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.

Velazquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir. 2006) (internal quotation marks omitted) (BIA dictum is not a statutory interpretation that carries the force of law, and thus is not entitled to deference); cf. United States v. Johnson, 256 F.3d 895, 914-15 (9th Cir. 2001) (a holding, as opposed to dicta, is reached after reasoned consideration, in which the court undeniably decided the issue, after argument from both parties).

People v. Babylon, 39 Cal.3d 719 (1985) (where a statute defining a criminal offense was amended, narrowing the scope of punishable acts, while the case was on appeal, and there was no savings clause applied to the former statute, the defendants could no longer be prosecuted under the current statute which no longer proscribed their conduct).

Commonwealth v. Lavrinenko, 473 Mass. 4238 N.E.3d 278 (Oct. 5, 2015) (defense counsel must make a reasonable inquiry into the defendants immigration status, even if defendant does not initially raise the issue; prejudice may be established through a totality of the circumstances examination of immigration consequences of conviction, especially if defendant is a refugee or asylee).

Mowlana v. Lynch, ___ F.3d ___, ___, 2015 WL 5730791 (8th Cir. Sept. 30, 2015) (federal conviction for unauthorized use, transfer, acquisition, and possession of food stamp benefits, under 7 U.S.C. 2024(b)(1), was fraud and deceit aggravated felony in which the loss to the victim or victims exceeds $10,000, 8 U.S.C. 1101(a)(43)(M)(i), since this offense requires knowing that conduct was contrary to statutes or regulations); see Liparota v. United States, 471 U.S. 419, 433 (1985) (elements of 7 U.S.C.

Zelaya v. Secretary, Florida Dept. of Corrections, ___ F.3d ___, 2015 WL 4998431 (11th Cir. Aug. 24, 2015) (district court committed no error in declining to sua sponte recharacterize pro se inmate's 2241 habeas petition as 2255 motion to vacate, over his objection; and inmate failed to establish that 2255 motion to vacate was inadequate or ineffective to test legality of his detention).

Garcia v. Lynch, ___ F.3d ___, 2015 WL 4899018 (9th Cir. Aug. 18, 2015) (statutory criminal bar to judicial review at 8 U.S.C. 1252(a)(2)(C), does not strip the circuit court of jurisdiction to review the denial of a procedural motion that rests on a ground independent of the conviction that triggered the bar, such as an appeal based upon denial of a motion to continue).

People v. Shepard, ___ Cal. App. 4th ___, 191 Cal.Rptr.3d 429 (3d Dist. Aug. 19, 2015) (affirming denial of petition for a certificate rehabilitation, under to Penal Code 4852.01, since defendant waived his right to the hearing and the right to counsel when he left the courthouse without participating in his hearing).
[Cert of rehab]

Crace v. Herzog, ___ F.3d ___, 2015 WL 4773456 (9th Cir. Aug. 14, 2015) (affirming grant of habeas corpus relief where Washington Supreme Court's rejection of petitioners claim under Strickland v. Washington was an unreasonable application of clearly established federal law under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), and petitioner's claim of ineffective assistance of counsel warranted relief, since trial counsel was deficient for failing to request a jury instruction on unlawful display of a weapon, a lesser included offense of second degree assault).

United States v. Rodriguez-Vega, ___ F.3d ___, 2015 WL 4773519 (9th Cir. Aug. 14, 2015) (defense counsel's failure to inform defendant of the virtual certainty of removal prior to her guilty plea amounted to deficient performance; but for counsel's error, defendant would have negotiated plea bargain not requiring her removal or would have gone to trial; statements that she faced the possibility of removal did not eliminate the prejudice resulting from defense counsel's deficient performance).