Capsule updates to CMT book

PRACTICE ADVISORY " CRIMES OF MORAL TURPITUDE " MISPRISON OF A FELONY PRACTICE ADVISORY " AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " MISPRISION OF A FELONY

Federal conviction of misprision of a felony, under 18 U.S.C. 4, does not constitute an aggravated felony, or a crime of moral turpitude, at least within the Ninth Circuit. This offense is not considered a drug-trafficking aggravated felony, even if the principals felony was a drug-trafficking offense and the client were to receive a sentence of one year or more. See Matter of Espinoza-Gonzalez, 22 I & N Dec. 889 (BIA 1999), distinguishing, but not overruling Matter of Batista-Hernandez, 21 I. & N. Dec.

JUDICIAL REVIEW " JURISDICTION

Lee v. Lynch, __ F.3d __ (10th Cir. Jul. 1, 2015) (section 242B(2) of the INA is not a jurisdictional statute; where noncitizen was detained in Tenth Circuit, but appeared telephonically in the Fifth Circuit, then appeared in the Fifth Circuit final hearing, the Fifth Circuit was the proper venue for appeal from BIA decision).

PRACTICE ADVISORY " CONVICTION " JURISDICTION " UNLISTED JURISDICTION

There is a decent argument that because some deportability and inadmissibility grounds specify jurisdictions, e.g., "state and federal and foreign" (controlled substance and aggravated felony grounds) or "state, federal, local and Indian" (domestic violence ground), that since "local" is included in at least one ground and not included in others, local ordinances would only give rise to deportability if the ground specifically says "local." See N. Tooby & J. Rollin, Criminal Defense of Immigrants 7.26 (2012).

PRACTICE ADVISORY " CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " RECORD OF CONVICTION " LESSER INCLUDED OFFENSES " CALIFORNIA

The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense.

ASYLUM " MATERIAL SUPPORT

Sesay v. Atty Gen., __ F.3d __ (3d Cir. May 26, 2015) (no duress exception exists for material support bar to asylum or withholding of removal).

RELIEF " LPR CANCELLATION OF REMOVAL " ADMITTED IN ANY STATUS

Tula-Rubio v. Lynch, ___ F.3d ___ (5th Cir. May 21, 2015) (noncitizen admitted at a port of entry by immigration officials by a wave-through has been admitted in any status for purposes of cancellation of removal eligibility under INA 240A(a)(2), 8 U.S.C. 1229b(a)(2)).

RELIEF " 212(h) WAIVER " NUNC PRO TUNC

Palma-Martinez v. Lynch, __ F.3d __ (7th Cir. May 11, 2015) (nunc pro tunc waivers under INA 212(h) are not available on a stand alone basis; petition must be filed in conjunction with application for adjustment of status).

JUDICIAL REVIEW " PETITION FOR REVIEW " MOOTNESS

Maldonado v. Lynch, ___ F.3d ___, 2015 WL 2343051 (9th Cir. May 18, 2015) (the petition for review was not moot notwithstanding petitioners removal after filing his petition for review, because there was solid evidence that the petitioner was currently present in the United States, seeking relief from removal to Mexico to avoid being killed, and thus continues to have a stake in the outcome of the petition for review).

JUDICIAL REVIEW " PETITION FOR REVIEW " FUGITIVE DISENTITLEMENT DOCTRINE

Maldonado v. Lynch, ___ F.3d ___, ___, 2015 WL 2343051 (9th Cir. May 18, 2015) (the petition for review did not warrant discretionary dismissal under the equitable fugitive disentitlement doctrine, which applies where a petitioner has fled custody and cannot be located when their appeals come before this court, since in this case, the petitioner is not a fugitive because he did not flee. He complied with his deportation order and was removed to Mexico.).

RELIEF " WAIVERS " INA 212(h) WAIVER " VIOLENT OR DANGEROUS CRIME " CATEGORICAL ANALYSIS INAPPLICABLE

Torres-Valdivias v. Lynch, ___ F.3d ___, 2015 WL 2146726 (9th Cir. May 8, 2015) (BIA was not required to apply categorical analysis to determine whether a conviction was for a violent or dangerous crime, for purposes of application of the enhanced hardship standard under Matter of Jean, 23 I. & N. Dec. 373 (Att'y Gen. 2002); immigration judge was allowed to examine documents outside the record of conviction in making the determination whether a conviction was for a violent or dangerous crime).

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