DUE PROCESS Mohamed v. Gonzales, ___ F.3d ___, 2006 WL 3392088 (8th Cir. Nov. 27, 2006) (respondent's due process rights were not violated by two non-prejudicial one-word translation failures).

Ninth Circuit
POST CON – INTERPRETER – INCOMPETENCE Perez Lastor v INS, 208 F.3d 773 (9th Cir. 2000) (evidence of incorrectly translated words, unresponsive answers by witnesses, and expression of difficulty understanding are evidence of incompetent interpretation). Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984) (rights to interpreter in immigration proceedings "protected by statute and INS regulations and very likely by due process as well [were violated] where the translation of the asylum application was nonsensical, the accuracy and scope of the hearing translation are subject to grave doubt, appellant misunderstood the nature and finality of the proceeding, and a credible claim which developed following translation was not reviewed."). Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930) ("The right to a hearing is a vain thing if the alien is not understood. . . . It is not unreasonable to expect that, where the services of an interpreter are needed, his capability should be unquestioned.") United States v Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000) (testimony of English speaking INS agent regarding Spanish statements of noncitizen could not be found reliable where the second INS agent who translated from English to Spanish did not appear and noncitizen could not challenge competence of the translation). United States v. Nazemian, 948 F.2d 522, 528 (9th Cir. 1991) (INS agent’s testimony regarding statements of noncitizen made through translator did not violate confrontation clause because translator was a "mere language conduit."). POST CON – INTERPRETER – MISCONDUCT Chacon v. Wood, 36 F.3d 1459, 1464 (9th Cir. 1994) ("When the defendant and his

318

counsel can communicate only through an intermediary, unprofessional conduct on the part of the intermediary can render counsel’s assistance wholly ineffective, even if counsel himself is acting in complete accordance with professional standards. ") State v. Rios, 539 P.2d 900 (Ariz. 1975) ("For defense counsel to cross-examine witnesses, listen attentively to testimony and objections of the prosecuting attorney and hear rulings and remarks of the presiding judge and simultaneously render an accurate and complete translation to his three clients, is an impossible task. The effectiveness of defense counsel under those circumstances is obviously greatly impaired to the serious detriment of his clients’ defense.") People v. Chavez, 124 Cal.App.3d 215 (Cal. Ct. App. 1981) (overruled on other grounds) ("right to an interpreter is effectively denied when a defense attorney must discharge the function, and…the right to counsel may be significantly impaired when he does."). United States v. Martinez, 616 F.2d 185, 188 (5th Cir. 1980) ("Where the court was careful to make clear the defendant had a right to an interpreter, but was assured by defendant’s retained bilingual counsel that he could translate for the defendant and no objection was made, there was no abuse of discretion in failing to supply a court-appointed interpreter.") People v. Wing Choi Lo, 570 N.Y.S.2d 776 (N.Y. Crim. Term. 1991) ("since the interpreter was a police officer who was clearly an agent of the interrogator and not someone selected by the defendant to speak on his behalf, the interpreter’s statements cannot be attributed to the defendant.") POST CON – INTERPRETER APPOINTMENT Chacon v. Wood, 36 F.3d 1459, 1464 (9th Cir. 1994) (presence of interpreter necessary to defendant’s confrontation rights and effective assistance of counsel). United States v. Lim, 794 F.2d 469, 471 (9th Cir.), cert. denied, 479 U.S. 937 (1986) (defendant who primarily speaks foreign language has statutory right to court appointed interpreter). United States v. Cirrincione, 780 F.2d 620 (11th Cir. 1986) ("a defendant in a criminal proceeding is denied due process when: (1) what is told to him is incomprehensible; (2) the accuracy and scope of a translation at a hearing or trial is subject to grave doubt; (3) the nature of the proceeding is not explained to him in a manner designed to insure his full comprehension; or (4) a credible claim of incapacity to understand due to language difficulty is made and the district court fails to review the evidence and make appropriate findings of fact."). U.S. ex rel. Navarro v. Johnson, 365 F. Supp. 676, 683 n.3 (E.D. Pa. 1973) (absence of interpreter is like absence of defendant at trial). State v. Gonzales-Morales, 979 P.2d 826, 828 (Wash. 1999) (right to have interpreter based upon Sixth Amendment right to confront witnesses, and to be present at own trial).

Lower Courts of Ninth Circuit
POST-CON – MOTION TO WITHDRAW PLEA – GROUNDS – FAILURE TO UNDERSTAND

319

CHARGES OR IMMIGRATION CONSEQUENCES OF PLEA United States v. Zeng, __ F.Supp.2d __, 2007 WL 902380 (N.D.Cal. Mar, 22 2007) (granting motion to withdraw guilty plea where Rule 11 violation occurred because defendant was prevented, through cultural mores, from interrupting his attorney during the guilty plea phase, and defendant did not understand the nature of the charges against him, or the immigration consequences thereof, until he was later able to read a Chinese translation of the plea agreement). POST CON – INTERPRETER – PROCEDURE People v. Rodriguez, 232 Cal. Rptr. 132 (Cal. 1986) (examining whether using one interpreter for multiple co-defendants violated constitutional rights, or whether error was "harmless beyond a reasonable doubt"). People v Aguilar, 677 P.2d 1198 (Cal. 1984) (California Constitution grants right to interpreter throughout the entire criminal proceeding). People v. Resendes, 210 Cal. Rptr. 609 (Cal. Ct. App. 1985) (using one interpreter for two defendants resulted in ineffective communication with counsel). People v. Menchaca 146 Cal.App.3d 1019, 1025 (Cal. Ct. App. 1983) ("Nothing short of a sworn interpreter at defendant’s elbow" will satisfy guarantee to an interpreter throughout criminal proceedings). United States v. Bennett, 848 F.2d 1134 (11th Cir. 1988) (using one interpreter for multiple defendants did not result in ineffective communication with counsel where court offered to recess proceedings at any time defendant needed to consult with counsel). United States v. Sanchez, 928 F.2d 1450 (6th Cir. 1991) (nothing in 28 U.S.C. § 1827-28 [Court Interpreter’s Act] or Sixth Amendment requires each defendant in hearing be provided with personal interpreter). United States v. Lim, 794 F.2d 469 (9th Cir. 1986) ( "As long as the defendant’s ability to understand the proceedings and communicate with counsel is unimpaired, the appropriate use of interpreters in the courtroom is a matter within the discretion of the district court.") POST CON – INTERPRETER – FAILURE TO PROVIDE State v. Natividad, 526 P.2d 730, 733 (Ariz. 1975) ("A defendant who passively observes in a state of complete incomprehension the complex wheels of justice grind on before him can hardly be said to have satisfied the classic definition of a waiver . . . . This would be especially true with a Mexican national during his initial contact with our judicial system.") People v. Serna, 262 A.D.2d 673 (N.Y. App. Div. 1999) (guilty plea not knowing or intelligent where defendant unable to communicate with attorney due to language issues). U.S. ex rel. Negron v. State of New York, 310 F. Supp. 1304 (E.D.N.Y. 1970), aff’d 434 F.2d 386 (2d Cir.1970) (constitutional error to deprive Spanish speaking defendant of interpreter services). Aleman v. State, 957 S.W.2d 592, 594 (Tex. App. 1997) ("the role of an interpreter is not merely to translate and explain the proceeding to a non-English speaking defendant, but to also provide that defendant a voice which can be heard and understood during a criminal proceeding. The denial of the opportunity to be heard rendered Appellant’s plea of guilty

320

involuntary and in violation of his constitutional and statutory protections.") Villarreal v. State, 853 S.W.2d 170 (Tex. Ct. App. 1993) (requirement for interpreter does not distinguish between indigent and non-indigent defendants). Baltierra v. State, 586 S.W.2d 553 (Tex. Crim. App. 1979) (failure to request court interpreter does not waive right to interpreter). Barrera v. United States, 599 A.2d 1119 (D.C. 1991) The court concluded that the trial court’s finding of voluntariness took adequate account of the concerns of "reliability" or "trustworthiness" underlying D.C.’s Interpreter Act. Although both the detective and the defendant were native Spanish speakers, the court noted that the statute requires a valid waiver of his or her right to an interpreter when statements are not made through a qualified interpreter. The court stated that "[p]olice questioning of suspects who do not speak English poses a special problem of reliability, whether the procedures used are proper or not." The court remanded the case for the trial court to reconsider the trustworthiness of the impeaching statements. People v. Chavez 124 Cal.App.3d 215, 227 (Cal. Ct. App. 1981) (access to interpreter is a guaranteed right under the California Constitution; waiver of right must be intelligent and voluntary). State v Rodriguez, 682 A.2d 764, 770 (N.J. Super. Ct. Law Div. 1996) (waiver of interpreter is effective "only if approved by the [judge] and made expressly by such individual on the record after opportunity to consult with counsel and after the [judge] has explained. . .the nature and effect of the waiver. [28 U.S.C.A. § 1827(f)(1)]."). State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984), overruled in part on other grounds by State v. Koch, 175 Wis.2d 684, 499 N.W.2d 152 (1993) (defendant’s attorney cannot waive right to interpreter; waiver must be made by defendant in open court). United States v. Urena, 27 F.3d 1487, 1492 (10th Cir. 1994) ("We review the trial court’s determination with respect to the appointment of an interpreter only for abuse of discretion.").

§ 6.50 V. Other Grounds For Vacating Guilty Pleas § 6.51 A. Jurisdictional Defects

CRIME OF MORAL TURPITUDE – CONSENSUAL SEXUAL ACTIVITY IN PRIVATE – UNCONSTITUTIONALITY OF CRIMINAL STATUTE Where a state criminal statute penalizes consenting sexual conduct in private between adults, it is unconstitutional. Lawrence v. Texas, ___U.S. ___ 123 S. Ct. 2472, 2484 (2004). Some state statutes penalize consenting conduct between adults. E.g., People v. Dancy, 102 Cal.App. 4th 21, 35 (2002) ("By including a lack of consent element in the subdivisions setting forth the elements of several types of rape but not including a lack of consent element in the subdivision setting forth the elements of rape of an unconscious person, the Legislature obviously made an explicit choice not to require proof of lack of consent where the victim was unconscious at the time of the act of sexual intercourse."). A conviction under such an unconstitutional statute

321

cannot trigger adverse immigration consequences.

Other
POST CON NATIONAL – GROUNDS – LACK OF JURISDICTION It may be possible to vacate an adult court conviction of a defendant who was a juvenile at the time the offense was committed, on the basis the adult court lacked jurisdiction over the criminal case. The government may attempt to oppose this motion by offering evidence of bone scans or dental examinations. An article by physicians for human rights addresses/discredits bone scans and dental exams for age determination, citing medical experts on the subject. The article is "From Persecution to Prison: Health Consequences of Detention for Asylum Seekers" and can be found at: http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr1toc.html Apparently an expert is of the opinion that the use of bone scans to determine age is 100% bogus. The bone scan might be able to determine that someone is six years old, as opposed to 35 years of age, but a bone scan will show no difference between two people whose age is 10 years apart. From: Stern and Elkind, L.L.P.

§ 6.52 § 6.53

B. Newly Discovered Evidence C. Prosecution Withholding of Exculpatory Evidence

GROUNDS - EXCULPATORY EVIDENCE - FAILURE TO DISCLOSE Banks v. Dretke, ___ U.S. ___ (February 24, 2004) (concealment of significant exculpatory or impeachment material in possession of the police or prosecutor is basis for grant of habeas). http://laws.findlaw.com/us/000/02-8286.html

Ninth Circuit
POST CON RELIEF – GROUNDS – PROSECUTION MISCONDUCT Comer v. Schiro (2006) F.3d (9th Cir. Sept. 13, 2006) (prosecutorial misconduct by using dehumanizing epithets during closing argument, including references to the defendant as "filth," a "monster," and "a reincarnation of the devil," did not constitute a due process violation or render the trial fundamentally unfair). http://caselaw.lp.findlaw.com/data2/circs/9th/9899003p.pdf POST CON RELIEF – PROSECUTORIAL MISCONDUCT Earp v. Ornoski, ___ F.3d ___, 2005 WL 3440810 (9th Cir. Dec. 16, 2005) (denial of habeas petition reversed where petitioner had never been given an evidentiary

322

hearing on prosecutorial misconduct and ineffective assistance of counsel claims). http://caselaw.lp.findlaw.com/data2/circs/9th/0399005p.pdf POST CON RELIEF – GROUNDS – PROSECUTION FAILURE TO DISCLOSE EXCULPATORY EVIDENCE Horton v. Mayle, ___ F.3d ___ (9th Cir. May 10, 2005) (habeas denial vacated, where prosecution violated defendant's rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose an agreement between a witness and the police). http://caselaw.lp.findlaw.com/data2/circs/9th/0356618p.pdf POST CON RELIEF – GROUNDS – PROSECUTION MISCONDUCT Hays v. Brown, __ F.3d __ (9th Cir. March 07, 2005) (prosecutor's knowing presentation of false evidence and failure to correct the record violate a criminal defendant's due process rights). http://caselaw.lp.findlaw.com/data2/circs/9th/9999030p.pdf POST CONVICTION RELIEF - GROUNDS - FAILURE TO DISCLOSE EXCULPATORY EVIDENCE - PROBATION FILES United States v. Alvarez, __ F.3d __ (9th Cir. February 25, 2004) (where district court fails to conduct in camera review of probation files of significant witnesses pursuant to timely Brady request, conviction will be vacated and case remanded to conduct review; if files found to contain material information bearing on credibility of witnesses, court shall release such and order new trial). http://caselaw.lp.findlaw.com/data2/circs/9th/0110686p.pdf

§ 6.54

D. Actual Innocence

HABEAS CORPUS - FEDERAL - ACTUAL INNOCENCE IN NON-DEATH CASE Dretke v. Haley, 124 S.Ct. 1847 (May 3, 2004) (Supreme Court declines to decide whether "actual innocence" exception applies to noncapital sentencing errors, and remands case to district court to consider alternative grounds presented). http://caselaw.findlaw.com/data2/circs/us/021824.pdf

Ninth Circuit
POST CON RELIEF – GROUNDS – INSUFFICIENT EVIDENCE – CONDUCT NOT A CRIME – BAD CHECKS – NO CRIME WHEN BANK HONORS THEM Goldyn v. Hayes, ___ F.3d ___ (9th April 11, 2006) ("Petitioner spent 12 years in prison for conduct that is not a crime. We vacate her conviction pursuant to Jackson v. Virginia, 443 U.S. 307 (1979)." The conduct was writing checks with insufficient funds or credit. The alleged victims were the people she wrote checks to (not the bank). The reason it wasn’t a crime is that her bank had given her a check guarantee card (in

323

other words, extended credit), and the bank honored every one of the checks she wrote. "On federal habeas, Goldyn presents a simple argument: If the bank was obligated to cover them, then she can’t have written bad checks." Kozinski ends by saying: "We are saddened and dismayed that Goldyn spent twelve years behind bars for conduct that is not a crime – or, at least, is not the crime with which she was charged.") POST CON RELIEF – FEDERAL – GROUNDS – INSUFFICIENT EVIDENCE Smith v. Mitchell, ___ F.3d ___ (9th Cir. Feb. 9, 2006) (reversing denial of a habeas corpus petition from a conviction for assault on a child resulting in death pursuant to a claim of constitutionally insufficient evidence where no rational trier of fact could have found beyond a reasonable doubt that defendant caused the child's death). http://caselaw.lp.findlaw.com/data2/circs/9th/0455831p.pdf POST CON – INSUFFICIENT EVIDENCE – BAD CHECKS - NO CRIME WHEN BANK HONORS THEM Goldyn v. Hayes, ___ F.3d ___ (9th Cir. Feb. 1, 2006) (conviction for writing checks with insufficient funds reversed for insufficient evidence, where defendant had a check guarantee card (in other words, sufficient credit for the bank to cover the checks), and the bank in fact honored every one of the checks she wrote: "No rational trier of fact could have found that Goldyn committed the crime of writing bad checks as defined by Nevada law. . . . And no rational judicial system would have upheld her conviction.").

Other
POST-CON – HABEAS CORPUS – ACTUAL INNOCENCE House v. Bell, __ F.3d __ (Jun. 12, 2006) (defendant successfully made the stringent showing required by the actual-innocence exception to procedural default rules). http://laws.lp.findlaw.com/us/000/048990.html

§ 6.55

E. Failure of Charge to State All Elements of Offense

Ninth Circuit
POST CON RELIEF – GROUNDS – FRAUD – MATERIALITY REQUIREMENT MUST BE ALLEGED IN CHARGE United States v. Omer, ___ F.3d ___ , 2005 WL 95731 (9th Cir. Jan. 19, 2005) (bank fraud indictment under 18 U.S.C. § 1344(1)) must allege materiality of the fraud), citing Neder v. United States, 527 U.S. 1 (1999) (check kiting charge requires intent to defraud bank).

324

POST CON – GROUNDS – FAILURE TO SPECIFY ESSENTIAL ELEMENT IN PLEA AGREEMENT United States v. Patterson, ___ F.3d ___ (9th Cir. Aug. 20, 2004) (failure to specify amount of marijuana in defendant's plea agreement does not invalidate original plea agreement where drug quantity is not an essential element of the offense). http://caselaw.lp.findlaw.com/data2/circs/9th/0030306p.pdf APPEALS – FEDERAL – CHALLENGE TO SUFFICIENCY OF INDICTMENT United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal challenging whether indictment alleges sufficient facts to state offense because challenge must await final judgment after trial; appeal does not fit within "collateral order" exception to rule that only final judgments may be appealed; appeal could not be treated as mandamus because trial court did not clearly err).

§ 6.56

F. Other Grounds to Vacate Guilty Pleas

POST-CON – GROUNDS – SPEEDY TRIAL ACT Zedner v. United States, __ U.S. __ (Jun. 05, 2006) (defendant may not prospectively waive application of Speedy Trial Act; harmless-error review is not appropriate to this issue). http://laws.lp.findlaw.com/us/000/055992.html POST CON RELIEF – PLEA – NO CONTEST – MOTION TO WITHDRAW – USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA § 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v.

325

Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct consequences, it cannot stand if "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business . . . . " Brady v. United States, 397 U.S. at 755 (1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsel’s failure to advise the defendant that he or she will be deported is not "ineffective assistance of counsel," and the trial court’s failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet, as the quoted passage in Brady suggests, and as the federal courts have consistently held over the last three decades, this distinction between "direct" and "collateral" consequences loses all significance when the defendant’s plea results from affirmative misadvice about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995); United States v. NagaroGarbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the "collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other cases demonstrate, a plea that results from actual misinformation provided to the defendant about its effects is not knowing and voluntary, and cannot be given force. Applying these principles, the federal courts have consistently voided guilty pleas entered – as this one was – on the basis of affirmative misadvice regarding considerations of consequence to the defendant. For example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea induced by material misinformation from the prosecution, court, and defense counsel was

326

involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both the government’s attorney and the district judge confirmed that defendant’s understanding. Id. at 1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397. After the receipt of the presentence report, the defendant moved to withdraw his guilty plea; however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98. The Ninth Circuit determined that the defendant had been misinformed by the court, government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do not believe Toothman was ‘equipped intelligently to accept the plea offer made to him.’" Id. at 1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found that the plea was involuntary. Id. at 1401. Thanks to Don Chairez for the suggestion for this argument. POST CON RELIEF – GROUNDS – INCOMPETENCY Panetti v. Quarterman, ___ U.S. ___, 127 S.Ct. 2842 (state court failed to provide procedures to which petitioner was entitled under the Constitution to prove own incompetency to be subject to death penalty). POST CON RELIEF – GROUNDS – JUDICIAL MISCONDUCT – NO APPARENT BIAS SHOWN Crater v. Galaza, 491 F.3d 1119 (9th Cir. July 7, 2007) (judicial advice to defendant to take prosecutor’s deal did not display appearance of bias where judge did not have a pecuniary interest in the case, was not personally embroiled in a controversy with the defendant, and did not perform incompatible accusatory and judicial roles; judge had heard testimony of co-defendant and thought it likely defendant would be convicted of capital murder if he did not accept the plea bargain). POST CON RELIEF – GROUNDS – VOLUNTARINESS OF PLEA Doe v. Woodford, 508 F.3d 563 (9th Cir. Nov. 27, 2007) (affirming denial of habeas corpus over a challenge to the voluntariness of a plea: two-hour period to consider proposed plea agreement in first-degree murder case did not per se establish involuntary nature of plea).

Lower Courts of Second Circuit
POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA WHERE DEFENDANT TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY CERTAIN TO DO SO Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting motion to vacate sentence pursuant to 28 U.S.C.§ 2255 on involuntary plea and ineffective

327

counsel grounds for misadvice concerning immigration consequences where defendant was informed only that the conviction "could result in your deportation," where it was certain to do so). INVOLUNTARY PLEA CLAIM BASED ON MISINFORMATION CONCERNING IMMIGRATION CONSEQUENCES NOT BARRED Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255 claim regarding the voluntariness of a guilty plea made when the petitioner was not properly informed that deportation was absolute).

