ARTICLE: RES JUDICATA PREVENTS DHS FROM INITIATING SECOND DEPORTATION CASE ON THE BASIS OF A CHARGE THAT COULD HAVE BEEN BROUGHT IN THE FIRST CASE
The doctrine of res judicata precludes a second suit on the same issue between the same parties when there has been a valid and final judgment on the issue. Semptek Intl , Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 (2001). The Supreme Court has stated that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, "the doctrine of res judicata may apply." United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966).
ADMISSION - RETURNING LPRs - BURDEN OF PROOF
INA 101(a)(13)(A) subjects an LPR to the grounds of inadmissibility if the foreign national engaged in illegal activity after having departed the United States. 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 ...
RELIEF - ASYLUM - POST CON RELIEF - REHABILITATIVE RELIEF MAY BE EFFECTIVE TO ELIMINATE A CONVICTION FOR PURPOSES OF ELIGIBILITY FOR RELIEF - ASYLUM OR WITHHOLDING OF REMOVAL
Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, it arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding context.
POST CON RELIEF - EFFECTIVE ORDER - STATE REHABILITATIVE RELIEF
Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, it arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding context.
FALSE CLAIM TO US CITIZENSHIP - INTENT TO GAIN OTHER BENEFITS THAN THOSE UNDER THE INA OR STATE LAW
In a prosecution charging a violation of 18 U.S.C. 1015(e), for making a false claim to U.S. Citizenship on an application to obtain a private security guard license from the county of residence, counsel can argue that an application for a private security guard license was not a benefit under either the INA or state law. See the following link for various State "benefits":
http://www.govbenef its.gov/govbenef its_en.portal?_nfpb=true&_pageLabel=gbcc_ page_locate_ state. In some cases, the employer, not the employee, completes the I-9. Thanks to Raymond Bolourtchi.
POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - NO RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ON DISCRETIONARY APPEALS, POST-CONVICTION COLLATERAL ATTACKS, OR PETITIONS FOR CERTIORARI TO THE U.S. SUPREME COURT
Pennsylvania v. Finley, 481 U.S. 551, 554 (1987) (no right to counsel on collateral review of criminal conviction); Ross v. Moffitt, 417 U.S. 600 (1974) (no right to counsel for discretionary review, such as asking United States Supreme Court to grant review); Miller v. Keeney, 882 F.2d 1428, 1431 (9th Cir. 1989).
ARTICLE - POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - RIGHT TO COUNSEL ON POST-CONVICTION REVIEW
"The ABA Standards require that counsel should be provided at every state of the proceedings, including sentencing, appeal, and post-conviction review." (J. HALL, JR., PROFESSIONAL RESPONSIBILITY IN CRIMINAL DEFENSE PRACTICE 2:5, p. 41 and n.1 (2005), citing ABA STANDARDS, PROVIDING DEFENSE SERVICES, Std. 5-5.2.) "There is no right to counsel for discretionary review or collateral review unless it can lead to procedural default in a mandatory post-trial process.") (Id. at 2.6, p. 46 [footnotes omitted].), citing Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995); Dawan v.
POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - APPELLATE COUNSEL HAS NO DUTY TO RAISE EVERY NONFRIVOLOUS ISSUE REQUESTED BY THE DEFENDANT
Jones v. Barnes, 463 U.S. 745, 754 (1983) (appellate counsel has no duty to raise every nonfrivolous issue requested by the appellant).
REMOVAL PROCEEDINGS - EVIDENCE - FOREIGN LANGUAGE DOCUMENTS
8 CFR 1003.33 (regulation requires only that translator certify the translation is accurate and correct to the best of the translator's abilities and that the person is competent to translate the document, but does not require the translator to be certified).
DETENTION - CALIFORNIA PAROLE WILL TERMINATE UPON DEPORTATION, THUS ENDING CUSTODY AND HABEAS CORPUS JURISDICTION
On Mar. 2, 2009, the California Department of Corrections and Rehabilitation announced it will discharge noncitizens released from prison from parole immediately after they have been deported. Thus, those who return illegally (1600 of 12,000 in 2007) will not be given short (four to eight month) California prison terms for parole violation, but will be turned over to federal authorities for illegal reentry prosecution, saving California about $10 million annually.
