Criminal Defense of Immigrants

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AGGRAVATED FELONY " CRIME OF VIOLENCE " 16(b) " ORDINARY CASE ANALYSIS UNCONSTITUTIONALLY VOID FOR VAGUENESS
Linus Chan, in The ordinary cases demise in criminal sentencing & its implications for immigration law, at Crimmigration.com, summarized the impact of Johnson v. United States as follows: After the Supreme Court announced the ordinary case method in James, the Board of Immigration Appeals (BIA), and a couple of federal circuit courts began to adopt it in immigration cases when deciding whether someone has committed a crime of violence under 18 U.S.C. 16(b). Section 16(b)s language is not an exact match to ACCAs residual clause, but isnt far off. Section 16(b) defines a crime of violence as a felony which, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Like the ACCAs residual clause, 16(b) requires an examination of risk, and also looks at whether force is used in the course of committing the offense. Two circuit courts called the phrases virtually identical. See Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. 2014); Lopez-Cardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011). Moreover, the Ninth and Fifth Circuits applied the ordinary case from James to 16(b) cases. Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013); Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir. 2007). The BIA had begun applying the ordinary case method to 16(b) cases in 2011, see Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011), and just a few weeks before Johnson reiterated its support for the ordinary case method in Matter of Francisco-Alonzo, 26 I&N Dec 594 (BIA 2015) (analyzed on this blog here). In Francisco-Alonzo, the BIA relied heavily on the fact that James had not been overruled, and it saw no reason to question the rule when examining risk based definitions. The James ordinary method, it seemed, had become embedded in immigration law. The reliance on James as good precedent proved to be ill timed. On June 26, 2015, just three weeks after Francisco-Alonzo the United States Supreme Court not only overruled James in Johnson but also found that the residual clause of the ACCA and the ordinary case method unconstitutionally vague under the Due Process clause of the Fifth Amendment. The Court specifically criticized the ordinary case rule. It ties the judicial assessment of the risk to a judicially imagined ordinary case of a crime, not to real-world facts for statutory elements, the Court concluded. Johnson, No. 13-7120, slip op at 5. The Court wrote that such an exercise was too speculative and too unreliable to give guidance to either defendants or judges. The Court explained that other risk-assessment statutes did their work by gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for an application of a qualitative standard such as substantive risk to real-word conduct Id. at 12. Ultimately the residual clause was vague because it requires application of the serious potential risk standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect, the Court concluded, this abstract inquiry offers significantly less predictability than one [t]hat deals with the actual, not with an imaginary condition other than the facts. Id. (quoting International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) .

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F).

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (June 20, 2013) (the modified categorical approach does not authorize a fact-based inquiry; court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the conviction.).

CATEGORICAL ANALYSIS " ELEMENT " DEFINITION
Alleyne v. United States, __ S.Ct. __ (2013) (any fact that increases the mandatory minimum is an "element" that must be submitted to the jury, rather than the judge).

BIA

DOMESTIC VIOLENCE " VIOLATION OF PROTECTIVE ORDER " SIMILAR TO CIRCUMSTANCE SPECIFIC ANALYSIS
Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017) (in considering whether a violation of a domestic violence protection order renders a noncitizen deportable, under INA 237(a)(2)(E)(ii), an IJ should consider the probative and reliable evidence regarding what a state court has determined about the violation), clarifying Matter of Strydom, 25 I&N Dec. 507 (BIA 2011). NOTE: While the court stated that neither the categorical, nor the circumstance-specific approaches were applicable to this ground, the board stated that any reliable evidence could be submitted. The Board clarified that when it previously applied the categorical approach to INA 237(a)(2)(E)(ii), it did not actually hold that the categorical approach should be applied to the TRO ground, it just did it. Thus, the BIA was completely free to change its prior rule, because it did not really mean to establish that as the rule.

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

ADJUSTMENT OF STATUS " ASYLEE
Matter of C-J-H, 26 I. & N. Dec. 284 (BIA 2014) (noncitizen who has already adjusted status from asylee to LPR cannot re-adjust under INA 209(b), as a defense to removal).

AGGRAVATED FELONY " FIREARMS OFFENSES " UNLAWFUL POSSESSION OF AMMUNITION BY CONVICTED FELON " RELATING TO
Matter of Oppedisano, 26 I. & N. Dec. 202 (BIA 2013) (federal conviction of unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. 922(g), is an aggravated felony for immigration purposes; the relating to language used in the Act is does not limit the scope of the statute). http://www.justice.gov/eoir/vll/intdec/vol26/3793.pdf

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE
Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).

CONTROLLED SUBSTANCES " DEPORTATION GROUND " SINGLE OFFENSE EXCEPTION " CIRCUMSTANCE-SPECIFIC INQUIRY
Matter of Davey, 26 I&N Dec. 37, 38-39 (BIA Oct. 23, 2012) (question whether a noncitizen committed a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), to qualify for this exception to the controlled substances deportation ground, was a circumstance-specific inquiry, that is, an inquiry into the nature of the aliens conduct. It does not suggest a focus on the formal elements of generic offenses.); citing Nijhawan v. Holder, 557 U.S. 29, 34 (2009).

CONVICTION " MUNICIPAL ORDINANCE
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial), distinguishing Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004).

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 842 (BIA 2012) (California conviction of accessory after the fact, in violation of Penal Code 32, with a sentence of 16 months imprisonment, is a conviction for an aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S) because it include[s] the element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice), quoting Matter of Espinoza, 22 I&N Dec. 889, 894 (BIA 1999); disagreeing with Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1164 (9th Cir. 2011) (BIA requires actual interference with an ongoing criminal proceeding or investigation). Note: The BIA interpreted the obstruction of justice provision more broadly than the Ninth Circuits more restrictive approach, pursuant to Brand X, the Supreme Court decision that allows an agency to issue a reasonable interpretation of a statute within its expertise even after a court has found an earlier agency interpretation unreasonable. Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 840 (BIA 2012), discussing Natl Cable & Telecomms. Assn v. BrandX Servs., 545 U.S. 967 (2005). The question remains whether the Ninth Circuit will conclude that the aggravated felony definition, also used extensively in federal criminal cases, falls exclusively within the purview of the BIA to interpret immigration laws. The Ninth Circuit could also determine the statute is not ambiguous, after employing normal statutory interpretation standards, or that the BIAs interpretation is unreasonable, to justify deference.

INADMISSIBILITY " DATE OF CONSIDERATION " VACATED CONVICTION
Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA 1984) (We have long held that an application for admission to the United States is a continuing application and admissibility is determined on the basis of the law and the facts existing at the time the application is finally considered.) (emphasis added); Matter of Ching and Chen, 19 I&N Dec. 203 (BIA 1984); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).

First Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MINIMUM CONDUCT " BURDEN
Sauceda v. Lynch, ___ F.3d ___ (1st Cir. Apr. 22, 2016) (a non-citizen can qualify for cancellation of removal without having to prove affirmatively that a conviction wasn't for a disqualifying conviction: "We hold that since all the Shepard documents have been produced and the modified categorical approach using such documents cannot identify the prong of the divisible Maine statute under which Peralta Sauceda was convicted, the unrebutted Moncrieffe presumption applies, and, as a matter of law, Peralta Sauceda was not convicted of a "crime of domestic violence."). NOTE: This case addresses the issue of who wins a divisible statute argument when the record of conviction is unclear which part of the statute the noncitizen was convicted under. The Ninth Circuit went back and forth on this issue for several years. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, 988"90 (9th Cir.2012) (en banc). Ultimately, however, the Ninth Circuit left this question open following Moncrieffe. See Almanza Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016). This appears to be the first Circuit Court decision to definitively apply Moncrieffe to find that the categorical (and modified categorical) analysis is a question of law, and does not depend upon whether the Government or the Respondent bears the burden of proof.

IMMIGRATION OFFENSES " ILLEGAL REENTRY " STATUTE OF LIMITATIONS " DEFENDANT NOT FOUND IN U.S. WHEN HIS WIFE FILED IMMIGRATION PETITION
United States v. Ramirez-Salazar, ___ F.3d ___, 2016 WL 1457892 (1st Cir. Apr. 13, 2016) (defendant was not found in United States when his wife filed petition to facilitate defendant's immigration to United States, and thus statute of limitations for federal offense of being found in the U.S. after removal, under 8 U.S.C. 1326(a), did not begin to run and prosecution was not time-barred; the court did not rule categorically that an I-130 Form can never create the basis for actual knowledge of physical presence, but only affirming a finding in this case that the document did not put officials on notice.). http://www.ca5.uscourts.gov/opinions/pub/14/14-50996-CR0.pdf

RELIEF " NON-LPR CANCELLATION OF REMOVAL " BURDEN OF PROOF
Peralta Sauceda v. Lynch, 804 F.3d 101 (1st Cir. Oct. 14, 2015) (noncitizen had burden of proof by a preponderance of the evidence to establish he had not been convicted of a crime of domestic violence, even though Maine courts do not maintain records sufficient to show whether he was convicted under the bodily injury prong of the Maine statute, rather than the general assault prong, which does not involve sufficient violence). NOTE: This case has been reversed on rehearing by Peralta Sauceda v. Lynch, __ F.3d __ (1st Cir. Apr. 22, 2016) (whether a noncitizen is barred from relief is due to a conviction under a divisible statute is a question of law, and therefore not subject to a determination of who bears the burden of proof).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK
United States v. Soto-Mateo, ___ F.3d ___, 2015 WL 5025222 (1st Cir. Aug. 26, 2015) (defendants waiver of appeal from removal order was knowing and intelligent, so he failed to exhaust his administrative remedies, and so cannot prevail on collateral attack).

IMMIGRATION OFFENSES " FALSE STATEMENTS ON NATURALIZATION APPLICATION " ELEMENTS OF THE OFFENSE
United States v. Munyenyezi, ___ F.3d ___, ___, 2015 WL 1323336 (1st Cir. Mar. 25, 2015) (18 U.S.C. 1425(a) requires proof that the naturalized citizen must have misrepresented or concealed some fact, the misrepresentation or concealment must have been willful, the fact must have been material, and the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment. Kungys v. United States, 485 U.S. 759, 767, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988); 18 U.S.C. 1425(b), makes it a crime for a person to knowingly ... procure ... naturalization ... or citizenship that she is not entitled to, including where an applicant is barred from showing good moral character under 8 U.S.C. 1101(f)).

IMMIGRATION OFFENSES " MARRIAGE FRAUD
United States v. Ngige, ___ F.3d ___ (1st Cir. Mar. 17, 2015) (the charge was filed within the five-year statute of limitations, since defendant's submission of a psychological evaluation in support of her Violence Against Women Act (VAWA) petition was properly considered an overt act in furtherance of the conspiracy charged; since the conspiracy's objective was to pay the co-conspirators to help defendant "acquire a change of her immigration status" by "making false representations about her marriage and relationship," the psychological evaluation sought to achieve that goal).

CONVICTION " STATUTORY DEFINITION " FINE
Vivieros v. Holder, ___ F.3d ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because a formal judgment of guilt had been entered and the fine was not vacated on a ground of legal invalidity). Note: This decision is mistaken. Its reasoning is as follows: The petitioner endeavors to alter this reality by insisting that the subsequent vacation of the $250 fine transmogrifies his case into one in which no sentence was ever imposed. This attempt to rewrite history cannot survive scrutiny. We previously have held that when an alien's conviction is vacated for reasons other than procedural or substantive error, he remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39"40 (1st Cir.2006); Herrera"Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000). Other courts uniformly have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667 F.3d 448, 452"53 (4th Cir.2012); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir.2010); Saleh v. Gonzales, 495 F.3d 17, 24"25 (2d Cir.2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245 (3d Cir .2006). It necessarily follows that the vacation of a fine for reasons unrelated to procedural or substantive error does not dissipate the underlying conviction for purposes of section 1227(a)(2)(A)(ii). The petitioner's case falls within this taxonomy. There is no indication in the record that his fine for shoplifting was vacated on account of either procedural or substantive error. To the contrary, the state court docket reflects that roughly five months after the fine was imposed, it was waived on recommendation of [the] Probation Dept. When the petitioner's counsel sought clarification regarding the final disposition, the state court wrote that the docket should reflect [a] guilty finding with no fines or costs. The implication of these docket entries is pellucid: the state court, exercising clemency, waived the petitioner's fine at the behest of his probation officer. There is not the slightest hint that the waiver came about because of some legal infirmity in the shoplifting proceedings. Accordingly, the shoplifting conviction remains a formal judgment of guilt, 8 U.S.C. 1101(a)(48)(A), and endures for immigration law purposes. This is mistaken because it confuses the requirements for an effective vacatur of a conviction (a ground of legal invalidity), with an alteration in the sentence, which is effective for immigration purposes regardless of the reason for the sentence change. Compare Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), with Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). The consistent rule, until now, has been that it is the final state sentence that is binding on the immigration authorities, regardless of any reason given for a change in the sentence.

CRIMES OF MORAL TURPITUDE"RECKLESS CONDUCT
Idy v. Holder, 674 F.3d 111 (1st Cir. Mar. 23, 2012) (New Hampshire conviction of reckless conduct, in violation of N.H.Rev.Stat. Ann. 631:3 [recklessly engages in conduct which places or may place another in danger of serious bodily injury where the defendant is aware of and consciously disregards a substantial and unjustifiable risk] is a CMT).

JUDICIAL REVIEW " BOARD OF IMMIGRATION APPEALS " UNLAWFUL REMOVAL DOES NOT DEPRIVE BIA OF JURISDICTION OVER APPEAL FROM REMOVAL ORDER
Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012) (unlawful removal of an alien during the pendency of a direct appeal from a deportation or removal order in violation of 8 C.F.R. 1003.6(a) does not deprive the Board of Immigration Appeals of jurisdiction to review the appeal).

JUDICIAL REVIEW " PETITION FOR REVIEW " SUA SPONTE MOTION TO REOPEN
Matos-Santana v. Holder, 660 F.3d 91, 2011 WL 5176795 (1st Cir. Nov. 2, 2011) (Court of Appeals lacked jurisdiction to review claim that BIA abused its discretion in not sua sponte entertaining his untimely motion to reopen).

