Criminal Defense of Immigrants
§ 12.13 2. Eligibility for FJDA Transfer
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CRIM DEF - JUVENILES - FJDA DOES NOT REQUIRE CHARGES ADDED AFTER TRANSFER TO ADULT COURT TO BE SUBJECT TO ADDITIONAL TRANSFER HEARING
United States v. James, ___ F.3d ___, ___, 2009 WL 467070 (9th Cir. Feb. 26, 2009) (the Federal Juvenile Delinquency Act allows additional criminal charges to be brought against a juvenile who has already been transferred from federal juvenile court to United States District Court for trial as an adult without requiring another juvenile transfer hearing on the additional charges), citing 18 U.S.C. 5032 ("Whenever a juvenile transferred to district court under this section is not convicted of the crime upon which the transfer was based or another crime which would have warranted transfer had the juvenile been initially charged with that crime, further proceedings concerning the juvenile shall be conducted pursuant to the provisions of this chapter." [emphasis added]).
CONVICTION - JUVENILE - STATE CONVICTION OF 16 YEAR OLD IN ADULT COURT CONSTITUTED CONVICTION FOR IMMIGRATION PURPOSES, REGARDLESS OF HOW DEFENDANT WOULD HAVE BEEN TREATED UNDER THE FEDERAL JUVENILE DELINQUENCY ACT
Vargas-Hernandez v. Gonzales, ___ F.3d ___, 2007 WL 2215796 (9th Cir. Aug. 3, 2007) (state conviction of voluntary manslaughter, with 11-year suspended sentence imposed, on condition of serving 365 days in custody as condition of probation, constituted a deportable aggravated felony conviction, despite the fact the defendant was 16 years old at the time of the offense, and argued he would have been treated as a juvenile under the Federal Juvenile Delinquency Act, because the state convicted him in adult court which was binding on the immigration courts); citing Morasch v. INS, 363 F.2d 30, 31 (9th Cir. 1966) (statute permitting deportation upon conviction of two crimes of moral turpitude did not allow for differentiation by age at the time of offense; although Oregon could have treated the alien as a juvenile offender, it chose to treat him as an adult, and court of appeal refused to reclassify the alien's adult conviction as a juvenile adjudication, concluding that "the Service was entitled to take the record as it found it, and neither it nor we are required to import separate juvenile proceedings which were not used by the Oregon court."); Vieira-Garcia v. INS, 239 F.3d 409, 412-14 (1st Cir. 2001) (rejecting argument that, although noncitizen was tried as an adult by Rhode Island, the FJDA should apply; the court noted that INA 101(a)(48)(A) is clear and unambiguous, and the fact that the petitioner pleaded guilty and a judge ordered him imprisoned meant that the petitioner had a "conviction" under the statute: "[n]either we nor the BIA have jurisdiction to determine how a state court should adjudicate its defendants. Once adjudicated by the state court, as either a juvenile or an adult, we are bound by that determination.").