AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED ASSAULT
United States v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. Apr.
POST CON RELIEF - BURDEN OF PROOF - WAIVER OF COUNSEL - BURDEN FALLS ON DEFENDANT TO REBUT PRESUMPTION OF VALID WAIVER
United States v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. Apr. 20, 2009) (when a defendant collaterally attacks a prior conviction on the ground that he was not represented by counsel, the defendant bears the burden of rebutting the presumption that he validly waived his right to counsel).
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION OF MINOR
United States v. Munoz-Ortenza, 563 F.3d 112 (5th Cir. Mar. 18, 2009) ("We need not decide here whether "minor" as used in the enumerated category of "sexual abuse of a minor" means those under sixteen versus those under seventeen. We can say that "minor" in this context does not include all persons under eighteennamely, seventeen-year-olds. We are mindful that in many contexts a minor is defined as a person under eighteen. See Blacks Law Dictionary 997 (6th ed. 1990) ("In most states, a person is no longer a minor after reaching the age of 18 . . . .").
RELIEF - CANCELLATION OF REMOVAL - AGGRAVATED FELONY BAR - BURDEN OF PROOF ON NONCITIZEN
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (burden of production of evidence of aggravated-felony bar to cancellation of removal lies on noncitizen: "Second, neither Cisneros-Perez nor any case in this Circuit establishes the proposition that the initial burden of production of evidence that the alien is ineligible for discretionary relief lies with the government. Such a conclusion does not flow from the language of the statute or the concomitant regulation."), citing 8 U.S.C. 1229a(c)(4)(A)(i); 8 C.F.R. 1240.8(d).
JUDICIAL REVIEW - QUESTIONS OF FACT
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (whether noncitizen was convicted of an offense that could be considered an aggravated felony, where elements of statute described an aggravated felony but the judgment lacked essential elements of the offense, was a question of fact over which the court lacked jurisdiction).
AGGRAVATED FELONY - POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVER
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (Texas conviction of possession of cocaine with intent to deliver, under Health & Safety Code 481.112(a), is a drug-trafficking "aggravated felony" under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), which disqualifies the noncitizen from cancellation of removal for Lawful Permanent Residents under INA 240A(a)(3), 8 U.S.C.
ILLEGAL REENTRY - SENTENCE - PROCEDURAL UNREASONABLENESS - LACK OF EXPLANATION OF BASIS FOR OVERRULING DEFENDANT'S OBJECTIONS
United States v. Garcia-Robles, 562 F.3d 763 (6th Cir. Apr. 9, 2009) (reversing and remanding sentence on grounds sentence was procedurally unreasonable because the district court failed to explain its reasons for overruling defendant's timely objections to his sentence).
RELIEF - ADJUSTMENT OF STATUS - WIDOW PENALTY
Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. Apr. 8, 2009) (noncitizen whose citizen spouse filed necessary immediate relative form, but then died within two years of qualifying marriage, remained spouse for purposes of adjudication of noncitizens's petition to adjust status to lawful permanent resident. Immigration and Nationality Act, 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i)), agreeing with Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), disagreeing with Robinson v. Napolitano, 554 F.3d 358 (3d Cir.2009).
PETTY OFFENSE EXCEPTION - 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)).
CRIMES OF MORAL TURPITUDE - SILVA-TREVINO WARNING
In the light of the recent published decision by outgoing Attorney General Mukasey, Matter of Silva-Trevino 24 I. & N. Dec. 687 (A.G. November 2008), the question of what is a crime involving moral turpitude (CIMT) and the methodology for deciding it, is currently unsettled. The Ninth Circuits recent 7-5 en banc decision in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009), added to this uncertainty by holding that where the Board of Immigration Appeals (BIA) rules on "moral turpitude" in a precedential decision, the Court will apply the doctrine of administrative deference.
