IMMIGRATION OFFENSES - ILLEGAL REENTRY - COLLATERAL ATTACK
United States v. Medina-Avila, ___ F.Supp.2d ___, 2008 WL 4446693 (D.Ariz. Sept. 30, 2008) (illegal reentry indictment dismissed, on grounds the underlying deportation order was legally invalid, because the immigration judge erroneously failed to advise the noncitizen that he was eligible for a waiver of deportability under INA 212(c), which rendered the removal proceedings fundamentally unfair).
RELIEF - INA 212(c) WAIVER
United States v. Medina-Avila, ___ F.Supp.2d ___, 2008 WL 4446693 (D.Ariz. Sept. 30, 2008) (illegal reentry indictment dismissed, on grounds the underlying deportation order was legally invalid, because the immigration judge erroneously failed to advise the noncitizen that he was eligible for a waiver of deportability under INA 212(c), which rendered the removal proceedings fundamentally unfair).
RECORD OF CONVICTION - ALFORD PLEA - PROSECUTION STATEMENT OF FACTS AS FACTUAL BASIS DOES NOT CONSTITUTE PART OF RECORD OF CONVICTION WHERE DEFENDANT DOES NOT ADMIT THEIR TRUTH
Matter of Dennis, A041-468-793 (BIA Aug. 25, 2008) (unpublished) ("BIA affirms the decision of an Immigration Judge holding that a recitation of facts by a criminal prosecutor during a plea hearing cannot be considered as part of the modified categorical approach if the defendant pleads guilty under the Alford doctrine and thus does not confirm the truthfulness of the facts during the plea hearing."), siting North Carolina v. Alford, 400 U.S. 25 (1970).
http://bibdaily.com/pdfs/BIAu%208-25-08%20Dennis.pdf
RELIEF - VOLUNTARY DEPARTURE
United States v. Garcia, 2008 WL 3890167 (E.D.N.Y., Aug. 19, 2008) (successful collateral attack of deportation order where IJ failed to inform noncitizen of possibility of voluntary departure).
ILLEGAL RE-ENTRY - COLLATERAL ATTACK
United States v. Garcia, 2008 WL 3890167 (E.D.N.Y., Aug. 19, 2008) (successful collateral attack of deportation order where IJ failed to inform noncitizen of possibility of voluntary departure).
NATURE OF OFFENSE - CATEGORICAL ANALYSIS - COURT CANNOT GO OUTSIDE THE ELEMENTS OF THE OFFENSE OF CONVICTION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (in evaluating the nature of the offense of conviction under the categorical analysis for removal purposes, the court cannot go outside the elements of the offense of conviction).
NATURE OF OFFENSE - MODIFIED CATEGORICAL ANALYSIS - COURT CANNOT GO OUTSIDE THE ELEMENTS OF THE OFFENSE OF CONVICTION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (in evaluating the nature of the offense of conviction under the modified categorical analysis for removal purposes, the court cannot go outside the elements of the offense of conviction).
AGGRAVATED FELONY - DEFINITION OF AGGRAVATED FELONY - WHERE THE AGGRAVATED FELONY DEFINITION CONTAINS A PHRASE CONGRESS HAS DEFINED UNDER FEDERAL CRIMINA LAW, THE COURT WILL FIRST LOOK TO THAT FEDERAL DEFINITION IN DEFINING THE PHRASE
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (where the aggravated felony definition uses a phrase used elsewhere in federal law, the court will first look at a statute defining that phrase as a federal criminal offense).
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) ("a conviction which constitutes 'sexual abuse of a minor' must necessarily contain an element of abuse. We have previously construed the word 'abuse' as physical or nonphysical misuse or maltreatment' or use or treat[ment] so as to injure, hurt, or damage.") (internal quotation marks omitted), quoting United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir. 2006) (quoting United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001); see also United States v.
JUDICIAL REVIEW - DEFERENCE - NO CHEVRON DEFERENCE IS DUE TO ONE-JUDGE, NON-PRECEDENTIAL, UNPUBLISHED BIA ORDER
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (court of appeals owes no Chevron deference to one-judge, non-precedential, unpublished BIA order), citing United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).
