(B)  Use of Convictions Not Charged in Immigration Court.  At least one court has held that an immigration judge may deny relief based upon a criminal conviction that was not charged as a ground of removal in the Notice to Appear.[20]  This means that both immigration and criminal counsel need to be aware of the potential immigration effects of every conviction in a noncitizen client’s record, not just the convictions that have been charged by the DHS as grounds of removal. 

[20] Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. Jul. 31, 2006) (criminal conviction not charged in the NTA could be used to find that a noncitizen was ineligible for relief; in the context of cancellation of removal the IJ accepted proof of a criminal conviction not charged in the NTA to find noncitizen was ineligible for cancellation of removal as a noncitizen convicted of an aggravated felony), following Brown v. Ashcroft, 360 F.3d 346, 353 (2d Cir. 2004) and Aalund v. Marshall, 461 F.2d 710, 712-713 (5th Cir. 1972).

RELIEF " IMMIGRANT LEGAL RESOURCE CENTER " NEW IMMIGRATION RELIEF TOOLKIT
The ILRC has expanded and updated the free Relief Toolkit for Defenders. The purpose of the Toolkit is to help defenders quickly identify possible immigration applications or relief for which the client might be eligible. The toolkit is one of the Notes from the California Chart and Notes. http://www.ilrc.org/files/documents/17._relief_toolkit_jan_2014_final_0.pdf Thanks to Kathy Brady.

BIA

RELIEF " ADJUSTMENT OF STATUS " INA 245(i) GRANDFATHERING LIMITS
Matter of Legaspi, 25 I. & N. Dec. 328 (BIA 2010) (noncitizen is not independently grandfathered for purposes of adjustment of status under INA 245(i), simply by virtue of marriage to another noncitizen who is grandfathered under section 245(i) as the result of having been a derivative beneficiary of a visa petition).

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.

JUDICIAL REVIEW - PLAIN ERROR TEST - SUBSTANTIAL RIGHTS ARE AFFECTED WHERE THERE IS A REASONABLE PROBABILITY THAT THE OUTCOME WOULD HAVE BEEN DIFFERENT ABSENT THE ERROR
United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. Apr. 9, 2009) (to warrant reversal under the "plain error" test, the error must affect the defendant's substantial rights, i.e., there must exist "a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence."); citing United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (quoting United States v. Gilman, 478 F.3d 440, 447 (1st Cir.2007)).

Fifth Circuit

JUDICIAL REVIEW - QUESTIONS OF FACT
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (whether noncitizen was convicted of an offense that could be considered an aggravated felony, where elements of statute described an aggravated felony but the judgment lacked essential elements of the offense, was a question of fact over which the court lacked jurisdiction).

Eighth Circuit

RELIEF - BURDEN OF PROOF - CANCELLATION OF REMOVAL
Sanchez v. Holder, 614 F.3d 760 (8th Cir. Aug. 2, 2010) (no statutory support for petitioner's argument that the burden of proof rested on the government in this case to prove his conviction of an aggravated felony to disqualify him from eligibility for cancellation of removal). Note, this case did not cite or discuss Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007).

RELIEF - DUE PROCESS
Sanchez-Velasco v. Holder, 593 F.3d 733 (8th Cir. Jan. 20, 2010) (noncitizens have no right to due process in purely discretionary remedy of cancellation of removal, therefore noncitizen could not claim IJ violated due process by excluding witnesses).

Ninth Circuit

RELIEF " BURDEN OF PROOF " INCONCLUSIVE RECORD OF CONVICTION
Almanza-Arenas v. Holder, ___ F.3d ___, ___ (9th Cir. Nov. 10, 2014) (Almanza-Arenass record of conviction did not conclusively show whether or not he was convicted of a crime involving moral turpitude. The BIA not only engaged in the modified categorical approach impermissibly, but also determined that, where the record of conviction was inconclusive, the petitioner was ineligible for cancellation of removal. This was in error. In Moncrieffe, the Supreme Court held that [b]ecause we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense. 133 S.Ct. at 1684 (internal quotations omitted). Because the record is inconclusive as to whether Almanza-Arenas was convicted for intending to permanently or temporarily take a vehicle we must presume that he was convicted for joyriding, which is not a crime of moral turpitude.), finding Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) (a petitioner cannot fulfill his burden to demonstrate eligibility for cancellation by establishing an inconclusive record), was abrogated in part by Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (an alien convicted under a state statute whose elements are not necessarily the same as the generic federal disqualifying offense remains eligible for cancellation).

RELIEF - BURDEN OF PROOF
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (record of conviction that is inconclusive as to the exact nature of the controlled substance involved is sufficient to establish eligibility for cancellation of removal, placing on the government the burden of going forward to prove that the controlled substance the petitioner possessed was heroin or some other controlled substance listed under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)); following Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-30 (9th Cir.2007) (person seeking "to prove eligibility for cancellation of removal can meet his or her initial burden by pointing to an inconclusive record of conviction."); S-Yong v. Holder, 578 F.3d 1169, 1174, 1176 (9th Cir.2009).

Other

RELIEF - VISA WAIVER PROGRAM COUNTRIES
Countries added to Visa Waiver Program (wherein admittees waive rights to immigration hearings and relief), as of November 17, 2008, include: Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic. Federal Register, Vol. 73, No. 222, Monday, Nov. 17, 2008.