Fifth Circuit
POST-CON – GROUNDS – JUDICIAL MISCONDUCT United States v. Jackson, __ F.3d __ (5th Cir. Jun. 20, 2006) (sentence for possession of a firearm affirmed over a claim that district court violated constitutional rights by "threatening" defendant’s girlfriend with criminal prosecution if she took the stand during sentencing). http://caselaw.lp.findlaw.com/data2/circs/5th/0511094cr0p.pdf

Seventh Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – DENIAL WHEN COUNSEL IS PRESENT ONLY BY SPEAKERPHONE Van Patten v. Deppisch, ___ F.3d ___ 2006 WL 162992 (7th Cir. Jan. 24, 2006) (defense counsel's physical absence from courtroom where his client's guilty plea was entered constituted structural error resulting in denial of counsel, requiring reversal without inquiry into prejudice, even though counsel participated by speakerphone).

Ninth Circuit
POST CON RELIEF – FEDERAL – GROUNDS – JURY TRIAL -- FAILURE TO ADVISE DEFENDANT THAT JURY MUST FIND GUILT BEYOND REASONABLE DOUBT – REVERSAL REQUIRED WITHOUT SHOWING OF PREJUDICE IF OBJECTION WAS MADE AND OVERRULED United States v. Ross, 511 F.3d 1233, ___, (9th Cir. Jan. 14, 2008) (court's failure under Federal Rule of Criminal Procedure 11 to advise defendant that he may not be

328

convicted unless government proves its case beyond a reasonable doubt constituted error, but not plain error requiring reversal: " This was error. Rule 11 provides, in part, that Ross must understand his “right to a jury trial” and “the nature of each charge” before his guilty plea may be accepted. See Rule 11(b)(1)(C), (G). Because the reasonable doubt standard of proof is a due process requirement that permeates all aspects of a criminal trial, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), we read Rule 11 as requiring an advisement of the reasonable doubt standard of proof .FN1 Such an advisement was particularly necessary in this case because admission to the stated drug quantity exposed Ross to a higher sentence. United States v. Minore, 292 F.3d 1109, 1113 (9th Cir.2002) (“[B]efore accepting a guilty plea, the district court must advise the defendant that the government would have to prove to the jury beyond a reasonable doubt any quantity of drugs that would expose the defendant to a higher statutory maximum sentence.”); see also 21 U.S.C. § 841(b) (prescribing different statutory maximums for violations involving various quantities of crack)."), citing Benchbook for U.S. District Court Judges 78 (5th ed.) (2007) (“Ask the defendant: Do you understand ... that at trial you would be presumed to be innocent and the government would have to prove your guilt beyond a reasonable doubt[?]”); accord, United States v. Wagner, 996 F.2d 906, 912 (7th Cir.1993) ( “Pursuant to [Rule 11,] the court advised the defendants that ... they would not be convicted unless proved guilty beyond a reasonable doubt.”); United States v. Bell, 966 F.2d 914, 917 (5th Cir.1992) (“[T]he district court engaged [the defendant] in the requisite Rule 11 colloquy, advising him of ... the right to a ... public trial by jury at which the government would have to prove him guilty beyond a reasonable doubt....”); United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) (“[T]he district court followed the requirements of Rule 11 by discussing with the defendant ... the right ... to have the government prove all the elements of the offense beyond a reasonable doubt ....”). POST CON RELIEF – FEDERAL – GROUNDS – JURY TRIAL -- FAILURE TO ADVISE DEFENDANT THAT JURY MUST FIND GUILT BEYOND REASONABLE DOUBT – PREJUDICE REQUIRED FOR REVERSAL IF NO OBJECTION WAS MADE IN COURT BELOW United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) (court's failure under Federal Rule of Criminal Procedure 11 to advise defendant that he may not be convicted unless government proves its case beyond a reasonable doubt constituted error, but did not require reversal since no objection was made and defendant did not satisfy the plain error standard of review, since he was aware the reasonable doubt standard applied and thus could not show “a reasonable probability that, but for the error, he would not have entered the [guilty] plea.”), citing United States v. Dominguez Benitez, 542 U.S. 74, , 76, 124 S.Ct. 2333 (June 14, 2004) (because the right to withdraw a plea of guilty as a consequence of the District Court's failure to give one of the warnings required by Federal Rule of Criminal Procedure 11 was not

329

preserved by timely objection, the plain-error standard of Rule 52(b) applies, with its requirement to prove effect on substantial rights by showing a reasonable probability that, but for the error, the defendant would not have entered the plea). POST-CON RELIEF – VINDICTIVE PROSECUTION United States v. Jenkins, __ F.3d__ (9th Cir. Jul. 17, 2007) (since government could have prosecuted defendant for alien smuggling well before she presented her theory of defense at a marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness, despite government’s assertion that the case against defendant was much stronger after her in-court admission). POST CON RELIEF - GROUNDS Phillips v. Hust, __ F.3d __, 2007 WL 446593 (9th Cir. Feb. 13, 2007) (arbitrary denial by prison officials of access to materials that prison routinely did made available to inmates, for the preparation of legal documents, constitutes a denial of an inmate's right of access to the courts where it results in the loss of a legal claim). POST CON RELIEF – GROUNDS – VOLUNTARINESS OF PLEA – SHORT TIME TO CONSIDER OFFER Busch v. Woodford, ___ F.3d ___, 2007 WL 2429363 (9th Cir. 2007) (plea involuntary where defendant in first degree murder case was given only hours to consider the proposed plea agreement). HABEAS CORPUS - FEDERAL - TOLLING DUE TO PRISON'S FAILURE TO PROVIDE LAW LIBRARY MATERIALS Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 7, 2006) (evidentiary hearing required to determine if prison's failure to provide Spanish-language materials and assistance to Spanish-speaking inmates constituted extraordinary circumstance justifying tolling of one-year period for filing federal habeas petition); distinguishes Kane v. Garcia Espitia, 126 S. Ct. 407, 408 (2005) (per curiam) (denial of access to a law library cannot provide a basis for a pro se petitioner's habeas relief) because Mendoza only involves the tolling of an AEDPA deadline, not grant of habeas relief. POST-CON – GROUNDS – ACCESS TO SPANISH MATERIALS Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 07, 2006) (denial of habeas reversed and remanded where petitioner had alleged facts which, if true, could entitle him to equitable tolling with regards to claims that he lacked English language ability, was denied access to Spanish-language legal materials, and could not procure the assistance of a translator during running of AEDPA period). http://caselaw.lp.findlaw.com/data2/circs/9th/0456733p.pdf POST CON RELIEF – GROUNDS – INSUFFICIENCY OF EVIDENCE United States v. Rios, __ F.3d __ (9th Cir. Jun. 02, 2006) (expert testimony that drug

330

traffickers generally use firearms to further their drug crimes, was not by itself sufficient to establish that a firearm was possessed in furtherance of a particular drug crime). http://caselaw.lp.findlaw.com/data2/circs/9th/0550000p.pdf POST CON RELIEF – FEDERAL – HABEAS – GROUNDS – VIOLATION OF PLEA AGREEMENT Buckley v. Terhune, ___ F.3d ___ (9th Cir. Mar. 17, 2006) (state court's decision that the plea agreement provided for imposition of sentence of 15 years to life was contrary to clearly established Supreme Court law as set forth in Santobello v. New York, 404 U.S. 257 (1971), and Ricketts v. Adamson, 483 U.S. 1 (1987): plea agreement was ambiguous; plea agreement was required to be interpreted as providing for a maximum prison sentence of 15 years; and specific performance of sentencing provision of plea agreement was proper remedy, where DA's written offer, which defendant accepted, informed him that he would be sentenced to a maximum of 15 years for second-degree murder, and court agreed; after defendant had initialed the plea agreement, the prosecutor wrote in "15 years to life" as the recommendation, but the fact that a 15-year sentence was not a lawful sentence was irrelevant: "that is the bargain that California made in 1987."). POST-CON – JURY INSTRUCTIONS United States v. Alferahin, ___ F.3d ___, 2006 WL 51181 (9th Cir. Jan. 11, 2006) (conviction of knowingly procuring naturalization contrary to law, in violation of 8 U.S.C. § 1425(a), reversed for ineffective assistance of counsel since jury instructions were incomplete, and defense attorney declined the court's offer to instruct the jury on the element of materiality). http://caselaw.lp.findlaw.com/data2/circs/9th/0410590p.pdf POST CON RELIEF – FEDERAL – GROUNDS – INVOLUNTARY PLEA – COURT'S FAILURE TO INFORM DEFENDANT HE WAS SUBJECT TO MANDATORY FINE UNDER GUIDELINES United States v. Adams, ___ F.3d ___ (9th Cir. Jan. 3, 2006) (conviction vacated where guilty plea was not knowing, voluntary and intelligent in light of district court's failure to inform defendant he was subject to a mandatory fine under the sentencing guidelines). http://caselaw.lp.findlaw.com/data2/circs/9th/0430339p.pdf POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – VIOLATION OF ATTORNEY-CLIENT PRIVILEGE Plumlee v. Del Papa, 465 F.3d 910 (9th Cir. 2006) (defendant’s decision to selfrepresentation not reasonable when decision was forced by ineffective assistance of prior counsel). POST CON RELIEF – FEDERAL HABEAS REVIEW OF STATE CONVICTION – RIGHT TO EVIDENTIARY HEARING

331

Earp v. Ornoski, ___ F.3d ___, 2005 WL 3440810 (9th Cir. Dec. 16, 2005) (denial of habeas petition reversed where petitioner had never been given an evidentiary hearing on prosecutorial misconduct and ineffective assistance of counsel claims). http://caselaw.lp.findlaw.com/data2/circs/9th/0399005p.pdf CRIMINAL LAW & PROCEDURE, HABEAS CORPUS Fowler v. Sacramento County, 421 F.3d 1027 (9th Cir. Aug. 31, 2005) (defendant was improperly precluded from cross-examining accuser in violation of Sixth Amendment right to confrontation). http://caselaw.lp.findlaw.com/data2/circs/9th/0415885p.pdf POST CON RELIEF – GROUNDS – INSUFFICIENT EVIDENCE Juan H. v. Allen, ___ F.3d ___ (9th Cir. June 2, 2005) (denial of writ of habeas corpus reversed where prosecution failed to present evidence that proved guilt beyond a reasonable doubt that defendant standing next to his brother assisted him in shooting rival gang member: "During the shooting, Juan H. did not say anything, make any gestures, or otherwise encourage Merendon. ... The record contains manifestly insufficient evidence to support the necessary conclusions that Juan H. knew that Merendon planned to commit the first-degree murders of Ramirez and Magdelano, and that Juan H. acted in a way intended to encourage or facilitate these killings. Viewed in a light most favorable to the prosecution, the circumstantial evidence in this case does not permit any reasonable factfinder to sustain the delinquency petition of Juan H. on the charges of aiding and abetting first-degree murder and attempted first-degree murder, as those crimes are defined by California law."). http://caselaw.lp.findlaw.com/data2/circs/9th/0415562p.pdf POST CON RELIEF – SENTENCE – GROUNDS – ALLOCUTION United States v. Gunning, __ F.3d __ (9th Cir. March 31, 2005) (district court improperly denied defendant right of allocution when it did not address defendant and when defendant asked for consideration to his family when setting restitution payments, "did not even acknowledge those comments."). http://caselaw.lp.findlaw.com/data2/circs/9th/0430104p.pdf POST CON – GROUNDS – PROSECUTORIAL MISCONDUCT -- ARGUING INCONSISTENT THEORIES Shaw v. Terhune, ___ F.3d___ (9th Cir. Aug. 10, 2004) (possible due process argument exists when prosecutor advances factually inconsistent arguments in prosecuting two co-defendants for "personal use" of weapon although only one could have committed the crime; argument fails where there is sufficient evidence for jury to convict both defendants without implicating factual tension). But see generally Donnelly v. DeChristoforo, 416 U.S. 637, 648-49 (1974) (Douglas, J., dissenting) POST CON RELIEF – FEDERAL – RULE 32(e) NOW 11(d)(2)(B) – ILLEGAL REENTRY

332

CONVICTION INVALID SINCE DEPORTATION INVALID BECAUSE OF ST. CYR RESPONDENT ELIGIBLE FOR 212(C) BUT NOT INFORMED OF THIS BY THE IMMIGRATION JUDGE United States v. Ortega-Ascanio, ___ F.3d ___, 2004 WL 1575244 (9th Cir. July 15, 2004) (district court committed an error of law, and thus an abuse of discretion, in denying a F.R.Crim. P. 32(e) (now 11(d)(2)(B)) motion to withdraw a guilty plea in an illegal reentry case, by applying an incorrect standard: a defendant need not prove that his plea is invalid in order to meet his burden of establishing a fair and just reason for withdrawal; where after plea, but before sentence, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289 (2001), holding that INA § 212(c) relief had been available to respondent in removal proceedings based on two crime of moral turpitude convictions, but the immigration judge had failed to inform him of it, and he was not represented by counsel, and waived appeal). CRIMINAL DEFENSE – BRADY VIOLATION – D NOT PREJUDICED BY GOV FAILURE TO DISCLOSE IT HAD REWARDED KEY WITNESS WITH AN ILLEGAL GREEN CARD United States v. Ross, ___ F.3d ___, 2004 U.S. App. LEXIS 12117 (9th Cir. June 21, 2004) (defendant in drug case was not prejudiced by government's behavior, including failure to disclose that key informant was rewarded with illegally-obtained permanent resident status, since "evidence of guilt would have been overwhelming even if [informant’s] credibility had been demolished."). AGGRAVATED FELONY – SEXUAL ABUSE OF A MINOR – FEDERAL INTERNET OFFENSE United States v. Dhingra, 371 F.3d 557 (9th Cir. June 8, 2004) (18 U.S.C. § 2422(b), using internet to solicit sexual activity from minor, held not facially unconstitutional as overbroad, vague, or violative of First or Tenth Amendments, for incorporating state criminal sex offense statutes). http://caselaw.lp.findlaw.com/data2/circs/9th/0310001p.pdf GROUNDS – MENTAL INCOMPETENCE – APPEAL FROM FEDERAL COMMITMENT United States v. Friedman, ___ F.3d ___ (9th Cir. May 6, 2004) (defendant could appeal commitment order, as collateral order, after involuntarily commission to custody of Attorney General after being found incompetent to stand trial). POST CON – PROSECUTORIAL MISCONDUCT United States v. Cabrera, 222 F.3d 590, 591 (9th Cir. 2000) (convictions reversed where detective witness made numerous remarks about stereotypical tendencies of persons of defendant’s ethnicity; "[t]he fairness and integrity of criminal trials are at stake if we allow police officers to make generalizations about racial and ethnic groups in order to obtain convictions. People cannot be tried on the basis of their ethnic backgrounds or national origin."). United States v. Vue, 13 F.3d 1206, 1212-13 (8th Cir. 1994) (reversible error to allow customs agent’s testimony about tendency of

333

Hmong people to smuggle opium). United States v. Cruz, 981 F.2d 659, 663-64 (2d Cir. 1992) (reversible error to allow DEA agent’s testimony about high level of drug activity in Hispanic neighborhood). United States v. Rodriguez Cortes, 949 F.2d 532 (1st Cir. 1991) (reversible error to admit Colombian ID card into evidence to be used to make generalizations about Colombians and drug trafficking). Guerra v. Collins, 916 F. Supp 620, 629–30 (S.D. Texas 1995) (vacating conviction based upon prosecutor’s statement that "Mexicans only come to the United States to commit crimes and take jobs away from US citizens"). State v. Mehralian, 301 N.W.2d 409, 418-19 (N.D. 1981) (prejudice shown by prosecutor’s questions regarding defendant’s religion and immigration status). People v. Maria, 194 N.E. 510, 512 (Ill. 1935) (prejudice shown by prosecutor’s statements that defendant was noncitizen and did not pay taxes).

Lower Courts of Ninth Circuit
GUILTY PLEAS – PLEA BARGAIN – COURT'S INVOLVEMENT AS VIOLATION OF DUE PROCESS People v. Weaver, 118 Cal.App.4th 131 (April 29, 2004) (due process violated when presiding judge adopted role as ‘advocate’ in the case in encouraging a plea bargain).

Other
POST CON RELIEF – GROUNDS – JUDICIAL DISPARAGEMENTS Annot., Remarks or Acts of the Trial Judge Criticizing, Rebuking, Or Punishing Defense Counsel in Criminal Case As Requiring New Trial or Reversal 62 A.L.R.2d 166.

§ 6.57 VI. State Advisal Statute Violations
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES As of March, 2008, 28 states have adopted court rules or statutes that require the court, at plea, to advise the defendant concerning possible immigration consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004); Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code § 1016.5 (West 1995); Conn. Gen. Stat. Ann. § 54-1j (West 1994); D.C. Code Ann. § 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. § 17-7-93 (1997); Haw. Hawaii Stat. Ann. §§ 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8 (2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, §29D (West 1994); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. § 46-12-210(1)(f) (1997); Neb. Rev. St. §29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law § 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. § 15A1022 (a)(7) (West 1994); Ohio Rev. Code Ann. § 2943.031 (West 1989); Ore. Rev. Stat.

334

§ 135.385 (2)(d) (1997); R.I. Gen. Laws § 12-12-22 (West 2003); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); 13 S.A. § 6565; Wash. Rev. Code Ann. § 10.40.200 (West 1995); Wis. Stat. §§ 971.08(1)(c), (2) (West 1994). POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES As of March, 2008, 28 states have adopted court rules or statutes that require the court, at plea, to advise the defendant concerning possible immigration consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004); Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code § 1016.5 (West 1995); Conn. Gen. Stat. Ann. § 54-1j (West 1994); D.C. Code Ann. § 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. § 17-7-93 (1997); Haw. Hawaii Stat. Ann. §§ 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8 (2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, §29D (West 1994); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. § 46-12-210(1)(f) (1997); Neb. Rev. St. §29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law § 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. § 15A1022 (a)(7) (West 1994); Ohio Rev. Code Ann. § 2943.031 (West 1989); Ore. Rev. Stat. § 135.385 (2)(d) (1997); R.I. Gen. Laws § 12-12-22 (West 2003); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); 13 S.A. § 6565; Wash. Rev. Code Ann. § 10.40.200 (West 1995); Wis. Stat. §§ 971.08(1)(c), (2) (West 1994).

Lower Courts of First Circuit
POST CON RELIEF – GROUNDS -- STATE ADVISAL STATUTES – MASSACHUSETTS Commonwealth v. Rodriquez, 70 Mass.App.Ct. 721 (Ct. App. Nov. 16, 2007) ("We agree with the motion judge that because the defendant now also faces immigration consequences about which she was not warned (denial of readmission), the plain language of the statute requires that the defendant be permitted to withdraw her guilty plea. More specifically, we conclude that the defendant's conviction -- a drugrelated "aggravated felony" for purposes of immigration law -- results in the automatic, and now permanent, denial of readmission to the United States, see 8 U.S.C. § 1182(a)(9)(A) (2000), and that this is an "enumerated consequence" of the defendant's plea about which she was not warned."). POST-CONVICTION RELIEF – STATE ADVISAL STATUTE – MASSACHUSETTS Commonwealth v. Rzepphiewski, 431 Mass. 48, 725 N.E.2d 210 (Mass. 2000) (reconstructed record, based on affidavit of judge plus court docket, is sufficient to constitute a record of the giving of the statutory advisal concerning potential immigration consequences required by Mass. Gen. Laws, ch. 278, § 29D (2004), in response to defendant's motion to vacate where official records have been destroyed in regular course of business); see Commonwealth v. Ciampa, 51 Mass. App. Ct. 459,

335

747 N.E.2d 185, 187 (Mass. App. 2001) (non-contemporaneous record that statutory warnings had been given sufficient as evidence that state advisal statute had not been violated).

Second Circuit
POST CON RELIEF – AFFIRMATIVE MISADVICE – “MAY” VS. “WILL” RESULT IN DEPORTATION United States v. Zhang, ___ F.3d ___, 2007 WL 3071644 (2d Cir. Oct. 23, 2007) (although deportation was, in fact, nearly unavoidable, representations by court and prosecutor that defendant faced only possible deportation did not constitute affirmative misadvice by the court or prosecutor; neither the court nor the prosecutor are required to describe possible collateral effects of a guilty plea). “The possibility of discretionary deportation after a guilty plea is a “collateral” consequence that need not be addressed at the plea hearing. Michel, 507 F.2d at 46566. The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) and the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), however, has altered the landscape of immigration law, and deportation of aggravated felons is now automatic and non-discretionary. 8 U.S.C. § 1227(a)(2)(A)(iii); see also INS v. St. Cyr, 533 U.S. 289, 325 (2001) (referring to deportation of aggravated felons as “certain”). Nonetheless, several circuits have held that “automatic” deportation under IIRIRA is still a collateral consequence that need not be addressed prior to a court's accepting a guilty plea. See El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002) (“[I]t is clear that deportation is not within the control and responsibility of the district court, and hence, deportation is collateral to a conviction.”); United States v. Amador-Leal, 276 F.3d 511, 516-17 (9th Cir. 2002) (“[W]hether an alien will be removed is still up to the INS. There is a process to go through, and it is wholly independent of the court imposing sentence.... Removal is not part of the sentence.”); and United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000) (“However ‘automatically’ [the defendant's] deportation ... might follow from his conviction, it remains beyond the control and responsibility of the district court in which that conviction was entered and it thus remains a collateral consequence thereof.”). "Although we have acknowledged the existence of the issue, United States v. Cuoto, 311 F.3d 179, 190 (2d Cir. 2002), we have not decided whether “automatic” deportation is a collateral consequence of a guilty plea that need not be mentioned or a direct consequence that required discussion during the plea proceeding. Once again, the issue is not before us. As the district court noted, “[w]hether automatic deportation is a direct or collateral consequence is of no matter in this case because

336

the court did address deportation at the plea hearing.” Zhang I, 401 F.Supp.2d at 239. We agree.” CAL POST CON – GROUNDS – STATE ADVISAL STATUTE – PREJUDICE IS SHOWN WHERE DEFENDANT WOULD NOT HAVE ENTERED PLEA IF PROPERLY ADVISED; NOT NECESSARY TO SHOW OUTCOME OF TRIAL WOULD HAVE BEEN DIFFERENT People v. Castro-Vasquez (2d Dist. March 26, 2007) ___ Cal.Rptr.3d ___, 2007 WL 882132 (prejudice from failure to deliver warning required by Penal Code § 1016.5 is shown where it was reasonably probable defendant would not have pleaded guilty if properly advised; it was not necessary to show the outcome of the trial would have been different), following People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210. http://caselaw.lp.findlaw.com/data2/californiastatecases/b192721.pdf

Lower Courts of Second Circuit
POST CON RELIEF – STATE ADVISAL STATUTE – NEW YORK – COLLATERAL CONSEQUENCES – DUE PROCESS People v. DeJesus, __ N.Y.S.2d __, 2006 WL 1408355 (N.Y.City Crim.Ct. May 20, 2006) ("deportation is a collateral, rather than a direct, consequence of a guilty plea and a defendant who pleads guilty has no constitutional right to be informed of the immigration consequences of the guilty plea.").

