CONTROLLED SUBSTANCES - DRUG ABUSE AND ADDICTION
USCIS released a new medical examination form, dated 04/02/08, which includes specific questions on controlled substance use and addiction (Part 2, Q. 4), and has detailed instructions to physicians about completing these questions (page 6). Counsel must therefore prepare clients for medical exams and interviews by asking, "Have you ever smoked marijuana?" and "Are you in remission?
AGGRAVATED FELONY - PHRASE "RELATING TO"
Article, Breadth and Narrowness of the Phrase "Relating to" in Removal Grounds
DOMESTIC VIOLENCE - DEPORTATION GROUND -- CHILD ABANDONMENT -- DEFINITION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ n.14 (BIA May 20, 2008) (BIA decision leaves open definition of crime of child abandonment: "it is not as evident to us that crimes of "child abandonment" would be so encompassed. We therefore leave that question for another day.").
DOMESTIC VIOLENCE - DEPORTATION GROUND - CRIME OF CHILD ABUSE - LIMITATION TO ACTS OR OMISSIONS BY PARENT OR ONE ACTING IN LOCO PARENTIS
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (despite the laws of a number of states in 1996, BIA refused to limit "crime of child abuse" to acts or omissions by parents or those acting in loco parentis).
DOMESTIC VIOLENCE - CHILD ABUSE - FOURTH DEGREE ASSAULT - NOT CATEGORICALLY A CRIME OF CHILD ABUSE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington conviction of fourth degree assault, in violation of Wash. Rev. Code 9A.36.041, did not categorically constitute a "crime of child abuse," under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), because statutory elements contain no element of age of the victim, and "administrative record does not establish that the respondent was convicted of an offense that had the juvenile status of the victim as an element." (emphasis in original)).
RECORD OF CONVICTION - RESTITUTION ORDER - FAILURE TO CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF NATURE OF CONVICTION WHERE RESTITUTION AWARD MAY BE BASED ON PREPONDERANCE OF THE EVIDENCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington restitution order, contained in judgment, indicating that the respondent owed no restitution to his "child victim" did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. Specifically, in Washington the facts upon which a restitution award may be based need only have been proven to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173, 1175 (Wash. Ct. App. 2000).
CATEGORICAL ANLAYSIS - BURDEN OF PROOF - FACT REQUIRED TO BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE IS NOT SUFFICIENTLY SHOWN BY RECORD OF CONVICTION THAT NEED BE SHOWN ONLY BY A PREPONDERANCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington restitution order, contained in judgment, indicating that the respondent owed no restitution to his "child victim" did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. Specifically, in Washington the facts upon which a restitution award may be based need only have been proven to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173, 1175 (Wash. Ct. App. 2000).
RECORD OF CONVICTION - NO CONTACT ORDER - FAILURE TO CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF NATURE OF CONVICTION WHERE NO CONTACT ORDER MAY BE BASED ON PREPONDERANCE OF THE EVIDENCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington no contact order, contained in criminal case file, identifying the victim's date of birth, did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. . . . [A]lthough a "no-contact order" must bear a relationship to an offender's convicted offense, no direct causal link need be established between such an order and the crime committed. State v. Warren, 138 P.3d 1081, 1094 (Wash. Ct. App. 2006) (citing State v. Llamas-Villa, 836 P.2d 239 (Wash. Ct. App. 1992)).
RECORD OF CONVICTION - CHARGE - ORIGINAL CHARGE AT TIME OF PLEA COULD NOT BE CONSIDERED AS PART OF RECORD OF CONVICTION SINCE AGE OF VICTIM DID NOT APPEAR IN FINAL, BACK-DATED CHARGE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21.
POST CON RELIEF - MODIFICATION OF RECORD OF CONVICTION SOLELY FOR IMMIGRATION PURPOSES MAY NOT BE AFFECTIVE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21.
