Open Letter on What’s Up with Us at the Law Offices of Norton Tooby
Open Letter on What’s Up with Us at the Law Offices of Norton Tooby
Please pay close attention to this letter if you subscribe to any of our newsletters or are interested in our legal consultation services.
Prior Juvenile Dispositions Arguably Do Not Disqualify Noncitizens From Effective FFOA Treatment Under Lujan
If a noncitizen has a first adult conviction of simple possession of a controlled substance, or any other such conviction of a qualifying offense, there is an argument that prior juvenile dispositions for controlled substances offenses should not disqualify the noncitizen from effectively eliminating adverse its immigration consequences under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
Post Con Relief-Nunc Pro Tunc Orders
The notion of court orders nunc pro tunc is a very vague equitable doctrine. Even if counsel obtains a nunc pro tunc order in criminal court, there is no guarantee at all the immigration court will reach the criminal court’s conclusion that the order or plea was entered on the backdated date cf. United States v. Esparza. The immigration courts generally follow federal immigration law on these questions, rather than the vagaries of the law of the 50 states, because of a desire for national uniformity.
California Witness Dissuasion Offers an Immigration-Safe Alternative Disposition, Especially in Domestic Violence Cases
A plea to simple witness dissuasion, in violation of California Penal Code § 136.1(b), does not trigger deportation under any ground, at least if there is no sentence imposed of one year or more in custody, whether or not execution is suspended. See generally N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005) (updated monthly on www.NortonTooby.com.
Lack of Advice on Actual Immigration Consequences of Plea by Unrepresented Defendant: Potential Grounds To Vacate the Conviction
Lack of Advice on Actual Immigration Consequences of Plea by Unrepresented Defendant – Potential Grounds To Vacate the Conviction
The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no defense counsel in the case who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea.
Finding and Creating Federal Misdemeanors with One-Year Maximum Sentences
The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors. Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense. This is useful where it is important to have a misdemeanor conviction, rather than a felony. E.g., aggravated felony crimes of violence under 18 U.S.C.
California Witness Dissuasion Plea Offers An Immigration-Safe Alternative Disposition, Especially In Domestic Violence Cases
By Norton Tooby
A plea to simple witness dissuasion, in violation of California Penal Code § 136.1(b), does not trigger deportation under any ground, at least if there is no sentence imposed of one year or more in custody, whether or not execution is suspended. See generally N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005)(updated monthly on www.NortonTooby.com).
How Padilla Might Help Defendants Who Pleaded Guilty Without Counsel
By Norton Tooby
The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no counsel who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
There are, however, three possible grounds of legal invalidity—two stronger and the third so weak it probably should not be made.
California One-Year Custody as Condition of Probation May Not Constitute Aggravated Felony One-Year Sentence Imposed
By Norton Tooby
Many aggravated felony definitions require that the court order a term of imprisonment for a qualifying conviction of one year or more, or they are not aggravated felonies. For many of the most common aggravated felonies, the sentence imposed is decisive. These offenses constitute aggravated felonies if and only if a sentence of one year or more in custody is ordered by the court. Therefore, for these offenses, the many defenses against a sentence imposed of one year or more constitute complete defenses to aggravated felony status. See N. TOOBY & J.
First Drug Possession Convictions Occurring Before July 14, 2011 Can Still Be Erased By Expungement
In Lujan-Armendariz v. INS, 222 728 (9th Cir. 2000), the Ninth Circuit held that state rehabilitative relief from first-offense simple possession convictions was effective to eliminate all immigration consequences, by analogy to the Federal First Offender Act, 18 U.S.C. § 3607. While overruling Lujan prospectively, the Ninth Circuit continues to recognize state rehabilitative relief as erasing all immigration consequences of qualifying first controlled substances offenses, so long as the conviction occurred on or before July 14, 2011. (Nunez-Reyes v.