Fourth Circuit
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES – FLORIDA Green v. State, ___ Fla. App. ___, 2005 WL 156724 (4th Dist. January 26, 2005) (defendant suffered sufficient prejudice to make motion to withdraw plea on grounds trial court violated state advisal statute requiring advice to defendant concerning potential immigration consequences of guilty plea, even though deportation proceedings have not yet been begun, since possibility of future deportation proceedings constitutes sufficient "threat of deportation" under Peart v. State, 756 So. 2d 42, 44 (Fla. 2000).)

Lower Courts of Fifth Circuit
POST CON RELIEF – TEXAS – STATE ADVISAL STATUTE VIOLATION REVERSAL Kelley v. State, 2007 Tex. App. LEXIS 8821 (Ct. App. Nov. 6, 2007)(when the trial court fails to admonish a defendant about the immigration consequences of his guilty plea, a silent record on citizenship, or a record that is insufficient to determine citizenship, establishes harm by the standard of Rule 44.2(b).). POST CON RELIEF – STATE ADVISAL STATUTE

337

Vannortrick v. State of Texas, 227 S.W.3d 706 (Tex.Crim.App. Jun. 27, 2007) (harm from failure to admonish a defendant about immigration consequences of guilty plea is shown upon a record that does not mention, or is insufficient to determine the citizenship of the defendant; failure to admonish resulted involuntary plea). POST CON RELIEF – STATE ADVISAL STATUTE Fakeye v. State of Texas, 227 S.W.3d 714 (Tex.Crim.App. Jun. 27, 2007) (failure of trial court to admonish defendant of immigration consequences of plea was harmful error). POST CON – STATE ADVISAL STATUTE – TEXAS VanNortrick v. State, __ S.W.3d __, __, 2006 WL 1229749, *2 (Tex.App. May 09, 2006) ("[W]hen the record shows a defendant is a non-citizen, but is silent regarding whether the defendant knew the consequences of his plea, the error is not harmless because a silent record supports an inference that appellant did not know the consequences of his plea. ... Here, the record is silent regarding appellant’s status as a citizen or non-citizen and whether he was aware of the deportation consequences of his plea.") POST CON RELIEF – STATE ADVISAL STATUTE – TEXAS Fakeye v. State, ___ Tex. App. ___, 2006 Tex. App. LEXIS 1072 (2d Dist. Feb. 9, 2006) (trial court erred in failing to admonish defendant, in connection with his guilty plea, of the potential immigration consequences of plea in violation of Texas Code of Criminal Procedure § 26.13(a)(4)).

Lower Courts of Sixth Circuit
POST CON – OHIO – IMMIGRATION CONSEQUENCES – STATE ADVISAL STATUTE ERROR State v. White, 2005 Ohio 4898; 837 N.E.2d 1246; 2005 Ohio App. LEXIS 4407 (Sept 16, 2005) (court of appeal reversed for abuse of discretion trial court’s denial of motion to vacate plea based on claim of violation of Ohio state advisal statute pursuant to R.C. 2943.031(D) and Crim.R. 32.1, holding the defendant had no duty to inform the court of his citizenship status; defendant’s deportation order satisfied the prejudice requirement, since it showed more than a mere possibility of deportation; the defendant was not required to raise this issue on direct appeal from the sentence, since his citizenship status was outside the record on appeal). POST CON RELIEF – GROUNDS -- STATE ADVISAL STATUTE -- OHIO State v. Sibai, 2005 Ohio 2730; 2005 Ohio App. LEXIS 2573 (June 2, 2005) (trial court erred in denying motion to vacate guilty plea, when at the time of the plea, the trial court failed to provide the advisement pursuant to O.R.C. 2943.031(A) that he was

338

subject to possible deportation, exclusion from the United States or denial of naturalization). POST CON – OHIO – GROUNDS -- STATE ADVISAL STATUTE -- COURT TAKING PLEA NEED ONLY SUBSTANTIALLY COMPLY WITH STATUTE REQUIRING ADVICE ON POSSIBLE IMMIGRATION CONSEQUENCES OF PLEA State v. Badawi, ___ ?? ___, 2004 Ohio App. LEXIS 4536 (Ohio Ct. App. Sept. 20, 2004) (court taking plea need only substantially comply with statute requiring advice on possible immigration consequences of plea, R.C. 2943.031(A), which provides that "prior to accepting a plea of guilty or a plea of no contest to an indictment . . . charging a felony . . ., the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court, and determine that the defendant understands the advisement: 'If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.'"). POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTE – TIMELINESS – OHIO – DUTY TO ACT DID NOT ARISE UNTIL IMMIGRATION CONSEQUENCES OF PLEA BECAME EVIDENT State v. Francis, 104 Ohio St.3d 490, 820 N.E.2d 355 (where the immigration-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered, the mere fact over nine years has elapsed from the date of his plea did not constitute grounds for denying his motion to vacate). POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTE – TIMELINESS – OHIO – TIMELINESS IS ONLY ONE OF SEVERAL FACTORS TO CONSIDER IN RULING ON A MOTION TO VACATE BASED ON FAILURE TO GIVE STATUTORY ADVISAL State v. Francis, 104 Ohio St.3d 490, 820 N.E.2d 355 (the timeliness of a motion to withdraw a plea pursuant to R.C. 2943.031(D) for lack of statutory advisal concerning potential immigration consequences of guilty plea was just one of many factors a trial court was to take into account when considering whether to grant a motion to withdraw a guilty plea, even where motion was filed nine years after plea: "Depending on the particular facts, untimeliness will sometimes be an important factor in reaching a decision on a motion to withdraw. On the other hand, in some cases even a considerable delay in filing the motion to withdraw will not be a factor supporting a denial of the motion, such as when the immigration-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered. This is not a situation that requires a bright-line rule. As one of many factors underlying the trial court's exercise of discretion in considering the motion to withdraw, timeliness of the motion will be of different importance in

339

each case, depending on the specific facts.").

Seventh Circuit
CONTROLLED SUBSTANCES – ATTEMPTED SIMPLE POSSESSION CONVICTION EXPUNGED PURSUANT TO A STATE REHABILITATIVE STATUTE CONTINUED TO EXIST AS A GROUND OF DEPORTATION Ramos v. Gonzales, ___ F.3d ___, 2005 WL 1618821 (7th Cir. July 12, 2005) (Nebraska conviction for attempted possession of cocaine, in violation of Neb.Rev.Stat. §§ 28201, 28-416 (2003), continued to constitute a "conviction," for removal purposes, even though it had been expunged pursuant to a rehabilitative statute, Neb.Rev.Stat. § 29-2264, resulting in an order stating that "the adjudication previously entered by this Court is hereby set aside and nullified, and the Court further orders that all civil disabilities and disqualifications imposed as a result of said adjudication are hereby removed" and a later order stating rehabilitation had not played a part in the order, despite an argument that Equal Protection required granting the same effect to this state court order as would have been granted to an order under the Federal First Offender Act, 18 U.S.C. § 3607), following Gill v. Ashcroft, 335 F.3d 574, 577-78 (7th Cir. 2003).

Lower Courts of Seventh Circuit
POST CONVICTION – OHIO – STATE ADVISAL STATUTE State v. Joseph, __ N.E.2d __ (Ct. App. 7th Dist. 2006) (court of appeal reversed trial court's denial of motion to vacate guilty plea for violation of state advisal statute requiring court taking a plea properly to advise the defendant of its immigration consequences).

Ninth Circuit
POST CON RELIEF – GROUNDS – INSUFFICIENT EVIDENCE Smith v. Patrick, ___ F.3d ___, 2007 WL 4233693 (9th Cir. Dec. 4, 2007) (no rational trier of fact could have found beyond a reasonable doubt that petitioner caused the child's death, and a state court's affirmance of petitioner's conviction for assault on a child resulting in death was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979)).

Lower Courts of Ninth Circuit
POST-CONVICTION RELIEF – STATE REHABILITATIVE RELIEF -- CALIFORNIA California Penal Code Section 1203.4 has been amended to exclude certain offenders from relief under the "mandatory" or "nondiscretionary" part of that code section.

340

Now persons convicted of the following offenses, even if they have completed probation in a flawless manner, will have to petition the court to exercise its discretion in granting 1203.4 relief. Persons convicted of the following code sections are affected by this latest statutory revision: 20001 CVC [hit and run driving with personal injury, etc.]; 20002 CVC [hit and run driving with property damage only]; 23152 CVC [driving a motor vehicle while under the influence of alcohol or drugs]; 23153 CVC [driving a motor vehicle while under the influence of alcohol or drugs with personal injury]; 23103 CVC [reckless driving]; 23103.5 CVC [reckless driving with alcohol involved]; 23104 CVC [reckless driving causing bodily injury]; 23105 CVC [reckless driving causing specified bodily injury (unconsciousness; concussion; bone fracture; protracted loss or impairment of function or a bodily member or organ; a wound requiring extensive suturing; serious disfigurement; brain injury; paralysis)]; 191.5(b) Penal Code [vehicular manslaughter while intoxicated]; 192(c) Penal Code [vehicular manslaughter]; 2800.2 CVC [attempting to evade a peace officer while driving recklessly]; 2800.3 CVC [willful flight causing death or serious bodily injury]; 21651(b) CVC [driving on a highway other than to the right of an intermittant barrier or a dividing section which separates one or more opposing landes of traffic]; 22348(b) CVC [driving a vehicle upon a highway at a speed greater than 100 miles per hour]; 23109(a) CVC [motor vehicle speed contest];

341

23109(c) CVC [motor vehicle exhibition of speed]; 23109.1 CVC [engaging in motor vehicle speed contest causing specified bodily injuries]; 31602 CVC [unlawful driving on a public highway for the purpose of transporting explosives]; 23140(a) CVC [driving with a BAC of 0.05 by a person under the age of 21]; 23140(b) CVC [driving while UIA (0.05) by a person under the age of 21]; 14601 CVC [driving while privileges suspended pursuant to certain offenses]; 14601.1 CVC [driving while privileges suspended pursuant to other offenses]; 14601.2 CVC [driving while license suspended or revoked for DUI]; 14601.3 CVC [habitual traffic offender]; 14601.4 CVC [driving with suspended or revoked driver's license resulting in injury to another person]; 14601.5 CVC [driving while privileges suspended for failure to take chemical test or for driving with specified blood alcohol level]. Thanks to Jerome P. Mullins

Eleventh Circuit
POST CON RELIEF – STATE ADVISAL STATUTES – CORAM NOBIS VACATUR OF STATE CONVICTION FOR VIOLATION OF STATE STATUTORY RIGHT CEASED TO BE A CONVICTION FOR PURPOSES OF THE JURISDICTION LIMITATION Alim v. Gonzales, ___ F.3d ___, 2006 WL 1059322 (11th Cir. Apr. 24, 2006) (Florida conviction of domestic battery, vacated by grant of coram nobis on grounds of violation of state advisal statute requiring court accepting plea to warn defendant of possible immigration consequences, ceased to be a conviction for purposes of barring jurisdiction over petition for review under 8 U.S.C. § 1252(a)(2)(C), on account of two convictions of crimes of moral turpitude, even though order did not specify ground of vacatur, since coram nobis petition did so and was granted), deferring to BIA

342

approach in Matter of Adamiak, 23 I & N Dec. 878 (BIA Feb. 8, 2006).

Lower Courts of Eleventh Circuit
POST-CON – GROUNDS – STATE ADVISAL STATUTE State v. Gaston, __ So.2d __, 2007 WL 1753333 (Fla.App. 3 Dist. Jun 20, 2007) (“[t]he motion must allege, in addition to the lack of a deportation warning, that the defendant would not have entered the plea if properly advised and that under current law the plea does render the defendant subject to being removed from the country at some point in the future.”) POST CON RELIEF – FLORIDA – STATE ADVISAL STATUTE Gaston v. State, ___ Fla. ___, 2007 Fla. LEXIS 229 (Feb. 8, 2007) (motion to vacate 10year-old conviction on ground court failed to advise defendant of possibility of deportation requires only an allegation that the plea subjects the defendant to deportation, rather than a specific threat of deportation, to establish prejudice), following Green v. State, 895 So. 2d 441 (Fla. 4th DCA 2005), quashed, 944 So. 2d 208, 218 (Fla. 2006). POST CON RELIEF – STATE ADVISAL STATUTE – FLORIDA – TIME PERIOD FOR FILING MOTION TO VACATE State v. Green, ___ Fla. ___ (Oct. 26, 2006) (a Florida criminal "defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final. The motion must allege, in addition to the lack of a deportation warning, that the defendant would not have entered the plea if properly advised and that under current law the plea does render the defendant subject to being removed from the country at some point in the future. A defendant filing outside the two-year limitation period must allege and prove that he or she could not have ascertained the immigration consequences of the plea with the exercise of due diligence within the two-year period. Our holding in this case reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8). Therefore, in the interest of fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today. In cases now pending in the trial and appellate courts on this issue, courts should apply the criteria set out herein. If relief is denied in a case now pending because the defendant has not alleged or established that he or she is subject to or threatened with deportation, the defendant should be allowed to refile in compliance with the standards set out in this case within sixty days of affirmance, denial, or dismissal. All other defendants have two years from the date their cases become final in which to seek relief under our

343

holding today."). POST CON RELIEF – FLORIDA Charles v. State, ___ Fla. App. ___, 2006 Fla. App. LEXIS 1641 (Feb. 10, 2006) (per curiam) (motion to find guilty plea involuntary, under Florida Rule of Criminal Procedure 3.850, should have been granted on the ground that defendant was not advised, as required by Florida Rule of Criminal Procedure 3.172(c)(8), that he could be subject to deportation as a consequence of his plea, and he established (1) he did not know the plea might result in deportation, (2) he is "threatened" with deportation because of the plea, and (3) had he known of the possible consequence, he would not have entered the plea, since the defendant attached to the motion a notice from the Immigration and Naturalization Service that Appellant was subject to deportation based, in part, on being convicted of acts constituting a crime involving moral turpitude, and an order from an immigration judge denying his requests for asylum and for withholding of deportation), citing Peart v. State, 756 So. 2d 42 (Fla. 2000); Payne v. State, 890 So. 2d 284 (Fla. 5th DCA 2004). POST CON RELIEF – FLORIDA – GROUNDS – STATE ADVISAL STATUTE – FAILURE TO ADVISE OF POSSIBILITY OF DEPORTATION IS NOT GROUNDS TO VACATE PLEA WHERE DEFENDANT IS NOT THREATENED WITH IMMEDIATE DEPORTATION; THREAT OF EXCLUSION IS NOT SUFFICIENT Florida v. Gaston, 911 So.2d 257 (Fla. Dis. Ct. App. Sept. 28, 2005) ("In Kindelan v. State, 786 So. 2d 599, 600 (Fla. 3d DCA 2001), we held that following application for adjustment of immigration status, advice from INS of excludability from the United States due to a conviction fails to establish a prima facie case for relief, because "advising a defendant that a conviction constitutes grounds for exclusion from the United States is not the same as being threatened with deportation as a result of a plea." This holding is dispositive. See Aparicio v. State, 893 So. 2d 630, 631 (Fla. 3d DCA 2005) (concluding that a defendant advised by an immigration attorney that he would be detained if he applied for citizenship failed to establish a prima facie case because it is not the possibility of immigration consequences, but rather imminent deportation proceedings that support relief); Saldana v. State, 786 So. 2d 643, 645 (Fla. 3d DCA 2001) (concluding that issuance of a detainer by INS notifying initiation of investigation did not establish a prima facie case for relief)."). POST CON RELIEF – FLORIDA – ADVISAL STATUTE -- IMMIGRATION CONSEQUENCES Franco v. State, __ So.2d __ (Fla. Dist. Ct. App. March 30, 2005) (appellant's motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, denied because the allegation that the appellant was not advised of the immigration consequences of her plea was clearly refuted by the record) Perez v. State, __ So.2d __ (Fla. Dist. Ct. App. March 30, 2005) (warning that "The law requires that I advise you that it is possible that the immigration authorities could take some action against

344

you, such as throwing you out of the country. I doubt that will happen, but the possibility exists. Do you understand that?" found sufficient to fulfilled the requirements of Florida Rule of Criminal Procedure 3.172(c)(8)).

DC Circuit
POST-CONVICTION RELIEF – STATE ADVISAL STATUTE – DISTRICT OF COLUMBIA Slytman v. United States, 804 A.2d 1113 (D.C. 2002) (substantial compliance with state advisal statute sufficed to give defendant sufficient notice of potential immigration consequences of plea).

Lower Courts of DC Circuit
POST CON RELIEF – STATE ADVISAL STATUTE – DISTRICT OF COLUMBIA Valdez v. United States, 906 A.2d 284, 2006 D.C.App. LEXIS 498 (D.C. Ct. App. Aug. 31, 2006) (reconstructed record, based on affidavit of judge or other percipient witness, may be sufficient to constitute a record of the giving of the statutory advisal concerning potential immigration consequences required by D.C. Code § 16-713 (2001) in response to defendant's motion to vacate where official records have been destroyed in regular course of business).

