JUDICIAL REVIEW - NON-LPR CANCELLATION
Mendez v. Holder, 566 F.3d 316 (2d Cir. May 8, 2009) ("Under our decision in Xiao Ji Chen v. U.S. Dept of Justice, 471 F.3d 315, 329 (2d Cir. 2006), that the REAL ID Act restores our jurisdiction to review "constitutional claims or questions of law," 8 U.S.C. 1252(a)(2)(D), and our decision in Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008), that we can review the determination of whether "exceptional and extremely unusual hardship" is present in those rare cases where a BIA decision rests on fact-finding "which is flawed by an error of law," id. at 40")
CRIM DEF - SENTENCE - SUPERVISED RELEASE - DISTRICT COURT HAS NO AUTHORITY TO TOLL PERIOD OF SUPERVISED RELEASE AFTER DEPORTATION UNTIL RETURN
United States v. Cole, 567 F.3d 110 (3d Cir. May 20, 2009) (district court had no authority to order that the supervised release term of illegal reentry sentence be tolled as long as defendant remained outside of the United States following his possible removal after his prison term, because tolling is not a "condition" of supervised release within the meaning of 28 U.S.C. 3583(d)).
POST CON RELIEF - GROUNDS - CONVICTION FOR BOTH CONSPIRACY AND SUBSTANTIVE OFFENSE INVALID WHERE CRIME ITSELF NECESSARILY REQUIRES TWO PERSONS - MARRIAGE FRAUD - WHARTON'S RULE
United States v. Rashan, 328 F.3d 160 (4th Cir. 2003) (rejecting argument that a conviction for both marriage fraud and conspiracy to commit marriage fraud violates Wharton's rule, that "it was improper for the government to prosecute him for both conspiracy to commit marriage fraud under 18 U.S.C. 371 and the substantive offense of marriage fraud under 8 U.S.C. 1325(c) because such prosecution violates the judicially devised doctrine called Wharton's Rule.
STATUTORY INTERPRETATION - STATE LABELS DO NOT CONTROL CONVICTION - NATURE OF CONVICTION - CATEGORICAL ANALYSIS - STATE LABELS DO NOT CONTROL
United States v. Ventura, 565 F.3d 870 (D.C. Cir. May 15, 2009) (in considering whether state conviction falls within federal statutory category for criminal sentencing purposes, under the categorical analysis, the state label or name for the offense does not control), citing Taylor v. United States, 495 U.S. 575, 599 (1990).
AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - SECOND STATE DRUG CONVICTION NOT AGGRAVATED FELONY UNDER GUIDELINES BECAUSE PRIOR NOT SHOWN TO HAVE BEEN FINAL PRIOR TO COMMISSION OF SECOND OFFENSE
United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir. May 27, 2009) (defendant's first state drug possession conviction was not "final" before commission of second possession offense, and thus second offense could not be aggravated felony under INA 101(a)(43)(B), 8 U.S.C.
RELIEF - CANCELLATION OF REMOVAL - BURDEN
Matter of Gabriel Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009) (noncitizen whose application for relief from removal was filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231, has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under INA 240(c)(4)(B), 8 U.S.C.
SAFE HAVEN - UNIDENTIFIED CONTROLLED SUBSTANCE - PAULUS DEFENSE
People v. Guy, 107 Cal.App.3d 593, 601, 165 Cal.Rptr. 463 (1980) (knowledge of the character of a controlled substance means that the defendant knew it was a controlled substance, but s/he need not have known its precise chemical composition); CALCRIM 2300, p. 204 (Spring 2008) ("The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/ furnished/ administered/ gave away/ transported/ imported), only that (he/she) was aware of the substance's presence and that it was a controlled substance.").
INADMISSIBILITY - VISA FRAUD - TIMELY RETRACTION DEFENSE
Under the doctrine of timely retraction or recantation, an applicant can use as a defense to inadmissibility under INA 212(a)(6)(C)(i) that s/he timely retracted or recanted the statement. The effect of a timely retraction is that the misrepresentation is eliminated. See Matter of RR, 3 I. & N. Dec. 823 (BIA 1949); Matter of M, 9 I. & N. Dec. 118 (BIA 1960); Matter of RSJ, 22 I. & N. Dec. 863 (BIA 1999)). For the retraction to be effective, it has to be voluntary and without delay (timely). See Matter of RR, 3 I. & N. Dec. 823 (BIA 1949); see Matter of Namio, 14 I. & N. Dec.
REMOVAL PROCEEDINGS - CONCESSION OF REMOVABILITY
The regulation at 8 C.F.R. 1240.10(c) provides that an IJ may accept a respondent's admission of the allegations and concession of the charges lodged, in lieu of ICE having to satisfy its statutory burden of proving deportability or inadmissibility. Although this mechanism essentially affords an alternative to the statutory requirement under 8 U.S.C.
POST CON RELIEF - FEDERAL - STATUTE OF LIMITATIONS - AEDPA STATUTE OF LIMITATIONS AFTER OUT-OF-TIME APPEAL STARTS WHEN SUPREME COURT AFFIRMS OR DENIES CERTIORARI OR THE TIME FOR SEEKING CERTIORARI EXPIRES
Jimenez v. Quarterman, __ U.S. __, 129 S.Ct.
