CAL POST CON " VEHICLES " HABEAS CORPUS -- DUE DILIGENCE AND TIMELINESS OF FILING A HABEAS PETITION IN CALIFORNIA STATE COURT IS MEASURED FROM THE DATE OF FINALITY OF THE DECISION ON WHICH THE CLAIM IS BASED
In re Lucero, 200 Cal.App.4th 38, 132 Cal.Rptr.3d 499 (3d Dist. Oct. 24, 2011)(the defendant did not unreasonably delay in filing habeas corpus petition, where he filed the petition within 10 months after the judicial decision on which the claim was based became final for all purposes when the time within which a petition for a writ of certiorari in the United States Supreme Court must have been filed).
POST CON RELIEF " UTAH " REDUCTION OF FELONY TO MISDEMEANOR " IMMIGRATION EFFECT
Utah Code Ann. 76-3-402 (allows for reduction of degree and sentence of a conviction). The OCC there lately has been using the Board's recent case in Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (maximum possible sentence for an offense, rather than the standard range under the State's sentencing guidelines, determines an alien's eligibility for the petty offense exception). Specifically, they argue that even when a conviction's level is lowered after the plea, that it is the original level's max potential sentence that controls for purposes of POE.
BIBLIOGRAPHY " CAL POST CON " EFFECT OF CALIFORNIA ORDERS SHORTENING PROBATION ON FEDERAL SAFETY VALVE SENTENCES
John Lanahan, Another Escape Hatch in the Safety Valve: United States v. Yepez, The Federal Tatler, No. 162 (September 29, 2011).
REMOVAL PROCEEDINGS " EVIDENCE " FIFTH AMENDMENT PRIVILEGE
Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (the privilege against self-incrimination may be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.); Matter of Benitez, 19 I&N Dec.
INADMISSIBLITY " BURDEN OF PROOF " RETURNING LAWFUL PERMANENT RESIDENT
Matter of Rivens, 25 I&N Dec. 623 (BIA Oct. 19, 2011) (DHS bears burden to show that a returning LPR is an applicant for admission under INA 101(a)(13)(C), 8 U.S.C. 1182(a)(13)(C)(2006)); see Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988) (holding, in the absence of a statutory standard, that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true); Matter of Kane, 15 I&N Dec. 258, 264 (BIA 1975); see also Landon v. Plasencia, 459 U.S.
CRIMES OF MORAL TURPITUDE " ACCESSORY AFTER THE FACT
Matter of Rivens, 25 I&N Dec. 623, 627 n.5 (BIA Oct. 19, 2011) (federal conviction of accessory after the fact, in violation of 18 U.S.C. 3 (2000), is a crime involving moral turpitude, but only if the underlying offense is a crime involving moral turpitude); see Matter of Sanchez-Marin, 11 I&N Dec.
AGGRAVATED FELONY " EXPLOSIVES OFFENSES " ARSON
Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) (New York conviction of attempted arson in the third degree, in violation of New York Penal Law 110, 150.10, is an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), relating to explosives material offenses, even though the state crime lacks the jurisdictional element in the applicable federal arson offense); following Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002).
POST CON RELIEF " CONVICTION " FINALITY " DIRECT APPEAL " PENDING APPEAL RENDERS A CONVICTION NONFINAL, SO IT CANNOT BE A BASIS FOR DEPORTATION IN IMMIGRATION PROCEEDINGS
Walcott v. Chertoff, 517 F.3d 149, 155 (2d Cir. 2008) (pendency of a direct appeal from a criminal conviction renders the conviction nonfinal and suspends an aliens deportability.)
RELIEF " LPR CANCELLATION OF REMOVAL " CONTINUOUS PRESENCE REQUIREMENT " STOP-TIME RULE
Santos-Reyes v. Attorney General, 660 F.3d 196 (3d Cir. Oct. 26, 2011) (date of commission of an offense, rather than date of arrests, tiggers the stop-time rule under INA 240A(d)(1), 8 U.S.C. 1229b(d)(1)).
ADJUSTMENT OF STATUS " RESCISSION " STATUTE OF LIMITATIONS
Malik v. Atty Gen. of the U.S. (3d Cir. Oct. 4, 2011) (five-year statute of limitations for rescission of LPR status, at INA 246(a), applies to LPRs who obtained their status through adjustment of status, but not those who entered after consular processing).