Second Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " FAILURE ADEQUATELY TO EXPLAIN REASONING OR TO CONSIDER RECORD EVIDENCE
Pan v. Holder, ___ F.3d ___, 2015 WL 304199 (2d Cir. Jan. 26, 2015) (granting petition for review of Immigration Judges denial of applications for asylum, withholding of removal, and relief pursuant to the Convention Against Torture, where the IJ and BIA failed to adequately explain why the significant violence petitioner suffered was insufficiently egregious to constitute persecution; and failed to consider record evidence, which tended to prove that the Kyrgyz police and unwilling or unable to protect petitioner from private persecutors).

IMMIGRATION OFFENSES " ILLEGAL REENTRY AFTER DEPORTATION " ELEMENTS " DEPORTATION
United States v. Harvey, 746 F.3d 87, 89-90 (2d Cir. Mar. 26, 2014) (per curiam) (federal conviction for illegal reentry after deportation affirmed, over objection that evidence of actual deportation was insufficient to sustain the conviction: a properly executed warrant of deportation, coupled with testimony regarding the deportation procedures followed at that time, is sufficient proof that a defendant was, in fact, physically deported from the United States.); citing United States v. Garcia, 452 F.3d 36, 43"44 (1st Cir.2006); United States v. Bahena"Cardenas, 411 F.3d 1067, 1074"75 (9th Cir.2005).

AGGRAVATED FELONY " SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 707 F.3d 403,(2d Cir. Feb. 19, 2013) (New York conviction of third-degree criminal sale of a controlled substance, under N.Y. Penal Law 220.39(1), constitutes an aggravated felony, rejecting argument that this statute is not categorically an aggravated felony because statutes that punish offers to sell, see NYPL 220.00(1), are not drug trafficking crimes under the CSA. Davila v. Holder, 381 Fed.Appx. 413, 416 (5th Cir.2010). This Court, however, has held that distribution, within the meaning of 21 U.S.C. 841(a)(1) does not require a sale to take place: The word distribute means to deliver, [21 U.S.C.] 802(11); and deliver means the actual, constructive, or attempted transfer of a controlled substance, [21 U.S.C.] 802(8). United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) (emphasis added). Therefore, even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.).

RELIEF " ADJUSTMENT OF STATUS " RELEASE ON CONDITIONAL PAROLE PENDING REMOVAL PROCEEDINGS IS NOT PAROLED INTO UNITED STATES SO AS TO BE ELIGIBLE FOR ADJUSTMENT
Cruz-Miguel v. Holder, ___ F.3d ___, 2011 WL 1565847 (2d Cir. Apr. 27, 2011)(an alien released on conditional parole pending resolution of ongoing removal proceedings is not thereby paroled into the United States so as to be eligible for adjustment of status).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " SENTENCE " SUBSTANTIVE REASONABLENESS
United States v. Perez-Frias, ___ F.3d ___, 2011 WL 1184390 (2d Cir. Mar. 31, 2011) (42-month sentence for illegal reentry after deportation after an aggravated felony conviction was not unduly harsh in view of the 18 U.S.C. 3553(a) factors or compared to Guidelines applicable to more serious crimes; the 16-level enhancement applicable to reentrants with certain prior convictions was not improper as not based on review of past sentencing practices and empirical studies, and the sentence was not greater than necessary).

Third Circuit

CONTROLLED SUBSTANCES OFFENSES " UNLISTED OFFENSES " VIRGINIA
Syblis v. Attorney General of U.S., ___ F.3d ___, ___, 2014 WL 4056557 (3d Cir. Aug. 18, 2014) (BIA acknowledged that Va.Code Ann. 54.1"3466 punished drug paraphernalia offenses related to substances not included within the CSA, such as those recognized by the official United States Pharmacopoeia National Formulary).

INADMISSIBILITY " ALIEN SMUGGLING BAR
Parra-Rojas v. Attorney General U.S., ___ F.3d ___, ___, 2014 WL 1230001 (3d Cir. Mar. 26, 2014) (federal conviction of Bringing In or Harboring Aliens for Financial Gain, in violation of INA 274(a)(2)(B)(ii), 8 U.S.C. 1324(a)(2)(B)(ii), did not trigger inadmissibility under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i) (the smuggling bar), which renders an alien inadmissible if he has knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law, because the actual conduct, rather than a conviction, determines this ground of inadmissibility; here, Petitioner had no involvement with the aliens prior to their entry to the United States, did not provide any assistance, financial or otherwise, in their entry, and did not commit any other affirmative act that encouraged, induced, assisted, abetted, or aided the aliens' entry, as required by 1182(a)(6)(E)(i).)

INADMISSIBILITY " ALIEN SMUGGLING BAR " DEFINITION OF ENTRY
Parra-Rojas v. Attorney General U.S., ___ F.3d ___, ___, 2014 WL 1230001 (3d Cir. Mar. 26, 2014) (In the context of immigration law, to enter is a term of art referring to an alien crossing the United States border free from official restraint. United States v. Gonzalez"Torres, 309 F.3d 594, 598 (9th Cir.2002); see also United States v. Rivera"Relle, 333 F.3d 914, 919 (9th Cir.2003). Accordingly, to be held inadmissible for having encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States, 1182(a)(6)(E)(i), an individual must have performed one of these actions with respect to the actual entry of an alien into the United States. See also Tapucu v. Gonzales, 399 F.3d 736, 740 (6th Cir.2005) ([T]he provision ... requires an affirmative and illicit act of assistance in shepherding someone across the border.).).

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

ADMISSION"VISA WAIVER PROGRAM
Vera v. Atty General, 672 F.3d 187 (3d Cir. Mar. 1, 2012) (court may presume visa waiver entrant executed the statutorily required waiver of her right to challenge removal; even if waiver was not signed or invalid, prejudice must also be shown).

RELIEF " ADJUSTMENT OF STATUS " PAROLE
Delgado-Sobalvarro v. Attorney General of U.S., 625 F.3d 782 (3d Cir. Nov. 2, 2010) (petitioners were not eligible to adjust status under INA 245 on the basis of their INA 236 conditional parole, since conditional parole does not constitute parole into the United States for the purposes of adjustment of status under INA 245).

Fourth Circuit

REMOVAL PROCEEDINGS " VISA WAIVER PROGRAM
Nardea v. Sessions, 876 F.3d 675 (4th Cir. Nov. 29, 2017) (although DHS failed to produce evidence that noncitizen signed the I-94W form agreeing to waive rights under the Visa Waiver Program, the documents produced were sufficient to establish that noncitizen had waived his right to a fair hearing when threatened with deportation).

INADMISSIBILITY " VISA FRAUD " SUFFICIENCY OF THE EVIDENCE
Yang v. Holder, 770 F.3d 294 (4th Cir. Oct. 29, 2014) (BIA erred in finding that petitioner was inadmissible under 8 U.S.C. 1182(a)(6)(C)(i), since the record lacked substantial evidence to support a determination that noncitizen made deliberate and voluntary misrepresentations to procure an immigration benefit, even though Immigration Judge found noncitizens testimony regarding asylum claim was not credible).

IMMIGRATION OFFENSES " ILLEGAL ALIEN IN POSSESSION OF FIREARM
United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. Jan. 19, 2012) (undocumented noncitizen who applied for, and was denied, TPS prior to being found in possession of a firearm could be convicted as a "alien illegally or unlawfully in the United States" in possession of a firearm; leaving open the question of whether an undocumented noncitizen with TPS pending could be convicted under the same statute).

Fifth Circuit

IMMIGRATION OFFENSES " ILLEGAL REENTRY " STIPULATED REMOVAL
United States v. Cordova-Soto, 804 F.3d 714 (5th Cir. Oct. 23, 2015) (rejecting claims that Immigration Judge's failure to make express determination of the voluntariness of pro se alien's waiver of rights and stipulation of removability, and ICE agent's failure to explain to her that there was a possibility that she could become eligible for discretionary relief from removal rendered removal proceedings fundamentally unfair). Note: The case depends heavily on the particular facts underlying this decision. The Fifth Circuit also relied upon United States v. Lopez"Ortiz, 313 F.3d 225, 231 (5th Cir.2002) (eligibility for discretionary relief from removal is not a liberty or property interest deserving of due process protection).

CONTROLLED SUBSTANCES " DEPORTATION " EXCEPTION FOR FIRST OFFENSE POSSESSION OF SMALL AMOUNT OF MARIJUANA " BIA CANNOT ADD CONDITIONS
Flores v. Lynch, 803 F.3d 699 (5th Cir. 2015) (conviction for possession of marijuana in a school zone meets the personal use exception to deportability for a controlled substances offense; BIA erred in adding to the personal use exception a requirement that the offense be no more than the least serious offense). NOTE: This reasoning should also invalidate the possession in jail disqualification from the marijuana exception to the controlled substance ground of deportation. The Court specifically cited, and disagreed with, Matter of Moncada"Servellon, 24 I. & N. Dec. 62 (BIA 2007). The Court also found that Moncada-Servellon was not due Chevron deference, as it was contrary to the INA.

RELIEF " ASYLUM " REINSTATEMENT
Ramirez Mejia v. Lynch, __ F.3d __ (5th Cir. Jul. 21, 2015) (noncitizens whose removal orders are reinstated following illegal re-entry into the United States may not apply for asylum, since asylum is a form of relief for purposes of the bar to relief under INA 1231(a)(5)), agreeing with Herrera"Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010).

AGGRAVATED FELONY " FIREARMS " FRAUDLENT PURCHASE OF FIREARMS FOR EXPORT
Franco-Casasola v. Holder, __ F.3d __ (5th Cir. Oct. 23, 2014) (federal conviction for violation of 18 U.S.C. 554(a), fraudulent purchase of firearms for export, is a divisible statute, as a target offense where the indictment must specify, and the prosecutor must prove, the underlying offense; record established aggravated felony firearms trafficking offense since the indictment specified a firearms trafficking offense).

DEPORTABILITY " ALIEN SMUGGLING " CONVICTION FOR AIDING IMPROPER ENTRY SUFFICIENT TO ESTABLISH GROUND OF DEPORTATION
Santos-Sanchez v. Holder, 744 F.3d 391 (5th Cir. Mar. 7, 2014) (federal conviction for aiding and abetting improper entry into the U.S., in violation of 8 U.S.C. 1325(a), established deportability under INA 237(a)(1)(E)(i), 8 U.S.C. 1227(a)(1)(E)(i), and conviction documents are sufficient to establish substantial evidence to support the BIA determination of deportability).

RELIEF " ADJUSTMENT OF STATUS " ASYLEE WHOSE STATUS WAS TERMINATED MAY APPLY FOR ADJUSTMENT OF STATUS
Siwe v. Holder, 742 F.3d 603 (5th Cir. Feb. 6, 2014) (an alien whose asylum has been terminated is not prohibited from applying for adjustment of status).

DETENTION " CHALLENGE TO DENIAL OF DRUG PROGRAM TO PRISONERS WITH ICE DETAINERS
Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. Jul. 18, 2012) (denial of drug rehabilitative treatment to prisoners with ICE detainers did not violate prisoner's due process rights or the equal protection clause; BOP policy was rationally related to BOP's legitimate interest in preventing prisoners from fleeing).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK
United States v. Villanueva-Diaz, ___ F.3d ___, 2011 WL 693001 (5th Cir. Mar. 1, 2011) (defendant's collateral attack on the lawfulness his removal was not barred by any failure to exhaust his administrative remedies, but the negligence of defendant's attorney in failing to inform him of the BIAs dismissal of his appeal did not prejudice him, and therefore did not constitute a due process violation that would render illegal defendant's subsequent illegal reentry conviction).

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Martinez-Garcia, 625 F.3d 196 (5th Cir. Oct. 27, 2010) (Georgia conviction of burglary, in violation of Ga.Code Ann. 16-7-1(a), constituted the Guidelines' enumerated crime of violence of burglary of a dwelling, for purposes of illegal reentry sentencing, because the term dwelling within the Georgia burglary statute comports with the ordinary, common meaning of that term, and does not now -- though it once did -- include structures within the cartilage); distinguishing United States v. Gomez-Guerra, 485 F.3d 301, 303-304 (5th Cir. 2007) (The ordinary, contemporary, common meaning of burglary of a dwelling does not extend to the grounds around the dwelling, and demands an entry into or remaining in the dwelling. . . . If a state burglary statute may be violated by entry only into the curtilage, a conviction under that statute is not a crime of violence. [internal quotes omitted]).

CATEGORICAL ANALYSIS " FEDERAL SENTENCING GUIDELINES COMMENTARY IS BINDING ON THE COURTS IN CRIMINAL CASES
United States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (guidelines commentary is binding as though it were in the guidelines themselves).

Sixth Circuit

JUVENILES " CONVICTION " EXISTENCE OF CONVICTION
Hanna v. Holder, 740 F.3d 379 (6th Cir. Jan. 17, 2014) (adjudication under Michigan's Holmes Youthful Trainee Act (YTA), Mich. Comp. Laws 762.11"16, is a conviction under the INA, since it is more similar to a deferred adjudication for youthful offenders than a true finding of juvenile delinquency); following Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005) (YTA adjudications are convictions under 8 U.S.C. 1101(a)(48)(A), because they are not analogous to determinations of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. 5031"42).

RELIEF " ADJUSTMENT OF STATUS " TEMPORARY PROTECTED STATUS
Flores v. USCIS, __ F.3d __ (6th Cir. Jun. 4, 2013) (plain language of INA 244(f)(4) allows noncitizen who entered without inspection, then obtained TPS, to become an LPR despite illegal entry, and provides an exception to the inspected and admitted or paroled language of INA 245(a)).

Seventh Circuit

RELIEF " WAIVERS " JUDICIAL REVIEW " DISCRETIONARY DECISIONS
Asentic v. Sessions, 873 F.3d 974 (7th Cir. Oct. 17, 2017) (court lacks jurisdiction to review discretionary denial of fraud waiver under INA 237(a)(1)(H)).

RELIEF " ASYLUM " REINSTATEMENT
Garcia v. Sessions, __ F.3d __ (7th Cir. Oct. 11, 2017) (noncitizen subject to reinstatement of removal is barred by INA 241(a)(5) from applying for asylum).