Other
POST CON RELIEF – STATE ADVISAL STATUTES – IDAHO COURT RULE REQUIRES STATE CRIMINAL JUDGES TO ADVISE ALL DEFENDANTS CONCERNING POSSIBLE IMMIGRATION CONSEQUENCES Effective July 1, 2007: Rule 11. Pleas. (d) Other advisories upon acceptance of plea. The district judge shall, prior to entry of a guilty plea or the making of factual admissions during a plea colloquy, instruct on the following: (1) The court shall inform all defendants that if the defendant is not a citizen of the United States, the entry of a plea or making of factual admissions could have consequences of deportation or removal, inability to obtain legal status in the United States, or denial of an application for United States citizenship. POST CON RELIEF – STATE ADVISAL STATUTE – VERMONT The governor of Vermont signed an immigration advisement bill into law, effective Sept. 1, 2006. http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT121.HTM

345

POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE -- FAILURE TO ADVISE DEFENDANT OF COLLATERAL SEX OFFENDER REGISTRATION CONSEQUENCES DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE – MILITARY COURT United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) (failure to inform accused of state sex offender registration requirement as collateral consequence of court-martial conviction did not constitute ineffective assistance of counsel so as to render guilty plea to child pornography charges improvident, but for future cases, the court expects defense counsel to inform the defendant of the federal sex offender registration collateral consequences of a plea; violation of this prospective rule will not per se be ineffective assistance, but will be taken into account in assessing effective assistance). POST CON RELIEF – GROUNDS – INVOLUNTARY PLEA – COLLATERAL CONSEQUENCES – FAILURE TO ADVISE DEFENDANT OF COLLATERAL SEX OFFENDER REGISTRATION CONSEQUENCES DID NOT INVALIDATE GUILTY PLEA – MILITARY COURT United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) (failure to inform accused of state sex offender registration requirement as collateral consequence of court-martial conviction did not render guilty plea to child pornography charges improvident). CONVICTION – STATE REHABILITATIVE RELIEF Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been "convicted" for immigration purposes; Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.). http://www.usdoj.gov/eoir/vll/intdec/vol23/3508.pdf CONVICTION – STATE REHABILITATIVE RELIEF Matter of MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code § 1203.4 is still "convicted" for immigration purposes under INA § 101(a)(48)). http://www.usdoj.gov/eoir/vll/intdec/vol23/3507.pdf POST CON RELIEF – STATE ADVISAL STATUTE – CONNECTICUT Conn. General Statutes (Rev. to 2003) § 54-1j (a) provides in relevant part: "The court shall not accept a plea of guilty . . . from any defendant in any criminal proceeding unless the court advises him of the following: 'If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.'" CRIM DEF – RIGHT NOT TO DISCLOSE IMMIGRATION STATUS POST CONVICTION RELIEF – STATE ADVISAL STATUTES – RIGHT NOT TO DISCLOSE IMMIGRATION STATUS

346

Arizona rules of criminal procedure contain a state advisal requirement that the court, before accepting a plea of guilty or no contest, advise every defendant concerning potential adverse immigration consequences of the plea. These rules also state the defendant is not to be required to disclose his or her immigration status. After plea, however, defendants are seen by a presentence report writer, who asks them their birthplace, mother’s name and birthplace, the father’s name and birthplace. This information is included in a presentence probation report which is presented to the judge, and is also used as a basis for notifying ICE of the situation so an immigration hold can be placed in an appropriate case. The defendant can decline to answer these questions, if necessary raising a Fifth Amendment privilege against self-incrimination objection in addition to the rule of court prohibiting the court from inquiring into the defendant's immigration status. In addition, illegal presence in the United States is now a statutory aggravating factor for Arizona crimes, which a judge can use to increase sentence. To aggravate the sentence on this basis, the sentencing judge need only find the illegal presence aggravating factor by a preponderance, not beyond reasonable doubt. ICE will no doubt look closely at the status of a person who refused to answer these questions. It may detain them while they look into the situation. Thanks to Beth Houck for this analysis. Defense counsel or immigration counsel can argue that it is unreasonable to assume undocumented status based on alienage because a person can be in legal status as a nonimmigrant, can be a permanent resident, can have protection under 8 U.S.C. § 1231(b)(3)(withholding) or "withholding" or "deferral of removal" under the Convention Against Torture (See 8 CFR § 1208.18). Second, a person in status or who otherwise has the right to remain in the United States (such as the person with "withholding" or "deferral of removal," or even a person granted "deferred action" by immigration authorities) might still have a Fifth Amendment right to remain silent because of a variety of criminal offenses in which alienage is an element. Even legal permanent residents sometimes commit the offense of illegal entry and are subject to prosecution for it. (If a person makes a weekend visit to Nogales, suffers a lost or stolen wallet, and has a need to get back to work Monday in the United States, a lawful permanent resident may reenter illegally for one's job). Alienage is also an element of illegal reentry as well as other federal offenses. See, e.g., 8 U.S.C. § 911 (false claim to citizenship); 8 US.C.§ 1282(c) (alien crewman overstay); 8 U.S.C. § 1304 (18 or over, not carrying immigration documentation); 8 U.S.C. § 1325 (illegal entry into U.S.); 8 U.S.C. § 1326 (illegal reentry after deportation or removal). A non-citizen’s potential exposure to criminal prosecution thus gives rise to a Fifth Amendment right against selfincrimination. See Kastigar v. United States, 406 U.S. 441, 444 (1972); U.S. v. AldereteDeras, 743 F.2d 645 (9th Cir. 1984); Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir. 1984). If the person has no prior encounters with immigration officials, does not reveal his/her birthplace, and is not in possession of foreign identification, ICE will be unable to complete the paperwork and will not be able to do anything with the

347

person. On the other hand, if the prints match, ICE will do what it would do if the person confessed to foreign birth. Thanks to Lynn Marcus. STATE ADVISAL STATUTES Even though many state advisal statutes are inaccurate in informing some noncitizens they "may" be deported, when the specific conviction in fact triggers mandatory deportation, there is no workable judicial advisal that correctly advises all noncitizen defendants of the exact immigration consequences of a plea, even to an aggravated felony. For example, a plea to a sexual abuse of a minor misdemeanor might well fall within the petty offense exception and thus allow a LPR married to a USC to adjust status to get a new green card and thus avoid deportation as in Matter of Rainford, 20 I. & N. Dec. 598 (BIA (1992) and Matter of Gabrielsky, 20 I. & N. Dec. 750 (BIA 1993). Thus, in that case, a plea to an aggravated felony would not trigger mandatory deportation. It would be a serious mistake for the court to misadvise the defendant that he will absolutely be deported when there is an easy remedy available to protect against deportation. The court is simply not in any position, without investigating the actual immigration status and prior criminal history of a defendant, and doing research on the specific immigration consequences of the new conviction in light of the prior history, to give the defendant accurate information on the exact immigration consequences of the new conviction. The immigration consequences of any criminal disposition depend on (a) the detailed immigration situation of each individual client, (b) the exact record of conviction in the criminal case, and (c) the defendant's prior record, as well as (d) certain conduct-based grounds of inadmissibility, deportability, and bases for relief or waivers in immigration court. This analysis is beyond the duty or power of the court to give to every noncitizen defendant. The solution is for criminal defense counsel to do this investigation, obtain confidential privileged attorney-client information, verify the exact immigration consequences of each disposition, try to avoid the worst of them if possible, and tell the client what is going on in a confidential attorney-client conference. It is not in the client's interest to inform the prosecutor or court of the exact nature (or even approximate nature) of the confidential and privileged advice defense counsel gives the defendant. The criminal court will breathe a sigh of relief that this is too complicated and not their function; courts will likely be happy to leave it to criminal defense counsel. If the court wants to police defense counsel's performance of their duty to do this, in order to avoid future IAC claims, the court's question should be limited to whether counsel has investigated the actual immigration consequences of the plea and informed the client of them (without specifying what they are) and leaving it at that. As far as the court's advisal goes, the current version is the best the court can realistically do: to tell the defendant, "If you are not a U.S. citizen, this plea might cause your (a) deportation, (b) exclusion, or (c) denial of naturalization or other immigration benefits."

348

STATE ADVISAL STATUTES – MASSACHUSETTS Chapter 225 of the Acts of 2004 AN ACT RELATIVE TO COURT ADVISEMENT. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: SECTION 1. Chapter 278 of the General Laws is hereby amended by striking out section 29D, as appearing in the 2002 Official Edition, and inserting in place thereof the following section:Section 29D. The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States. If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization.

349

SECTION 2. Section 1 shall apply to pleas of guilty, pleas of nolo contendere and admissions to sufficient facts which occur on or after the effective date of this act. Former section 29D of chapter 278 of the General Laws shall continue to apply to pleas of guilty, pleas of nolo contendere and admissions to sufficient facts which occurred before the effective date of this act. Approved July 29, 2004. POST CON – STATE ADVISAL STATUTES Cal. Penal Code § 1016.5 (West 1995); Conn. Gen. Stat. Ann. § 54-1j (West 1994); D.C. Code Ann. § 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. § 17-7-93 (1997); Haw. Rev. Stat. § 802E-2 (West 1994); Mass. Gen. Laws Ann. ch. 278, §29D (West 1994); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. § 46-12-210(1)(f) (1997); Neb. Rev. St. §29-1819.02 (West 2003), N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law § 220.50(7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. § 15A-1022(a)(7) (West 1994); Ohio Rev. Code Ann. § 2943.031(A) (Anderson 1993); Ore. Rev. Stat. § 135.385(2)(d) (1997); R.I. Gen. Laws § 12-12-22 (West 2003), Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); Wash. Rev. Code Ann. § 10.40.200 (West 1995); Wis. Stat. Ann. § 971.08(1)(c) (West 1994). [SEPT 3, 2003] Notes: -- DC: time frame unknown -- Florida: general writ of error coram nobis provision. -- Wisconsin: Possibly may bring the action more than a year from conviction based on "good cause" ... this is based on the interpretation of the general statute for post conviction relief. -- Nebraska: time frame unknown POST CONVICTION RELIEF – ARIZONA – STATE ADVISAL RULE OF COURT The Arizona Supreme Court amended the rules of criminal procedure to require judges to advise criminal defendants that their pleas may have immigration consequences. Arizona Rules of Court, rule 17.2(f)(2004). The court rejected an express provision requiring the court to vacate a conviction on grounds that the court failed to comply with the rule, but the new rule leaves open the possibility that a violation may give grounds to vacate, and at least avoided an explicit provision saying noncompliance is not a basis on which to vacate the conviction. The new rule provides that before taking a plea, the court "shall address the defendant personally in open court, informing him or her of and determining that he or she understands the following: . . . f. That if he or she is not a citizen of the United States, the plea may have immigration consequences. Specifically, the court shall state, 'If you are not a citizen of the United States, pleading guilty or no contest to a crime may affect your immigration status. Admitting guilt may result in deportation even if the charge is later dismissed. Your plea or admission of guilt could result in your deportation or

350

removal, could prevent you from ever being able to get legal status in the United States, or could prevent you from becoming a United States citizen.' The court shall also give the advisement in this section prior to any admission of facts sufficient to warrant finding of guilt, or prior to any submission on the record. The defendant shall not be required to disclose his or her legal status in the United States to the court." Order Amending Rule 17.2, Rules of Criminal Procedure, Arizona Supreme Court No. R-03-0025 (June 8, 2004). STATE ADVISAL STATUTES – NEW MEXICO – PAREDEZ DECISION COMING The Paredez case was argued on June 23, 2004 before the New Mexico Supreme Court, to consider issues arising from the current requirement that the court advise the criminal defendant prior to plea that there "might" be immigration consequences is not accurate. The current advice is arguably inaccurate in stating deportation might result, as applied to an aggravated felony mandatory deportation situation. The case also raises issues involving the necessity of a showing of prejudice that the defendant would not have pleaded guilty had he known he would have been automatically deported, and whether this issue should instead be raised by habeas and whether the record is adequate to find either an involuntary plea or ineffective assistance of counsel. Thanks to Tova Indritz for this report. POST CON RELIEF – STATE ADVISAL STATUTE – MASSACHUSETTS M.G.L. c. 278 sec. 29D: § 29D. Conviction upon plea of guilty, nolo contendere or an admission to sufficient facts; motion to vacate The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States. If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by

351

this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization. CREDIT(S) Added by St.1978, c. 383. Amended by St.1996, c. 450, § 254; St.2004, c. 225, § 1, eff. Oct. 27, 2004. POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES MAY REQUIRE VACATING CONVICTION IF COURT FAILED TO ASCERTAIN DEFENDANT READ AND UNDERSTOOD CONTENTS OF FORM It is possible to have the defendant's ability to read English tested, and determine the grade level at which s/he reads and understands English. The language used for many of the state advisal statutes, e.g., California Penal Code § 1016.5, warning is quite difficult, and it takes a reading level of at least 12th grade to understand 70% of the warning. Microsoft WORD has the ability to compute the Flesch-Kincaid Grade Level score, which gives the U.S. grade level required to understand a given text, under Tools, Spelling and Grammar, Options, Grammar, Show Readability Statistics. When this operation was performed on the Penal Code § 1016.5 text, it produced a readability score of 12th grade. For a description of the process of challenging a defendant's competency to understand and waive Miranda rights, and the analogous question of challenging ability to understand the immigration waiver, see I. Bruce Frumkin & Alfredo Garcia, Psychological Evaluations and the Competency to Waive Miranda Rights, THE CHAMPION 12 (Nov. 2003); S. Kassin & G. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST (November 2004). If the defendant's reading grade level is below the readability score required to understand the warning, it is possible to argue that the defendant did not understand the warning, and the conviction must therefore be vacated. See, e.g., People v. Ramirez (1999) 71 Cal.App.4th 519, 522 (Penal Code § 1016.5 advice can be given by means of a form, provided: "The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney."), quoting In re Ibarra (1983) 34 Cal.3d 277, 285-286. POST-CON – STATE ADVISAL STATUTES – ALASKA Ak.R.Crim.P. 11(c)(3)(C) (requiring Alaska state court judges to advise criminal defendants that a criminal conviction may have adverse immigration consequences).

352

Back to Table of Contents

©2005 Norton Tooby. All rights reserved.

Home | News | Free Resources | Books/CDs | Seminars Services | Search | About Us | Contact Us Copyright & Disclaimers Policy

353

Post-Conviction Relief for Immigrants - Chapter 7
News
updated 6/12/08

LO G OU T

by Norton Tooby

Resources Free Premium Books/CDs Seminars Services Search About Us Contact Us

Back to Table of Contents

Chapter 7: Vacating or Reducing the Sentence § 7.1 I. Introduction § 7.2 II. Immigration Consequences of Sentence Lower Courts of Ninth Circuit
CRIMINAL DEFENSE – SENTENCE – SENTENCING COURT CAN CONSIDER ILLEGAL IMMIGRATION STATUS IN IMPOSING SENTENCE IN CRIMINAL CASE Alire v. State, ___ Ariz. App.2d ___, 2005 WL 189682 (Jan. 28, 2005) (criminal sentencing court is free to consider defendant's illegal immigration status as a factor in determining appropriate sentence for criminal conviction for driving under influence of alcohol).

354

http://www.apltwo.ct.state.az.us/Decisions/CR20040044Opinion.pdf

Other
CRIMINAL DEFENSE – SENTENCE Daniel M. Kowalski, Sentencing Options for the Deportable Non-Citizen, 8 fed. Sentencing Rep. 286 (1996).

§ 7.3

A. Definition of "Sentence Imposed"

POST CON – AFTER CONVICTION VACATED – IF THERE IS NO NEW SENTENCE, THERE IS NO CONVICTION FOR IMMIGRATION PURPOSES If no sentence has been imposed, the defendant does not have a final conviction for immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956) ("Final judgment in a criminal case means sentence.") (quoting Berman v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937)); United States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992)(citing United States v. Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571 (6th Cir. 1975) ("Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes.")).

Third Circuit
SENTENCE – CONFINEMENT – HOME DETENTION – ANKLE BRACELET Ilchuk v. Attorney General of U.S., 434 F.3d 618 (3d Cir. Jan. 17, 2006) (house arrest with electronic monitoring constitutes "imprisonment" for purposes of deportation under INA § 237(a)(2)(A), 8 U.S.C. § 1227(a)(2)(A)); Rodriguez v. Lamer, 60 F.3d 745, 749 (11th Cir. 1995) (home confinement may constitute custody); see also Salim v. Reno, 2000 WL 33115910, at *4-*5 (E.D.Pa. Jan.16, 2001) (finding that a convict whose sentence was suspended in favor of mental treatment in a state hospital and later in his home "was sentenced and imprisoned within the meaning of the INA").

Ninth Circuit
SENTENCE – RECIDIVIST ENHANCEMENTS United States v. Carr, __ F.3d __, 2008 WL 200648 (9th Cir. Jan. 25, 2008) (Washington felony conviction for violation a protection order, in violation of RCW 26.50.110(5), was a felony for purposes of finding defendant a felon in possession of a firearm; although violation of a protection order is itself a gross misdemeanor,

355

defendant was convicted under subsection (5), for repeat offenders, and to convict under (5), the prosecution must prove the prior beyond a reasonable doubt). NOTE: The court here distinguished United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002), on the basis that 18 U.S.C. § 921(a)(20) requires that the determination of whether the conviction is a felony or a misdemeanor be made according to state law, while in the aggravated felony and federal sentencing contexts, the categorical approach is used to determine whether the offense would be a felony under federal law. SENTENCE – “SENTENCE IMPOSED” United States v. Gonzales, __ F.3d __, 2007 WL 3244006 (9th Cir. Nov. 5, 2007) (en banc) (The language "term of imprisonment" in U.S.S.G. § 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment.), overruling United States v. Williams, 291 F.3d1180, 1195 (9th Cir. 2002); United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005). SENTENCE – PAROLE – GUIDELINES DEFINITION United States v. Benitez-Perez367 F.3d 1200 (9th Cir. May 20, 2004) ("sentence imposed" for purposes of § 2L1.2(b)(1) means the actual sentence imposed by the judge; parole [unlike probation] is not to be considered in determination of the "actual sentence imposed"). http://caselaw.lp.findlaw.com/data2/circs/9th/0310419p.pdf

Lower Courts of Ninth Circuit
SENTENCE – NONPENAL INSTITUTIONS - CREDITS - NEW CHARGES WHILE ON INSANITY COMMITMENT People v. Callahan, 144 Cal.App.4th 678 (Nov. 6, 2006) (criminal defendants are not entitled to conduct credit for time spend in a state hospital). See also People v. Bruner (1995) 9 Cal.4th 1178, 1191 (prisoner not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period); People v. Buchhalter (2001) 26 Cal.4th 20, 30, n.6 (no conduct credit for time spent in nonpenal institutions.)

BIA
SENTENCE – DEFINITION – FEES ARE PUNISHMENT Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008) (costs and surcharges imposed in Florida deferred adjudication proceeding constitute a form of “punishment” or “penalty” for purposes of establishing that a noncitizen has

356

suffered a “conviction” within the meaning of INA § 101(a)(48)(A)). Note: the court here sought to establish a national standard (rather than relying on Florida state law), and includes amounts paid in restitution as a cost equaling “punishment.” TEXAS – DEFERRED ADJUDICATION A theft offense is only an aggravated felony (and therefore, a disqualification for cancellation), if the sentence imposed was at least one year. Under Texas law, where deferred adjudication is granted, no sentence is imposed. Therefore, crimes of violence, theft offenses, and other convictions for which a sentence imposed of one year is transforms the conviction into an aggravated felony, do not become aggravated felonies if the defendant received and successfully completed deferred adjudication without a violation since no sentence of one year or more has been imposed. But see, Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (Texas deferred adjudication is a conviction for immigration purposes). SENTENCE -- SENTENCE TO TREATMENT FACILITY Sentence to a state mental hospital following conviction of a crime is a “sentence” for immigration purposes. Matter of V, 7 I. & N. Dec. 242 (BIA 1956). Sentence to a drug treatment facilities is considered a sentence for purposes of the satisfying the definition of "convicted." Dunn-Martin v. District Director, 426 F.2d 894 (9th Cir. 1970); Matter of Robinson, 15 I. & N. Dec. 197 (BIA 1975); United States ex rel. Abbenante v. Butterfield, 112 F. Supp. 324, 326 (E.D. Mich. 1953), aff'd per curiam, 212 F.2d 794 (6th Cir. 1954) (drug addict committed to public health service hospital was "sentenced to confinement" within the meaning of 8 U.S.C.A. § 1251(a)(4)). But see, Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (a sentence for primarily rehabilitative confinement is not necessarily a "sentence to confinement" under § 1251(a)(4)), Matter of M, 8 I & N 256 (BIA 1959).

Other
POST CON RELIEF – SENTENCE – PROBATION VIOLATION Where a defendant has previously received a sentence of 364 days in custody for an offense that would be an aggravated felony with a one-year sentence imposed, any additional custodial sentence imposed as a result of a probation violation would be added to the original sentence and would transform the conviction into an aggravated felony. Defense counsel at the probation violation plea bargaining and sentencing stages should: (1) Ask the court to vacate the original probation condition imposing the custodial sentence of 364 days; (2) Enter a waiver of credit for time previously served for the 364 days already served; and

357

(3) As the court to impose a new probation condition of whatever time in custody will meet the prosecution and court’s sense of an appropriate additional custodial sentence for the probation violation. (A new sentence of no more than 180 days in custody would enable the conviction to qualify under the sentence-imposed requirement of the Petty Offense Exception to inadmissibility for a crime of moral turpitude conviction if that is a relevant consideration for the defendant.) Since the court explicitly vacates (even if not as legally invalid) the original 365 sentence order, that is effectively eliminated for immigration purposes. Matter of Cota, 23 I. & N. Dec. 849 (BIA 2005); Matter of Song, 20 I. & N. Dec. 136 (BIA 1989); LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

§ 7.4

B. Length of "Sentence Imposed" 1. Aggravated Felonies Requiring 1-Year "Sentence a. The 1-Year List b. Reduction of Sentence Below 1 Year

§ 7.5 Imposed" § 7.6 § 7.7

§ 7.8 2. Petty Offense Exception to Inadmissibility Requires Sentence Imposed of 6 Months or Less Ninth Circuit
CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION Morales v. Ashcroft, 2004 WL 363432 (9th Cir. February 25, 2004) (unpublished) (IJ erred in finding that single misdemeanor conviction rendered noncitizen statutorily ineligible for suspension of deportation where misdemeanor conviction of California Penal Code § 273.5, corporal injury, fell within petty offense exception of 8 U.S.C. § 1182(a)(2)(A)(ii)(II)).

§ 7.9

a. Petty Offense Exception Generally

§ 7.10 b. Effects of Petty Offense Exception in Specific Immigration Contexts § 7.11 3. A Noncitizen Becomes Inadmissible if Convicted of 2 or More Offenses for Which the Aggregate Sentences to Confinement Totaled 5 Years or More

358

§ 7.12 4. Mandatory Detention is Triggered if a Noncitizen is Deportable for 1 Conviction of a Crime of Moral Turpitude for Which a Sentence of 1 Year or More Has Been Imposed § 7.13 5. Restriction on Removal (Formerly Withholding of Deportation) Requires a Noncitizen to Avoid an Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s) § 7.14 6. A Conviction is Considered a Misdemeanor, for Purposes of Adjustment of Status, if the State Designates It as a Misdemeanor and the Sentence Imposed is 1 Year or Less, Even If the Maximum Sentence is Greater § 7.15 C. Length of Actual Confinement

§ 7.16 1. To Be Eligible for the Waiver of Deportability Under Former INA 212(c), the Noncitizen Must Avoid Service of 5 Actual Years or More in Custody for Aggravated Felony Conviction(s) § 7.17 2. A Noncitizen is Disqualified from Showing Good Moral Character if Actually Confined as a Result of Criminal Convictions for a Total of 180 Days or More § 7.18 3. Situations That Require Good Moral Character

§ 7.19 D. Naturalization May Not Be Granted if the Applicant is Currently on Probation or Parole § 7.20 E. The Sentencing Judgment, Which Forms Part of the “Record of Conviction,” Can Lead to Adverse Immigration Consequences
POST CON RELIEF -- UNCONSTITUTIONAL PRIOR CONVICTION - MAY NOT BE USED TO ENHANCE SENTENCE A prior conviction resulting from an uncounseled guilty plea for which there was an invalid waiver of counsel may not be used to enhance a later offense where the prior conviction resulted in incarceration. See Baldasar v. Illinois, 446 U.S. 222 (1980); Nichols v. United States, 511 U.S. 738 (1994).

