REMOVAL PROCEEDINGS - CONCESSION OF REMOVABILITY -CONCESSION BY ATTORNEY IS BINDING SO LONG AS NOT CONTRADICTED BY RECORD
Hoodho v. Holder, ___ F.3d ___ (2d Cir. Feb. 6, 2009) (IJ is authorized to accept a concession of removability where it is not plainly contradicted by the record evidence, and its acceptance constitute "egregious circumstances" that would free a represented party from the attorney's concessions).
RELIEF - WAIVERS - 212(C) RELIEF - OSC
Garcia-Padron v. Holder, ___ F.3d ___, 2009 WL 468202 (2d Cir. Feb. 26, 2009) (noncitizen in pre-IIRAIRA proceeding after service of OSC is eligible to waive post-IIRAIRA convictions under INA 212(c), despite pre-conviction repeal and even though proceedings had been administratively closed and then reopened; interpreting IIRAIRA 309(c)).
AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION HELD NOT TO BE AN AGGRAVATED FELONY
United States v. Ayon-Robles, ___ F.3d ___, 2009 WL 448184 (2d Cir. Feb. 24, 2009) (per curiam) (California second conviction of simple possession of a controlled substance did not constitute an aggravated felony, under INA 101(a)(43)(B), for illegal re-entry sentencing purposes), following Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) (second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. 1101(a)(43)(B), where the noncitizen did not admit the prior in being convicted a second time).
AGGRAVATED FELONY - DEFINITION OF "AGGRAVATED FELONY" UNDER INA 101(a)(43) IS THE SAME IN BOTH CRIMINAL AND IMMIGRATION CONTEXTS
United States v. Ayon-Robles, ___ F.3d ___, 2009 WL 448184 (2d Cir. Feb. 24, 2009) (per curiam) ("the term "aggravated felony" has the same meaning under the Guidelines as under the INA" so a decision in an immigration case is binding on the court of appeals in an illegal reentry sentence case), following Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) (second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. 1101(a)(43)(B)).
REMOVAL PROCEEDINGS - REINSTATEMENT
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (order of reinstatement vacated and remanded for additional fact-finding; "Ponta-Garcia argues that even if the reinstatement procedures pass muster, they should not have been applied to him. He claims not only that the 1987 order of removal was invalidated by a court, but claims as well that he did not reenter the country illegally when he returned from his four-day visit to Canada in 1992 with what he says was a valid green card.
REMOVAL PROCEEDINGS - REINSTATEMENT - OPEN QUESTION WHETHER FOUR-DAY PERSONAL TRIP OUTSIDE THE COUNTRY CONSTITUTES DEPARTURE UNDER AN ORDER OF REMOVAL
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (finding it a substantial question "whether leaving the country for a four-day personal trip constitutes "depart[ing] voluntarily, under an order of removal," as required by the statute. 8 U.S.C. 1231(a)(5) (emphasis added).").
REMOVAL PROCEEDINGS - REINSTATEMENT OF REMOVAL ORDER - REJECTING "UNREASONABLE CONSTRUCTION" CHALLENGE TO REINSTATEMENT REGULATION
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (regulation authorizing immigration officers, rather than immigration judges, to reinstate prior removal orders was a reasonable construction of 8 U.S.C. 1231(a)(5); "While this language prohibits relitigation of the merits of the original order of removal, it does not prohibit an examination of whether the original order was invalidated, or preclude judicial review of whether ICE met its obligations in making the reinstatement determination."), following Morales-Izquierdo v.
REMOVAL PROCEEDINGS - REINSTATEMENT OF REMOVAL ORDER - REJECTING DUE PROCESS CHALLENGE TO REINSTATEMENT REGULATION
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (holding regulation and statute, 8 U.S.C. 1231(a)(5), governing reinstatement of removal orders do not violate due process); accord, Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495-98 (9th Cir.2007) (en banc) ("Given the narrow and mechanical determinations immigration officers must make and the procedural safeguards provided by [the regulations], the risk of erroneous deprivation is extremely low....
JUDICIAL REVIEW - PETITION FOR REVIEW - FULL JUDICIAL REVIEW IS AVAILABLE FOR REINSTATEMENT OF REMOVAL ORDERS
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (holding full judicial review is available to a non citizen adjudged removable following reinstatement of removal procedures, so they do not violate due process on this basis); see United States v. Charleswell, 456 F.3d 347, 353 (3d Cir. 2006); Ponta-Garc[i]a v. Ashcroft, 386 F.3d 341, 342 (1st Cir. 2004) ("An order reinstating an earlier order of deportation is subject to review...."); 8 U.S.C. 1252 (providing for judicial review of final orders of removal); Duran-Hernandez v.
AGGRAVATED FELONY - FRAUD - FRAUD OFFENSE
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. April 22, 2008), revised opinion, (5th Cir. Feb. 5, 2009) (federal conviction of knowingly filing a false tax return, in violation of 26 U.S.C. 7206(1), constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), if the loss to the victim is in excess of $10,000, for purposes of triggering deportability); accord, Kawashima v. Gonzales, 503 F.3d 997, 1000-01 (9th Cir. 2007); contra, Lee v. Ashcroft, 368 F.3d 218, 220 (3d Cir. 2004).