IMMIGRATION OFFENSES " ILLEGAL RE-ENTRY
United States v. Lopez, 634 F.3d 948 (7th Cir. Mar. 4, 2011) (in determining whether to apply a 12- or 16-level illegal reentry sentence enhancement, the court should take the original sentence imposed, rather than the increased sentence following a probation violation, where the additional sentence upon violation of probation was imposed after the noncitizen had already been removed from the United States and illegally re-entered).

SENTENCE " IMMIGRATION-RELATED CONDITIONS
United States v. Zamudio, 718 F.3d 989 (7th Cir. Jun. 4, 2013) (without imposing supervised release, criminal judge may not impose immigration-related conditions such as requiring defendant to report to ICE or to remain outside the United States if removed).

Eighth Circuit

DOMESTIC VIOLENCE " ASSAULT " CRIME OF VIOLENCE
Ramirez-Barajas v. Sessions, 877 F.3d 808 (8th Cir. Dec. 15, 2017), cert. denied sub nom. Ramirez-Barajas v. Whitaker, 139 S. Ct. 584, 202 L. Ed. 2d 402 (2018) (Minnesota conviction for domestic assault, in violation of Minn. Stat. 609.2242(1)(1), is a crime of domestic violence for immigration purposes, even though the statute would include harm by poisoning).

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD DEGREE ASSAULT ON AN OFFICER AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESS INTENT CATEGORICAL ANALYSIS " RECORD OF CONVICTION " PRESENTENCE REPORT
United States. v. Garcia-Longoria, ___ F.3d ___, 2016 WL 1658120 (8th Cir. Apr. 27, 2016) (Nebraska conviction for third-degree assaulting a police officer, in violation of Neb.Rev.St. 28"931(1) (intentionally, knowingly, or recklessly cause bodily injury to a police officer), was a crime of violence for purposes of the ACCA, because the presentence report, to which the defendant did not object, reflected a mens rea of intent); see United States v. Ossana, 638 F.3d 895, 900"03 & n. 6 (8th Cir. 2011) (at least in some circumstances, a crime involving a mens rea of mere recklessness does not qualify as a crime of violence); compare United States v. Boose, 739 F.3d 1185, 1187 (8th Cir.2014), and United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012) (following Ossana), with United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) (distinguishing Ossana ), cert. denied, __ S.Ct. __ (2016).

IMMIGRATION OFFENSES " MARRIAGE FRAUD " CONSPIRACY TO COMMIT MARRIAGE FRAUD " DATE OFFENSE WAS COMPLETE
Ashraf v. Lynch, ___ F.3d ___, 2016 WL 1612766 (8th Cir. Apr. 22, 2016) (federal crime of conspiracy to commit marriage fraud was complete, in violation of 18 U.S.C. 371 and 8 U.S.C. 1325(c), and thus five-year statute of limitations began to run, on date that alien submitted petition to remove conditions on residence, as the last overt act in furtherance of the conspiracy); United States v. Stewart, 744 F.3d 17, 18, 23 (1st Cir. 2014; United States v. Bennett, 765 F.3d, 887, 895 (8th Cir. 2014) (conspiracy is a continuing offense that continues through the last overt act committed in furtherance of the conspiracy); United States v. Farmer, 73 F.3d 836, 841 (8th Cir. 1996); United States v. Garfinkel, 29 F.3d 1253, 1259"60 (8th Cir. 1994); distinguishing United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir. 2013) (the crime of marriage fraud, under 8 U.S.C. 1325(c), is completed on the date the parties enter into the marriage).

CRIMES OF MORAL TURPITUDE " ASSAULT " GENERAL CRIMINAL INTENT
Alonzo v. Lynch,___ F.3d ___, ___, 2016 WL 1612772 (8th Cir. Apr. 22, 2016) ([T]he BIA and various courts have declined to classify [simple assault] as a [CIMT]. Simple assault typically is a general intent crime, and it is thus different in character from those offenses that involve a vicious motive, corrupt mind, or evil intent. Chanmouny v. Ashcroft, 376 F.3d 810, 814"15 (8th Cir. 2004) (emphasis added) (quoting Matter of O, 3 I. & N. Dec. 193, 194"95 (BIA 1948)); see also [Matter of] Solon, 24 I. & N. Dec. at 241 (same).).

FALSE CLAIM TO CITIZENSHIP " I-9 FORM
Etenyi v. Lynch, __ F.3d __ (8th Cir. Aug. 21, 2015) (noncitizen inadmissible and ineligible for adjustment of status where evidence shows noncitizen claimed U.S. citizenship on Form I-9 application).

CONTROLLED SUBSTANCES " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT POST CON RELIEF " REHABILITATIVE RELIEF " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT
Brikova v. Holder, 699 F.3d 1005 (8th Cir. Nov. 7, 2012) (Minnesota conviction of possession of cocaine, for which defendant would have been eligible for Federal First Offender Act treatment, under 18 U.S.C. 3607(a), was not eliminated for immigration purposes by state rehabilitative relief, since equal protection challenge fails because there are multiple potential rational bases for distinguishing between federal and state defendants).

AGGRAVATED FELONY " RACKETEERING RICO OFFENSES " JURISDICTIONAL ELEMENT
Spacek v. Holder, 688 F.3d 536 (8th Cir. Jul. 31, 2012) (North Dakota state conviction of racketeering constituted aggravated felony racketeering conviction, under INA 101(a)(43)(J), 8 U.S.C. 1101 (a)(43)(J), for immigration purposes, even though the state statute omitted the federal jurisdictional element).

CONTROLLED SUBSTANCES " INADMISSIBILITY " 212(h) WAIVER " PARAPHERNALIA
Popescu-Mateffy v. Holder, 678 F.3d 612 (8th Cir. May 2, 2012) (per curiam) (rejecting claim that a South Dakota possession-of-drug-paraphernalia offense relates to a single offen[s]e of 30 grams or less of marijuana[,] making him eligible for ... waiver relief pursuant to 212(h) of the INA.), following Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009).

RELIEF " WAIVERS " 212(h) WAIVER " PARAPHERNALIA
Popescu-Mateffy v. Holder, 678 F.3d 612 (8th Cir. May 2, 2012) (per curiam) (rejecting claim that a South Dakota possession-of-drug-paraphernalia offense relates to a single offen[s]e of 30 grams or less of marijuana[,] making him eligible for ... waiver relief pursuant to 212(h) of the INA.), following Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009).

JUDICIAL REVIEW " PETITION FOR REVIEW " CONCESSION OF DEPORTABILITY
Escoto-Castillo v. Napolitano, 658 F.3d 864 (8th Cir. Oct. 13, 2011)(concession in expedited removal proceeding of deportability without relief precluded later petition for review of removal order, on grounds petitioner failed to exhaust administrative remedies); citing 8 U.S.C. 1252(d)(1); Gonzalez v. Chertoff, 454 F.3d 813, 816 (8th Cir.2006) (failure to timely respond to expedited removal Notice precludes merits review of the unexhausted issue); Wijono v. Gonzales, 439 F.3d 868, 871 (8th Cir.2006) (failure to raise due process issue to agency precludes merits review of the unexhausted issue); Fonseca"Sanchez v. Gonzales, 484 F.3d 439, 443"44 (7th Cir. 2007).

Lower Courts of Eighth Circuit

RECORD OF CONVICTION " ADMISSION OF FACTS " FACTUAL BASIS OF PLEA
Morales v Gonzales, 478 F3d 972 (9th Cir. 2007) (a defendants admission to facts for a limited purpose does not become part of the record of conviction and cannot be used in subsequent proceedings). Note: Facts recited by a court of appeals opinion affirming the sufficiency of the evidence for conviction were not facts admitted by the defendant for their truth and should not have been considered part of the record of conviction for purposes of determining the nature of the conviction for immigration purposes. [F]or the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales's conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F3d 1148, 1152 (9th Cir 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State's evidence for the purpose of her challenge to its sufficiency." Morales, supra, 982-983. COMMENT: Just as with the limited admission in the court of appeal in this case, the agreement that the court may use police reports or an oral statement of facts or any facts to assess whether there is a factual basis for the plea, should not under identical reasoning be taken as an admission that is binding for the purposes of conviction and later proceedings. Counsel could make this clear, and say, As the court knows, the defense sometimes disagrees with the truth of the facts in the police reports, or prosecution version. We are therefore not agreeing that this statement of facts is true, but are agreeing that the court may consider it for the limited purpose of allowing the court to evaluate a factual basis for this plea. That may well protect the defendant against adverse facts in the factual basis being considered as true in later immigration proceedings. Cross-References: Cal Crim Def Immig 3.41

Ninth Circuit

RELIEF " CANCELLATION OF REMOVAL " ADMISSION IN ANY STATUS
(respondent was admitted in 1993 when he was waved across the border after inspection by an immigration officer, since the phrase in any status plainly encompasses every status recognized by immigration statutes, lawful or unlawful, his procedurally regular admission in 1993 was an admission in any status under 8 U.S.C. 1229b(a)(2)).

IMMIGRATION OFFENSES " ILLEGAL RENTRY ATTEMPT " ELEMENTS " MENTAL STATE
United States v. Argueta-Rosales, ___ F.3d ___, 2016 WL 1425881 (9th Cir. Apr. 12, 2016) (government failed to prove noncitizen crossed into the United States with specific intent to enter into country free from official restraint where the defendant presented evidence that he crossed into the United States in a delusional state, believing he was being chased by Mexican gangs, and with the specific intent solely to place himself into the protective custody of United States officials).

CAL CRIM DEF " AGGRAVATED FELONY " CRIMES OF VIOLENCE CRIMES OF MORAL TURPITUDE " BATTERY CAUSING SERIOUS BODILY INJURY " MINIMUM FORCE CASES
See, e.g., People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officers leg causing a cut and bruising); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant shoved a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured); People v. Myers, (1998) 61 Cal. App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured).

CAL CRIM DEF " DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE CAL CRIM DEF " CRIMES OF MORAL TURPITUDE " DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE
California Penal Code 273.5 is not categorically a crime of moral turpitude, because it could be against a co-habitant. The Ninth has recently held in a published opinion, however, that the statute is divisible and resort can be had to the modified categorical analysis to determine whether the victim was such that the crime involved moral turpitude (e.g., a spouse), or did not (e.g., a cohabitant). See Vargas-Cervantes v. Holder (9th Cir. 2014) (273.5(a) divisible statute for CIMT). http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/19/10-73384.pdf Note: this offense is categorically a crime of domestic violence per another decision of the Ninth Circuit. See Marquez-Carrillo v. Holder (9th Cir 2015) (Penal Code 273.5(a) categorically crime of domestic violence). http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/31/12-70779.pdf

CAL CRIM DEF " PRACTICE ADVISORY " GROSS NEGLIGENCE IN CALIFORNIA
Penal Code 191.5(a), gross vehicular manslaughter while intoxicated, arguably involves insufficient intent to qualify as a crime of violence aggravated felony, crime of domestic violence, or crime of moral turpitude. Penal Code 191.5, by its terms, and in CALCRIM 590, requires the prosecution prove the following elements: The defendant drove under the influence While driving UI the defendant also committed a misdemeanor, infraction, or otherwise lawful act that might cause death With gross negligence, and The grossly negligent conduct caused the death of another. Because there is a strong argument that this offense involves conduct that is grossly negligent, as opposed to intentional, this offense may not qualify as a crime of violence aggravated felony, crime of domestic violence, or crime of moral turpitude. The relevant jury instruction, CALCRIM 590 defines gross negligence as follows: Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: He or she acts in a reckless way that creates a high risk of death or great bodily injury; and A reasonable person would have known that acting in that way would create such a risk. (Emphasis added). In other words, a person acts with gross negligence when the act creates a high risk of death or GBI, but was unaware of it, even though a reasonable person would have known of the risk. See People v. Thompson (2000) 79 Cal. App. 4th 40 (drivers conduct in using drugs and alcohol, speeding and driving unsafely on a mountain road, swerving into an oncoming lane, and failing to have the passenger wear a seatbelt, amounted to gross negligence); People v. Hansen (1992) 10 Cal. App. 4th 1065 (gross negligence found where driver ignored requests to slow down and a request by a passenger for help in finding the seatbelt); People v. Bennett (1991) 54 Cal.3d 1032 (gross negligence may be based upon the overall circumstances of the drivers intoxication, and the level of intoxication is an integral aspect of the driving conduct). Thanks to Daniel G. DeGriselles.

CAL CRIM DEF " CONTROLLED SUBSTANCES " POSSESSION OF PARAPHERNALIA HS 11364
Possession of controlled substances paraphernalia, under California Health & Saf. Code 11364 is not subject to the unidentified substance defense. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). This is because advocates have not identified any extra substances covered under the relevant California drug schedules that are not listed in the federal Controlled Substances Act. Safer dispositions include accessory after the fact, under Penal Code 32, pre-plea diversion, or other suggestions set forth in the last practice advisory on Withdrawal of Plea after DEJ. As last resort do DEJ and then do new Withdrawal of Plea and ask for 18 month diversion period. See the practice advisory at http://www.ilrc.org/resources/New_California_Drug_Law_1203.43 For a permanent resident who is not already deportable, a plea -- whether regular or DEJ -- to 11377 with the record sanitized so that it reflects only "a controlled substance prohibited under Health & Saf. Code 11377(a)" is a reasonable alternative if a non-drug plea simply is not available, because it will not make the person deportable. Paulus, supra. In that case, DEJ is better than a 'regular' plea. The fact that there is no controlled substance mentioned in the entire record will prevent the person from being found deportable during the 18-month DEJ period, and then the new DEJ Penal Code 1203.43 withdrawal of the plea as legally invalid will eliminate the "conviction" completely. Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated on other grounds by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). This "non-specified controlled substance" defense does not work for an undocumented person or a permanent resident who already is deportable. They need to apply for some status or relief to avoid being deportable, and the non-specified substance defense does not work there. Assume that the non-specified substance defense only works for Health & Saf. Code 11377-11379. Although case law currently holds that it works as well for Health & Saf. Code 11350-52, if the government pushed back, counsel might be unable to find a specific controlled substance on those schedules, but not listed under relevant federal law. Thanks to Michael Mehr and Katherine Brady. Penal Code 381b, nitrous oxide, might work. Its not on the federal schedule, and its a drug charge. Under Mellouli, based on language in the case, the thinking seems to be that whatever drugs are on the schedule at the time of the plea controls, not whatever drugs might be added at a later date. Thanks to Daniel G. DeGriselles. To plead safely to Health & Saf. Code 11377, under Coronado v Holder, 759 F.3d 977 (9th Cir. July 18, 2014), counsel should add a new count, charging possession under 11377, dismiss all other counts, plead to violating this statute, do not stipulate to the police report as a factual basis, and give the court "a factual basis" based on counsels independent investigation of the case. See People v Palmer, 58 Cal.4th 110 (2013). Thanks to Francisco Ugarte.