§ 7.21 F. Immigration Consequences of Reducing the Level of the Offense from Felony to Misdemeanor

359

Lower Courts of Ninth Circuit
CAL POST CON – WOBBLER – SENTENCE ENHANCEMENT People v. Feyrer, 151 Cal.App.4th 506 (Cal.App. 2 Dist. May 29, 2007) (trial court may reduce a felony “wobbler” offense to a misdemeanor despite the admission of an enhancement that a defendant inflicted great bodily injury in the commission of the offense).

§ 7.22 1. The Most Recent Sentence Determines the Immigration Consequences of the Conviction Ninth Circuit
SENTENCE – GUIDELINES – WOBBLER – REDUCED SENTENCE IS USED FOR GUIDELINES CALCULATIONS United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a defendant is convicted of an alternative "felony-misdemeanor" or "wobbler," the alternative sentence ultimately executed is the one to be used in guidelines calculations).

§ 7.23 Law

2. The Felony/Misdemeanor Distinction in Immigration

§ 7.24 3. Some Crimes of Violence are Aggravated Felonies Only if the Conviction is a Felony Second Circuit
AGGRAVATED FELONY – CRIME OF VIOLENCE – 18 U.S.C. § 16(b) – FELONY -MASSACHUSETTS MISDEMEANOR CONVICTION OF ASSAULT ON OFFICER CONSTITUTED FELONY UNDER FEDERAL DEFINITION OF FELONY SINCE MAXIMUM TERM OF IMPRISONMENT EXCEEDED ONE YEAR Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts conviction of assault on police officer, under Massachusetts General Laws chapter 265, section 13D, with suspended two-year sentence to imprisonment, constituted felony for purposes of being a crime of violence aggravated felony, as defined under 18 U.S.C. § 16(b), since the court applied the federal definition of felony, 18 U.S.C. § 3559(a), and the maximum term of imprisonment for the offense of conviction was in excess of one year: "Regardless of how Massachusetts law defines it, we are obligated to apply the federal-law definition of a felony. Cf. United States v. Campbell, 167 F.3d 94, 97 (2d Cir.1999) (observing that “[t]he immigration laws contain no provision ... indicat[ing] that they are to be interpreted in accordance with state law,” and holding that whether a

360

person has been convicted of an aggravated felony within the language of 8 U.S.C. § 1326(b)(2) “is necessarily ... a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State” (internal quotation marks omitted)).").

Fifth Circuit
FELONY CLASSIFICATION United States v. Alfaro-Hernandez, __ F.3d __ (5th Cir. Jun. 16, 2006) (felony classification of defendant’s underlying offense, for purposes of sentence imposed upon revocation of defendant's supervised release on a conviction for transportation of an illegal alien, is determined by the underlying statute of conviction, not the Guidelines range as calculated by the district court). http://caselaw.lp.findlaw.com/data2/circs/5th/0540327cr0p.pdf

Tenth Circuit
FELONY/MISDEMEANOR DEFINITION United States v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. Aug. 8, 2006) (Colorado conviction for assault in the third degree, in violation of Colo.Rev.Stat. § 18-3-204, although labeled by the State as a misdemeanor, is a felony for illegal re-entry sentencing purposes since the maximum possible punishment for the offense is 18 months).

§ 7.25 4. A State First-Offense Controlled Substances Possession Conviction Must Be a Felony in Order to Be Considered an Aggravated Felony Second Circuit
SENTENCE – DATE OF CONVICTION – SENTENCE REQUIRED TO CONSTITUTE CONVICTION Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA § 101(f)(8), 8 U.S.C. § 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A), the entry of a “formal judgment of guilt . . . by a court” occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that “Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt”);

361

Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant “entered a plea of guilty, and the court entered a formal judgment of guilt”).

Ninth Circuit
AGGRAVATED FELONY – DRUG TRAFFICKING Cazarez-Gutierrez v Ashcroft, 356 F.3d 1015 (9th Cir. 2004), decision withdrawn presumably on jurisdictional grounds (9th Cir. April 26, 2004). In CazarezGutierrez, the Ninth Circuit held that a state felony simple possession conviction was not an aggravated felony in immigration proceedings, unless it was a conviction of possession of flunitrazepam (a date-rape drug) or more than five grams of crack cocaine, which are aggravated felony convictions under federal law. In summary, we hold that a state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of "drug trafficking crime," or is a crime involving a trafficking element. Cazarez-Gutierrez's offense, possession of methamphetamine, is not punishable as a felony under federal law and involves no trafficking element. Therefore, his offense is not an aggravated felony for immigration purposes, and the BIA erred in finding Cazarez-Gutierrez statutorily ineligible for cancellation of removal. Accordingly, we grant his petition and remand to the BIA to consider whether the IJ abused his discretion by granting Cazarez-Gutierrez cancellation of removal. Cazarez-Gutierrez v Ashcroft, 356 F.3d 1015, 1027 (9th Cir. 2004), decision withdrawn presumably on jurisdictional grounds (9th Cir. April 26, 2004). The court concluded that a different test was possible for immigration purposes, than is the rule for illegal reentry sentencing cases, and the better view uses a uniform national test based on whether the conviction would have been a felony if the case had been prosecuted in federal court. Under this test, because simple possession is a misdemeanor under federal law, even a state felony possession offense would be judged a "misdemeanor" if prosecuted in federal court, and is therefore not an aggravated felony. Since Cazarez has been withdrawn, criminal defense counsel should assume that the law reverts to what it was before the Cazarez-Gutierrez opinion. The BIA rule holds that a state felony conviction for simple possession is an aggravated felony, but even multiple state misdemeanor convictions for simple possession are not. See Matter of Yanez-Garcia 23 I. & N. Dec. 390 (BIA 2002); Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002). If the

362

Ninth Circuit holds it has no petition for review jurisdiction in Cazarez, the case would go to federal district court on habeas corpus under 28 U.S.C. § 2241 to decide the same issue of whether the felony state conviction for simple possession is an aggravated felony for immigration purposes. Even under the BIA rule, it is still possible, in the Ninth Circuit, to eliminate all adverse immigration consequences of a first felony or misdemeanor conviction for simple possession by "rehabilitative relief" such as, in California, withdrawal of plea under deferred entry of judgment, Proposition 36, or expungement pursuant to Penal Code § 1203.4. See LujanArmendariz v INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999). This is also true for a first conviction of giving away a small amount of marijuana. See 21 U.S.C. § 841(b)(4). In Criminal Court. Until the Ninth Circuit issues a new ruling, criminal defense counsel should act conservatively and assume that a felony simple possession will be held an aggravated felony in immigration proceedings. Counsel should advise and assist clients to eliminate an existing first felony conviction for simple possession, by obtaining rehabilitative relief. Counsel should attempt to defer pleading to a new felony simple possession (unless it is a first offense that can quickly be eliminated by rehabilitative relief), or plead to a different offense. Alternatives include misdemeanor simple possession and offenses such as accessory after the fact, being under the influence, being in a place where drugs are used, possession of paraphernalia, or possession of an unidentified controlled substance. If it is crucial to avoid an aggravated felony, the person may decide to plead up to statutes that include solicitation or "offering" to commit a drug offense, such as Calif. Health & Safety Code §§ 11352(a), 11360(a) and 11379(a), which would not be held to be drug trafficking aggravated felonies, or even controlled substances convictions. See United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001); "Note: Drug Offenses" at the Quick Reference Chart at www.ilrc.org/Cal_DIP_Chart_by_section.pdf. In Immigration Court. Immigration counsel should continue to argue that the original decision in Cazarez-Gutierrez was decided correctly, or ask for a continuance pending the Ninth Circuit's decision.

§ 7.26 5. Felony-Misdemeanor Offenses that are Treated As, or Reduced To Misdemeanor Offenses Do Not Constitute Aggravated Felonies as Long as They Would Be Misdemeanors Under Federal Law § 7.27 6. 1 Felony Conviction Disqualifies an Immigrant from Eligibility for a Number of Immigration Benefits § 7.28 § 7.29 a. The Legalization Program b. "Special Agricultural Worker" (SAW)

363

Legalization Program § 7.30 § 7.31 § 7.32 § 7.33 Deportation § 7.34 § 7.35 c. Family Unity Program d. Temporary Protected Status e. Political Asylum f. Restriction on Removal, Formerly Withholding of 7. Effect of a Felony Conviction on Criminal Sentences G. Reduction of Maximum Sentence To or Below 1 Year

Lower Courts of Ninth Circuit
POST CON RELIEF – WASHINGTON – SENTENCE REDUCTION State v. Quintero-Morelos, 133 Wn. App. 591, 2006 Wash. App. LEXIS 1301 (Jun. 22, 2006) (trial court had discretion, under CrR 7.8, to grant a motion to vacate judgment imposing sentence of 365 days, in order to impose one of 364 days, to avoid aggravated felony mandatory deportation, on the basis of "excusable neglect . . . in obtaining a judgment . . . ." based on defense counsel's failure to inform the sentencing court of defendant's noncitizen status), distinguishing State v. Cortez, 73 Wn. App. 838, 871 P.2d 660 (1994). CRIM DEF – ARGUMENT THAT IT'S OK TO TAKE FEDERAL IMMIGRATION CONSEQUENCES INTO ACCOUNT A court does not circumvent federal law by vacating a deportable sentence, to impose a non-deportable equivalent sentence, when informed of the immigration consequences. State v. Quintero-Morelos, 133 Wn. App. 591, ___, 2006 Wash. App. LEXIS 1301 (June 22, 2006) ("We simply are not prepared to hold that a state sentencing judge exercising traditional sentencing discretionary authority runs afoul of the Supremacy Clause by imposing a sentence of one day less than a year to avoid the defendant's deportation by federal authorities. The judge here is not circumventing federal law. He is simply acknowledging the obvious; federal law has the potential to influence the actual punishment visited upon a criminal defendant in state court. E.g., State v. Jamison, 105 Wn. App. 572, 591, 20 P.3d 1010 (2001). State court judges often make decisions mindful of federal implications. See, e.g., In re Marriage of Glass, 67 Wn. App. 378, 391-392, 835 P.2d 1054 (1992) (considering adverse [federal] tax consequences when adjusting [state] maintenance award).").

364

§ 7.36 1. Petty Offense Exception United States Permanent Residents Non-Lawful Permanent Residents
SENTENCING - BLAKELY AND THE FEDERAL SENTENCING GUIDELINES – MAXIMUM SENTENCE United States v. Booker, 125 S.Ct. 738, 73 USLW 4056 (Jan. 12, 2005) (Sixth Amendment as construed by Blakely v. Washington, 542 U.S. ___ (2004), applies to the Federal Sentencing Guidelines because they are mandatory; advisory provisions would not implicate the Sixth Amendment, because judges may exercise broad discretion in imposing a sentence within a statutory range). The Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Slip opn., first part, p. 20.) Justice Breyer wrote the second part (the remedial portion) (joined by Rehnquist, O'Connor, Kennedy, and Ginsburg) which concluded that the statute which makes the sentencing guidelines mandatory (18 U.S.C. § 3553(b)(1)) and the section that provides for de novo appellate review of sentences outside the Guidelines (3742(e)), violate the Sixth Amendment and must be severed from the rest of the Sentencing Reform Act of 1984. With this modification, the Guidelines are effectively advisory, requiring the court to consider Guidelines ranges (sec. 3553(a)(4)) but permitting it to tailor the sentence in light of other statutory concerns (sec. 3553(a)). The decisions are binding on all cases that are currently on direct review.

Fifth Circuit
IMMIGRATION OFFENSES – NONCITIZEN IN POSSESSION OF FIREARM – BOOKER SENTENCING REMAND United States v. Villegas, __ F.3d __, 2005 WL 627963 (5th Cir. March 17, 2005) (case remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005), to determine whether four level enhancement to 18 U.S.C. § 922(g)(5) conviction sentence was proper upon court finding that firearm possession was in connection with use of fraudulent immigration documents).

Ninth Circuit
POST CON RELIEF – SENTENCE – REMAND FOR RESENTENCE – BOOKER ILLEGAL REENTRY – SENTENCE – BOOKER REMAND United States v. Hernandez-Hernandez, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (sentence following a guilty plea conviction for illegal reentry is affirmed and a limited remand pursuant to Ameline is granted where district court properly applied

365

prior convictions with regards to sentence enhancement). http://caselaw.lp.findlaw.com/data2/circs/9th/0230429p.pdf

§ 7.37 States § 7.38 Residents

a. Admissibility; the Ability to Enter the United b. Cancellation of Removal for Lawful Permanent

§ 7.39 c. Cancellation of Removal for Non-Lawful Permanent Residents § 7.40 § 7.41 § 7.42 § 7.43 § 7.44 § 7.45 § 7.46 Proceedings d. Good Moral Character e. Lawful Permanent Resident Status f. Naturalization g. Registry h. Suspension of Deportation i. Violence Against Women Act j. Voluntary Departure at End of Removal

§ 7.47 k. Reduction from Felony to Misdemeanor Changes Maximum Sentence to 1 Year, Qualifying for the Petty Offense Exception § 7.48 2. Reduction of Maximum Sentence Below 1 Year to Avoid Removal for 1 Conviction of a Crime of Moral Turpitude
SENTENCING - BLAKELY AND THE FEDERAL SENTENCING GUIDELINES – MAXIMUM SENTENCE United States v. Booker, 125 S.Ct. 738, 73 USLW 4056 (Jan. 12, 2005) (Sixth Amendment as construed by Blakely v. Washington, 542 U.S. ___ (2004), applies to the Federal Sentencing Guidelines because they are mandatory; advisory provisions would not implicate the Sixth Amendment, because judges may exercise broad discretion in imposing a sentence within a statutory range). The Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a

366

sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Slip opn., first part, p. 20.) Justice Breyer wrote the second part (the remedial portion) (joined by Rehnquist, O'Connor, Kennedy, and Ginsburg) which concluded that the statute which makes the sentencing guidelines mandatory (18 U.S.C. § 3553(b)(1)) and the section that provides for de novo appellate review of sentences outside the Guidelines (3742(e)), violate the Sixth Amendment and must be severed from the rest of the Sentencing Reform Act of 1984. With this modification, the Guidelines are effectively advisory, requiring the court to consider Guidelines ranges (sec. 3553(a)(4)) but permitting it to tailor the sentence in light of other statutory concerns (sec. 3553(a)). The decisions are binding on all cases that are currently on direct review.

Fifth Circuit
IMMIGRATION OFFENSES – NONCITIZEN IN POSSESSION OF FIREARM – BOOKER SENTENCING REMAND United States v. Villegas, __ F.3d __, 2005 WL 627963 (5th Cir. March 17, 2005) (case remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005), to determine whether four level enhancement to 18 U.S.C. § 922(g)(5) conviction sentence was proper upon court finding that firearm possession was in connection with use of fraudulent immigration documents).

§ 7.49 Contexts

3. Alphabetical Checklist of Applicable Immigration

§ 7.50 III. Obtaining an Effective Order Vacating or Reducing a Sentence Lower Courts of Ninth Circuit
POST-CON – REDUCTION OF SENTENCE State v. Quintero-Morelos, 133 Wn. App. 591 (Jun. 22, 2006) ("The day following sentencing, the judge decided to reduce the sentence by one day, which prevented the defendant's federal deportation, because defense counsel failed at the time of the original sentencing to inform the judge that the defendant was subject to deportation. The question presented is whether the judge had discretionary authority to set aside the judgment on the ground of neglect or carelessness of defense counsel. We conclude that he did and we affirm that exercise of discretion.").

367

Eleventh Circuit
SENTENCE – SENTENCE IMPOSED Hernandez v. U.S. Att’y Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).

BIA
POST CON RELIEF – SENTENCE – VACATION OR REDUCTION OF SENTENCE IS EFFECTIVE FOR IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S REASONS FOR GRANTING IT Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to modify or reduce a criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). http://www.usdoj.gov/eoir/vll/intdec/vol23/3522.pdf

Other
CRIMINAL DEFENSE – SENTENCE M. Shein, Cultural Issues in Sentencing, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 625 (2d ed. 2007). POST CON RELIEF – WASHINGTON STATE – MODIFYING SENTENCE The DHS attorneys in Washington state have been arguing that a sentence modification is not valid under Washington law based, inter alia, upon their (erroneous) analysis that the district court lacked jurisdiction to modify the sentence. However, IJ Kandler appears to have bought their analysis, holding that even under Mattter of Song and it's predecessor decisions, the sentence modification order must be valid under state law. Even though DHS is wrong in their argument, IJ Kandler is correct that BIA precedent requires valid state law orders in order for PCR to be effective. Additionally, the DHS has attacked the validity of the PCR sentence modification saying that it doesn't comport with Washington's PCR exceptions to one year time limit on PCR motions (in this case, a Rule 7.8(b) motion (CrRLJ 7.8(b), Washington's rule-based version for a writ of coram nobis,

368

which is no longer available here)). And even if it did, DHS says, modifying the sentence for immigration purposes does not fall within the scope of any of the five permissible grounds for modifying a sentence or vacating a conviction under the applicable Rule 7.8(b) (1. mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order; 2. newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5; 3.fraud, misrepresentation, or other misconduct of an adverse party; 4. the judgment is void; or 5. any other reason justifying relief from the operation of the judgment.) Their argument against the exceptions to the 1 year time limits is bogus in light of a case that permits equitable tolling (State v. Littlefair). However, their other argument - that such sentence modifications aren't permitted under the grounds of 7.8(b) was recently given traction by Quintero-Morelos, __ P.2d __, 2004 Wash. App. LEXIS 2340 (Wa. Ct. App. Oct. 2004). Fortunately, this incorrectly decided appeal was withdrawn a month later (appellate attorney failed to file a brief) and is no longer available for citation. However, the appeal continues and the Washington Association of Prosecuting Attorneys will certainly move again to publish the bad decision. BOTTOM LINE: There are usually plenty of legal bases or at least some non-immigration-equities related basis - for modifying the sentence (e.g. ineffective assistance of counsel to not deal with immigration issue at original sentencing). I certainly recommend - at least for Washington state practitioners - to be aware of the current state of flux and exercise care in getting sentence modification orders. Ann Benson, Directing Attorney

§ 7.51

A. Vacating the Conviction Vacates the Sentence

Ninth Circuit
POST-CONVICTION RELIEF – WHERE ONE CONVICTION AMONG TWO OR MORE IS REVERSED ON APPEAL, CASE SHOULD BE REMANDED FOR RESENTENCING United States v. Latu, ___ F.3d ___ (9th Cir. March 19, 2007) (where one conviction is vacated on appeal, case should be remanded for resentencing on remaining counts), citing United States v. Bennett, 363 F.3d 947, 955 (9th Cir. 2004) (“When a defendant is sentenced on multiple counts and one of them is later vacated on appeal, the sentencing package comes unbundled. The district court then has the authority to put together a new package reflecting its considered judgment as to the punishment the defendant deserved for the crimes of which he was still convicted.”) (citations, alterations and internal quotation marks omitted).

§ 7.52 B. Vacating the Original Sentence on a Ground of Legal Invalidity

369

§ 7.53 § 7.54 Statute

C. Obtaining an Order Modifying the Original Sentence D. Modifying a Sentence Under a State Rehabilitative

§ 7.55 IV. Procedural Vehicles for Vacating or Reducing the Sentence § 7.56 A. Direct Appeal from Sentence

Ninth Circuit
POST CON RELIEF – SENTENCE – PARTIAL REMAND United States v. Fifield, ___ F.3d ___, 2005 WL 3556912 (9th Cir. Dec. 30, 2005) (sentences for being a felon in possession of a firearm and an unlawful user of a controlled substance in possession of a firearm remanded to determine whether the district court would have imposed a different sentence if it had known that the sentencing guidelines were advisory). http://caselaw.lp.findlaw.com/data2/circs/9th/0430299p.pdf POST CON – APPEAL – FEDERAL -- WAIVER OF RIGHT TO APPEAL SENTENCE United States v. Smith, ___ F.3d ___ (9th Cir. Nov. 23, 2004) (waiver of appeal valid where waiver was knowingly and voluntarily made). http://caselaw.lp.findlaw.com/data2/circs/9th/0450046p.pdf

§ 7.57 § 7.58 § 7.59

B. Petition for Writ of Habeas Corpus C. Non-Statutory Motion to Vacate Sentence D. Petition for a Writ of Error Coram Nobis

Lower Courts of Fourth Circuit
POST CON RELIEF – VIRGINIA – CORAM VOBIS – SENTENCE REDUCTION GRANTED FOR IMMIGRATION PURPOSES AFTER CUSTODY EXPIRED SINCE DEFENDANT HAD NO REASON TO SUSPECT THE PROBLEM EARLIER – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18, 2006) (granting writ of coram vobis, reducing sentence from two years to 360 days, thereby entitling petitioner to discretionary relief in the immigration courts, after custody had expired, since petitioner had no reason to suspect the advice was faulty any earlier than when he was placed into removal proceedings upon returning to

370

the United States).

