POST CON RELIEF - PLEA AGREEMENT - WAIVER OF RIGHT TO CLAIM IAC
Washington v. Lambert, 422 F.3d 864 (9th Cir. 2005) (plea agreement waiver of right to set aside a conviction on grounds of ineffective assistance of counsel is not effective to preclude doing so, since the plea agreement itself, containing the waiver, is not knowing or voluntary); see also United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005) (leaving open possibility; collecting cases); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct.
IMMIGRATION OFFENSES - ILLEGAL REENTRY - NO IMPROPER DOUBLE COUNTING TO USE PRIOR CONVICTION BOTH TO ENHANCE SENTENCE AND ALSO TO CALCULATE CRIMINAL HISTORY SCORE
United States v. Garcia-Cardenas, 555 F.3d 1049 (9th Cir. Feb. 17, 2009) (no error in using prior conviction both to enhance sentence for illegal reentry after deportation, and in calculating criminal history score; this did not constitute impermissible double counting).
IMMIGRATION OFFENSES - ILLEGAL REENTRY - PROOF OF PRIOR CONVICTION
United States v. Garcia-Cardenas, 555 F.3d 1049 (9th Cir. Feb. 17, 2009) (proof of prior conviction resulting in sentence enhancement does not have to be admitted or proven beyond a reasonable doubt), following, Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998).
POST CON RELIEF - HABEAS - FEDERAL - CUSTODY REQUIREMENT IS A JURISDICTIONAL PREREQUISITE
Wilson v. Belleque, 554 F.3d 816 (9th Cir. Feb. 5, 2009) ("[28 U.S.C.] Section 2241(c)(3) states that the writ shall not extend to a state prisoner unless "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." The text of the statute makes clear, and the Supreme Court has confirmed, that "custody" is a jurisdictional prerequisite to habeas review under 2241(c)(3)"); citing Hensley v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct.
POST CON RELIEF -- HABEAS - FEDERAL - CUSTODY - DEFINED
Wilson v. Belleque, 554 F.3d 816 (9th Cir. Feb. 5, 2009) ("[T]he Supreme Court has construed the phrase "in custody" very broadly. '[T]he use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.' Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). To satisfy the custody requirement, the Supreme Court has held that a petitioner must show that he is subject to a significant restraint upon his liberty 'not shared by the public generally.' Id. at 240, 83 S.Ct. 373.
JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION REQUIREMENT - ARGUMENT NOT PRESENTED TO THE AGENCY MAY NOT BE RAISED ON PETITION FOR REVIEW
Mejia-Rodriguez v. Holder, ___ F.3d ___,2009 WL 456386 (1st Cir. Feb. 25, 2009) ("This newfound claim is based on a factual assertion that was not presented to the agency. Mejia-Rodriguez has thus failed to exhaust his administrative remedies. See Silva v. Gonzales, 455 F.3d 26, 28-29 (1st Cir.2006). And had any discretionary decision been made on the facts of his case, this would not be subject to judicial review, given the restraints of 8 U.S.C. 1252(a)(2). See Conteh, 461 F.3d at 63-64.").
ALIENAGE - BURDEN OF PROOF
Nadal-Ginard v. Holder, ___ F.3d ___, 2009 WL 456411 (1st Cir. Feb. 25, 2009 (a person seeking admission to the United States has the burden of proving admissibility); citing 8 C.F.R. 1235.1(b) ("A person claiming U.S. citizenship must establish that fact to the examining officer's satisfaction," and if such person "fails to satisfy the examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be inspected as an alien."); 8 U.S.C.
REMOVAL PROCEEDINGS - EVIDENCE - NO ERROR IN ADMISSION OF UNTRANSLATED FOREIGN DOCUMENTS- DUE PROCESS CONSIDERATIONS OF FAIRNESS AND RELIABILITY GOVERN AND WERE NOT OFFENDER HERE
Nadal-Ginard v. Holder, ___ F.3d ___, 2009 WL 456411 (1st Cir. Feb. 25, 2009 (no error in admitting untranslated foreign documents in removal proceedings); citing United States v. Diaz, 519 F.3d 56, 64 (1st Cir. 2008) (no plain error in a criminal case where untranslated foreign language documents, including a passport, were admitted under the Federal Rules of Evidence because the "evidentiary significance was facially apparent"); Toure v. Ashcroft, 400 F.3d 44, 48 (1st Cir.
RELIEF - WAIVERS - 212(C) RELIEF - NUNC PRO TUNC
Nadal-Ginard v. Holder, ___ F.3d ___, 2009 WL 456411 (1st Cir. Feb. 25, 2009 (
(affirming BIA denial of request to allow INA 212(c) waiver nunc pro tunc; distinguishing Matter of L, 1 I. & N. Dec. 1 (A.G. 1940) on the basis that: (1) crime in this case was much more serious, and BIA was not unreasonable to deny "equitable relief" of nunc pro tunc grant of 212(c); and (2) by leaving the country in 2004 the appellant took "an action that he knew or should have known would render him excludable or deportable without the statutory right to apply for discretionary relief.").
RELIEF - WAIVERS - 212(C) RELIEF - JURY TRIAL
Nadal-Ginard v. Holder, ___ F.3d ___, 2009 WL 456411 (1st Cir. Feb. 25, 2009 (INA 212(c) nor impermissibly retroactive under St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, where defendant chose to go to trial), following Dias v. INS, 311 F.3d 456 (1st Cir.2002).