DOMESTIC VIOLENCE " STALKING " CALIFORNIA " ELEMENTS
People v. Lopez, 240 Cal. App. 4th 436, 192 Cal. Rptr. 3d 585, 599 (2015), as modified on denial of reh'g (Sept. 30, 2015) (sufficiency of the evidence affirmance of California conviction of stalking, in violation of Penal Code 646.9(g), covering the elements of the offense, where evidence was sufficient to establish that defendant made a true threat or that he intended to instill fear in the victim).

POST CON RELIEF " LEGISLATION " CALIFORNIA " DEFERRED ENTRY OF JUDGMENT GUILTY PLEAS MAY NOW BE WITHDRAWN AFTER SUCCESSFUL COMPLETION AS LEGALLY INVALID
Assembly Bill No. 1352 (AB 1352) added Penal Code 1203.43 to provide a way to vacate minor California drug convictions entered as part of the Deferred Entry of Judgment program. Existing law allows a defendant who meets certain requirements, such as not having a prior conviction for a controlled substances offense, to avoid having his or her arrest for possession of a controlled substance be the basis for denial of any employment, benefit, license, or certificate. Penal Code 1203.43 requires a court to allow a defendant granted DEJ on or after January 1, 1997, who has successfully completed his DEJ period, after which charges were dismissed, to withdraw his plea of guilty or nolo contendere and enter a plea of not guilty, and require the court then to dismiss the complaint or information. In a case where court records showing the resolution are no longer available, the defendant may declare, under penalty of perjury, that the charges were dismissed after successful completion of the DEJ period. Defendant would also be required to submit his or her state criminal history summary to support this. Then, the court is required to vacate and dismiss the conviction. The California Legislature found that the statement made to defendants receiving DEJ, pursuant to Penal Code 1000.4, that successful completion of a DEJ program shall not, without the defendants consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate, constitutes misinformation about the consequences of entering a guilty plea, particularly for noncitizen defendants, because the conviction does, in fact, carry immigration consequences. Accordingly, the Legislature found that the misinformation causes defendants prior pleas to be invalid, and the appropriate remedy is to require a court to vacate the conviction and allow the defendant to enter a not guilty plea in cases where the DEJ period was successfully completed. Note: The same ground of legal invalidity infects the guilty pleas even of those who did not successfully complete DEJ or who otherwise do not qualify for relief under Penal Code 1203.43. NEW6.77 Dismissals under Penal Code 1204.43

ILLEGAL RE-ENTRY " SENTENCEING " DRUG TRAFFICKING
United States v. Rivera-Constantino, __ F.3d __ (9th Cir. Aug. 19, 2015) (federal conviction for conspiracy to possess marijuana with intent to distribute, in violation of 21 USC 846, 841(a)(1) is a drug trafficking conspiracy offense for illegal re-entry sentencing purposes, under USSG 2L1.2(b)(1), triggering a 16 level enhancement).

CONTROLLED SUBSTANCES " PARAPHERNALIA " UNLISTED SUBSTANCE
Madrigal-Barcenas v. Lynch, ___ F.3d ___, 2015 WL 4716767 (9th Cir. Aug. 10, 2015) (Nevada drug paraphernalia conviction, under NRSA 453.566, constitutes a controlled substance conviction, for purposes of inadmissibility, only if the conviction involved a substance criminalized by federal drug laws); following Mellouli v. Lynch, 135 S. Ct. 2828 (2015); holding Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) and its progeny are no longer good law.

PRACTICE ADVISORY " SAFE HAVENS IN CALIFORNIA THEFT CASES UNDER PENAL CODE 484
The Immigrant Legal Resource Center has published a Practice Advisory on safe havens in California theft cases, under new Ninth Circuit law. 1. Avoid a sentence of one year or more in custody. 2. If that is not possible, try to obtain one of the following dispositions: a. If one year or more will be imposed on a single theft count, but loss to the victim(s) does not exceed $10k, plead specifically to a fraud offense contained in Penal Code 484 (taking by deceit, embezzlement) or to theft of labor; b. If the loss to the victim(s) exceeds $10k, but no one-year will be imposed, plead specifically to non-fraud theft (taking by stealth, stealing); c. If both a one-year sentence is imposed and a $10k loss was suffered, plead to two counts, and where possible follow above instructions on each. One count with both of those might well be an AF. See Nugent v. Ashcroft, 367 F.3d 162, 174-175 (3d Cir. 2004); d. Even if you can't do that, the conviction should not be an aggravated felony under Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. Aug. 2015). Never assume that a prior conviction is an aggravated felony based on a one-year sentence or $10,000 loss " regardless of what the record of conviction says. Law underlying instructions Fraud and theft both are potential aggravated felonies, under different circumstances. 8 USC 1101(a)(43)(G), (M). Fraud (taking by deceit) becomes an AF if loss to the victim/s exceeds $10k, but does not become an AF if a 1-yr sentence is imposed. Thus a plea to embezzlement or other fraud with a sentence of a year or more imposed is not an AF, as long as no $10k loss. Theft (taking by stealth) of property is not an AF if loss to victim/s exceeds $10k, but is an AF if 1 year or more is imposed on a single count. Theft (stealing) can take a loss exceeding $10k, as long as sentence is less than 1 year. The Ninth Circuit and BIA have long recognized these distinctions. See discussion in Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (BIA 2008), citing Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005); Carlos-Blaza v. Holder, 611 F.3d 583 (9th Cir. 2010); Carrillo-Jaime v. Holder, 572 F.3d 747, 752 (9th Cir. 2009); U.S. v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011). Previously PC 484 was considered to be divisible between its theft and fraud offenses (as well as theft of labor, which also is not an AF based one sentence of 1 yr or more). Although PC 484 was not categorically (automatically) theft if a year or more was imposed, it might have been if the record identified a theft rather than a fraud offense. See, e.g., Garcia v. Lynch, 786 F.3d 789, 794-795 (9th Cir. 2015) (if specific theory of theft under PC 484, 487 is not identified, a sentence of one year or more does not make the offense an aggravated felony; court did not reach the issue of divisibility.) This was the reason for the advice to make a specific plea to prevent this. Under Descamps, however, PC 484 is not divisible because a jury is not required to decide unanimously between the theories of the theft in order to find guilt. (For more on this see How to Use the Categorical Approach Now at www.ilrc.org/crimes) Therefore authorities may not look to the record to see whether the offense involved theft or fraud, and no conviction is an AF based on a sentence of a year or more. Lopez-Valencia v. Lynch, supra. As of this writing an en banc petition for Lopez-Valencia still could be filed. The immigration authorities might misapply the law. Therefore, the specific plea strategy still is recommended. Thanks to Katherine Brady

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS
United States v. Guzman-Ibarez, ___ F.3d ___, 2015 WL 4068922 (9th Cir. Jul. 6, 2015) (immigration judge violated alien's due process rights when, in course of deportation proceedings, she failed to advise alien of availability of discretionary relief in form of waiver of deportation).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION " COLLATERAL ATTACK
United States v. Guzman-Ibarez, ___ F.3d ___, 2015 WL 4068922 (9th Cir. Jul. 6, 2015) (illegal reentry conviction reversed, and case remanded, for determination whether defendant's due process rights were violated during the removal proceedings, where the IJ erred when she failed to advise the defendant of the possibility of relief under 8 U.S.C. 1182(c), because 440(d) of the Antiterrorism and Effective Death Penalty Act was not effective as to proceedings, such as the defendant's, that had commenced prior to the date of the Act's enactment).

PRACTICE ADVISORY " CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " RECORD OF CONVICTION " LESSER INCLUDED OFFENSES " CALIFORNIA
The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense. In dissent, Judge Reinhardt argued the Ninth should stay out of messy questions about what is and is not a lesser-included offense: The complexity and uncertainty of that task is well illustrated here. Although Petitioner pled no contest to the lesser included offense to sale of a controlled substance, the offense to which he pled no contest " possession of a controlled substance " is not a lesser included offense to the crime charged " sale of a controlled substance " under at least one of the tests used by California courts. Under Californias elements test, possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct. App. 1994); see also Judicial Council of California Criminal Jury Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the particular drug alleged in the information is not relevant to determining a lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826, 828"29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the specific language of the accusatory pleading must include all of the elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668 (Cal. Ct. App. 1996). In this case, the first count in the accusatory pleading " the count to which Petitioner pled no contest to the lesser included offense " does not include any specific language concerning possession of methamphetamine; it merely repeats the language in the sale statute. There is an excess clause as to count one including the allegation that Petitioner possessed for sale/sold . . . methamphetamine, but that allegation could be satisfied by Petitioner selling methamphetamine without possessing it for sale. In short, rather than clear, unequivocal, and convincing evidence that Petitioner pled no contest to possession of methamphetamine, the record in this case reveals ambiguity and confusion regarding the meaning of Petitioners plea to a lesser included offense. Ruiz-Vidal v. Holder, ___ F.3d ___, ___ (9th Cir. 2015) (Reinhardt, J. dissenting). A petition for rehearing is in preparation.

IMMIGRATION OFFENSES " ILLEGAL REENTRY " ELEMENTS " DEPORTATION " NO PREJUDICE SHOWN FROM DUE PROCESS VIOLATION IN REMOVAL HEARING
United States v. Garcia-Gonzalez, ___ F.3d ___, 2015 WL 3980960 (9th Cir. Jul. 1, 2015) (defendant failed to establish that he was prejudiced by immigration officials' due process violation during predicate expedited removal proceeding, and so did not establish that the deportation order, an element of illegal reentry offense, was legally invalid).

CAL CRIM DEF " SAFE HAVENS " FALSE IMPRISONMENT
A conviction of false imprisonment, under Penal Code 236, 237, committed by menace is not a crime of moral turpitude. Turijan v. Holder, 744 F.3d 617, 621 (9th Cir. 2014). This offense also arguably does not constitute an aggravated felony crime of violence, under 18 U.S.C. 16(a), 8 U.S.C. 1101(a)(43)(F), since there is no element requiring the intentional use of violent force. Moreover, it cannot constitute an aggravated felony crime of violence under 16(b), because the Supreme Court found the ordinary case analysis to be unconstitutionally vague. See Johnson v. United States, 576 U.S. ___ (June 26, 2015). CALCRIM 1240, defining some of the elements of felony false imprisonment, provides: Violence means using physical force that is greater than the force reasonably necessary to restrain someone. Menace means a verbal or physical threat of harm[, including use of a deadly weapon]. The threat of harm may be express or implied. Under the categorical analysis, the minimum conduct sufficient to convict of this offense by means of menace requires threat of harm, but not use or threat to use intentional violent force. Harm or injury is different from violent physical force. See Leocal v. Ashcroft, 543 U.S. 1 (2004).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK " PREJUDICE
United States v. Zamudio, ___ F.3d ___, 2015 WL 162855 (9th Cir. Jan. 14, 2015) (affirming illegal reentry conviction, where defendant failed to meet his burden in collaterally attacking his underlying deportation proceeding: even if the Immigration Judge erred in failing to advise defendant of his ability to apply for relief from removal, defendant suffered no prejudice because if he had obtained relief from removal for his 1994 conviction, he would have been rendered ineligible for relief from removal for his 2000 conviction).

IMMIGRATION OFFENSES " HARBORING UNDOCUMENTED IMMIGRANTS " ENHANCEMENTS FOR HARBORING UNACCOMPANIED MINORS AND FOR FINANCIAL GAIN
United States v. Reyes, ___ F.3d ___, 2014 WL 6600420 (9th Cir. Nov. 21, 2014) (district court properly applied an enhancement for harboring unaccompanied minor aliens, as it was reasonably foreseeable to the defendant that unaccompanied minors would be present; and district court did not clearly err in finding that this smuggling organization detained aliens both in connection with a demand for payment and through coercion or threat, and in finding that such detention was reasonably foreseeable by the defendant).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK " EXPEDITED REMOVAL
United States v. Raya-Vaca, ___ F.3d ___, 2014 WL 5802287 (9th Cir. Nov. 10, 2014) (expedited administrative removal order under INA 235 violated due process where immigration officer failed to comply with 8 C.F.R. 235.3(b)(2)(i), and no prejudice need be shown).

CONTROLLED SUBSTANCES OFFENSES " IDENTITY OF CONTROLLED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE
United States v. Huitron-Rocha, ___ F.3d ___, 2014 WL 5801404 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11352(a) is a divisible statute, so the modified categorical analysis can be used to examine the record of conviction to determine if the specific controlled substance involved in the case is identified and if so is on the federal list); Coronado v. Holder, 759 F.3d 977, 983"85 & n. 4 (9th Cir.2014) (California Health and Safety Code 11377(a), possession of a controlled substance, is a divisible statute, within the meaning of Descamps, because the statute contains a listing of alternative controlled substances and because California law confirms that the controlled substance is an essential element of the crime); United States v. De La Torre"Jimenez, No. 13"50438, ___ F.3d ___, 2014 WL 5786715 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11351 is materially indistinguishable from Health and Safety Code 11377(a), so Coronado controls and the modified categorical approach applies).

CONTROLLED SUBSTANCES OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE
United States v. De La Torre"Jimenez, ___ F.3d ___, 2014 WL 5786715 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11351 is materially indistinguishable from Health and Safety Code 11377(a), so Coronado controls and the modified categorical approach applies).

