JUVENILE - CONVICTION - ADMISSION OF A CRIME
A plea in juvenile delinquency proceedings is neither a conviction nor an admission of a "crime" for purposes of triggering inadmissibility for a crime of moral turpitude or controlled substances offense. The BIA ruled that the same holds true when the person becomes an adult, although the Ninth Circuit, without actually discussing the issue, came to another conclusion. A noncitizen who formally admits all of the elements of a controlled substance crime or a crime involving moral turpitude can be found inadmissible. INA 212(a)(2)(A)(i), 8 USC 1182(a)(2)(A)(i).
SAFE HAVENS - AMERICAN INDIAN - AMERICAN INDIAN WITH 50% NATIVE AMERICAN BLOOD IS NOT SUBJECT TO GROUNDS OF EXCLUSION OR DEPORTATION
The immunity of certain American Indians born in Canada from exclusion and deportation rules is derived from the Jay Treaty of 1794 with Great Britain and was reaffirmed in the Treaty of Ghent at the conclusion of the War of 1812. See INA 289; 8 C.F.R. 289. The beneficiary must be 50% or more of the blood of the American Indian race and if s/he qualifies, cannot be deported or excluded from the United States for any reason.
CONVICTION - NONCITIZEN IS NOT DEPORTABLE FOR CONVICTION SUFFERED WHEN HE WAS A UNITED STATES CITIZEN BEFORE DENATURALIZATION
Costello v. INS, 376 U.S. 120 (1964) (person who was convicted of two crimes involving moral turpitude while he was a United States citizen cannot be deported on account of them after he lost his citizenship through denaturalization).
ALIENAGE - PRESUMPTION OF ALIENAGE FROM PERSON BORN ABROAD
FRE 301, enacted by Act of Congress in 1976, after the last BIA decision on this burden-shifting question, adopts the "bursting bubble" theory of presumptions, under which a presumption disappears once a party comes forward with "some evidence" - "more than a scintilla" of evidence - to rebut the presumption. Once a party comes forward with that evidence, the Government has the burden to prove the fact in issue. The Federal Rules of Evidence are not binding in immigration proceedings, but they are strong persuasive authority, esp.
CONVICTION - PLEA OF GUILTY - ALFORD PLEA WITHOUT ADMISSION OF GUILT CONSTITUTES CONVICTION FOR FEDERAL SENTENCING PURPOSES
United States v. Guerrero-Velasquez, ___ F.3d ___ (9th Cir. Jan. 19, 2006) (an Alford plea, in which the defendant enters a guilty plea while maintaining his innocence, is nevertheless a guilty plea under Taylor v. United States, 495 U.S. 575 (1990)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530066p.pdf
CONVICTION - JURISDICTION - PUERTO RICO - PUERTO RICO CONVICTION = STATE CONVICTION UNDER FEDERAL CAREER OFFENDER SENTENCE GUIDELINE
United States v. Cirino, ___ F.3d ___ (9th Cir. Aug. 15, 2005) (Puerto Rico conviction constitutes a conviction "under federal or state law" for purposes of enhancing a sentence under the federal career offender guidelines, USSG 4B1.1(a)(2002)).
AGGRAVATED FELONY - CHILD PORNOGRAPHY - TEXAS
Texas Penal Code, 43.26(a)(1) prohibits possession or promotion of child pornography. This statute penalizes possession of material containing an image of a child engaging in "sexual conduct," whereas the federal child pornography statutes listed in the aggravated felony definition require "sexually explicit conduct." If it can be shown that the Texas statute includes more material than the federal statute, a Texas conviction would be divisible with respect to the child pornography aggravated felony definition.
AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH FIREARM
United States v. Pintado-Isiordia, ___ F.3d ___ (9th Cir. May 26, 2006) (per curiam) (because record unclear whether district court relied on categorical approach, or modified categorical approach, defendants sentence for illegal reentry was vacated and remanded for district court determination as to whether prior conviction for assault with a firearm qualifies as a "crime of violence" under either approach).
http://caselaw.lp.findlaw.com/data2/circs/9th/0550489p.pdf
AGGRAVATED FELONY - CRIME OF VIOLENCE - PHYSICAL FORCE
Vargas-Sarmiento v. US Dept Of Justice, __ F.3d __ (2d Cir. May 8, 2006) ("the physical force referenced in 16(b) includes any power, violence, or pressure directed against a person or thing [W]hen a perpetrator lures a person to voluntarily enter a room, only then to lock the door behind the person, the perpetrator has intentionally used physical force to commit the crime of imprisonment."), citing Dickson v. Ashcroft, 372 F.3d 44, 50 (2d Cir. 2003).
AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
United States v. Camacho-Lopez, __ F.3d __ (9th Cir. May 30, 2006) (California conviction for vehicular manslaughter, in violation of California Penal Code 191.5(a) is not an aggravated felony crime of violence, in light of Leocal, for immigration purposes; Immigration Judge therefore improperly advised noncitizen that he was not eligible for relief; conviction for illegal re-entry following removal therefore cannot be sustained.)
