Capsule updates to CMT book

JUDICIAL REVIEW - PETITION FOR REVIEW - CONTINUANCE DENIAL

Ukpabi v. Mukasey, ___ F.3d ___ (6th Cir. May 13, 2008) (court of appeal has jurisdiction to review IJ's denial of continuance of removal proceedings under abuse of discretion standard, and reaching claims of violation of international law and due process).

jurisdiction: 
Sixth Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - CANCELLATION OF REMOVAL - HARDSHIP QUESTION IS DISCRETIONARY, PRECLUDING PETITION FOR REVIEW

Mendez v. Mukasey, 525 F.3d 216 (2d Cir. May 12, 2008) (petition for review of a denial of cancellation of removal, presenting question whether petitioner demonstrated exceptional and extremely unusual hardship to his US citizen children, is dismissed where hardship determination is discretionary).

jurisdiction: 
Second Circuit

MARIANA ISLANDS COME UNDER INA

S.2739 became Public Law No. 110-229 on May 8, 2008, the
immigration related provisions are excerpted here.
http://www.ilw.com/immigdaily/news/2008,0514-cnmi.shtm

jurisdiction: 
Other

CRIMES OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - MAXIMUM SENTENCE REQUIREMENT - STATUTORY MAXIMUM NOT GUIDELINES MAXIMUM

Mendez-Mendez v. Mukasey, 525 F.3d 828 (9th Cir. May 8, 2008) (because statutory maximum term of imprisonment for bribery conviction was fifteen years, petty offense exception does not apply; plain language of INA 212(a)(2)(A)(ii)(II) indicates that "maximum penalty possible refers to statutory maximum, not the maximum guideline sentence to which noncitizen was exposed).

jurisdiction: 
Ninth Circuit

JUDICIAL REVIEW - DISCRETION AND CONSTITUTIONAL CLAIMS

Garcia-Aguillon v. Mukasey, 524 F.3d 848 (8th Cir. May 5, 2008) (noncitizens do not have constitutionally protected right to discretionary relief; noncitizen therefore failed to state colorable claim for voluntary departure).

jurisdiction: 
Eighth Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - DENIAL OF SUA SPONTE MOTION TO REOPEN BY BIA

Lenis v. US Atty. Gen., 525 F.3d 1291 (11th Cir. May 5, 2008) (court lacks jurisdiction to review BIA denial of sua sponte reopening).

jurisdiction: 
Eleventh Circuit

POST CON RELIEF - MODIFICATION OF RECORD OF CONVICTION SOLELY FOR IMMIGRATION PURPOSES MAY NOT BE AFFECTIVE

Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21.

jurisdiction: 
BIA

STATUTORY INTERPRETATION - RULE OF SUPERFLUITIES

Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Pauley, Boardmember, concurring) ("Indeed, it appears that crimes of child neglect or abandonment are a subset of "child abuse" and, although technically redundant, were likely inserted by Congress to assure coverage of such crimes, however denominated by the State. See Ali v. Federal Bureau of Prisons, 128 S. Ct.

jurisdiction: 
BIA

INADMISSIBILITY - CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION

United States v. Rodriquez, 553 U.S. ___ (May 19, 2008) (for purposes of considering whether a state drug-trafficking offense, for which a ten-year recidivism-based sentence was imposed, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e)), the federal sentencing court must consider the recidivist sentence enhancement in determining the sentence imposed), disagreeing with United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.

jurisdiction: 
US Supreme Ct

CATEGORICAL ANLAYSIS - BURDEN OF PROOF - FACT REQUIRED TO BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE IS NOT SUFFICIENTLY SHOWN BY RECORD OF CONVICTION THAT NEED BE SHOWN ONLY BY A PREPONDERANCE

Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington restitution order, contained in judgment, indicating that the respondent owed no restitution to his "child victim" did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. Specifically, in Washington the facts upon which a restitution award may be based need only have been proven to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173, 1175 (Wash. Ct. App. 2000).

jurisdiction: 
BIA

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