AGGRAVATED FELONY " FIREARMS OFFENSES " ANTIQUE FIREARMS DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), since the state did not have an exception for antique firearms, as federal law did, and the state in fact prosecuted defendants under this statute for being in possession of antique firearms, and the state statutory definition of firearm is not divisible, so resort to the modified categorical analysis or record of conviction is prohibited).

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING " UNIDENTIFIED SUBSTANCE
Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. Oct. 10, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health & Safety Code 11351, is neither an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), nor a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), under the modified categorical analysis, because the amended complaint and the abstract of judgment did not provide clear and convincing evidence regarding what specific substance the petitioner pleaded guilty to), withdrawing prior opinion at ___ F.3d ___, 2014 WL 4654481 (9th Cir. Sept. 19, 2014); distinguishing Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2012) (per curiam); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. July 1, 2011). Cross-References: Cal Crim Def Immig 8.21 (unidentified drug). Cross-References: Cal Crim Def Immig 14.20 (record failed to prove identity of drug).

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

CONTROLLED SUBSTANCES " ATTEMPTED POSSESSION
Alvarado v. Holder, ___ F.3d ___, 2014 WL 3608713 (9th Cir. Jul. 23, 2014) (Arizona conviction for attempted possession of a dangerous drug, in violation of Arizona Revised Statute 13-3407(A)(1), constituted a violation of state law relating to a controlled substance, for purposes of deportation, under the modified categorical analysis, where attachment to the plea agreement set the factual basis, which identified the controlled substance as methamphetamines). NOTE: The court found that the argument that Arizona attempt is broader than federal attempt was waived for failure to exhaust.

AGGRAVATED FELONIES " FIREARMS OFFENSES " ANTIQUE FIREARMS
United States v. Aguilera-Rios, ___ F.3d ___, 2014 WL 2723766 (9th Cir. Jun. 17, 2014) (California Penal Code 12021(c)(1), current Penal Code 29800, is not a categorical aggravated felony firearms offense, since the statute lacks an antique firearms exception); explicitly partially overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir. 2011), and implicitly partially overruling Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010).

CONTROLLED SUBSTANCES " ATTEMPTED PROMOTING DANGEROUS DRUG NOT REMOVABLE " PAULUS DEFENSE " UNLISTED DRUG
Ragasa v. Holder, ___ F.3d ___, ___, 2014 WL 1661491 (9th Cir. Apr. 28, 2014) (Hawaii conviction for promotion of a dangerous drug, in violation of HRS 705"500(1)(b), 712"1241(1)(b)(ii), is not categorically a controlled substances offense; Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw.Rev.Stat. 329"14(b)(56) & (57) (2003); Haw.Rev.Stat. 712"1240 (2004); Haw.Rev.Stat. 712"1241(1)(b)(ii) (2006), with 21 U.S.C. 812; 21 C.F.R. 1308.11"15.).

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

CONTROLLED SUBSTANCES " MEANS V. ELEMENTS " PAULUS DEFENSE
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (rejecting argument that the modified categorical analysis is inapplicable to Health & Safety Code 11377(a); statutes specific reference to the California controlled substances lists allows conviction).

MOTION TO REOPEN REMOVAL PROCEEDINGS " CONVENTION AGAINST TORTURE
Go v. Holder, 744 F.3d 604 (9th Cir. Mar. 7, 2014) (the specific time and number limitations on motions to reopen, 8 C.F.R. 1003.2(c), apply to motions to reopen that arise under the Convention Against Torture).

REMOVAL " CONDUCT-BASED GROUNDS " STATE ALFORD PLEA DOES NOT PROVE COMMISSION OF A STATE CRIME SUFFICIENTLY TO SUPPORT AN ORDER REVOKING FEDERAL SUPERVISED RELEASE
United States v. Williams, 741 F.3d 1057 (9th Cir. Feb. 3, 2014) (reversing district court's order revoking defendant's supervised release, where a defendant's Alford plea to a state charge is insufficient to prove commission of a state crime for purposes of a federal supervised release violation when the state itself does not treat it as sufficiently probative of the fact that the defendant actually committed the acts constituting the crime or crimes of conviction).

POST CON RELIEF " REASON TO BELIEVE
Chavez-Reyes v. Holder, 741 F.3d 1 (9th Cir. Jan. 27, 2014) (denying petition for review from BIA decision finding petitioner inadmissible because there was reason to believe that he engaged in or assisted others in illicit trafficking in a controlled substance, under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i), based on circumstantial evidence and on his guilty plea to possession of cocaine with intent to distribute, where the BIA did not violate petitioner's due process rights by considering his guilty plea, even though the court overturned the criminal conviction on appeal, because the court overturned the conviction solely because the police officers lacked reasonable suspicion to conduct the traffic stop, a reason unrelated to the voluntariness of the guilty plea). Note: Counsel can do a better job of establishing the connection between the Fourth Amendment violation and the voluntariness of the plea. The plea was involuntary because defense counsel rendered ineffective assistance in failing to suppress the evidence, and in failing to inform the defendant of the inadmissibility of the evidence, so the plea was based on misinformation concerning the admissibility of the evidence against the defendant.

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD ACT WITH 15-YEAR-OLD
Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. Oct. 22, 2013) (California conviction for lewd and lascivious acts upon a 15-year-old girl when the actor is at least ten years older, under Penal Code 288(c)(1), is a categorical crime of violence and therefore an aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because this offense, in the ordinary case, poses a substantial risk of the use of physical force under 18 U.S.C. 16(b)). Note: Although not a positive case, the discussion does carefully address prior Ninth Circuit case law and has some very useful analysis distinguishing 18 U.S.C. 16(b), substantial risk analysis from the minimum-conduct analysis required for other portions of the Act, including Sexual Abuse of a Minor, Child Abuse, Domestic Violence, and 18 U.S.C. 16(a). Thanks to Joseph Justin Rollin.

CONVICTION -- NATURE OF CONVICTION " FACTS VS ELEMENTS " PLEA OF GUILTY CONTROLS
United States v. Avery, 719 F.3d 1080, 1084 (9th Cir. Jun. 18, 2013) (As we have stated in other contexts, plea agreements are contracts, and are premised on the notion that the negotiated guilty plea represents a bargained-for quid pro quo. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal quotation marks omitted).; language in information cannot be counted against defendant if the language is unrelated to the plea; [i]n enforcing a plea agreement, we are bound to construe any ambiguities or inconsistencies in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity. United States v. Franco"Lopez, 312 F.3d 984, 989 (9th Cir.2002) (internal citations and quotation marks omitted). The government cannot seize upon convenient language contained in the information to substantiate a broader charge that was not incorporated into the plea agreement . . .).

ARTICLE " NINTH CIRCUIT EN BANC CASE ON CATEGORICAL ANALYSIS
In Young v. Holder, 697 F.3d 976 (9th Cir. Sept. 17, 2012) (en banc), the Ninth Circuit held that Petitioner failed to exhaust the claim that his conviction was not for a violation of a law relating to a controlled substance within the meaning of 8 U.S.C. 1227(a)(2)(B)(i), so the court lacked jurisdiction over that claim. It also held that the evidentiary limitations articulated in Shepard v. United States, 544 U.S. 13, 26 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal as an aggravated felon under 8 U.S.C. 1229b. It held that under the modified categorical approach, a guilty plea to a conjunctively phrased charging document establishes only the minimal facts necessary to sustain a defendant's conviction. In other words, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes a conviction under at least one, but not necessarily all, of those theories. In so deciding, the court reconciled its inconsistent precedents on this issue by adopting one line of cases"including Malta"Espinoza v. Gonzales, 478 F.3d 1080, 1082 n.3 (9th Cir.2007)"and rejecting the other, including United States v. Snellenberger, 548 F.3d 699, 701(9th Cir.2008) (en banc) (per curiam). Finally, it held that an alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony. It overruled Sandoval"Lua v. Gonzales, 499 F.3d 1121, 1130"31(9th Cir.2007), and Rosas"Castaneda v. Holder, 655 F.3d 875, 883"84 (9th Cir.2011), to the extent that they conflict with this holding.

RECORD OF CONVICTION " MINUTE ORDERS & ABSTRACT OF JUDGMENT
United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. May 30, 2012) (where the charging document specifies the drug as one listed in the CSA, and the abstract or minute order shows the defendant pleaded to that Count, Snellenberger applies and the defendant may be found to have pleaded to a controlled substances offense).

RELIEF " CONSULAR PROCESSING " CONSULAR NONREVIEWABILITY " JUDICIAL REVIEW
Rivas v. Napolitano, 677 F.3d 849 (9th Cir. Apr. 25, 2012) ("Federal courts are generally without power to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, at least two exceptions to this rule exist. First, a court has jurisdiction to review a consular official's actions 'when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul's discretion.' Patel v. Reno, 134 F.3d 929, 931"32 (9th Cir.1997). Second, the court has jurisdiction to review a consular official's acti5ons when the government denies a visa without a 'facially legitimate and bona fide reason.' Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008)."; the Mandamus Act, at 28 U.S.C. 1361 give the court jurisdiction to require Government take action to consider request to review denial of an I-601 waiver).

CRIMES OF MORAL TURPITUDE " STATUTORY INTERPRETATION " CHEVRON DEFERENCE IS NOT DUE WHERE BIA RELIES ON FLAWED RATIONALE
Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. Apr. 23, 2012) (court of appeals did not give Chevron deference to BIA holding that federal conviction of misprision of a felony, in violation of 18 U.S.C. 4, was categorically a crime involving moral turpitude, where BIA relied on flawed rationale that an offense which contravenes societal duties is enough to make it a crime involving moral turpitude, since under that rationale, every crime would involve moral turpitude); following Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1070 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority), overruled on other grounds by United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc).

AGGRAVATED FELONY " THEFT OFFENSE " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul. 7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not categorically constitute an attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because 459 criminalizes conduct beyond generic attempted theft offenses"for example, entering a locked vehicle with the intent to commit not theft, but arson or vandalism. . . . Because one can be convicted under 459 for a crime that does not qualify as generic attempted theft, the statute is not a categorical match for the generic aggravated felony offense.); Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam).

CRIMES OF MORAL TURPITUDE " THEFT OFFENSES " REQUIREMENT OF INTENT TO PERMANENTLY DEPRIVE THE OWNER AS DISTINGUISHED FROM DEFINITION OF AGGRAVATED FELONY THEFT OFFENSE
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.20 (9th Cir. Jul. 7, 2011) (A generic attempted theft offense for CIMT purposes is defined slightly differently than in the aggravated felony context. Whereas the latter, as we noted earlier, requires the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent, Carrillo-Jaime, 572 F.3d at 750 (citation and quotation marks omitted), a permanent taking [must be] intended for a conviction to qualify as a CIMT.); quoting Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 n.8 (9th Cir. 2009) (citation, quotation marks, and emphasis omitted).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MODIFIED CATEGORICAL APPROACH
United States v. Gonzalez-Aparicio, ___ F.3d ___, 2011 WL 2207322 (9th Cir. Jun. 8, 2011) (Arizona conviction for sexual conduct with a minor, in violation of Arizona Revised Statutes 13"1405, constituted an enumerated crime of violence offense (statuory rape) for illegal re-entry sentencing purposes, under the modified categorical approach). NOTE This decision notes tension between statutory rape/sexual abuse of a minor cases in the sentencing and immigration contexts.

IMMIGRATION OFFENSES " ILLEGAL ENTRY " TRAVEL BY BOAT FROM NORTHERN MARIANA ISLANDS TO GUAM WAS NOT ENTRY
United States v. Li, ___ F.3d ___ (9th Cir. May 2, 2011) (reversing convictions for attempting illegally to enter the United States in violation of 8 U.S.C. 1325(a)(1), where noncitizen attempts to enter the United States when traveling by boat from the Commonwealth Northern Mariana Islands to Guam). CD4:CHAPT13

IMMIGRATION OFFENSES " ILLEGAL REENTRY " UNCONSTITUTIONAL PRESUMPTION OF ALIENAGE
United States v. Sandoval-Gonzalez, ___ F.3d ___, 2011 WL 1533516 (9th Cir. Apr. 25, 2011) (reversing conviction of noncitizen for reentering the United States after being deported because jury instruction presuming alienage, and placing the burden of proof on the defendant to establish that he had obtained American citizenship by having been born to a U.S. citizen father, was prejudicial error).

IMMIGRATION OFFENSES " EVIDENCE " BORDER SEARCHIMMIGRATION OFFENSES " EVIDENCE " BORDER SEARCH
United States v. Cotterman, ___ F.3d ___, 2011 WL 1137302 (9th Cir. Mar. 30, 2011) (search of property seized at an international border and moved 170 miles inland for further search is not unlawful under the border search doctrine where neither the scope of the intrusion nor the duration of the deprivation was egregious).

RELIEF " VISA WAIVER PROGRAM
Bingham v. Holder, ___ F.3d ___ (9th Cir. Mar. 23, 2011) (circuit court has jurisdiction to review removal order where noncitizen challenged validity of waiver agreement under Visa Waiver Program based on claim that the VWP waiver was not knowing and voluntary; allegedly unknowing waiver did not result in prejudice where noncitizen did not show he would have been able to contest his removal on any other ground or that he would have declined to sign the waiver if he had been fully informed).

