JUDICIAL REVIEW " PETITION FOR REVIEW " FAILURE TO EXHAUST CLAIM EXCUSED WHERE BIA DECIDES IT ON THE MERITS
Garcia-Carbajal v. Holder, 625 F.3d 1233, 1238 (10th Cir. Nov. 5, 2010) (if the BIA deems an issue sufficiently presented to consider it on the merits, such action by the BIA exhausts the issue as far as the agency is concerned ... and that is all 1252(d)(1) requires.); quoting Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. Sept. 21, 2007).
CITIZENSHIP " DERIVATIVE CITIZENSHIP " PERMANENT RESIDENCE REQUIREMENT
United States v. Forey-Quintero, 626 F.3d 1323 (11th Cir. Nov. 30, 2010) (phrase "begins to reside permanently in the United States while under the age of eighteen years," contained in former derivative citizenship statute required status of lawful permanent resident; mothers naturalization prior to defendants 18th birthday did not confer derivative U.S. citizenship as a defense to illegal reentry).
PRACTICE ADVISORY " POST CON RELIEF " FEDERAL " SENTENCE PROHIBITION AGAINST SENTENCE BASED ON RELEVANT CONDUCT ALREADY THE BASIS OF A SENTENCE
Counsel should negotiate sentence to take into account all of the relevant conduct so if the client is charged in another district, the sentence in the second district cannot punish that conduct a second time. U.S.S.G. 5G1.3(b). Several cases prevented prosecutors from later federal prosecutions following a plea in a different district. United States v. Gebbi, 294 F.3d 540 (3d Cir. 2002); United States v. Randolph, 230 F.3d 243 (6th Cir. 2000); United States v. Carter, 454 F.2d 426 (4th Cir. 1972); United States v. Von Thournout, 100 F.3d 590 (8th Cir. 1996).
RELIEF " TEMPORARY PROTECTED STATUS " TPS
Matter of Sosa, 25 I. & N. Dec. 391 (BIA 2010) (a grant of Temporary Protected Status waives certain grounds of inadmissibility or deportability solely for the limited purpose of permitting an alien to remain and work temporarily in the United States for the period of time that TPS is effective, but it is not proper to terminate an aliens removal proceedings based on a grant of TPS).
http://www.justice.gov/eoir/vll/intdec/vol25/3702.pdf
CAL POST CON " SENTENCE " GROUNDS " PROBATION CONDITION UNCONSTITUTIONALLY VAGUE
In In re E.O. 188 Cal.App.4th 1149 (6th Dist. Ct. App. 2010), the Sixth District held that a probation condition restricting the minor's freedom to approach or enter a courthouse was unconstitutionally vague.
CAL POST CON " GROUNDS " STATE ADVISAL STATUTE PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " READABILITY
In doing so, it stressed the need for precise and comprehensible probation conditions, especially in juvenile cases. It analyzed the text of the probation condition in question using an "online readability tester," which showed it would take over 28 years of education to comprehend the condition as written. (Id. at p.
PRACTICE ADVISORY " POST CON RELIEF " DIRECT APPEAL " HABEAS CORPUS " PLEA AGREEMENT POSTCONVICTION WAIVERS
Over the past several years, waivers of a defendants postconviction rights"for example, habeas corpus 2255 motions"have become a standard feature of plea agreements in federal cases. While courts have upheld a knowing and intelligent relinquishment of rights, these waivers are not without limits.
Specifically, ethical considerations constrain both the prosecution and defense. Criminal defendants are entitled to effective conflict-free legal representation at every stage of the prosecution. The government is forbidden from engaging in prosecutorial misconduct.
PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " STATUTE " DUE PROCESS FORBIDS SHIFTING BURDEN TO DEFENDANT
Burden shifting presumptions involving elements of an offense violate due process. The Due Process Clause forbids the Court from relieving the prosecution of the burden of going forward with evidence or the burden of persuasion with respect to any of the essential elements specified by the legislature for the charged offense. Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 2420, 105 L. Ed.
PRACTICE ADVISORY " POST CON RELIEF " FEDERAL " VEHICLES "CORAM NOBIS " GENERAL STANDARD " NINTH CIRCUIT
I. General Standard For Federal Coram Nobis Relief In The Ninth Circuit
Coram nobis relief is available to challenge the validity of a conviction, even though the sentence has been fully served, under circumstances compelling such action to achieve justice. United States v. Morgan, 346 U.S. 502, 511 (1954). It fills a void in the availability of post-conviction remedies in federal criminal cases, Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985), providing petitioners who have been released from custody an opportunity to challenge convictions for errors of fact . . .
PRACTICE ADVISORY " JUDICIAL REVIEW " PETITION FOR REVIEW " BIA CANNOT BY REGULATION LIMIT ITS OWN JURISDICTION
In Union Pacific R.R. v. Brotherhood of Loco. Engineers, 130 S.Ct. 584 (2009), the Supreme Court held that an agency cannot by regulation circumscribe its own jurisdiction. This doctrine could be used to try to prevent the BIA from declining to consider a motion to reopen after the client is outside the country. The court of appeal need not defer, under Chevron, to the BIAs illegal action in refusing to exercise jurisdiction under 8 CFR 1003.3(e)s departure bar.
