RELIEF - WAIVERS - 212(H) WAIVER - CONTROLLED SUBSTANCES WAIVER ARGUABLY EXTENDS FROM POSSESSION OF MARIJUANA TO POSSESSION OF PARAPHERNALIA
A waiver of inadmissibility, under INA 212(h), for a single offense of possession of 30 grams or less of marijuana, should extend to waive a conviction of possession of drug paraphernalia. This argument is by analogy to the Ninth Circuit's extension of Lujan-Almendariz v. INS, 222 F.3d 728 (9th Cir. 2000) exception to "lesser offenses" like paraphernalia to similarly extending the marijuana 30-gram exception to lesser offenses such as possession of paraphernalia as well. See Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). See also Escobar Barraza v.
FIREARMS - POSSESSION IN CONNECTION WITH DRUG CRIME
United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. Apr. 21, 2009) (Georgia conviction for violation of Ga.Code Ann. 16-11-106(b) [possession of a firearm during commission of a crime] is close enough an equivalent to 18 U.S.C. 924(c) to result in 16-level enhancement for illegal-reentry sentencing after commission of a firearms offense; neither the statute of conviction, nor 18 U.S.C. 924(c) require "active employment" of the firearm; neither require transportation; it is sufficient that the firearm was found in proximity of the gun to the drugs and drug profits).
IMMIGRATION OFFENSES - NEW AFM CHAPTER
AFM revision: Section 212 (a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators
Section 212 (a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, Revisions to Adjudicator's Field Manual (AFM) to Include a New Chapter 40.6 (AFM Update AD07- 18); USCIS, Mar.
RETURN AFTER DEPORTATION
The petitioner may file a motion with the court of appeals asking the court to order his or her return to the United States after deportation. See Federal Rule of Appellate Procedure 27(a)(1) ("An application for an order or other relief is made by motion unless otherwise provided by these rules"). The motion could be entitled a motion to enforce the courts order, or a motion to order respondent to cause petitioners return to the United States. In extreme situations, some attorneys also have filed contempt motions for refusal to comply with the courts order.
JUDICIAL REVIEW - PETITION FOR REVIEW - STAY OF REMOVAL - TRADITIONAL STANDARD
Nken v. Holder, 129 S.Ct. 1749 (Apr. 22, 2009) (reversing court of appeals' denial of motion to stay removal pending judicial review of a BIA ruling, where traditional stay factors, rather than the demanding standard of 8 U.S.C. 1252(f)(2), govern a Court of Appeals' authority to stay an alien's removal pending judicial review).
POST CON RELIEF - GROUNDS - RIGHT TO COUNSEL - POTENTIAL SENTENCE SUFFICIENT FOR APPLICATION OF RIGHT TO COUNSEL
Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (suspended sentence that can potentially be transformed into actual incarceration is sufficient to trigger the Sixth Amendment right to counsel in misdemeanor cases).
NOTE: Misdemeanor convictions in which no sentence, or suspended sentence, to custody was imposed can still trigger immigration consequences. In these cases, the Sixth Amendment right to counsel does not apply, so post-conviction relief would not be possible on grounds of denial of counsel or ineffective assistance of counsel.
STATUTORY CONSTRUCTION - LABEL OR TITLE OF STATUTE CANNOT OVERRIDE TEXT
INS v. St. Cyr, 533 U.S. 289, 309, 121 S.Ct. 2271, 2284 (2001) ("The title of a statute ... cannot limit the plain meaning of the text. For interpretive purposes, it is of use only when it sheds light on some ambiguous word or phrase.")
IMMIGRATION OFFENSES - AGGRAVATED IDENTITY THEFT
Flores-Figueroa v. United States, 129 S.Ct. 1886 (May 4, 2009) (in order to convict defendant of aggravated identity theft, under 18 U.S.C.
STATUTORY INTERPRETATION - GIVING MEANING TO ENTIRE STATUTE - INTENT REQUIREMENT APPLIES TO ALL ELEMENTS THAT FOLLOW IT IN THE STATUTORY DEFINITION OF AN OFFENSE
Flores-Figueroa v. United States, 129 S.Ct. 1886 (May 4, 2009) ("We should not interpret a statute in a manner that makes some of its language superfluous."), citing TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001).
AGGRAVATED FELONY - DRUG TRAFFICKING - USING TELEPHONE TO MAKE MISDEMEANOR DRUG PURCHASE DOES NOT FACILITATE FELONY DRUG DISTRIBUTION
Abuelhawa v. United States, 129 S.Ct. 2102 (May 26, 2009) (reversing conviction of knowingly or intentionally using a communication facility in committing or facilitating a drug distribution offense, in violation of 18 U.S.C. 843(b), on grounds that using a telephone to make a misdemeanor drug purchase does not constitute "facilitation" of felony drug distribution).
