Capsule updates to CMT book

CONVICTION " NATURE OF CONVICTION -- CATEGORICAL ANALYSIS " DIVISIBILITY " INCONCLUSIVE RECORD " MINIMUM CONDUCT

Villanueva v. Holder, 784 F.3d 51, 54 (1st Cir. Apr. 24, 2015) (If those documents are inconclusive, then we must discard the modified categorical approach and determine whether all of the alternative means of committing the predicate crime fit within the federal definition of the generic offense.).

MORAL TURPITUDE " MISPRISION OF A FELONY

Lugo v. Holder, 783 F.3d 119 (2d Cir. Apr. 9, 2015) (remanding to BIA to determine whether to continue to adhere to Matter of Robles"Urrea, 24 I. & N. Dec. 22 (BIA 2006), holding that conviction of misprision of a felony, under 18 U.S.C. 4, is still a crime of moral turpitude in light of circuit split), citing Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir.2002), and Robles"Urrea v. Holder, 678 F.3d 702, 711 (9th Cir. 2012).

SENTENCE " PSYCHIATRIC PRE-TRIAL CIVIL CONFINEMENT PENDING COMPETENCE TO STAND TRIAL DETERMINATION

Corpuz v. Holder, 697 F.3d 807 (9th Cir. Aug. 31, 2012) (BIA improperly considered as the term of imprisonment the entire period noncitizen spent in psychiatric pre-trial civil confinement pending a determination of his competence to stand trial, to find noncitizen barred from relief under former INA 212(c)).

CONVICTION " RECORD OF CONVICTION " FACTUAL BASIS - AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT

United States v. Marcia-Acosta, ___ F.3d ___ (9th Cir. Mar. 24, 2015) (Arizona conviction of aggravated assault, in violation of Arizona Revised Statutes 13-1203 and 13-1204, was not a "crime of violence" for illegal re-entry sentencing purposes; district court erred in relying solely upon a statement by defense counsel during plea colloquy in determining elements to which the defendant entered his plea, since a sentencing court may not rely on an extraneous factual-basis statement details, standing alone, to supply the narrowing for purposes of the modified categorical approach).

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 " DEFERENCE " BRAND X " BIA CAN OVERRULE SCOTUS

Florez v. Holder, 779 F.3d 207 (2d Cir. Mar. 4, 2015) (Ibarra also violates the rule that deference is owed to reasonable agency interpretations even if a court has previously construed that very statutory provision differently. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982"83, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). To illustrate: even if the U.S.

GOOD MORAL CHARACTER " 180 DAYS IN JAIL

Tiscareno-Garcia v. Holder, __ F.3d __ (4th Cir. Mar. 6, 2015) (noncitizen barred from showing good moral character for purposes of cancellation of removal application since noncitizen served 181 days in jail for illegal re-entry).

POST CON RELIEF " CONVICTION " EFFECTIVE ORDER VACATING CONVICTION

Gaona-Romero v. Gonzales, 497 F.3d 694, 649 (5th Cir. 2007) (after Disipio was decided, "[t]he government undertook a policy review to determine how removal cases arising in the Fifth Circuit that involve vacated convictions should be treated. The government concluded that it would not seek that removal decisions be upheld pursuant to Renteria, but rather would request remand to the BIA so that the government could take action in accord with Pickering."); citing Discipio v. Ashcroft, 417 F.3d 448 (5th Cir.

GOOD MORAL CHARACTER " 180 DAYS JAIL

Rodriguez-Avalos v. Holder, __ F.3d __ (5th Cir. Mar. 4, 2015) (noncitizen cannot show 10 years good moral character prior to final administrative decision in non-LPR cancellation of removal application where noncitizen served 180 days or more in jail during such period).

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