JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEAL LACKS JURISDICTION TO REVIEW PARTICULARLY SERIOUS CRIME DETERMINATION FOR PURPOSES OFASYLUM
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (court of appeal has jurisdiction to review the merits of a "particularly serious crime" determination for purposes of asylum, because this question is specifically exempted from the jurisdiction-stripping provisions of 8 U.S.C. 1252(a)(2)(B)(ii)), following Morales v. Gonzales, 478 F .3d 972, 980 (9th Cir. 2007).
RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - COURT OF APPEAL HAS PETITION FOR REVIEW JURISDICTION TO REVIEW MERITS OF PARTICULARLY SERIOUS CRIME DETERMINATION FOR PURPOSES OF ASYLUM
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (court of appeal has jurisdiction to review the merits of a "particularly serious crime" determination for purposes of asylum, because this question is specifically exempted from the jurisdiction-stripping provisions of 8 U.S.C. 1252(a)(2)(B)(ii)), following Morales v. Gonzales, 478 F .3d 972, 980 (9th Cir. 2007).
RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - DEFINITION OF PARTICULARLY SERIOUS CRIME
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) ("Although the Convention did not define "particularly serious crime," it did create another exception for aliens who had committed a "serious nonpolitical crime" outside of the country of refuge. Convention, art. 1.F.b. As the BIA has stated, "it should be clear that a particularly serious crime is not the equivalent of a serious nonpolitical crime . Further, a particularly serious crime is more serious than a serious nonpolitical crime...." Frentescu, 18 I. & N.
RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - CONVICTION OF DRIVING UNDER THE INFLUENCE IS NOT A PARTICULARLY SERIOUS CRIME FOR PURPOSES OF ASYLUM
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (three convictions for felony DUI, one of which involved an injury accident, and two of which resulted in prison terms of less than five years each, did not constitute particularly serious crimes for purposes of barring asylum: it was an abuse of discretion to hold otherwise, because "they do not exceed the 'capital or grave' standard of 'serious' nonpolitical crimes, and Frentescu indicates that particularly serious crimes should exceed that standard.").
POST CON RELIEF - SENTENCE - GROUNDS - SENTENCE BASED ON FACT NOT SUPPORTED BY THE RECORD
United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. Apr. 9, 2009) (illegal reentry sentence reversed, where district court based the sentence on a "fact" - the assertion that this was the defendant's second illegal entry into the United States - that was not supported by the record, since that constitutes procedural error); Gall v. United States, __ U.S. __, ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007) (procedural errors include "selecting a sentence based on clearly erroneous facts."); United States v.
JUDICIAL REVIEW - PLAIN ERROR TEST - SUBSTANTIAL RIGHTS ARE AFFECTED WHERE THERE IS A REASONABLE PROBABILITY THAT THE OUTCOME WOULD HAVE BEEN DIFFERENT ABSENT THE ERROR
United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. Apr. 9, 2009) (to warrant reversal under the "plain error" test, the error must affect the defendant's substantial rights, i.e., there must exist "a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence."); citing United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (quoting United States v. Gilman, 478 F.3d 440, 447 (1st Cir.2007)).
POST CON RELIEF - SENTENCE - GROUNDS - DUE PROCESS - RIGHT TO SENTENCE BASED UPON ACCURATE INFORMATION
United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. Apr. 9, 2009) ("due process right to be sentenced upon information which is not false or materially incorrect" is violated where the defendant is sentenced based upon a "fact" that is not supported by the record, requiring reversal of the sentence); see United States v. Pellerito, 918 F.2d 999, 1002 (1st Cir.1990); see also Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).
IMMIGRATION OFFENSES - UNDOCUMENTED ALIEN ENTRY INTO MILITARY BASE
United States v. Madrigal-Valadez, 561 F.3d 370 (4th Cir. Apr. 1, 2009) (reversing conviction for unlawful entry into a military base, for a purpose prohibited by law, in violation of 18 U.S.C. 1382, where the evidence was insufficient to demonstrate that defendant had notice of the requirements for entry before he drove onto the military base access road, or notice that entry by an undocumented alien of a military installation is a crime prohibited by federal law).
POST-CON RELIEF - APPEAL - MOOTNESS - POSSIBILITY THAT CONVICTION MAY TRIGGER COLLATERAL IMMIGRATION CONSEQUENCE OF INADMISSIBILITY IS SUFFICIENT TO PRECLUDE MOOTNESS OF DIRECT CRIMINAL APPEAL
United States v. Madrigal-Valadez, 561 F.3d 370, 373-374 (4th Cir. Apr. 1, 2009) (possible collateral immigration consequence of inadmissibility, as a result of criminal conviction, is sufficient to prevent direct criminal appeal from conviction from becoming moot), citing Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ("[t]he mere possibility that" a conviction may result in collateral consequences "is enough to preserve a criminal case from ending ignominiously in the limbo of mootness. "); cf. Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct.
IMMIGRATION OFFENSES - ILLEGAL ENTRY INTO MILITARY BASE - STATUS OF BEING IN UNITED STATES ILLEGALLY DID NOT RENDER ILLEGAL AN ENTRY INTO MILITARY BASE
United States v. Madrigal-Valadez, 561 F.3d 370, 376 (4th Cir. Apr. 1, 2009) ("Our research has not disclosed any authority that makes the status of being in the United States after entering in violation of [8 U.S.C.] 1325(a) a separate crime. Accordingly, contrary to district court's alternative holding, Madrigal's entry into the Fort Lee access road was not conduct that was prohibited by 1325(a) or 1382.").
