STATUTORY INTERPRETATION - PRESUMPTION CONGRESS EMPLOYED UNIFORM NATIONAL DEFINITION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503,(BIA, May 20, 2008) ("Our analysis is further influenced by the presumption that the Federal immigration laws are intended to have uniform nationwide application and to implement a unitary Federal policy. Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir. 1994) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43-44 (1989)).
CATEGORICAL ANALYSIS - SILVA-TREVINO IMPOSES TRADITIONAL STEP ONE CATEGORICAL ANALYSIS WITH REASONABLE PROBABILITY ADDITION
Matter of Louissaint, 24 I. & N. Dec. 754 (BIA Mar. 18, 2009) (BIA interpreted Silva-Trevino to use the traditional categorical analysis in Step One, with the additional requirement that respondent show a reasonable probability that the statute would actually be used in a case falling outside the boundaries of the crime of moral turpitude definition, by showing at least one actual, rather than hypothetical, case in which this occurred).
RELIEF - CANCELLATION OF REMOVAL FOR NON-LPRS - NONCITIZEN CONVICTED OF CMT IS INELIGIBLE REGARDLESS OF PETTY OFFENSE EXCEPTION
Matter of Gabriel Almanza-Arenas, 24 I. & N. Dec. 771 (BIA, Apr. 13,2009) (noncitizen who has been convicted of a crime involving moral turpitude has been "convicted of an offense under" INA 237(a)(2), 8 U.S.C. 1227(a)(2)(2006), and is therefore ineligible for cancellation of removal under INA 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II)).
CRIMES OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION RELIEF - CANCELLATION OF REMOVAL FOR NON-LPRS - NONCITIZEN CONVICTED OF CMT IS INELIGIBLE REGARDLESS OF STATUS AS ARRIVING ALIEN
Matter of Gabriel Almanza-Arenas, 24 I. & N. Dec. 771 (BIA. Apr. 13, 2009) (noncitizen who has been convicted of a crime involving moral turpitude has been "convicted of an offense under" INA 237(a)(2), 8 U.S.C. 1227(a)(2)(2006), and is therefore ineligible for cancellation of removal under INA 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II)).
ILLEGAL REENTRY - SENTENCE - REVERSAL WHERE 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.
INVESTIGATION - FOIA
"Pursuant to the President's directive that I issue new FOIA guidelines, I hereby rescind the Attorney General's FOIA Memorandum of October 12, 2001... ." DOJ, Mar. 19, 2009.
www.usdoj.gov/ag/foia-memo-march2009.pdf
OVERVIEW - APPEAL TO FEDERAL COURT
The DHS apparently has access to a database called "STAYS" containing all stays of removal that are entered or lifted. By accessing this database, ICE can quickly determine when a stay has been placed or lifted. Thanks to Simon Moshenberg
REMOVAL PROCEEDINGS - RIGHT TO ID DOCUMENTS
Torres Memo dated 07/14/2006, last paragraph on the second page, indicates that "non-detained LPRs in removal proceedings are legally entitled to basic forms of identification such as driver's licenses and social security cards ..." Prior paragraph states temp I-551 card to be given.
http://www.aila.org/Content/default.aspx?docid=23514
Thanks to Suresh Gulaya
BURDEN OF PROOF - RETURNING LPR - ABANDONMENT
The Second, Sixth and Ninth Circuits have put the burden on the government to prove the ground of inadmissibility. See, e.g., Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008); Hana v. Gonzales, 400 F.3d 472, 476 (6th Cir.2005) ("Our task in this case ... is to determine whether we are compelled to conclude that, contrary to the Board's finding, the record does not contain clear, unequivocal, and convincing evidence that [the petitioner] abandoned her LPR status in the United States."); Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir.2003).
RELIEF - TEMPORARY PROTECTED STATUS - AGGRAVATED FELONY NOT A BAR IF ONLY ONE MISDEMEANOR
Temporary Protected Status is barred by convictions for one felony or two misdemeanors. Therefore, a single aggravated felony conviction does not bar TPS if it is a misdemeanor, so long as it does not otherwise trigger inadmissibility, for example, as a CMT or controlled substances conviction. "The statute provides, without qualification, that administrative procedures will not prevent an alien from asserting his right to TPS in removal proceedings." In re Barrientos 24 I. & N. Dec. 100, 102 (BIA 2007).