§ 7.60 § 7.61 § 7.62 § 7.63 § 7.64

E. Motion to Correct Void Sentence F. Commutation or Correction of Sentence G. Motion to Modify Probationary Sentence H. Motion to Shorten Probation I. Shortening Parole

§ 7.65 V. Grounds to Vacate the Sentence Tenth Circuit
POST CON RELIEF – FEDERAL – SENTENCE – GROUNDS – COURT’S FAILURE TO ADDRESS DEFENDANT’S ARGUMENT REQUIRES REMAND AND RESENTENCING United States v. Sanchez-Juarez, ___ F.3d ___, 2006 WL 1165967 (10th Cir. May 3, 2006) (court of appeal vacated and remanded sentence, because of district court’s failure to address defendant’s argument at sentencing).

§ 7.66 § 7.67 § 7.68 § 7.69

A. Choice of Ground 1. Any Ground Will Do 2. Immigration-Related Grounds 3. Non-Immigration Related Grounds

§ 7.70 B. Relationship Between Grounds to Vacate Convictions and Grounds to Vacate Sentence § 7.71 § 7.72 § 7.73 Sentence § 7.74 1. Vacating Conviction Vacates Sentence 2. Many Conviction Grounds Apply at Sentence 3. Court Must Reaffirm Validity of Plea at Time of C. Violations of the Right to Counsel

371

§ 7.75 § 7.76 Ninth Circuit

1. The Right to Counsel 2. Ineffective Assistance of Counsel

POST CONVICTION RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – ORIGINAL COUNSEL CANNOT RAISE OWN INEFFECTIVENESS; EXCEPTION TO STATE STATUTE OF LIMITATIONS WHERE IT TAKES MORE TIME TO SEE IF IAC CLAIM EXISTS Leavitt v. Arave, ___ F.3d ___ (9th Cir. June 14, 2004) (original counsel cannot raise own ineffectiveness; exception therefore exists to state post-conviction relief statute of limitations where more time is necessary for independent counsel to determine whether IAC claim exists). http://caselaw.lp.findlaw.com/data2/circs/9th/0199008p.pdf

§ 7.77 § 7.78 Third Circuit

3. Immigration-Related Ineffective Assistance a. Failure to Investigate the Facts

POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE MITIGATING EVIDENCE Outten v. Kearney, 464 F.3d 401 (3rd Cir. 2006) (trial counsel failed to conduct reasonably competent investigation into the potential mitigation).

Sixth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE MITIGATING EVIDENCE Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006) (counsel failed to conduct any mitigation investigation or present any mitigation evidence the court). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE MITIGATING EVIDENCE Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006) (counsel failed to conduct a thorough investigation or presentation of defendant’s social history or available mitigation). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE MITIGATING EVIDENCE Dickerson v. Bagley, 453 F.3d 690 (6th Cir. 2006) (counsel failed to investigate and

372

present mitigating evidence).

Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE – FAILURE TO REVIEW IMPORTANT RECORDS Frierson v. Woodford, 463 F.3d 982 (9th Cir. 2006) (defendant was prejudiced by ineffective assistance of counsel which resulted from counsel’s failure to review important records). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – ABA STANDARDS FOR CRIMINAL JUSTICE – FAILURE TO INVESTIGATE OR PRESENT MITIGATING EVIDENCE Correll v. Ryan, 465 F.3d 1006 (9th Cir. 2006) (defense counsel’s failure to investigate or present mitigation at penalty phase required reversal of death sentence, despite personal knowledge of several mitigating factors).

§ 7.79

b. Failure to Present Mitigating Information

POST CON RELIEF – SENTENCE – GROUNDS – STATE CAN CONSTITUTIONALLY LIMIT INNOCENCE-RELATED EVIDENCE AT SENTENCING TO THAT PRESENTED AT THE GUILT TRIAL Oregon v. Guzek, ___ U.S. ___ (Feb. 22, 2006) (Constitution does not prohibit a state from limiting innocence-related evidence a defendant can introduce at a sentencing proceeding to the evidence introduced at the original trial). http://laws.lp.findlaw.com/us/000/04928.html CRIMINAL DEFENSE – SENTENCE POST CON RELIEF – SENTENCE – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE OR ARGUE MITIGATION Tennard v. Dretke, ___ U.S. ___, 124 S.Ct. 2562, 2570 (2004) (error to exclude mitigating evidence from sentencing proceeding on relevance grounds if it tends logically to prove or disprove some fact or circumstance which a factfinder could reasonably deem to have mitigating value).

First Circuit
POST CON RELIEF – SENTENCE – GROUNDS – FEDERAL SENTENCE NOT UNLAWFUL FOR FAILURE TO TAKE INTO ACCOUNT PENDING DEPORTATION OF DEFENDANT United States v. Meran, ___ F.3d ___, 2006 WL 2615152 (1st Cir. Sept. 13, 2006) (per curiam) (federal sentence not unlawful for failure to take defendant's pending deportation into account).

373

Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – FAILURE TO MITIGATE Frierson v. Woodford, ___ F.3d ___ (9th Cir. Sept. 14, 2006) (prejudicial ineffective assistance of counsel found in failing to investigate and present important mitigation evidence at the penalty phase of a trial, failing to review juvenile court records, and failing to challenge a key mitigation witness's assertion of his privilege against self-incrimination at the penalty trial). http://caselaw.lp.findlaw.com/data2/circs/9th/0499002p.pdf POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO PROVIDE ADEQUATE RECORDS TO EXPERT Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) (defense counsel was ineffective in failing to provide defense psychiatrist with records necessary for proper preparation of expert). POST CON – GROUNDS – PLEA – SENTENCE – INEFFECTIVE COUNSEL – FAILURE TO INVESTIGATE CHILDHOOD ABUSE Boyde v. Brown, __ F.3d __ (9th Cir. April 21, 2005) (death sentence vacated where counsel was ineffective since he failed to investigate mitigating childhood abuse). http://caselaw.lp.findlaw.com/data2/circs/9th/0299008p.pdf POST CON – SENTENCE – INEFFECTIVE SENTENCE – FAILURE TO INVESTIGATE MITIGATION Boyde v. Brown, __ F.3d __ (9th Cir. April 5, 2005) (counsel rendered ineffective assistance when he failed to fully investigate and present evidence of`physical abuse of defendant and sexual abuse of his sisters, and failed to object to prosecution's inadmissible evidence). POST CON RELIEF – FEDERAL – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO MITIGATE Stankewitz v. Woodford, 365 F.3d 706 (9th Cir.), cert. den., 125 S. Ct. 517, 160 L. Ed. 2d 369 (2004) (evidentiary hearing required on claim of denial of effective assistance of counsel based on counsel’s failure to "investigate and introduce available, vital evidence of [defendant’s] childhood of abuse, poverty and institutionalization; his mental deficiencies amounting to borderline retardation; and his drug and alcohol abuse exacerbating his disturbed emotional state, particularly in the days leading up to the killing.").

Lower Courts of Ninth Circuit
POST CON RELIEF – WASHINGTON – SENTENCE REDUCTION

374

State v. Quintero-Morelos, 133 Wn. App. 591, 2006 Wash. App. LEXIS 1301 (Jun. 22, 2006) (trial court had discretion, under CrR 7.8, to grant a motion to vacate judgment imposing sentence of 365 days, in order to impose one of 364 days, to avoid aggravated felony mandatory deportation, on the basis of "excusable neglect . . . in obtaining a judgment . . . ." based on defense counsel's failure to inform the sentencing court of defendant's noncitizen status), distinguishing State v. Cortez, 73 Wn. App. 838, 871 P.2d 660 (1994). CRIM DEF – ARGUMENT THAT IT'S OK TO TAKE FEDERAL IMMIGRATION CONSEQUENCES INTO ACCOUNT A court does not circumvent federal law by vacating a deportable sentence, to impose a non-deportable equivalent sentence, when informed of the immigration consequences. State v. Quintero-Morelos, 133 Wn. App. 591, ___, 2006 Wash. App. LEXIS 1301 (June 22, 2006) ("We simply are not prepared to hold that a state sentencing judge exercising traditional sentencing discretionary authority runs afoul of the Supremacy Clause by imposing a sentence of one day less than a year to avoid the defendant's deportation by federal authorities. The judge here is not circumventing federal law. He is simply acknowledging the obvious; federal law has the potential to influence the actual punishment visited upon a criminal defendant in state court. E.g., State v. Jamison, 105 Wn. App. 572, 591, 20 P.3d 1010 (2001). State court judges often make decisions mindful of federal implications. See, e.g., In re Marriage of Glass, 67 Wn. App. 378, 391-392, 835 P.2d 1054 (1992) (considering adverse [federal] tax consequences when adjusting [state] maintenance award).").

§ 7.80 § 7.81 § 7.82 § 7.83

c. Failure to Research the Law d. Failure to Correct Error of Fact or Law e. Failure to Assist in Withdrawal of Plea f. Failure to Advise About Appeal

§ 7.84 4. Examples of IAC Concerning Immigration Consequences of Sentence Other
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – FAILURE TO ADVICE DEFENDANT CONCERNING IMMIGRATION CONSEQUENCES Justman, Rob A. Comment. The effects of AEDPA and IIRIRA on ineffective assistance of counsel claims for failure to advise alien defendants of deportation consequences

375

of pleading guilty to an "aggravated felony". 2004 Utah L. Rev. 701-737. POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – FAILURE TO ADVICE DEFENDANT CONCERNING IMMIGRATION CONSEQUENCES John F. Fatino, Ineffective Assistance of Counsel: Identifying the Standards and Litigating the Issues, 49 S. Dak. L. Rev. 31 (2003). POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – FAILURE TO ADVICE DEFENDANT CONCERNING IMMIGRATION CONSEQUENCES Bogdan, Attila. Guilty pleas by non-citizens in Illinois: immigration consequences reconsidered. 53 DePaul L. Rev. 19-66 (2003).

§ 7.85 § 7.86 § 7.87 § 7.88 § 7.89 § 7.90 Ninth Circuit

a. Moral Turpitude Offenses b. Length of Sentence of Incarceration c. Aggravated Felonies d. Anticipating Post-Conviction Relief e. Other Examples 5. Other Examples

POST CON RELIEF – HABEAS – GROUNDS – INSUFFICIENT EVIDENCE TO SUPPORT SENTENCE ENHANCEMENT Garcia v. Carey, ___ F.3d ___, 2005 WL 107090 (9th Cir. Jan. 20, 2005) (grant of habeas relief affirmed where there was constitutionally insufficient evidence to support the imposition of gang and gun sentencing enhancements). http://caselaw.lp.findlaw.com/data2/circs/9th/0256895p.pdf

§ 7.91 § 7.92

D. Substantive Constitutional Guarantees 1. Cruel or Unusual Punishment

Ninth Circuit
POST CON RELIEF – SENTENCE – FEDERAL – GROUNDS – ABUSE OF DISCRETION IN SETTING CONDITIONS United States v. Napier, __ F.3d __ (9th Cir. Sept. 19, 2006) (district court erred in imposing nonstandard conditions of supervised release after sentence and abused

376

its discretion in imposing condition requiring drug treatment because there was no evidence of drug abuse; defendant had a Sixth Amendment right to be present at sentencing, and adding conditions after the sentencing was over violated that right. http://caselaw.lp.findlaw.com/data2/circs/9th/0530348p.pdf

§ 7.93 § 7.94

2. Unconstitutionally Vague Sentence Statute 3. Ex Post Facto Violations

Second Circuit
EX POST FACTO – CONTROLLING DATE – LAST DATE OF THE OFFENSE ALLEGED IN THE CHARGE United States v. Broderson, 67 F.3d 452 (2d Cir. 1995); U.S.S.G. § 1B1.11(b), comment (n.2) (for Ex Post Facto purposes, controlling date is the last date of the offense, as alleged in indictment).

§ 7.95 Other

4. Vindictive Sentencing

POST CON – GROUNDS – CONVICTION – SENTENCE The sentencing court may not sentence the defendant more harshly for exercising the constitutional right to jury trial, or threaten the defendant with harsher punishment to coerce a plea. In re Lewallen, 23 Cal.3d 274, 278-281 (1979) (court commits judicial misconduct and violates due process by threatening the defendant with a sentence in excess of the plea bargain sentence if he goes to trial, or by sentencing him more harshly for exercising constitutional right to trial by jury); Ryan v. Com’n on Judicial Performance, 45 Cal. 3d 518, 534 (1988) (judge removed from the bench in part for using harsh sentencing as a punishment for going to trial). See also Schaffner v. Greco, 458 F.Supp. 202 (S.D.N.Y. 1978) (trial judge’s bias during trial and repeatedly trying to coerce defendant to plead guilty invalidated the guilty plea).

§ 7.96 § 7.97 § 7.98 § 7.99

5. Withholding of Exculpatory Evidence 6. Breach of Plea Agreement at Sentence 7. Other Guarantees E. Due Process Rights in the Sentencing Hearing

377

§ 7.100 1. Right to Jury Determination of Facts Increasing Maximum Sentence
POST CON RELIEF -- SENTENCE -- BOOKER REVERSAL OF CALIFORNIA DETERMINATE SENTENCING LAW Cunningham v. California, ___ U.S. ___ (Jan. 22, 2007) (California's determinate sentencing law violates defendant's right to trial by jury under Sixth and Fourteenth Amendments by placing sentence-elevating factfinding within the judge's province). http://laws.lp.findlaw.com/us/000/056551.html SENTENCING - FAILURE TO SUBMIT FACTOR TO JURY IS NOT STRUCTURAL ERROR Washington v. Recuendo, __ U.S. __ (Jun. 27, 2006) (failure to submit firearm enhancement to jury, in violation of Blakely v. Washington, 541 U.S. 296 (2004), is not structural error requiring reversal without showing of prejudice). Note: Justice Stevens, in dissent, points out that the majority did not reach the issue whether Blakely errors are structural because they deprive defendants of sufficient notice regarding the charges they must defend against. So that argument is still available. POST CON RELIEF – SENTENCE – GROUNDS OF INVALIDITY – IMPOSITION OF GREATER SENTENCE BASED ON FACTS BEYOND THOSE ADMITTED DURING PLEA OR FOUND DURING TRIAL Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant "statutory maximum" is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings). If, as in Washington State, a statute establishes a maximum possible sentence for violation of the statute, but that maximum may not be reached solely upon a finding that the basic elements of the offense have been committed, but rather can only be reached upon a finding of additional factors, the "statutory maximum" for the offense for Apprendi purposes is not the absolute maximum, but only the maximum the judge can imposed absent a finding of the additional factors. To impose up to the absolute maximum sentence, the additional factors must be established by a jury, or admitted by the defendant in a guilty plea. In the immigration context, this may limit the legacy INS’s ability to establish that a given crime has "maximum possible sentence" is a sentence of which a certain period "may be imposed." See, e.g. INA § 212(a)(2)(A)(ii)(II) (petty offense exception where maximum possible does not exceed one year); INA § 237(a)(2)(A)(i) (crime of moral turpitude where sentence of one year or more may be imposed); INA §§ 101(a)(43)(J), (Q), (T). Where this case

378

is applied in the future, however, where additional factors have been found by the jury, or admitted by the defendant, the record of conviction that may be examined by an Immigration Judge in determining whether a conviction falls within a ground of removal will likely contain additional factual information with which the legacy INS can prove its case. GROUNDS – SENTENCE – REQUIREMENT THAT JURY, NOT JUDGE, FIND EXISTENCE OF AGGRAVATING FACTORS IS NOT RETROACTIVE Schriro v. Summerlin, 124 S.Ct. 2519 (June 24, 2004) (the rule of Ring v. Arizona, 536 U.S. 548 (2002), requiring the jury, rather than a judge, to find the existence of an aggravating factor, does not apply retroactively to cases already final on direct review, because it was not a "watershed rule of criminal procedure."). http://laws.lp.findlaw.com/us/000/03-526.html

Third Circuit
BOOKER – WITHDRAW OF GUILTY PLEA United States v. Remoi, __ F.3d __, 2005 WL 845884 (3d Cir. April 13, 2005) (Supreme Court decision in Booker constitutes a "fair and just" reason to withdraw any plea that was entered before the date of that decision).

Ninth Circuit
POST CON RELIEF – SENTENCE – GROUNDS -- BOOKER United States v. Mercado, ___ F.3d ___, 2007 WL 136702 (9th Cir. Jan. 22, 2007) (Booker has not abrogated previous rule allowing sentencing courts to consider conduct underlying acquitted criminal charges). http://caselaw.lp.findlaw.com/data2/circs/9th/0550624p.pdf POST CON -- SENTENCE – GROUNDS -- FEDERAL -- BLAKELY -- DEFENDANT'S ADMISSIONS CAN BE THE BASIS FOR SENTENCE ENHANCEMENT United States v. Labrada-Bustamante 428 F.3d 1252 (9th Cir. Nov. 10, 2005) (neither Apprendi nor Blakely is violated when court's determination of drug quantity for sentencing was based on defendant's own testimony: "the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington (2004) 124 S.Ct. 2531, 2537). IMMIGRATION OFFENSES – ALIEN SMUGGLING – SENTENCE – BOOKER CRIMINAL LAW & PROCEDURE, SENTENCING United States v. Gonzales-Flores, __ F.3d __ (9th Cir. Aug. 12, 2005) (sentence for alien smuggling remanded where sentence was enhanced under a mandatory-

379

guideline regime based on facts not admitted nor proved to a jury beyond a reasonable doubt). http://caselaw.lp.findlaw.com/data2/circs/9th/0310656p.pdf POST CON – GROUNDS – SENTENCE – VIOLATION OF JURY TRIAL RIGHT TO ENHANCE SENTENCE ON BASIS OF FACTS NOT CHARGED AND ADMITTED OR FOUND TRUE BY JURY United States v. Ameline, ___ F.3d ___ (9th Cir. July 21, 2004) (court of appeals vacated federal sentence because district court violated defendant's right to have facts underlying his sentence found beyond a reasonable doubt under Blakely, holding federal sentencing guidelines unconstitutional). http://caselaw.lp.findlaw.com/data2/circs/9th/0230326p.pdf POST CON RELIEF - GROUNDS - CONVICTION - SENTENCE - VALIDITY - RIGHT TO JURY DETERMINATION OF FACT INCREASING MINIMUM SENTENCE - GUILTY PLEA DOES NOT ADMIT QUANTITY United States v. Thomas, ___ F.3d ___ (9th Cir. Jan. 26, 2004) (guilty plea which did not admit drug quantity could not be used to set minimum sentence on basis of possession of more than 50 grams; due process requirement that the drug quantity be pleaded in the indictment, submitted to a jury, and proved beyond a reasonable doubt, does not transform drug quantity into an element of the offense that a defendant necessarily admits when pleading guilty).

Tenth Circuit
BOOKER ILLEGAL REENTRY REMAND United States v. Trujillo-Terrazas, __ F.3d __, 2005 WL 846230 (10th Cir. April 13, 2005) (sentence of 41 months imprisonment for illegal reentry found to be plain error in light of Blakely and Booker). ILLEGAL REENTRY – SENTENCE – BOOKER United States v. Gonzales-Huerta, __ F.3d __, 2005 WL 807008 (10th Cir. April 8, 2005) (plain error not found where district court, in relied solely on defendant's prior convictions or on facts that he admitted, and imposed what it regarded as mandatory punishment at lowest end of Sentencing Guidelines range).

Eleventh Circuit
ILLEGAL REENTRY – SENTENCING – BOOKER United States v. Orduno-Mireles, __ F.3d __, 2005 WL 768134 (11th Cir. April 6, 2005) (for illegal reentry sentencing purposes, fact of prior conviction is not a fact that must be admitted by defendant or proven before a jury beyond a reasonable

380

doubt; Apprendi exception for recidivist enhancements makes Blakely and Booker in applicable enhancement for prior aggravated felony conviction).

Other
POST CON – GROUNDS – SENTENCE – BLAKELY For useful updates on the extensive litigation after the Blakely decision of the United States Supreme Court, see http://blakelyblog.blogspot.com/2004/07/tuesday-morning-news.html http://sentencing.typepad.com/ http://www.legalaffairs.org/howappealing/2004_07_01_appellateblog_archive.htm l#109092599628736116

§ 7.101 § 7.102 § 7.103 Ninth Circuit

2. Judicial Awareness of Discretion 3. Notice and Opportunity to Be Heard 4. Allocution

POST CON RELIEF – SENTENCE – GROUNDS – ALLOCUTION – NO RIGHT OF ALLOCUTION ON LIMITED REMAND FOR RESENTENCING – CRIMINAL LAW & PROCEDURE, SENTENCING United States v. Silva, 472 F.3d 683 (9th Cir. Jan. 3, 2007) (defendant does not have a right to allocute during a limited remand to the district court from a sentencing appeal). http://caselaw.lp.findlaw.com/data2/circs/9th/0550871p.pdf

§ 7.104 § 7.105 § 7.106 Other

5. Right to Accurate Information 6. Right Against Use of Unreliable Hearsay 7. Right Against Use of Improper Evidence

POST CON – GROUNDS – SENTENCE – JUDICIAL MISCONDUCT TO CONSIDER INAPPROPRIATE FACTORS AT SENTENCE At sentencing, the court sometimes makes legal errors. In addition, the judge sometimes takes into account inappropriate considerations in imposing sentence, to which counsel must object or the error is normally waived. See People v. Scott, 9 Cal.4th 331, 353 n.16 (1995)(defense counsel’s failure to object to sentencing errors

381

bars raising those errors on appeal except for errors considered jurisdictional). For example, it is judicial misconduct to make negative remarks about the defendant being on welfare and fathering children out of wedlock. People v. Bolton, 23 Cal.3d 208, 217 (1979). The court may not threaten to have the defendants castrated. United States v. Duhart, 496 F.2d 941 (9th Cir. 1974) (judge stated he could put defendant in same room with husbands of sex offense victims and possibly cut "something" out of the defendant’s body).

