Capsule updates to CMT book

PRACTICE ADVISORY " CONTROLLED SUBSTANCES OFFENSES " FEDERAL FIRST OFFENDER ACT DISMISSALS ELIMINATE ALL IMMIGRATION CONSEQUENCES OF QUALIFYING CONVICTIONS EVEN THOUGH A STATE PROBATIONARY PERIOD LONGER THAN THE FFOA ONE-YEAR TERM WAS IMPOSED

The DHS sometimes argues that a state probation grant longer than the one-year probation period called for under the Federal First Offender Act, 18 U.S.C. 3706(a), disqualifies a conviction for treatment under Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000), prospectively overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc). The court of appeals has jurisdiction to review the underlying legal error of the BIA in adopting this argument. See Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014).

DETENTION " CUSTODY DETERMINATION GUILDELINES

ICE announces enhanced oversight and release procedures for custody determinations involving detainees with criminal convictions
https://www.ice.gov/news/releases/ice-announces-enhanced-oversight-and-r...

RELIEF " GOOD MORAL CHARACTER " STATUTORY BARS " ACTUAL CONFINEMENT OVER 180 DAYS "

Matter of Valdovinos, 18 I&N Dec. 343, 344 (BIA 1982) (incarceration in a minimal security area with work furlough counts towards the 180 days for the statutory bar to showing Good Moral Character, under INA 101(f)(7), 8 U.S.C. 1101(f)(7)). Thanks to Kathy Brady.
http://www.justice.gov/eoir/vll/intdec/vol18/2929.pdf

JUDICIAL REVIEW " PETITION FOR REVIEW " EXHAUSTION

Prabhudial v. Holder, ___ F.3d ___, 2015 WL 1061798 (2d Cir. Mar. 12, 2015) (petition for review denied, where petitioner failed to argue before the IJ that his conviction did not qualify as an aggravated felony controlled substances offense applying the categorical approach before the IJ, and the BIA may apply the doctrine of waiver to matters not raised before an IJ).
NOTE: It appears that the noncitizen completely failed to argue whether his conviction would trigger removal under the categorical analysis before the IJ, and instead sought time for a pending state case to be decided.

JUDICIAL REVIEW " AGENCY CREDIBILITY DETERMINATIONS REVIEWED FOR ABUSE OF DISCRETION

Mena-Flores v. Holder, ___ F.3d ___, 2015 WL 294629 (10th Cir. Jan. 23, 2015) (the reviewing court evaluates immigration agency credibility determinations under the abuse of discretion standard); citing Elzour v. Ashcroft, 378 F.3d 1143, 1150 n. 9 (10th Cir. 2004); see United States v. Aguayo"Delgado, 220 F.3d 926, 934"35 (8th Cir. 2000) (holding that the evidence was sufficient to convict beyond a reasonable doubt when the evidence consisted mainly of testimony by other participants in drug transactions, even though there were questions about the reliability and consistency of the accounts).

JUDICIAL REVIEW " ABUSE OF DISCRETION STANDARD

Mena-Flores v. Holder, ___ F.3d ___, ___, 2015 WL 294629 (10th Cir. Jan. 23, 2015) (The agency abused its discretion if it failed to give a rational explanation, inexplicably deviated from past policies, failed to supply any reasoning, or rested on summary or conclusory statements. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir.2004).).

RELIEF " WAIVERS " INA 212(h) WAIVER " LPR AGGRAVATED FELONY BAR

Husic v. Holder, ___ F.3d ___, 2015 WL 106359 (2d Cir. Jan. 8, 2015) (the aggravated felony bar to eligibility for a waiver of inadmissibility under INA 212(h), applies only to those persons with an aggravated felony conviction who became LPRs at the time that they lawfully entered the United States); but see Matter of Koljenovic, 25 I&N Dec. 219 (2010).

Note: With this decision, the Second Circuit joins the seven other Courts of Appeal"an overwhelming majority"to have rejected Matter of Koljenovic. To date, the Eighth Circuit stands alone in upholding the BIAs decision.

CRIMES OF MORAL TURPITUDE " THREATS " DEADLY CONDUCT

Matter of Hernandez, 26 I. & N. Dec. 464 (BIA 2015) (Texas conviction of "deadly conduct" in violation of Texas Penal Code 22.05(a), which punishes a person who "recklessly engages in conduct that places another in imminent danger of serious bodily injury," is categorically a crime involving moral turpitude), relying upon Matter of Leal, 26 I&N Dec. 20 (BIA 2012), affd, 771 F.3d 1140 (9th Cir. 2014).

RELIEF " ADJUSTMENT OF STATUE " INA 245(i) " EQUITABLE TOLLING

Prasad v. Holder, __ F.3d __ (4th Cir. Jan. 12, 2015) (April 30, 2001 deadline for submitting visa petition under INA 245(i), is not subject to equitable tolling).

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