CONVICTION " INFRACTION " INFRACTION CONSTITUTED CONVICTION OF CRIME OF MORAL TURPITUDE UNDER STATUTORY DEFINITION OF CONVICTION
Afzal v. Gonzales, 203 Fed.Appx. 830, 2006 WL 3054609 (9th Cir. October 27, 2006) (unpublished) (California infraction of petty theft, in violation of Penal Code 490.1, constituted a conviction for immigration purposes because California criminal law considers it a conviction of a crime). This decision does not even mention the governing immigration law on this subject, Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(holding that Oregon violation did not constitute a conviction of a crime, because there was no custody possible for the offense, no right to counsel or jury trial, and no requirement of proof beyond a reasonable doubt). The unpublished Afzal decisions discussion is as follows: The Immigration and Nationality Act (INA) defines the term conviction as a formal judgment of guilt of the alien entered by a court or ... where ... the alien has entered a plea of guilty or nolo contendere ... and ... the judge has ordered some form of punishment, penalty, *832 or restraint. 8 U.S.C. 1101(a)(48)(A). Under California law [c]rimes and public offenses include: [f]elonies; [m]isdemeanors; and [i]nfractions. Cal.Penal Code 16; see also People v. Statum, 28 Cal.4th 682, 122 Cal.Rptr.2d 572, 50 P.3d 355, 365 (2002) (From its earliest days, this court has distinguished between the nature or identity of a crime ... and the class or grade o[f] the crime as being a felony, misdemeanor, or infraction.) (Kennard, J., dissenting). Afzal pleaded nolo contendere to petty theft under California Penal Code 484 charged as an infraction pursuant to Penal Code 490.1. The California court entered a formal judgment of guilt and imposed punishment in the form of a fine. Afzal's unsupported assertion that an infraction is not a crime notwithstanding, there is sufficient authority to establish that he was convicted of a crime within the plain meaning of 8 U.S.C. 1101(a)(48)(A) and California Penal Code 16. (Afzal v. Gonzales, 203 Fed.Appx. 830, 831-832, 2006 WL 3054609 (9th Cir. October 27, 2006).) The panel did not consider that the conviction must be of a crime under immigration law. Its discussion of that point was mistakenly based on California law. However, the question whether a conviction is a conviction of a crime under immigration law is a question of uniform federal immigration law, not state law. The BIA in Eslamizar concluded that a very similar Oregon disposition was not a conviction of a crime, because it did not result from a criminal procedure: there was no jail possible, no jury trial, no right to appointed counsel, and no right to proof beyond a reasonable doubt. A California infraction shares the first three characteristics of the Oregon violation held not to be a crime in Eslamizar. This should be held sufficient to conclude that a California infraction does not constitute a conviction of a crime, and is therefore not a conviction of a crime of moral turpitude.

Lower Courts of Ninth Circuit

PRACTICE ADVISORY " CAL CRIM DEF " PROSECUTION POLICIES " SANTA CLARA COUNTY " DEFERRED ENTRY OF JUDGMENT NOW ACCOMODATES PLEAS TO ACCESSORY AFTER FACT IN LIEU OF CONTROLLED SUBSTANCES OFFENSES
The Santa Clara County District Attorneys Office and judges, in California, are now accepting a plea to accessory after the fact, under Penal Code 32, instead of insisting on a controlled substances conviction, for each DEJ qualifying offense. The court then grants Deferred Entry of Judgment under Penal Code 1000, for offenses qualifying for DEJ (now including accessory after the fact). This protects immigrants from (a) the risk of deportation or inadmissibility for a controlled substances conviction if they flunk DEJ, or (b) before they completed DEJ and obtain the DEJ dismissal that qualifies for Lujan treatment. The accessory conviction is not dismissed when DEJ is completed, although the defendant can seek a Penal Code 1203.4(a) expungement after probation has been completed. Thanks to Beth Chance.

CAL POST CON " POST CON RELIEF SUCH AS DEFERRED ENTRY OF JUDGMENT (DEJ) REMAINS APPROPRIATE AFTER EXPUNGEMENT DISMISSAL
People v. Tidwell, ___ Cal.App.4th ___ (6th Dist. Mar. 17, 2016) (a dismissal pursuant to section 1203.4 does not preclude relief under Proposition 47 and concede the trial court erred in denying defendants request to reduce the felonies to misdemeanors). The court stated: With certain exceptions, the effect of the dismissal is that the defendant shall . . . be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . . (Ibid.) Section 1203.4 further provides: However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office [or] for licensure by any state or local agency . . . . (Ibid.) The statutory language plainly limits the effect of the dismissal pursuant to section 1203.4 to the qualifying defendants release from most penalties and disabilities stemming from the conviction. [T]he conviction may be treated as if it were not a conviction for most purposes. (People v. Guillen, supra, 218 Cal.App.4th at p. 996.) But it does not, strictly speaking, expunge the conviction, nor render the conviction a legal nullity. (Ibid., quoting People v. Frawley (2000) 82 Cal.App.4th 784, 791.) As courts have noted, [t]he limitations on this relief are numerous and substantial, including other statutes declaring that an order under section 1203.4 is ineffectual to avoid specified consequences of a prior conviction. (People v. Frawley, supra, at p. 791 [citing statutes, e.g., Veh. Code, 13555 (revocation or suspension of privilege to drive a motor vehicle); Bus. & Prof. Code, 490 (suspension or revocation of professional license); id., 6102, subd. (c) (summary disbarment of attorney); id., 2236.1, subd. (d) (suspension of medical license)].) Noteworthy among the limitations to relief under section 1203.4 is the provision that in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved . . . . ( 1203.4, subd. (a); People v. Frawley, supra, at pp. 791-792 [describing this limitation as sweeping].) (Id. at ___.) The court continued: Nothing in the language of section 1170.18 alters this conclusion in light of defendant having obtained a dismissal of those convictions under section 1203.4. As noted above, the statutory dismissal that defendant obtained did not expunge his record or cancel the potential for continuing or future consequences of those convictions. (People v. Guillen, supra, 218 Cal.App.4th at p. 996.) The text of Proposition 47, as enacted by the voters, provides that [t]his act shall be liberally construed to effectuate its purposes. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, 18, p. 74.) Among its stated purposes is to ensure that prison spending is focused on violent and serious offenses [and] to maximize alternatives for nonserious, nonviolent crime . . . . (Id., 2, p. 70.) To foreclose defendants eligibility based on the section 1203.4 dismissal would contravene this intent, where defendant has met the criteria under section 1170.18 according to the terms of the statute. Nor does the intent behind a grant of relief under section 1203.4 undermine or conflict with the later application of section 1170.18. The decision in Meyer v. Superior Court (1966) 247 Cal.App.2d 133 supports this conclusion by analogy. In that case, the trial court denied the petitioners application under section 17 to declare the offense for which the petitioner was convicted to be a misdemeanor. (Meyer v. Superior Court, supra, at p. 134.) One issue on appeal was whether the petitioner was barred in his application because his record was expunged under section 1203.4. (Meyer v. Superior Court, supra, at pp. 139-140.) The appellate court reasoned that expungement of the record under section 1203.4 is . . . a reward for good conduct and has never been treated as obliterating the fact that the defendant has been convicted of a felony. (Id. at p. 140.) Because a conviction which has been expunged still exists for limited purposes, including, among others, evidentiary use at a later trial [citation] and the denial of the right to carry a concealable weapon [citation] . . . petitioner should not be barred from pursuing a more suitable remedy . . . . (Ibid.) That same reasoning applies here. The trial court did not find that defendant was convicted of a category of violent and serious offenses of the sort that precludes eligibility for Proposition 47 relief, or that his application was otherwise defective. The dismissal of his felonies pursuant to section 1203.4 operated to mitigat[e] some of the consequences of his conviction and, with a few exceptions, to restore him to his former status in society . . . . but did not erase the convictions. (People v. Field (1995) 31 Cal.App.4th 1778, 1787, quoting Selby v. Department of Motor Vehicles (1980) 110 Cal.App.3d 470, 473.) As such, it was error for the trial court to deny defendants applications pursuant to section 1170.18 on the ground that he already had obtained dismissals pursuant to section 1203.4. (Id. at ___.)

CAL CRIM DEF " SAFE HAVENS " MALICIOUS WITNESS DISSUASION " CRIME OF VIOLENCE " CRIMES OF MORAL TURPITUDE " REALISTIC PROBABILITY OF PROSECUTION
People v. Wahidi, 222 Cal.App.4th 802, 807, 166 Cal.Rptr.3d 416 (2d Dist. Dec. 30, 2013) (defendants request that victim and defendant settle their dispute by Islamic mediation, rather than a criminal case, was held to be both knowing and malicious, within the meaning of the malicious witness dissuasion statute, Penal Code 136.1(a)(2), even though the defendant did not demand the victim drop the charges or threaten any violence: There is no substantial evidence that Wahidi intended to vex, annoy, harm, or injure Khan when Wahidi approached Khan in the mosque. But the evidence does show that Wahidi intended to thwart or interfere in any manner with the orderly administration of justice by convincing Khan not to testify at the preliminary hearing the next day. Under the definition of malice in section 136, Wahidi maliciously attempted to dissuade Khan from testifying.") (emphasis added). Note. Under this decision, California law now defines Penal Code 136.1(a)(2) as including conduct such as a civilized request to resolve an issue according to religious belief and conscience that in no sense of the word involves an element of violence (18 U.S.C. 16(a) or by its nature creates a substantial risk of violence (18 U.S.C. 16(b)). This offense therefore does not constitute an aggravated felony crime of violence. In addition, the conduct here is not depraved, and does not involve an intent to vex, annoy, harm, or injure another. It should therefore not be considered a crime of moral turpitude. It includes conduct motivated solely by religious belief and conscience. This sufficiently establishes a realistic probability of prosecution under this statute for non-removable conduct to prevent a conviction for violating this statute from constituting an aggravated felony crime of violence or crime involving moral turpitude. Thanks to Daniel G. DeGriselles.

Tenth Circuit

RELIEF " NON-LPR CANCELLATION OF REMOVAL " PETTY OFFENSE EXCEPTION
Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. Nov. 14, 2017)(assumed moral turpitude conviction disqualified respondent from eligibility for discretionary cancellation of removal, and qualifying for the petty offense exception to moral turpitude inadmissibility would not change this result); following In re Cortez Canales, 25 I&N Dec. 301, 303-04 (BIA 2010); see also Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265-66 (9th Cir. 2015); Hernandez v. Holder, 783 F.3d 189, 191-96 (4th Cir. 2015).

JUDICIAL REVIEW " CHOICE OF LAW WHERE IMMIGRATION JUDGE IS LOCATED IN DIFFERENT CIRCUIT THAN THE IMMIGRANT
Medina-Rosales v. Holder, ___ F.3d ___, ___, 2015 WL 756345 (10th Cir. Feb. 24, 2015) (where the immigrant and counsel are located in a circuit different from that in which the immigration judge conducts the hearing, the governing law is that of the circuit in which the immigration judge is located: The charging document establishes the hearing location, regardless of the location of the IJ and the holding of a video conference hearing.).

IMMIGRATION OFFENSES"ILLEGAL REENTRY"PROCEDURALLY LAWFUL ENTRY CAN CONSTITUTE ILLEGAL REENTRY IF DONE WITHOUT PERMISSION
Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. Oct. 17, 2011) (lawful entry as inspected backseat taxi passenger of previously deported person, without seeking the Attorney Generals permission to reapply for admission as she was required to do, under INA 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii), constituted unlawful entry into the United States, under 8 C.F.R. 241.8(a)); following Lorenzo v. Mukasey, 508 F.3d 1278, 1283 (10th Cir. 2007) (an individual who had previously been removed was precluded from gaining lawful admission to the United Stateswithout obtaining authorization to do so from the Attorney General.); distinguishing Matter of Quilantan, 25 I&N Dec. 285, 289 (BIA 2010) (the lawful entry requirement of admitted, under INA 101(a)(13)(A), 8 U.S.C. 1101(a)(13)(A), refers only to procedural regularity.).

CONVICTION " EXISTENCE OF CONVICTION " GOVERNMENT NEED NOT PROVE CONVICTION WAS CONSTITUTIONAL IN ORDER TO DEPORT
Waugh v. Holder, 642 F.3d 1279, 1283 (10th Cir. Jun. 22, 2011) (DHS does not need to establish that criminal counsel gave proper immigration advice under Padilla v. Kentucky in order to establish deportability), citing United States v. Adame-Orozco, 607 F.3d 647, 653 (10th Cir. 2010) (that while an alien may have the right to pursue appellate or collateral relief for an aggravated felony conviction under various provisions of state and federal law, the government need not wait until all these avenues are exhausted before deporting him.).

Eleventh Circuit

CONTROLLED SUBSTANCES " PAULUS DEFENSE " GEORGIA
Georgias schedules of controlled substances appear to be broader than the federal schedules as Georgias covers Dextromorphan, which is no longer covered by the federal schedules. O.C.G.A. 16-13-25. Thanks to Sejal Zota.

Other

CAL CRIM DEF " JUVENILE " PRACTICE ADVISORY " CONFIDENTIALITY OF JUVENILE RECORDS IN CALIFORNIA
The Immigrant Legal Resource Center has published a comprehensive new resource. California has strict confidentiality laws that govern when and to whom records from dependency and delinquency proceedings may be released. Immigration advocates need to be aware of these laws and ensure they are complied with when representing individuals with California juvenile records. This new resource provides an overview of the law and practical guidance for how to handle issues of juvenile confidentiality before USCIS and the immigration courts. http://www.ilrc.org/files/documents/confidentiality_of_juvenile_records_advisory_ilrc_4.21.16_final.pdf

RESOURCES " ILLEGAL REENTRY " COMMENTS TO FEDERAL SENTENCING COMMISSION
Federal Defender's Public Comment to the Federal Sentencing Commission regarding proposed Amendments for 2016 re Illegal Re-entry, etc. https://www.fd.org/docs/select-topics/sentencing-resources/defender-public-comment-of-3-21-16-regarding-proposed-amendments-for-2016.pdf?sfvrsn=4

IMMIGRATION OFFENSES " ILLEGAL REENTRY " SENTENCE "
Molina"Martinez v. United States, 136 S.Ct. 1338 (Apr. 20, 2016) (where there is an unpreserved error in calculating a Sentencing Guidelines range, a defendant is not required to provide additional evidence to show the error affected his or her substantial rights).