§ 7.107 § 7.108 § 7.109 Ninth Circuit

8. Improper Victim Impact Evidence 9. Prosecutorial Misconduct 10. Right to Individualized Consideration

POST CON RELIEF – SENTENCING – GROUND – POST-BOOKER – STATEMENT OF REASONS United States v. Carty, __ F.3d __ (9th Cir. July 17, 2006) (district court must provide some articulation of its consideration of section 3553(a) factors and explanation of reasons underlying its sentence selection). SENTENCING - FEDERAL – SENTENCE ENHANCEMENT United States v. Staten, __ F.3d __ (9th Cir. Jun. 7, 2006) (enhancements resulting in disproportionate, albeit advisory, guidelines sentences must find support in facts established by clear and convincing evidence). SENTENCING - GUIDELINES ARE NOT PRESUMPTIONS BUT STARTING POINTS United States v. Zavala, ___ F.3d ___ (9th Cir. 2006) (court violated Booker by presuming that the advisory Sentencing Guideline calculation set forth the proper range for sentencing; advisory guidelines are a "starting point," not a presumption). SENTENCING - GUIDELINES ARE NOT PRESUMPTIONS BUT STARTING POINTS United States v. Zavala, ___ F.3d ___ (9th Cir. 2006) (court violated Booker by presuming that the advisory Sentencing Guideline calculation set forth the proper range for sentencing; advisory guidelines are a “starting point” not a presumption).

§ 7.110 § 7.111 § 7.112

11. Mental Incompetence at Sentence 12. Judicial Bias or Misconduct 13. Exclusion of Relevant Information

382

GROUNDS - EXCULPATORY EVIDENCE - FAILURE TO DISCLOSE Banks v. Dretke, ___ U.S. ___ (February 24, 2004) (concealment of significant exculpatory or impeachment material in possession of the police or prosecutor is basis for grant of habeas). http://laws.findlaw.com/us/000/02-8286.html

Ninth Circuit
POST CONVICTION RELIEF - GROUNDS - FAILURE TO DISCLOSE EXCULPATORY EVIDENCE - PROBATION FILES United States v. Alvarez, __ F.3d __ (9th Cir. February 25, 2004) (where district court fails to conduct in camera review of probation files of significant witnesses pursuant to timely Brady request, conviction will be vacated and case remanded to conduct review; if files found to contain material information bearing on credibility of witnesses, court shall release such and order new trial). http://caselaw.lp.findlaw.com/data2/circs/9th/0110686p.pdf

Other
POST CON RELIEF – SENTENCE – GROUNDS – DEPRIVATION OF RIGHT TO MEANINGFUL CONSIDERATION OF MITIGATING EVIDENCE Abdul-Kabir v. Quarterman, ___ U.S. ___ (2007) (habeas denial reversed where there was a reasonable likelihood that a state trial court's instructions prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence); Brewer v. Quarterman, ___ U.S. ___ (2007) (same)..

§ 7.113 Ninth Circuit

14. Other Due Process Violations

POST CON RELIEF – FEDERAL – SENTENCE – RIGHT TO BE SENTENCED BY ORIGINAL JUDGE AFTER REVERSAL United States v. Lence, ___ F.3d ___ (9th Cir. Jul. 27, 2006) (criminal defendant has right to be resentenced by original sentencing judge on remand following Booker error). http://caselaw.lp.findlaw.com/data2/circs/9th/0530236p.pdf POST CON RELIEF – SENTENCE – GROUNDS – REVOCATION OF PROBATION FOR FAILURE TO INCRIMINATE HIMSELF AS PART OF SEX OFFENDER TREATMENT HELD VIOLATIVE OF FIFTH AMENDMENT United States v. Antelope, ___ F.3d ___, 2005 WL 170738 (9th Cir. January 27, 2005) (revocation of defendant's supervised release, due to his refusal to incriminate himself as part of his sex offender treatment, violates his Fifth Amendment right

383

against compelled self-incrimination). http://caselaw.lp.findlaw.com/data2/circs/9th/0330334p.pdf POST CON RELIEF – SENTENCE – RESTITUTION ORDER – INVALID FOR INSUFFICIENT EVIDENCE United States v. Doe 374 F.3d 851 (9th Cir. July 06, 2004) (amount of restitution imposed must reflect the losses of identified victims). http://caselaw.lp.findlaw.com/data2/circs/9th/0310186p.pdf POST CONVICTION RELIEF - GROUNDS - SENTENCE - COURT MUST STATE REASONS FOR SENTENCE CHOICE United States v. Delgado, __ F.3d __ (9th Cir. February 10, 2004) (Sentencing court failure to state in open court reasons underlying sentence imposed violated 18 U.S.C. § 3553(c)). http://caselaw.lp.findlaw.com/data2/circs/9th/0230363p.pdf

§ 7.114 § 7.115

F. Other Sentence Defects 1. Invalid Prior Conviction

Ninth Circuit
ALMANDAREZ-TORRES DOES NOT APPLY WHERE NATURE OF CRIME CHANGES United States v. Rodriguez-Gonzalez, __ F.3d __ (9th Cir. Feb. 19, 2004) (Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior offense may be used to increase sentence even if omitted in Government pleading), does not apply when the earlier offense operated not merely to increase defendant's sentence, but to transform his second offense from misdemeanor to felony). http://www.ilw.com/lawyers/immigdaily/cases/2004,0227-Rodriguez.pdf

§ 7.116 Ninth Circuit

2. Illegal Sentence

POST-CONVICTION RELIEF – SENTENCE – POST-CONVICTION RULING THAT EARLIER SENTENCE HAD BEEN ILLEGAL Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court order imposing a twelve-month sentence, for Arizona misdemeanor conviction of "theft by control of property with a value of $250 or more," in violation of A.R.S. §§ 1301802(A)(1), (C), arguably would not constitute a one-year sentence imposed for removal purposes since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum

384

term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, requiring remand to the BIA to consider the issue in the first instance).

Eleventh Circuit
SENTENCING - SUPERVISED RELEASE CANNOT BE TOLLED UPON DEPORTATION United States v. Okoko, __ F.3d __, 2004 WL 728864 (11th Cir. April 6, 2004) (period of supervised release as condition of parole cannot be tolled by district court during any period of absence from the United States subsequent to deportation, to resume if deported noncitizen later illegally reenters the United States).

§ 7.117 § 7.118 § 7.119 Ninth Circuit

3. Lack of Presentence Report 4. Unreasonable Delay in Imposition of Sentence 5. Other Sentence Defects

POST-CON – SENTENCING – GROUNDS – JUVENILE United States v. Juvenile Male, 470 F.3d 939 (9th Cir. Dec. 14, 2006) (Federal Juvenile Delinquency Act applies to a juvenile's re-sentencing after revocation of probation, as well as the initial sentencing, so district court committed plain error by re-sentencing the juvenile under the adult sentencing scheme). http://caselaw.lp.findlaw.com/data2/circs/9th/0630270p.pdf

§ 7.120 VI. Post-Conviction Reduction of Felony to Misdemeanor § 7.121 § 7.122 § 7.123 § 7.124 § 7.125 A. Motion to Reduce a Felony to a Misdemeanor 1. Basic Requirements 2. Definition of Reducible Offenses 3. The Required Sentence a. Generally

§ 7.126 b. A Sentence to State Prison — Even if Execution Is Suspended — Disqualifies the Defendant from Reducing the

385

Offense to a Misdemeanor § 7.127 § 7.128 § 7.129 4. Standard for Granting the Reduction 5. Procedure 6. Timing of the Motion of Probation

§ 7.130 7. The Court's Jurisdiction to Grant a Motion to Reduce Continues After the Termination § 7.131 8. The Court's Jurisdiction to Grant a Motion to Reduce Continues After the Conviction Has Been Expunged § 7.132 9. Review of Grant or Denial of Motion to Reduce

§ 7.133 VII. Motion to Reduce a Misdemeanor to an Infraction § 7.134 A. Definition of Misdemeanor Conviction

§ 7.135 B. Immigration Contexts in Which the Client Benefits from Reducing Misdemeanors to Infractions § 7.136 C. Criminal Benefits of Reducing Misdemeanors to Infractions § 7.137 D. Motion Under California Penal Code 17(d) to Reduce Certain Misdemeanors to Infractions

Back to Table of Contents

©2005 Norton Tooby.

Home | News | Free Resources | Books/CDs | Seminars Services | Search | About Us | Contact Us Copyright & Disclaimers Policy

386

Post-Conviction Relief for Immigrants - Chapter 8
News
updated 6/12/08

LO G OU T

by Norton Tooby

Resources Free Premium Books/CDs Seminars Services Search About Us Contact Us

Back to Table of Contents

Chapter 8: State Rehabilitative Relief § 8.1 I. Introduction First Circuit
CONVICTION – PUERTO RICO TREATED LIKE A STATE Puerto Rico is considered equivalent to a state, for purposes of determining whether a noncitizen was convicted of a crime for deportation purposes, giving the same effect to its judicial decrees as if they were orders of a state court and the same effect to its legislative enactments as it would to state statutes. Herrera-Inirio v. INS, 208 F.3d 299, 304 n.1 (1st Cir. 2000) (citing 28 U.S.C. § 1738 (extending full faith and credit doctrine to Puerto Rico); 48 U.S.C. § 734 (providing that, unless otherwise specified, federal statutes applicable to states apply to Puerto Rico)); see also Cruz v. Melecio, 204 F.3d

387

14 (1st Cir. 2000). Persons born in Puerto Rico are United States citizens, although there are some issues if the birth date was prior to 1941. INA § 302, 8 U.S.C. § 1402.

Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – DEFERRED ENTRY OF JUDGMENT United States v. Valerio, __ F.3d __ (9th Cir. Mar. 28, 2006) (federal conviction for being a felon in possession of a firearm is affirmed despite the claim that he was not a convicted felon at all, because his deferred imposition of sentence and subsequent discharge under state law invalidated that status). POST CON RELIEF – STATE REHABILITATIVE RELIEF – FEDERAL EX FELON WITH GUN CHARGE DISMISSED SINCE ARIZONA CIVIL RIGHTS, INCLUDING RIGHT TO POSSESS FIREARMS, HAD BEEN FULLY RESTORED United States v. Simpson, __ F.3d __ (9th Cir. Mar. 27, 2006) (federal indictment charging defendant with being a felon in possession of a firearm is dismissed where defendant's civil rights had been fully restored and nothing in Arizona law expressly prohibited defendant from possessing a firearm following the end of his probation).

Other
POST CON RELIEF – STATE REHABILITATIVE RELIEF – PRIOR NO-PLEA DIVERSION DOES NOT DISQUALIFY NONCITIZEN FROM LUJAN EXPUNGEMENT "At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program" Cal. Penal Code §§ 1001.3 et seq. Therefore, under the statutory definition of conviction INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), diversion under the California "noplea" diversion statute does not constitute a conviction. See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California no-plea diversion, held not to be a conviction under Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)). A prior no-plea California diversion disposition therefore does not disqualify a noncitizen from eligibility for FFOA treatment under Lujan of a subsequent possession conviction. A disposition of diversion that did not require a plea of guilty or no contest and does not constitute a conviction under 8 U.S.C. § 1101(a)(48)(A). In addition, this disposition does not constitute "a disposition under this subsection." Federal First Offender

388

Act, 8 U.S.C. § 3607(a).

§ 8.2 II. Immigration Effects of State Rehabilitative Relief § 8.3 A. General Rule: State Rehabilitative Relief Does Not Eliminate the Immigration Consequences of a Conviction
POST CON RELIEF – STATE REHABILITATIVE RELIEF – INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES, AS DISTINGUISHED FROM A CONVICTION THAT HAS BEEN VACATED ON THE MERITS Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115 (1983) (Federal firearms disabilities applied with respect to one who pled guilty to a State offense punishable by imprisonment for more than one year, even if the record of the State criminal proceeding was subsequently expunged following a successfully served term of probation: “expunction under state law does not alter the historical fact of the conviction, . . . does not alter the legality of the previous conviction[,] and does not signify that the defendant was innocent of the crime to which he pleaded guilty”); United States v. Smith, 96 F.3d 1350, 1351 (11th Cir. 1996) (per curiam); United States v. Mejias, 47 F.3d 401, 403-404 (11th Cir. 1995); see also United States v. Norbury, 492 F.3d 1012, 1014-1015 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006).

Second Circuit
POST CON RELIEF – CONVICTION – EFFECTIVE ORDER – NONCITIZEN REMAINS CONVICTED FOR IMMIGRATION PURPOSES EVEN IF A STATE CONVICTION HAS BEEN VACATED UNDER A REHABILITATIVE STATUTE Saleh v. Gonzales, ___ F.3d ___, 2007 WL 2033497 (2d Cir. July 17, 2007) ("the BIA has reasonably concluded that an alien remains convicted of a removable offense for federal immigration purposes when a state vacates the predicate a conviction pursuant to a rehabilitative statute."), citing Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.2006); Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000), and following Sanusi v. Gonzales, 474 F.3d 341, 342-43 (6th Cir. 2007) (“We deny the petitions for review on the ground that the state court's

389

vacation of Sanusi's conviction was ineffective for immigration purposes because it was done solely for the purpose of ameliorating the immigration consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005). JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may not take administrative notice of facts without affording other party to rebut the inferences drawn from those facts).

Lower Courts of Second Circuit
EXPUNGEMENT – FALSE STATEMENT FOR IMMIGRATION BENEFIT Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007) (the fact that applicant stated that he had not been arrested [after prior indication that he had] was not an intentional misstatement to the government where applicant could have believed that the expungement of the records of those arrests meant that he could state to the government that he had no longer been arrested). http://bibdaily.com/pdfs/Szpak%20725-07.pdf

Fifth Circuit
POST CON – EXPUNGEMENT— FOREIGN Danso v. Gonzales, 489 F.3d 709 (5th Cir. June 15, 2007) (rejecting equal protection argument that noncitizen’s British expungement should be given effect for immigration purposes where noncitizen could hypothetically have availed himself of the expungement procedures set forth in the Federal First Offenders Act (FFOA)). POST-CONVICTION RELIEF – LUJAN EXPUNGEMENT – EXPUNGEMENT OF SECOND CONVICTION EFFECTIVE WHERE FIRST CONVICTION NOT FINAL AT TIME OF SECOND CONVICTION Smith v. Gonzales, ___ F.3d ___, 2006 WL 3012856 (5th Cir. Oct. 24, 2006) (for purposes of the Controlled Substances Act, a conviction does not become final until time for direct appeal and time for discretionary review have elapsed). NOTE: This case can be cited to support the position that a second controlled substances offense may be expunged under Lujan in the Ninth Circuit as long as the first conviction had not become final by the time of the second

390

conviction. CONVICTION – DEFERRED ADJUDICATION – TEXAS – DEFERRED ADJUDICATION CONSTITUTES A CONVICTION FOR IMMIGRATION PURPOSES Salazar-Regino v. Trominski, ___ F.3d ___ (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal under the BIA law in place at the time the plea of guilty was entered), following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999). http://caselaw.lp.findlaw.com/data2/circs/5th/0341492p.pdf

Seventh Circuit
POST CON RELIEF – CONVICTION VACATED PURSUANT TO EXTRAORDINARY MOTION FOR NEW TRIAL, FOLLOWED BY DISMISSAL OF CHARGES, REMAINED A CONVICTION FOR IMMIGRATION PURPOSES SINCE NONCITIZEN FAILED TO ESTABLISH THAT CONVICTION HAD BEEN VACATED BASED ON A PROCEDURAL OR SUBSTANTIVE DEFECT IN THE UNDERLYING CRIMINAL PROCEEDINGS Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar. 22, 2006) (per curiam) (Georgia conviction of two counts of child molestation, followed by the granting of an extraordinary motion for a new trial, and the State of Georgia's motion to nolle prosse charges, continued to constitute a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), for removal purposes, since noncitizen failed to establish that conviction had been vacated based on a procedural or substantive defect in the underlying criminal proceedings; noncitizen bears burden to show conviction was vacated on a basis of legal invalidity). This decision violates the long-standing rule that the government bears the burden of establishing by clear and convincing evidence every fact necessary to prove deportability. Woodby v. INS, 385 U.S. 276 (1966).

Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – REHABILITATIVE RELIEF DOES NOT ELIMINATE CONVICTION FOR PURPOSES OF IMPOSING FEDERAL CONTROLLED SUBSTANCE SENTENCE ENHANCEMENT United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D) is

391

made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). POST CON RELIEF – STATE REHABILITATIVE RELIEF – LOPEZ STRENGTHENS ARGUMENT THAT STATE REHABILITATIVE RELIEF ANALOGOUS TO THE FEDERAL FIRST OFFENDER ACT ELIMINATES QUALIFYING CONVICTIONS FOR IMMIGRATION PURPOSES United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). POST CON RELIEF – STATE REHABILITATIVE RELIEF – STATE EXPUNGEMENT STATUTE DOES NOT HAVE TO BE EQUIVALENT TO FFOA TO ELIMINATE IMMIGRATION CONSEQUENCES OF CONVICTION Under Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994), the state expungement statute does not have to be identical to the FFOA: "We rejected this narrow approach in Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994). Garberding involved Montana's expungement statute, which was not limited to first-time simple drug possession offenses but allowed expungement of a broad range of more serious offenses. Id. at 1189. Considering Garberding's challenge on Equal Protection grounds, we concluded that the INS had no rational basis for treating her differently simply because Montana's statute covered a broader range of offenses than did the FFOA, id. at 1190-91, and held that "persons who received the benefit of a state expungement law were not subject to deportation as long as they could have received the benefit of the federal Act if they had been prosecuted under federal law." Chavez-Perez v Ashcroft, 386 F.3d 1284, 1288 (9th Cir. 2004). This interpretation accepted in Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995), which requires only that the defendant be a simple possession first offender and that a "court has entered an order pursuant to a state rehabilitative statute under which the alien's criminal proceedings

392

have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation." Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995). Therefore, the statute expungement statute need not be equivalent to the FFOA if the conduct could have been covered under the FFOA if the case had been prosecuted in federal court, and rehabilitative treatment resulting in dismissal was granted. Thanks to Jonathan Moore.

BIA
CONVICTION – FOREIGN CONVICTION NEED NOT BE RETURNED UNDER ALL US CONSTITUTIONAL PROCEDURAL GUARANTEES In Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court procedures under Ore. Rev. Stat. § 153.076, did not constitute a conviction for immigration purposes, since the proceedings do not allow a jury trial, right to court-appointed counsel, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes), the BIA held a finding of petty theft under Oregon minor offense procedure did not constitute a conviction for immigration purposes, since it was not a criminal proceeding in which the normal procedural rights, such as jury trial, the right to appointed counsel, and the presumption of innocence were not respected. The Board, however, distinguished foreign convictions: "[N]othing in our decision should be taken as asserting that a foreign conviction must adhere to all the requirements of the United States Constitution applicable to criminal trials, including that relating to the requisite standard of proof. Rather, we find that Congress intended that the proceeding must, at a minimum, be criminal in nature under the governing laws of the prosecuting jurisdiction, whether that may be in this country or in a foreign one." (Id. at ___ [footnote omitted].) The Board also indicated: "We have found that Congress intended other limitations with respect to the recognition of foreign convictions for immigration purposes, holding, inter alia, that a foreign conviction must be for conduct recognized as criminal by United States standards in order to be deemed a crime under the immigration laws. See Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981); Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978), aff'd, 612 F.2d 457 (9th Cir. 1980). CONVICTION – MILITARY OFFENSES – NO JURY TRIAL RIGHT Convictions rendered by minor military informal procedures, such as

393

Captain's Mast, should not be considered as criminal convictions for immigration purposes, since the most fundamental criminal procedures guaranteed under the U.S. Constitution are not respected. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(en banc)(guilty finding of third-degree theft, in violation of Ore. Rev. Stat. § 164.043, by court under procedures of Ore. Rev. Stat. § 153.076, punishable by a maximum fine of $600 but no jail at all, does not constitute a conviction under INA § 101(a)(48)(A), INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), since the proceedings do not allow a jury trial, right to court-appointed counsel, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958)(police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes). This reasoning may extend as well to the findings of courts martial, in which the right to jury trial is not respected. CONVICTION – REQUIREMENT OF A CRIME Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court procedures under Ore. Rev. Stat. § 153.076, did not constitute a conviction for immigration purposes, since the proceedings do not allow a jury trial, right to court-appointed counsel, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes). In California, certain misdemeanor offenses, notably petty theft in violation of Penal Code § 484(a), 488, can be prosecuted as misdemeanors or infractions. Penal Code §§ 17(d), 19.8 (giving list of offenses). The infraction is similar to the Oregon petty offense procedure held in Eslamizar not to be a conviction in several important respects: (1) "An infraction is not punishable by imprisonment." Penal Code § 19.6. (2) "A person charged with an infraction shall not be entitled to a trial by jury." (Ibid.) (3) There is no right to the assistance of court-appointed counsel. (Ibid.) There is one difference, however: The defendant must be proved guilty beyond a reasonable doubt. See Penal Code § 19.7 (. . . all provisions of law relating to misdemeanors shall apply to infractions including . . . burden of proof."). On balance, however, the California infraction procedure cannot be said to be a criminal procedure since no punishment of incarceration is permissible, there is no right to jury trial, and there is no right to the assistance of court-appointed counsel if the defendant is unable to afford counsel. In Eslamizar, the Board en banc held "that by 'judgment of guilt' Congress most likely intended to refer to a judgment in a criminal

394

proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication." (Id. at ___.) Even though the burden of proof for an infraction is beyond a reasonable doubt, that single factor should be insufficient to convert a proceeding without the right to a jury trial, without the right to appointed counsel, and for which no jail sentence is permissible, into " judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication." (Ibid.) Therefore, an infraction under California law should not be considered a criminal conviction, for immigration purposes, under Eslamizar.

