PRACTICE ADVISORY " AGGRAVATED FELONIES " CHECKLIST OF AGGRAVATED FELONY OFFENSES THAT MAY BE STATE CONVICTIONS MEETING THE DEFINITION, EVEN IF THEY LACK THE FEDERAL JURISDICTIONAL ELEMENT OF THE CORRESPONDING FEDERAL OFFENSE
Under the analysis of Bautista v. Atty Gen. of the U.S., 744 F.3d 54, 59 (3d Cir. Feb. 28, 2014), convictions of state offenses listed in the aggravated felony definition statute, INA 101(a)(43), 8 U.S.C. 1101(a)(43), as defined in a federal statute, can qualify as aggravated felony convictions, even if they lack the federal jurisdictional element of, and are therefore not punishable under, the federal statute(s) referred to in the definition. This includes, for example, convictions of illicit trafficking in a controlled substance, under INA 101(a)(43)(B), 8 U.S.C.
PRACTICE ADVISORY " AGGRAVATED FELONIES " CHECKLIST OF AGGRAVATED FELONY OFFENSES THAT MAY NOT BE STATE CONVICTIONS IF THEY ARE NOT PUNISHABLE UNDER THE CORRESPONDING FEDERAL STATUTE, BECAUSE THEY LACK ANY ELEMENT, SUCH AS THE FEDERAL JURISDICTIONAL ELEME
Under the analysis of Bautista v. Atty Gen. of the U.S., 744 F.3d 54, 59 (3d Cir. Feb. 28, 2014), the court concluded that offenses in the aggravated felony definition statute, INA 101(a)(43), 8 U.S.C. 1101(a)(43), that are listed as described in a specific federal criminal statute, must be actually punishable under that statute to be considered aggravated felonies.
CRIMES OF MORAL TURPITUDE " COMMITING AN OFFENSE FOR THE BENEFIT OF A STREET GANG
Penal Code 186.22(d), committing a felony or misdemeanor for the benefit of a criminal street gang, is not a crime of moral turpitude. The minimum conduct sufficient to commit this offense would be committing a crime, the least serious of which would be vandalism, in violation of Penal Code 594, in association with members of a criminal street gang with knowledge that its members engage in criminal conduct. Vandalism, aka malicious mischief, however, is not a crime of moral turpitude. Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995).
CONTROLLED SUBSTANCES " UNIDENTIFIED DRUG " PAULUS DEFENSE
Richard Collins, Esq., thinks Chorionic Gonadatropin is not a federally controlled anabolic steroid, although prohibited in California and New York. Convictions under California Health & Safety Code 11377 and 11378 are not categorically offenses relating to a controlled substance because California regulates "numerous substances that are not similarly regulated by the CSA. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078"79 (9th Cir. 2007); see also Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009).
CONTROLLED SUBSTANCES " CALIFORNIA -- ARGUMENT " IDENTITY OF THE DRUG IS NOT AN ELEMENT OF CALIFORNIA DRUG OFFENSES, SO MODIFIED CATEGORICAL ANALYSIS IS IMPROPER TO IDENTIFY DRUG
Convictions under California Health & Safety Code 11377 and 11378 do not categorically qualify as generic controlled substance offenses under settled case law.
Moreover, because the statute of conviction is not divisible in the sense used by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), the Court cannot proceed to examine the record of conviction under the modified categorical analysis of the statute.
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO SEEK FUNDS FOR EXPERT " ERROR BASED ON COUNSELS MISTAKEN BELIEF IN IMPORTANT POINT OF LAW AND FAILURE TO RESEARCH IT
Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam)(counsel was ineffective for failing to seek funds to hire an expert where that failure was based on a mistaken belief that available funding was capped at $1,000).
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OR DEFEND IF BASED ON MISTAKEN BELIEF IN LEGAL CONCLUSION THAT DEFENDANT WAS A U.S. CITIZEN
Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam) (An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.).
In Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1085, 188 L.Ed.2d 1 (Feb.
RELIEF " WAIVERS " 212(C) RELIEF " TRIAL
Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 2014) (a lawful permanent resident otherwise eligible for relief under former INA 212(c) is eligible without regard to whether the conviction resulted from a plea agreement or a trial, and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered).
RELIEF " WAIVERS " 212(C) RELIEF
Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 2014) (an LPR with 7 years domicile in the United States who is removable due to a conviction between November 29, 1990 and April 24, 1996, is eligible for former INA 212(c) relief, inadmissible under INA 212(a)(3)(A), (B), (C), (E), or 212(a)(10)(C), 8 U.S.C. 1182(a)(3)(A), (B), (C), (E), or (10)(C) (2012); or served five years jail, in aggregate because of one or more aggravated felony convictions).