CAL POST CON " STATE REHABILITATIVE RELIEF " EXPUNGEMENTS " LUJAN " DEFERRED ENTRY OF JUDGMENT (DEJ) " PROP 36 " DIVERSION DRUG PROGRAM RELAPSE STATISTICS
Approximately 70-80% of participants in controlled substances dependency programs fail to stay clean for a year after starting a program. http://ideas.time.com/2013/04/03/we-need-to-rethink-rehab/; https://www.drugabuse.gov/publications/principles-drug-addiction-treatment-research-based-guide-third-edition/frequently-asked-questions/how-effective-drug-addiction-treatment

CONTROLLED SUBSTANCES " COUNTERFEIT DRUG OFFENSES IN LIEU OF CONTROLLED SUBSTANCES
Practice Advisory, Su Yon Yi and Katherine Brady, Immigrant Legal Resource Center, Burn Statutes and Counterfeit Drug Offenses (2015), see ILRC.org (discussing Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) (the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former INA 241(a)(2)(B)(i), 8 U.S.C. 125l(a)(2)(B)(i) (1994))

POST CON RELIEF " CALIFORNIA " DEFERRED ENTRY OF JUDGMENT " AFFIRMATIVE MISADVICE " PRACTICE ADVISORY
New Practice Advisory, K. Brady & M. Mehr, New California Drug Provision Helps Immigrants: Plea Withdrawal After Deferred Entry of Judgment (DEJ) (Immigrant Legal Resource Center, http://www.ilrc.org/resources/New_California_Drug_Law_1203.43

ARTICLE " RELIEF " WAIVERS " HEIGHTENED 212(H) WAIVER DISCRETIONARY HARDSHIP STANDARD DEPENDS ON WHETHER THE UNDERLYING OFFENSE FACTS SHOW THE CRIME IS VIOLENT OR DANGEROUS
By Norton Tooby Inadmissibility for a conviction of a crime involving moral turpitude, which constitutes a violent or dangerous offense, cannot be waived under INA 212(h) absent exceptional and extremely unusual hardship or national security reasons. 8 CFR 1212.7(d). See discussion of same standard in Matter of Jean, 23 I. & N. Dec. 373 (AG 2002). See also N. TOOBY & J.J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 24.29 (2012). A May 27, 2003 USCIS memorandum clarified that the applicable hardship standard under 8 C.F.R. 212.7(d) will be the same as that applied under INA 240A(b) for cancellation of removal for certain non-lawful permanent residents. It also recognizes that, unlike 240A(b), the regulation does not limit the persons for whom hardship must be shown to the noncitizens citizen or LPR spouse, child or parent. Memo, Yates, Acting Director of Operations, HQADN 70/23 (May 27, 2003), posted on AILA InfoNet at Doc. No. 03080717. Therefore, the relief can be granted if the applicant him- or herself suffers exceptional and extremely unusual hardship. See Samuels v. Chertoff, 550 F.3d 252 (2d Cir. Dec. 19, 2008) (BIA may have misapplied 8 U.S.C. 1212.7(d), requiring a showing of exceptional and extremely unusual hardship by noncitizens convicted of violent crimes, since it only considered hardship to the petitioners family, but not the petitioner himself.) The Ninth Circuit, in Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. Apr. 3, 2006), held that before an immigration judge may apply the heightened hardship standard, s/he must first determine, on the basis of the underlying facts of the offense, whether the offense was a violent or dangerous crime. In this case the court had already determined that the offense (statutory rape) was an aggravated felony. Therefore, it appears that the fact the offense was an aggravated felony was not sufficient to show the offense was necessarily violent or dangerous. It is thus clear that the immigration authorities can consider the underlying facts of the offense, and are not bound by the categorical analysis of its elements, when deciding whether the offense is a violent or dangerous crime. Torres-Valdivias v Lynch, 786 F3d 1147 (9th Cir 2015), amending and superceding 766 F3d 1106. This means that even if the elements of the offense suggest that the crime is a violent or dangerous offense, this is irrelevant. The violent or dangerous trigger, for the enhanced hardship standard, is a part of the discretionary decision whether to grant 212(h) relief. Perez Pimentel v. Mukasey, 530 F.3d 321 (5th Cir. Jun. 4, 2008) (Attorney General's promulgation of 8 C.F.R. 212.7(d) provides a standard for the Attorney General's exercise of discretion under 8 U.S.C. 1182(h)(2), where Congress has not "directly spoken to the precise question at issue."). The discretionary decision, guided by this standard, thus depends on the underlying facts of the offense. Therefore, if the actual offense conduct is not violent or dangerous, the higher hardship standard cannot be applied, regardless of the elements of the offense. The term violent or dangerous crime has yet to be clearly defined. Online research shows dictionary definitions of violent are as follows: Websters: using or involving the use of physical force to cause harm or damage to someone or something. Oxford: Using or involving physical force intended to hurt, damage, or kill someone or something. Blacks Law Dictionary: Characterized or caused by violence; severe; assailing the person (and metaphorically, the mind) with a great degree of force. Similar research shows the dictionary definitions of dangerous are as follows: Websters: Able or likely to inflict injury or harm. Oxford: Able or likely to cause harm or injury. Legal Dictionary: unsafe, hazardous, fraught with risk. Counsel can therefore argue, regardless of the elements of the offense, that the underlying offense conduct does not constitute either (a) a violent offense, or (b) a dangerous offense, and the higher hardship standard is not authorized by the regulation. From the context of the regulation, and the pairing of dangerous with violent, it is clear that the danger involved is the danger of physical injury, rather than a danger to some other value. For example, a danger to reputation, or a danger of offending someones sensibilities, would clearly be insufficient to meet this standard. If the immigration authorities do not allow consideration of the underlying facts of the offense, immigration counsel can petition the circuit court of appeals for review of a removal decision, arguing that the Board applied the wrong standard, an argument that the court has jurisdiction to consider. Samuels v. Chertoff, supra, 550 F.3d 252; see Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006) (indicating that the court of appeals has jurisdiction to determine whether the Board used an erroneous standard in making a discretionary determination). Moreover, there is a strong argument that the violent or dangerous phrase in the regulation is unconstitutionally vague, following the reasoning of Johnson v. United States, 135 S. Ct. 2551 (2015), which held that a crime of violence definition of the ACCAs residual clause, which closely tracks the crime of violence definition of 18 U.S.C. 16(b), is unconstitutionally vague. The Ninth Circuit, in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.2015), followed Johnsons reasoning and held that the crime of violence definition in 18 U.S.C. 16(b), is unconstitutionally vague.

DETENTION " IMMIGRATION DETAINERS
A Congressional Research Service (CRS) report on immigration detainers, including ICE detainer regulations and practices, state and local compliance, custody determinations, and constitutional issues. http://fas.org/sgp/crs/homesec/R42690.pdf

RESOURCES " DOMESTIC VIOLENCE & CRIME OF VIOLENCE
NIP-NLG and Immigrant Defense Project have written an advisory on the Supreme Courts recent decision in U.S v. Castleman. The advisory explains why this decision should have no negative impact on immigration law and how it may even support arguments to narrow the domestic violence and aggravated felony removal grounds. The advisory is located at: http://www.nationalimmigrationproject.org/publications.htm

DRUG ABUSE OR ADDICTION " REMISSION USCIS POLICY MANUAL
Chap. 8, section A (If the applicant is classified as a drug abuser or addict, the applicant can apply again for an immigration benefit if his or her drug abuse or addiction is in remission. Remission is now defined by DSM criteria, and no longer by a set timeframe as it was under previous Technical Instructions. In order for an applicants drug abuse or addiction to be classified as in remission, the applicant must return to a civil surgeon for a new assessment.) (emphasis added). http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter8.html

DOMESTIC VIOLENCE " CALIFORNIA EXPANDED LIST OF PROTECTED RELATIONSHIP CRIME OF MORAL TURPITUDE " CORPORAL INJURY OF SPOUSE
Penal Code 273.5(a), corporal injury of a spouse, was amended to substitute a new (b), which provides a list of covered relationships, without change except adding: The offenders fianc or fiance, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in [Penal Code section 243, subdivision (f)(10). The definition of dating relationship referred to reads: Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. Because this expanded relationship, like the other listed relationships, can be current or former, without any time restriction, it makes it less likely that this offense will be considered a crime involving moral turpitude.

DRUG ABUSE OR ADDICTION " DEFINITION
USCIS Policy Manuel, Chap. 8, section A (Drug abuse and drug addiction are defined as the non-medical use of a controlled substance listed in Section 202 of the Controlled Substance Act.). http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter8.html

DRUG ABUSE OR ADDICTION " PROCEDURE FOR DETERMINATION
USCIS POLICY MANUAL, Chap. 8, section A (The civil surgeon must now make this determination [of whether drug abuse or addiction is shown for purposes of inadmissibility] according to the [CDCs] Diagnostic and Statistical Manual of Mental Disorders (DSM) as specified in the Technical Instructions. http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter8.html The Technical Instructions are available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

DRUG ABUSE OR ADDICTION " REMISSION
USCIS POLICY MANUAL, Chap. 8, section A (If the applicant is classified as a drug abuser or addict, the applicant can apply again for an immigration benefit if his or her drug abuse or addiction is in remission. Remission is now defined by DSM criteria, and no longer by a set timeframe as it was under previous Technical Instructions. In order for an applicants drug abuse or addiction to be classified as in remission, the applicant must return to a civil surgeon for a new assessment.) (emphasis added). http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter8.html

DOMESTIC VIOLENCE " CALIFORNIA EXPANDED LIST OF PROTECTED RELATIONSHIP CRIME OF MORAL TURPITUDE " CORPORAL INJURY OF SPOUSE
Penal Code 273.5(a), corporal injury of a spouse, was amended to substitute a new (b), which provides a list of covered relationships, without change except adding: The offenders fianc or fiance, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in [Penal Code section 243, subdivision (f)(10). The definition of dating relationship referred to reads: Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. Because this expanded relationship, like the other listed relationships, can be current or former, without any time restriction, it makes it less likely that this offense will be considered a crime involving moral turpitude.

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).

CAL CRIM DEF " DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE " CRIME OF MORAL TURPITUDE
Penal Code 273.5(a) has been amended to expand the list of persons who qualify as victims of this offense. It now includes the offender's fianc or fiance, or someone with whom the offender has or previously had, an engagement or dating relationship, as defined in Penal Code 243(f)(10). In Morales-Garcia v. Holder, 567 F.3d 1058, 1-64-1065 (9th Cir. 2009), the court considered Penal Code 273.5(a) and stated that the inclusion of former co-habitants in the list of covered victims "makes the offense virtually indistinguishable from the run-of-the-mill assault." This further weakens the argument that this offense constitutes a crime of moral turpitude, since the argument is weak that there is a special relationship of trust between the principal and this expanded class of victims.

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CRIMES OF MORAL TURPITUDE " BURGLARY " TARGET OFFENSE CATEGORICAL ANALYSIS " TARGET OFFENSE
In California burglary cases, the jury need not unanimously agree on the identity of the offense that the defendant intended to commit crime at entry. CALCRIM 1700 provides: The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]" (Emphasis supplied.) The jury instructions establish that the target offense for burglary is not an element under California law. The elements are a question of California law, not federal immigration law. Moncrieffe and Descamps hold that the nature of the offense of conviction is limited to the elements (regardless of what is in the Record of Conviction). Therefore, a conviction of violating Penal Code 459 cannot be a crime of moral turpitude for purposes of deportation. The same rules (minimum conduct analysis and ignoring the facts) also apply to inadmissibility and bars to relief. Therefore, a conviction of burglary also did not trigger inadmissibility at entry. There is some slightly contradictory authority. CalCRIM jury instructions provide: Although actual commission of the underlying theft or felony is not an element of burglary (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042 [31 Cal.Rptr.2d 128, 874 P.2d 903]), the court has a sua sponte duty to instruct that the defendant must have intended to commit a felony and has a sua sponte duty to define the elements of the underlying felony. (People v. Smith (1978) 78 Cal.App.3d 698, 706 [144 Cal.Rptr. 330] ; see also People v. Hughes (2002) 27 Cal.4th 287, 349 [116 Cal.Rptr.2d 401, 39 P.3d 432] .) Give all appropriate instructions on theft or the felony alleged. The courts sua sponte duty to instruct on the elements of the target offense, however, is not the same as a requirement that the jury must unanimously agree on the same offense, just that they must all agree that theft or some felony offense or other was committed.

CD4:15.34;AF:6.30;CMT3:10.31;PCN:10.15; CPCN:2.10; 11.21
While the Board of Immigration Appeals has previously held that a nonimmigrant would have to affirmatively show that the firearm in the particular case actually was an antique (Matter of Mendez-Orellana (BIA 2010) 25 I&N Dec 254, 255), it would appear that the Supreme Court overruled that finding in Moncrieffe v Holder (2013) 133 SCt 1698, 1673. In Moncrieffe, the Court both reaffirmed that a statute defining an offense of conviction must be evaluated solely on the minimum conduct sufficient to commit it, and specifically discussed the antique firearm exception. The Court stated that as long as there is a realistic probability that antique firearms actually are prosecuted under the state statute at issue, a conviction should not be held a deportable firearm offense. Despite Moncrieffe, however, there is real uncertainty as to how the antique firearm defense will be treated in immigration court, and defense counsel should not count on it to save a defendant from deportation " unless the weapon involved in the offense really was a qualifying antique firearm. Otherwise, if the general antique firearm defense is the only alternative, the plea should be restricted to California offenses in which antique firearms actually have been prosecuted. See former Cal. P.C. 12022 (armed with antique weapon while committing felony) and former P.C. 12021 (possession by felon), and their current equivalent statutes, and see, e.g., People v. Gossman, 2003 WL 22866712 (2003); People v. McGraw, 2004 WL 928379 (2004). The California Penal Code, unlike 18 U.S.C. 921(a)(3), makes it a crime to possess an antique firearm. Penal Code 25400(a); see Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011) (holding that conviction under predecessor California statute met federal gun definition even though former statute included conviction for an antique firearm, because antique firearm was an affirmative defense, rather than an element of the offense). Despite the fact that convictions under the California statute would seem necessarily to fail the categorical inquiry, a noncitizen convicted under this provision still must show a realistic probability that California would prosecute a defendant for having an antique weapon. See Moncrieffe v Holder, ___ US ___, 133 SCt 1678, 1693 (2013). See also People v. Robinson (2011) 199 CA4th 707, 131 CR3d 177 (affirming that California firearms definition, applicable to the state felon in possession offense, Penal Code 12021, criminalizes possession of antique or inoperable firearms); People v. Wolfe (2003) 114 Cal.App.4th 177, 7 Cal.Rptr.3d 483 (California prosecution for possession of a firearm, after having suffered a conviction for a felony or qualifying misdemeanor, in violation of Penal Code 12021(c)(1), based on possession of a Winchester 16"gauge shotgun and a bolt-action Sharps shotgun, which appeared to be antique firearms); People v. Claseman (1986) 183 Cal.App.3d Supp. 1, 229 Cal.Rptr. 453 (documenting prosecution for violation of Penal Code 12025(a), carrying a firearm concealed in a vehicle, on the basis of an antique firearm; conviction reversed since firearm was inoperable, not because it was an antique).