Other
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FIREARMS CONVICTION IS NOT ELIMINATED BY CALIFORNIA EXPUNGEMENT FOR DEPORTATION PURPOSES Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) (federal definition of "conviction" at INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) (2000), encompasses convictions, other than those involving first-time simple possession of narcotics, that have been vacated or set aside pursuant to state rehabilitative relief statute for reasons that do not go to the legal propriety of the original judgment, and that continue to impose some restraints or penalties upon the defendant's liberty, so a noncitizen whose firearms conviction was expunged pursuant to California Penal Code § 1203.4(a) remains "convicted" for immigration purposes). POST CON RELIEF – STATE REHABILITATIVE RELIEF – FIREARMS CONVICTION IS NOT ELIMINATED BY CALIFORNIA EXPUNGEMENT FOR DEPORTATION PURPOSES Matter of Luviano, 23 I. & N. Dec. 718 (AG Jan. 18, 2005) (firearms conviction expunged pursuant to California state rehabilitative relief statute, Penal Code § 1203.4(a), remained a conviction for immigration purposes under the statutory definition of conviction, INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)). POST CON RELIEF – EXUNGEMENT POST CON RELIEF – EFFECTIVE ORDER VACATING CONVICTION James A.R. Nafziger & Michael Yimesgen, The Effect of Expungement on Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930 (2003).

395

POST CON RELIEF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION – IMMIGRATION EFFECT There is a question whether a CMT conviction, for which a JRAD was validly obtained before November 29, 1990, can trigger deportation for multiple CMT convictions when combined with a later (or earlier) second CMT. Immigration counsel could argue that under the former statute, still enforced, deportation cannot be based on a CMT for which a JRAD was granted. The government can argue that the CMT for which a JRAD was granted forms one CMT of a two-CMT deportation ground. They could analogize to those cases that hold if a noncitizen has CMTs that trigger deportation, and then respondent obtains a waiver of deportation for them under former INA § 212(c) waiver, and the client suffers another CMT conviction, the old waived CMT can be combined with the new CMT conviction to trigger deportation for multiple CMTs. The waiver does not eliminate the old CMT. It merely waivers deportation for that ground and that ground only. The two-CMT deportation ground is a different ground, and both CMT convictions continue to exist, and so can trigger deportation. The question would be whether counsel can distinguish those 212(c) cases. SAFE HAVEN – STATE REHABILITATIVE RELIEF – PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT The Federal First Offender Act, 18 U.S.C. § 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.

§ 8.4

B. Exception: Federal First Offender Act

POST CON RELIEF – STATE REHABILITATIVE RELIEF – IIRAIRA NEW DEFINITION OF CONVICTION DID NOT IMPLIEDLY REPEAL THE FEDERAL FIRST OFFENDER ACT E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial interpretation of a statute and to adopt it when it re-enacts a statute without changing it). “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead

396

Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978). "This rule is based on the theory that the legislature is familiar with the contemporaneous interpretation of a statute . . . . Therefore, it impliedly adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v. United States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate Co., 283 U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943); Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New Materials High Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir. 1998), reh'g denied, in banc suggestion declined (Jan. 28, 1999) and cert. dismissed, 120 S.Ct. 394 (1999). Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE STATUTE ANALYSIS – CONJUNCTIVE CHARGES United States v. GarciaMedina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code § 11352(a), properly triggered 16-level sentence enhancement for illegal reentry after deportation since charging to which plea was entered listed offenses in the conjunctive, and plea of guilty was entered to every offense listed within the counts of conviction). NOTE: This decision appears to contradict the decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) (“Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively

397

charged may establish guilt.”). The court based its reasoning on the following analysis: In California, a guilty plea admits every element of the offense charged, People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837 (Cal.1981), including all accusations and factors comprising the charge contained in the pleading. People v. Palacios, 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318 (Cal.Ct.App.1997); see People v. Tuggle, 232 Cal.App.3d 147, 154, 283 Cal.Rptr. 422 (Cal.Ct.App.1991) (“By pleading guilty as charged [to an information worded in the conjunctive, charging, “robbery by means of force and fear”], appellant necessarily admitted the force allegation and cannot now escape the consequences of that admission.”) (emphasis added). Thus, “a plea of guilty means guilty ‘as charged’ in the information, and by it ‘all averments of fact are admitted.... The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts.’ “ Arenstein v. Cal. State Bd. of Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357 (Cal.Ct.App.1968) disapproved on other grounds by Barber v. Long Beach Civil Serv. Comm'n, 45 Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4 (Cal.Ct.App.1996) (citations omitted). Accordingly, by pleading guilty to counts one and two as worded, in the conjunctive, Garcia-Medina admitted to several offenses committed on at least two occasions. It is uncontested that most of these offenses qualify as drug trafficking for the purposes of section 2L1.2. Garcia-Medina did not clarify his plea before the California trial court; instead, he admitted every offense listed in the charging document and cannot now escape the consequences of his admission. See People v. Guerrero, 44 Cal.3d 343, 355356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988). United States v. Garcia-Medina, __ F.3d __, __, 2007 WL 2317381 at *3 (8th Cir. Aug. 15, 2007).

Fifth Circuit
CONVICTION – DEFERRED ADJUDICATION IS CONVICTION – FEDERAL FIRST OFFENDER ACT Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004) (petition for review denied, despite contention that deferred adjudication for drug possession did not constitute conviction for immigration purposes by analogy

398

to the Federal First Offender Act).

Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF IS INEFFECTIVE TO ELIMINATE CONVICTION FOR PURPOSES OF CONSTITUTING A PRIOR CONVICTION UNDER THE FEDERAL CONTROLLED SUBSTANCES ACT United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007) (state conviction constitutes prior conviction under federal Controlled Substances Act even if state court expunged conviction by granting state rehabilitative relief); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006) (same); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003)(same); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997) (same); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993) (same). POST CON RELIEF – STATE REHABILITATIVE RELIEF – SIMPLE POSSESSION – FEDERAL FIRST OFFENDER ACT Aguiluz-Arellano v. Gonzales, ___ F.3d ___, 2006 WL 1133327 (9th Cir. May 1, 2006) (petitioner’s conviction for being under the influence of a controlled substance did not fall within the scope of the Federal First Offender Act (FFOA), as he had a prior drug conviction). http://caselaw.lp.findlaw.com/data2/circs/9th/0373856p.pdf POST CON RELIEF - FEDERAL FIRST OFFENDER ACT United States v. Gonzalez, ___ F.3d ___ (9th Cir. April 22, 2004) (where defendant suffered no sentence enhancement, district court correctly applied "preponderance of evidence" rather than "clear and convincing" standard when court denied request for special probation under 18 U.S.C. § 3607). http://caselaw.lp.findlaw.com/data2/circs/9th/0330256p.pdf

Tenth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FEDERAL FIRST OFFENDER ACT – CONVICTION EXCLUDES EXPUNGEMENTS Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) ("[T]he First Offender Act, 18 U.S.C. § 3607, permits the expungement of first-time simple drug-possession offenses for all purposes, including immigration adjudications. As the Ninth Circuit noted in Lujan-Armendariz, there is no reason to suppose that Congress repealed the First Offender Act sub silentio. It thus makes sense to read the § 1101(a)(48)(a) definition to exclude

399

expungements."). POST CON RELIEF – STATE REHABILITATIVE RELIEF – WYOMING DEFERRED ENTRY OF PLEA AND SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301 (“Without entering a judgment of guilt or conviction, [the court may] defer further proceedings and place the person on probation for a term not to exceed five (5) years.”), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes). JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION DOCTRINE – FAILURE TO EXHAUST IS EXCUSED IF RESPONDENT CAN SHOW MISCARRIAGE OF JUSTICE, SUCH AS WHERE CONVICTION ON WHICH DEPORTATION IS BASED DOES NOT CONSTITUTE AN AGGRAVATED FELONY Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (court of appeal can reach claim that controlled substances conviction does not constitute an aggravated felony, under Lopez, even though respondent failed to exhaust before the IJ or BIA because the law was clear against him, under the miscarriage of justice exception to the exhaustion doctrine of 8 U.S.C. § 1252(d)(1)), following Marrero Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004); see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001) (habeas petitioner's failure to exhaust may be excused “when administrative remedies are inadequate” but not where administrative procedures exist to reopen petitioner's case) (internal quotation marks omitted); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (“Even where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction, carved out exceptions.”); Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999) (finding that an exception exists to address “certain constitutional due process claims”).

BIA
POST-CONVICTION – EFFECT OF EXPUNGEMENT Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000), even if court expunged first state conviction pursuant to a State’s rehabilitative procedures), citing United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham,

400

315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993).

§ 8.5 C. Exception: State FFOA Analogues in the Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – EFFECTIVE IF ELIGIBLE FOR FFOA TREATMENT AND EXPUNGEMENT IS IN PROCESS PURSUANT TO A COURT ORDER In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), the noncitizen's conviction had been expunged at the time of the lower court ruling. Since then, the Ninth Circuit has not ruled in a case in which an expungement or deferred dismissal process was in progress, but not yet completed. Nevertheless, the Ninth Circuit has suggested that if a noncitizen is in such a process, s/he can argue that the DHS cannot deport on the basis of the conviction-pendingexpungement. In Lujan, the court stated: Construing the statute as determining the time at which a conviction occurs, as a general matter, would leave open the question whether the Act precludes deportation of an alien who has received a deferred adjudication but has not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted. Our review of the history and purpose of the Act strongly suggests that such a person is protected by the Act’s provisions, and our analysis of the law regarding repeals by implication suggests that no implied repeal occurred in that respect either. (Whatever the case, the result would be applicable to first-time drug possession offenders prosecuted under state statutes, as well.) However, we need not resolve this issue in order to decide the petitions for review before us. In both cases here, the pertinent findings had already been expunged before the BIA decisions were issued. Id. at 746 n.28. The Ninth Circuit more affirmatively states this position in Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004), but again in dictum: We express no opinion about whether this reasoning would apply with equal force to the situation the Lujan-Armendariz court specifically identified, where an alien has a finding of guilt on his record but the actual conviction is deferred pending successful completion of probation. See 222 F.3d at 746

401

n.28 (referring to 'deferred adjudication' statutes). Aliens sentenced under such schemes do not have a “conviction” on their record at any time during probation. However, because we are not faced with that situation here, that question must continue to remain open for another day. Id. at 1293 (emphasis added). In Chavez-Perez v. Ashcroft, 386 F.3d 1284, 2004 WL 2389907 (9th Cir. Oct. 27, 2004), the court held that although an Oregon expungement would erase a simple possession conviction, the immigration authorities may remove noncitizen from the United States before the expungement has been granted. The Ninth Circuit, in dicta, distinguished between the situation in which the noncitizen had not yet made any attempt to begin expungement (as in Chavez-Perez), and the situation in which the noncitizen is in process of obtaining an expungement by court order. Thanks to John Vawter.

Lower Courts of Sixth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FIRST OFFENSE DRUG CASES – OPEN QUESTION IN SIXTH CIRCUIT Shurney v. INS, 201 F.Supp.2d 783, 794 (D. Ohio 2001) ("The question before this Court is not whether Lujan-Armendariz should be adopted in this Circuit; the question presented in this proceeding is whether, in light of LujanArmendariz, Shurney has a good faith basis to contest his removal and, hence, has a protectible liberty interest in objecting to detention pending removal. Since the Sixth Circuit has yet to rule on Shurney’s contention and another Circuit Court has ruled in a manner favorable to Shurney, this Court cannot conclude that Shurney’s argument is frivolous.").

Seventh Circuit
CONVICTION – VACATED ON POST-CONVICTION RELIEF – EFFECTIVENESS OF ORDER VACATING CONVICTION – SEVENTH CIRCUIT AFFIRMS PICKERING RULE-POST CON RELIEF – EFFECTIVE ORDER Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (according Chevron deference to, and affirming rule of Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA June 11, 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), that if a court amends an alien's conviction for reasons solely related to rehabilitation or immigration hardships, as opposed to responding to procedural or substantive defects in the underlying criminal proceedings,

402

then the alien remains "convicted" for immigration purposes). POST CON RELIEF – EFFECTIVE ORDER VACATING CONVICTION – ILLINOIS ORDER AMENDING FELONY CONVICTION OF POSSESSION WITH INTENT TO DISTRIBUTE THC TO MISDEMEANOR POSSESSION OF MARIJUANA WAS INEFFECTIVE TO ELIMINATE THE FORMER CONVICTION FOR REMOVAL PURPOSES, SINCE IT WAS NOT BASED ON A GROUND OF LEGAL INVALIDITY Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (Illinois order amending felony conviction of possession with intent to distribute THC, in violation of Wis. Stat. § 961.41(1m)(h)(1), to misdemeanor possession of marijuana was ineffective to eliminate the former conviction for removal purposes, since it was not based on a ground of legal invalidity).

Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – CONTROLLED SUBSTANCES – STATE REHABILITATIVE RELIEF Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense were the noncitizen has already been given “pretrial diversion” treatment on a prior offense, even though “pre-trial diversion” does not require the noncitizen to enter a plea of guilty to a controlled substances offense). POST-CON – STATE REHABILITATIVE STATUTES – LUJAN – CONVICTION MUST BE EXPUNGED TO AVOID REMOVAL Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Oct. 27, 2004) (although Oregon expungement would erase simple possession conviction, if granted, the immigration authorities may remove noncitizen before expungement is granted; court distinguished between situation where, as here, noncitizen had not yet made any attempt to begin expungement, and where the noncitizen is in process of obtaining an expungement by court order).

Tenth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – WYOMING DEFERRED ENTRY OF PLEA AND SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301 (“Without entering a judgment of guilt or conviction, [the court may] defer further proceedings and place the person on probation for a term not to exceed five

403

(5) years.”), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes).

BIA
STATE REHABILITATIVE RELIEF – DRUG CASES – NINTH CIRCUIT – LUJAN WORKS DESPITE PRIOR NO-PLEA DIVERSION DISMISSAL "At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program" Cal. Penal Code § 1001.3 et seq. Therefore, under the definition of conviction found at 8 U.S.C. § 1101(a)(48)(a), diversion under the California statute in effect at the time petitioner received the disposition does not constitute a conviction. See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California diversion, held not to be a conviction under Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)). A prior no-plea California diversion disposition therefore does not render a noncitizen disqualified from eligibility for FFOA treatment of a subsequent possession conviction. A disposition of diversion that did not require a plea of guilty or no contest and does not constitute a conviction under 8 U.S.C. § 1101(a)(48)(a). In addition, this disposition does not constitute "a disposition under this subsection [8 U.S.C. § 3607(a)]."

Other
EXPUNGEMENT - EFFECT ON INADMISSIBILITY People who can benefit from rehabilitative relief eliminating a conviction under Lujan also are protected from being held inadmissible for having made an admission, because of a longstanding BIA rule that where a case is addressed in criminal proceedings and a disposition results that is less than a conviction, the person cannot be found inadmissible for having "admitted" the offense. Neither the prior guilty plea, or even a subsequent admission to INS official, will make them inadmissible for admitting the elements of the offense. See California Criminal Law and Immigration (2004), § 3.8. Thanks to Kathy Brady, ILRC for this analysis. POST CON RELIEF – EXPUNGEMENT – SIMPLE POSSESSION The literal requirements of the Federal First Offender Act are: 18 U.S.C. § 3607 (a) Pre-judgment Probation: If a person found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844) (1) has not, prior to the commission of such offense, been convicted of violating a Federal or State law relating to controlled substances; and (2) has not previously been the subject of a disposition under this subsection. Under this

404

language, it may be possible to obtain a Lujan safe expungement where two simple possession acts and convictions exist if, (1) at the time of commission of the second possession offense, the defendant had not yet been convicted of the first, and (2) both convictions are expunged at the same time. Thanks to Ann Benson for this analysis. STATE REHABILITATIVE RELIEF - FEDERAL FIRST OFFENDER ACT - PRIOR NOPLEA DIVERSION MAY DISQUALIFY IMMIGRANT FROM LUJAN TREATMENT OF EXPUNGEMENT OF SECOND CASE Criminal defense counsel should not count on a defendant being considered eligible for Lujan treatment of a conviction following a second arrest for possession or another qualifying offense, where the defendant previously received a no-plea diversion dismissal of a previous drug charge. Immigration counsel, however, can argue that a no-plea diversion is not a prior treatment "under this subdivision," so it does not disqualify the defendant from FFOA treatment of a second case. POST CON RELIEF – STATE REHABILITATIVE RELIEF – LOPEZ STRENGTHENS LUJAN The Lopez decision uses a uniform federal standard to determine whether a possession conviction constitutes an aggravated felony, and uses the federal criminal drug statutes to set the bar. Counsel outside the Ninth Circuit can argue that this decision strengthens the Ninth Circuit’s reasoning in Lujan for the argument that state possession offenses expunged under state law that would have hypothetically qualified for FFOA treatment should be considered expunged for immigration purposes.

§ 8.6 BIA

1. Qualifying Offenses

POST CON – STATE REHABILITATIVE RELIEF – LUJAN DECISION ERASES QUALIFYING FIRST OFFENSE CONTROLLED SUBSTANCES CONVICTION IF RESPONDENT WOULD HAVE BEEN ELIGIBLE FOR FFOA TREATMENT EVEN IF NO STATE EXPUNGEMENT WAS OBTAINED The BIA has held in two recent non-precedent decisions that actual expungement of a first-offense conviction of possession of a controlled substances is not required, before removal proceedings will be terminated, because Lujan and Manrique suggest that a conviction does not constitute a deportable controlled substances conviction if the respondent would have been eligible for treatment under the Federal First Offender Act if prosecuted in federal court, even if a state expungement has not yet actually been

405

obtained and the defendant remains on probation. Matter of Vallesteros, 2004 WL 1739143 (BIA June 29, 2004)(non-precedent decision); Matter of Ceredon, 2004 WL 1739162 (BIA June 29, 2004) (non-precedent decision).

Other
POST CON RELIEF – STATE REHABILITATIVE RELIEF – NINTH CIRCUIT RULE – EXPUNGEMENTS OF MULTIPLE SIMULTANEOUS QUALIFYING FIRST DRUG CONVICTIONS ARE EFFECTIVE FOR IMMIGRATION PURPOSES A noncitizen who pleads guilty to more than one qualifying offense is eligible for FFOA treatment provided s/he is not disqualified under the FFOA by a prior drug conviction or by a prior grant of FFOA treatment to eliminate a prior conviction. 18 U.S.C. § 3607(a) does not state that a defendant is ineligible under the FFOA if the defendant has more than a "single offense." Instead, the statute states that Federal First Offender treatment is available to a person found guilty of "an offense" described in section 404 of the Controlled Substances Act provided that prior to the commission of such offense the person has not been convicted of a law related to controlled substances and has not previously been the subject of the FFOA. The plain and unambiguous words of the statute do not exclude from FFOA treatment a defendant convicted of two or more offenses at the same time provided the other conditions apply. Giving the words of the statute their ordinary and plain meaning the respondent qualifies for FFOA treatment. As to the first count to which respondent pleaded guilty, respondent is definitely eligible for FFOA treatment because he had no controlled substance convictions prior to the commission of the offense in this case nor did he have any previous disposition under the FFOA (or a state equivalent). As to the second count he pleaded guilty to, respondent is also definitely eligible for FFOA treatment because he had no controlled substance convictions prior to the commission of the offense in this case nor did he have any previous treatment under the FFOA (or a state equivalent). Under well-established rules of statutory construction, this court need go no further in interpreting the FFOA since the statute is clear and unambiguous. American Tobacco v. Patterson, 456 U.S. 63, 68 (1982): "In construing a statute, we assume the legislative purpose is expressed by the ordinary meaning of the words used. [Citation omitted] Absent a clear expressed legislative intention to contrary, the plain language of the statute is ordinarily conclusive." If Congress intended to limit the applicability of the FFOA to only a single offense ("one" offense) the first time a person was prosecuted for a controlled substance violation, Congress would have stated that a disposition under the FFOA was only available to a person found guilty of only "one" offense, or "one count,"

406

or "the first time the person committed any offense," or to "a single offense." The words "an offense" are not the same as "one offense." The word "an" is an indefinite article which is used as the equivalent of the word "a" before a vowel. (The American Heritage Dictionary of the English Language (4th Ed.) (2000).) To exclude more than one offense, there would have to be an appropriate adjective to describe the noun, such as "one" offense or a "single" offen