RELIEF - ILLEGAL RE-ENTRY - COLLATERAL ATTACK
United States v. Camacho-Lopez, 450 F.3d 928 (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.)
ILLEGAL RE-ENTRY - COLLATERAL ATTACK - JUDICIAL REVIEW
United States v. Lopez, 445 F.3d 90 (2d Cir. Apr. 4, 2006) (for purposes of brining a collateral attack of the underlying deportation order in prosecution for illegal re-entry, the IJ and BIA affirmatively misleading the noncitizen regarding eligibility for relief resulted in an improper denial of the opportunity for judicial review, as required to bring a collateral attack under 8 U.S.C. 1326(d)).
SENTENCE - ILLEGAL REENTRY SENTENCING GUIDELINES
United States v. Chavez-Diaz, 444 F.3d 1223 (10th Cir. Apr. 18, 2006) (noncitizen sentenced to 4-6 years for delivery of a controlled substance, with a further court order suggesting immediate deportation if deemed appropriate by the DHS, and actually deported 26 days later, is considered to have been sentenced to 6 years imprisonment for purposes of illegal re-entry sentencing enhancement; court rejected argument that order for immediate deportation was essentially an alternative suspended sentence).
ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - IMMIGRATION JUDGE'S FAILURE TO USE CATEGORICAL ANALYSIS VIOLATED DUE PROCESS WHERE NONCITIZEN OTHERWISE HAD PLAUSIBLE BASIS FOR AVOIDING DEPORTATION
United States v. Meza-Corrales, ___ F. Supp. 2d ___, 2006 U.S. Dist. LEXIS 11199 (E.D. Wash. Mar. 1, 2006) (motion to dismiss illegal reentry charge granted on ground immigration judge violated due process by bypassing categorical analysis of Oregon conviction of attempted sexual abuse in the first degree, in violation of O.R.S.
ILLEGAL REENTRY - SENTENCE
United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. Mar. 23, 2006) (imposition of a 41-month prison sentence was reasonable for a noncitizen convicted of illegal reentry after deportation following aggravated felony conviction).
JUDICIAL REVIEW - DENIAL OF CONTINUANCE - NO BAR
Khan v. United States Atty. Gen., 448 F.3d 226 (3d Cir. May 22, 2006) (circuit court is not barred from reviewing denial of continuance by immigration judge).
JUDICIAL REVIEW - HABEAS CORPUS EVEN AFTER REAL ID ACT
Okeezie v. Chertoff, 430 F.Supp.2d 655 (W.D. Tex. May 4, 2006) (noncitizen with aggravated felony convictions was denied CAT by BIA on 2/3/05; with passage of REAL ID Act, on 5/11/05, the criminal alien bar to petition for review with the Fifth Circuit was removed, but the petition was automatically untimely; district court held that to apply REAL ID Act denial of habeas corpus jurisdiction in this case would be unconstitutional under INS v. St. Cyr, as noncitizen would have no means to obtain judicial review of removal order).
JUDICIAL REVIEW - PETITION FOR REVIEW - REAL ID ACT - QUESTION OF LAW OR CONSTITUTIONAL CLAIM
Cevilla v. Gonzales, 446 F.3d 658 (7th Cir. May 1, 2006) (court lacks jurisdiction to review discretionary denial of cancellation or removal, or a motion to reopen based upon that issue).
http://caselaw.lp.findlaw.com/data2/circs/7th/052387p.pdf
JUDICIAL REVIEW - BIA DECISION AS PRECEDENT
Matter of ELH, 23 I&N Dec. 814 (BIA 2005) (holding that a BIA precedent decision remains controlling unless the Attorney General, Congress, or a federal court modifies or overrules a decision). See also 8 C.F.R. 1003.1(d)(7).
JUDICIAL REVIEW - PRECEDENTIAL VALUE OF CIRCUIT DECISION AFTER CERT GRANTED
Where certiorari has been granted, the underlying decision retains precedential value. There is some authority to the contrary. United States v. Tholl, 895 F.2d 1178, 1181 n. 7 (7th Cir. 1990) ("Because this issue is currently pending before the Supreme Court, United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988), cert. granted, 493 U.S. 808, 110 S.Ct.