DETENTION " IMMIGRATION DETENTION
Christopher N. Lasch, How the Courts Upholding of Federal Immigration Enforcement Authority in Arizona v. United States Casts Doubt on the Validity of Federal Immigration Detainers, 46 Loyola Los Angeles L. Rev. --- (forthcoming 2013) (federal government lacks the authority to issue immigration detainers as it has being doing with great frequency in recent years). First, Lasch argues, the regulation DHS relies on gives its agents more power to arrest than Congress authorized. The INA lets immigration officers arrest individuals pursuant to an immigration arrest warrant or where a person is likely to escape before a warrant can be obtained. Lasch at 74-76. The detainer regulation, 8 C.F.R. 287.7(d), in contrast, either requires or permits local officers to detain a person for no reason other than to give DHS time to investigate whether the person may be removable. Lasch at 78. This is far in excess of the scope the statute allows, and the Arizona Courts interpretation of preemption doctrine suggests that this overbroad view of the statute cannot withstand a constitutional challenge. Lasch at 72-73, 80. Moreover, as the Arizona Court noted, Congress authorized local officers to arrest people on suspicion of civil immigration violations only when operating pursuant to a 287(g) program. Officers acting pursuant to a 287(g) agreement receive training in immigration law and operate, according to the statute, as adjuncts of the Secretary of Homeland Security. ICE, however, issues immigration detainers without regard for whether the local law enforcement agency has entered into a 287(g) agreement with DHS. This means that officers who receive an immigration detainer lack the training and cooperative agreement that Congress contemplated. Lasch at 78-80. Secondly, the authorizing regulation runs up against the Fourth Amendment by condoning detention without the probable cause required for an arrest. As Lasch recounts, the Arizona Court explained that SB 1070s show me your papers provision was not facially unconstitutional because the inquiry about immigration status happened during the course of an authorized, lawful detention or after a detainee has been released. Arizona v. United States, 132 S. Ct. 2492, 2509 (2012). The detainer regulation does exactly the opposite. It requires the local law enforcement agency to maintain custody of a prisoner who is not otherwise detained. Lasch at 73. That is, it kicks in only when all other justification to detain has ended. In this way, Lasch contends, it is a Fourth Amendment seizure carried out without the reasonable suspicion or probable cause that the Fourth Amendment requires. Lasch at 73-74. Both claims are intuitively rather intriguing. ICE, acting pursuant to a regulation, is either telling or asking local police to do what Congress has not allowed them to do even though"as Lasch points out"it has enacted a number of statutory provisions detailing the circumstances under which local police may help the federal government police immigration law. And in doing as ICE wants, local police deny people their liberty without the prerequisites enshrined in Fourth Amendment jurisprudence: reasonable suspicion or probable cause. ICEs new guidance on when to issue immigration detainers may limit the number of instances that irk Lasch, but theres no indication that the agency plans to cease using them. Indeed, the Secure Communities program that has become the Obama Administrations immigration policing initiative of choice dramatically amplified the importance of detainers, Lasch writes. Lasch at 62. The administrations recent announcement about the end of 287(g) comes with the promise of a greater role for Secure Communities. Thanks to Crimmigration.com for this summary.

IMMIGRATION OFFENSES " FEDERAL LAW PREEMPTS STATE IDENTITY FRAUD PROSECUTIONS RELATED TO FEDERAL I-9 FORMS
State v. Reynua, State of Minnesota, Mower County District Court (Jul. 23, 2012) (File No. 50-CR-09-1811) (unpublished) (admission of an I-9 form in a state forgery prosecution was reversible error); on remand after State v. Reynua, 807 N.W.2d 473 (Minn. App. 2011), review granted, revd in part and remanded (Minn. Feb. 28, 2012) (8 U.S.C. 1324a(b)(5) means what it says -- that other than specified federal prosecutions, the I-9 form and appended documents may not be used to establish a state crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING EXECUTIVE OFFICER
People v. Nishi, 207 Cal.App.4th 954, 143 Cal.Rptr.3d 882 (1st Dist. Jul. 13, 2012) (California Penal Code 69, attempting to deter or resist an executive officer in the performance of duty, is affirmed where the prosecution established the elements of the offense by substantial evidence; the central requirement of an offense under 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made; such threat is limited to a threat of unlawful violence used in an attempt to deter the officer).

PRACTICE ADVISORY " CONVICTION " SENTENCE " SENTENCE REQUIRED FOR CONVICTION
There is some tension between the rule that the original sentence is added to probation-violation sentences, on the one hand, and the Song/Cota BIA cases on sentence modification that state that it is the final sentence that governs for purposes of assessing the immigration consequences of a judgment. Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). If state probation violation procedure provides that a defendant receives credit for time served originally against a probation violation sentence, then the original and probation violation sentences would not be added together. For example, if the defendant received a six-month sentence originally, then a nine-month sentence on a violation of probation, s/he would only have to serve three of the nine months probation violation sentence. Under those circumstances, there would be an argument under Song that the final sentence for the offense is nine months. Many, if not most states, however, do not have such a rule. For example, in New York, the probation violation sentence imposed is in addition to the original jail term. New York Penal L. 60.01(4). The same is true in California, unless the court orders otherwise. On a probation violation sentence, defense counsel can ask that the original sentence be vacated and replaced by the probation violation sentence, and the defendant can if necessary waive credit for time already served. Under these circumstances, the two sentences would not be added together, because the first sentence has been vacated, and only then is the second sentence imposed " each of which is by itself too short to trigger aggravated felony treatment for the conviction. As the Board stated: "we see nothing in the language or stated purpose of section 101(a)(48)(B) that would authorize us to equate a sentence that has been modified or vacated by a court ab initio with one that has merely been suspended." Matter of Song, 23 I&N Dec. 849, 852 (BIA 2001). Thanks to Isaac Wheeler.

PRACTICE ADVISORY POST CON RELIEF " MOTION TO REDUCE FELONY TO MISDEMEANOR RELIEF " WAIVERS " NON-LPR CANCELLATION " CMT CONVICTION BAR " BAR DOES NOT REQUIRE THAT THE CONVICTION ACTUALLY TRIGGER INADMISSIBILITY OR DEPORTABILITY
A reduction of a felony to a misdemeanor, in a jurisdiction in which the maximum sentence for a misdemeanor is no greater than one year, may enable a client to qualify for the Petty Offense Exception to CMT inadmissibility if the other requirements for the POE are met. INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II). See, e.g., California Penal Code 17(b)(3). If the felony is reduced to a misdemeanor, the maximum punishment for the offense is reduced to one year, which is small enough to qualify for the Petty Offense Exception. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). This conviction, however, may still disqualify the client from eligibility for non-LPR cancellation. This bar for being convicted under INA 212(a) or 237(a)(2) does not require that a noncitizen actually be inadmissible or deportable under one of these statutes. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). The Ninth Circuit shares this view. Vasquez-Hernandez v. Holder, 90 F.3d 1053 (9th Cir. 2010); Mota v. Mukasey, 543 F.3d 1165 (9th Cir.2008). In deciding whether a person has been convicted of an offense under INA 212(a)(2), 237(a)(2), and 237(a)(3) for purposes of non-LPR cancellation, the BIA will look only to language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). In deciding whether a conviction is described under INA 212(a)(2), 237(a)(2), and 237(a)(3) for eligibility for non-LPR cancellation, the BIA will not consider whether the conviction was within five years of admission or other immigration requirements necessary for deportability. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). If an offense qualifies for the Petty Offense Exception and is punishable by less than a year, the noncitizen is eligible for cancellation because offense is not described under INA 237(a)(2), the crime of moral turpitude ground of deportability. Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010).

THREAT TO EXPOSE UNDOCUMENTED STATUS CAN CONSTITUTE CRIMINAL EXTORTION
David P. Weber, (Unfair) Advantage: Damocles Sword And The Coercive Use Of Immigration Status In A Civil Society, 94 Marquette L. Rev. 613 (2010) (When an immigrant is being threatened with a loss of property or something else of value, the threatening party, whether a lawyer or nonlawyer, may be engaging in the crime of extortion depending on the relevant . . . definition of the crime.).

BIBLIOGRAPHY " ADMISSIBILITY OF EVIDENCE OF WITNESS OR DEFENDANTS UNDOCUMENTED IMMIGRATION STATUS
Lupe Salinas, Benny Agosto, Jr., & Eloisa Morales Arteaga, But Your, Honor, Hes an Illegal! Can the Undocumented Workers Alien Status be Introduced at Trial, TEXAS BAR JOURNAL (2011).

CRIMINAL DEFENSE OF IMMIGRANTS " EVIDENCE " INADMISSIBILITY OF EVIDENCE OF DEFENDANTS UNDOCUMENTED IMMIGRATION STATUS IN CRIMINAL PROCEEDINGS
United States v. Baldenegro-Valdez, No. 10-00094-02-CR-W-DGK, slip op. at 2 (W.D. Mo. Mar. 11, 2011) (excluding evidence of a criminal defendants undocumented immigration status, sustaining a defense objection that such evidence was not relevant to guilt or innocence and, even if it was, it was unduly prejudicial).

OVERVIEW " CONTACT WITH DHS
USCIS and ICE issue new guidance on referring of cases to immigration proceedings and the issuance of NTAs in cases involving removable noncitizens. The USCIS memorandum outlines when the USCIS will issue an NTA (i.e. upon termination of conditional permanent residence), and when the USCIS must refer the case to USICE to determine whether an NTA should be issued (i.e. an N-400 application where the applicant has a criminal conviction). This memorandum goes into some detail on what to do when the N-400 applicant is eligible for naturalization but, at the same time, is subject to a criminal ground of removal. http://www.aila.org/content/default.aspx?docid=37578 The USICE memorandum discusses the scope of the previously announced review of cases currently pending before the EOIR, but notes that the review process will be reviewed and possibly changed after Jan. 13, 2012. http://www.aila.org/content/default.aspx?docid=37680 The USCIS guidance lists cases that are enforcement priorities for the DHS, including persons who are convicted of felonies, multiple misdemeanors, or misdemeanors involving violence, threats, sexual abuse, DUI, hit & run, drugs, or other significant threats to public safety. The guidance also lists low priority cases, including long-time LPRs with only a single non-violent offense, children, victims of domestic violence, DREAMers, persons who served in the U.S. military and others. http://www.aila.org/content/default.aspx?docid=37681

SAFE HAVENS " FEDERAL " MISDEMEANORS " OFFENSES WITH ONE YEAR MAXIMUM Finding and Creating Federal Misdemeanors with One-Year Maximum Sentences
The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors. Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense. This is useful where it is important to have a misdemeanor conviction, rather than a felony. E.g., aggravated felony crimes of violence under 18 U.S.C. 16(b); TPS felony disqualification. It is also useful to reduce a two-year maximum to a one-year maximum, to qualify for the Petty Offense Exception to CMT inadmissibility. See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). Counsel can do a database search of the entire United States Code and of the Code of Federal Regulations for phrases like "not more than two years" and "not more than 2 years." Two-year offenses are rare, but it would be nice to add them to the stock of offenses which we can use in negotiating misdemeanor pleas. For valuable lists of federal misdemeanors, see http://ocdw.com/pdf/102907/Federal%20Misdemeanors.pdf; http://nycrimbar.org/Members/briefs/Misdemeanors.pdf Thanks to Joe Beeler.

RELIEF " CANCELLATION FOR NON-PRS " CONVICTION BAR NOT APPLICABLE TO TRO VIOLATIONS
Immigration counsel can argue that INA 240A(b)(1)(C), barring 10-year non-LPR cancellation for anyone convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3), does not reach a person who was found by a court to have engaged in conduct that violated a qualifying portion of a protection order under INA 237(a)(2)(E)(ii), if the person was not convicted of an offense under the specified statutes. This removal ground does not require or mention a criminal conviction. On the other hand, it is based on a court determination of certain conduct regardless of whether that conduct constitutes a criminal offense, and regardless of whether the person was convicted of that conduct. Because INA 240A(b)(1)(C) requires a criminal conviction, rather than applying where the person merely committed an offense " as the Act so often does, it cannot apply to non-conviction based grounds such as INA 237(a)(2)(E)(ii). Because this removal ground is not based on a conviction, it cannot trigger the conviction-bar to non-LPR cancellation under INA 240A(b)(1)(C). Thanks to Jonathan Moore.

OVERVIEW " CONTACT WITH ICE " SECURE COMMUNITIES MANDATORY MEMO
An October 2010 ICE memo from ICE Deputy Legal Advisor Riah Ramlogan to ICE Assistant Deputy Director Beth Gibson presenting ICE's legal arguments for making Secure Communities mandatory. http://www.aila.org/content/default.aspx?docid=38217

OVERVIEW"CONTACT WITH ICE"INTERPRETER ISSUES
Use of interpreters at secondary immigration inspection: http://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-30133/0-0-0-35080/0-0-0-36316/0-0-0-36468.html

AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESSNESS " ATTEMPTED RECKLESSNESS
New York permits defendants to plead guilty to legally impossible crimes, including attempted reckless first-degree assault. See People v. Guishard, 15 A.D.3d 731, 789 N.Y.S.2d 332, 333 (2005) (affirming plea conviction to attempted assault in the first degree although the crime was a legal impossibility); Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010). Compare, United States v. Gomez"Hernandez, 680 F.3d 1171, 1175"78 & n. 4 (9th Cir. 2012) (defendant's conviction for attempted aggravated assault qualified as a crime of violence because, under Arizona law, it is not possible to be convicted of attempt without specific intent).