POST-CON - APPEAL - APPEAL WAIVER
United States v. Felix, 561 F.3d 1036, 1040-1041 (9th Cir. Apr. 13, 2009) ("In Buchanan, the defendant knowingly and voluntarily entered into a plea agreement which included a waiver of his right to appeal. 59 F.3d at 917. However, during two subsequent sentencing hearings, the district judge stated that the defendant had the right to appeal his sentence. Id. The government did not object to the district judge's statements. Id. at 918. We noted that because of the district judge's statement, Buchanan could have had a reasonable expectation that he appeal his sentence. Id.
POST-CON - APPEAL - APPEAL WAIVER
United States v. Felix, 561 F.3d 1036, 1040-1041 (9th Cir. Apr. 13, 2009) ("In Buchanan, the defendant knowingly and voluntarily entered into a plea agreement which included a waiver of his right to appeal. 59 F.3d at 917. However, during two subsequent sentencing hearings, the district judge stated that the defendant had the right to appeal his sentence. Id. The government did not object to the district judge's statements. Id. at 918. We noted that because of the district judge's statement, Buchanan could have had a reasonable expectation that he appeal his sentence. Id.
EVIDENCE - SECRET EVIDENCE
Kaur v. Holder, 561 F.3d 957 (9th Cir. Apr. 1, 2009) (BIA misused secret evidence by failing to give summary of that evidence to noncitizen in proceedings who had been admitted to the United States).
JUDICIAL REVIEW - REINSTATEMENT
Alcala v. Holder, 563 F.3d 1009 (9th Cir. Apr. 28, 2009) (Court of Appeals lacks jurisdiction to review decision of IJ to grant DHS motion to dismiss proceedings to allow DHS to reinstate prior expedited order of removal).
CRIM DEF - EXTRADITION
Noriega v. Pastrana, 564 F.3d 1290 (11th Cir. Apr. 8, 2009) (Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 ("Third Geneva Convention" or "Convention"), does not foreclose the extradition of prisoners of war; 5 of the Military Commissions Act of 2006 ("MCA"), Pub.L. No. 109-366, 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. 2241 (2006), precludes Noriega from invoking the Geneva Convention as a source of rights in a habeas proceeding).
ARTICLE - CRIMES OF MORAL TURPITUDE - CATEGORICAL ANALYSIS - ASSESSMENT WHETHER THE FACTS OF THE OFFENSE COMMITTED INVOLVED MORAL TURPITUDE UNDER SILVA-TREVINO Silva-Trevino Removal Defense Where the Facts of the Offense Did Not Involve Moral Turpitude. B
The Attorney General's decision in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 7, 2008), cuts two ways. It allows resort to the underlying facts of the case to deport where the immigrant in fact committed a crime of moral turpitude, even though the offense of conviction does not invariably involve moral turpitude when the elements are assessed under the categorical analysis. The reverse is true as well: a person convicted of a crime, which involves moral turpitude under the elements, is not deportable if the facts of the offense committed did not involve moral turpitude.
RELIEF - 212(C) RELIEF - COURT TRIAL - SOME NEGOTIATED COURT TRIALS ARE TANTAMOUNT TO "SLOW PLEAS OF GUILTY" SO 212(C) RELIEF REMAINS AVAILABLE
In some jurisdictions, a defendant can negotiate the verdict of a court trial in the same way as for a guilty plea, saving the state the expense and uncertainty of a jury trial. Immigration counsel can argue that convictions resulting from these "slow pleas" are tantamount to guilty pleas, and convictions resulting from them should receive the same eligibility for 212(c) relief as those resulting from guilty pleas. See N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 24.28(J) (2007).
REMOVAL PROCEEDINGS - FOREIGN CONVICTIONS - CHALLENGING FOREIGN CONVICTIONS IN IMMIGRATION COURT
Absent evidence of political motivation for a wrongful prosecution, the adjudicator cannot look behind a conviction to determine whether the applicant was guilty of the offense for purposes of determining inadmissibility under INA 212(a)(2)(A)(i)(I), although evidence of a wrongful conviction can be relevant to waiver considerations. 9 FAM 40.21(A).
In challenging a foreign conviction counsel can:
AGGRAVATED FELONY - CRIME OF VIOLENCE - FELONY - CHARGING PAPER IS NOT DISPOSITIVE AS TO WHETHER CALIFORNIA WOBBLER, ALSO KNOWN AS ALTERNATIVE FELONY-MISDEMEANOR, IS A FELONY, SINCE THE COURT AT SENTENCE MAY REDUCE IT TO A MISDEMEANOR FOR ALL PURPOSES
United States v. Viezcas-Soto, 562 F.3d 903 (8th Cir. Apr. 10, 2009) (in California, the information filed as a felony is not dispositive of the felony-misdemeanor inquiry - i.e. whether the maximum punishment is in excess of one year; a California "wobbler" becomes a felony or misdemeanor only after the court enters judgment imposing a punishment), citing Cal.Penal Code 17(b)(1); see United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994); United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992)).
JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION - COURT OF APPEALS COULD NOT REACH ISSUE OF DENIAL OF CONTINUANCE SINCE IT WAS NOT RAISED BEFORE BIA IN A TIMELY FILED BRIEF
Hanggi v. Holder, 563 F.3d 378 (8th Cir. Apr. 20, 2009) (petitioner failed to exhaust issue of denial of continuance where it was not raised in a timely filed brief before the BIA, and was thus not exhausted, precluding the court of appeals from reviewing the issue); citing Ming Ming Wijono v. Gonzales, 439 F.3d 868, 871 (8th Cir.2006); Etchu-Njang v. Gonzales, 403 F.3d 577, 582-83 (8th Cir.2005).
