JUDICIAL REVIEW - RES JUDICATA - COLLATERAL ESTOPPEL
United States v. Castillo-Basa, __ F.3d __, 2007 WL 570326 (9th Cir. Feb. 26, 2007) (doctrine of collateral estoppel, applied in the criminal double jeopardy context, prevents government from charging illegal entrant with perjury where during the initial illegal re-entry prosecution, the government could not find the taped record of the deportation hearing, but later finds the tape after acquittal; "The Double Jeopardy Clause does not only bar a second prosecution on the same charge of which a defendant has been previously acquitted (or convicted).
INVESTIGATION - FOIA
On Feb. 27, 2007, the USCIS created a special FOIA processing track for noncitizen in removal proceedings, with the goal of expediting processing of those FOIA requests. Special FOIA Processing Track for Individuals Appearing Before an Immigration Judge, 72 Fed. Reg. 9017 (Feb. 28, 2007).
RELIEF - 212(C) RELIEF - ELIGIBILITY - NO COMPARABLE GROUNDS BAR DID NOT VIOLATE EQUAL PROTECTION BY TREATING SIMILARLY SITUATED LPRS DIFFERENTLY BASED SOLELY ON WHETHER THEY TRAVELLED OUTSIDE THE UNITED STATES
Dalombo Fontes v. Gonzales, ___ F.3d ___, 2007 WL 949590 (1st Cir. March 30, 2007) (rejecting argument that the Board of Immigration Appeals erred by finding that noncitizen was not eligible for discretionary relief under former INA 212(c) violates equal protection by treating similarly situated permanent residents differently based solely on whether they have traveled outside the United States), citing Kim v. Gonzales, 468 F.3d 58, 62-63 (1st Cir.2006).
JUDICIAL REVIEW - RES JUDICATA - EXCEPTION TO RES JUDICATA BASED ON CHANGE IN THE LAW
Dalombo Fontes v. Gonzales, ___ F.3d ___, 2007 WL 949590 (1st Cir. March 30, 2007) (finding that noncitizen could be found deportable in 1997 proceedings on the basis that he was convicted of a 1985 aggravated felony crime of violence, even though he was found not to be an aggravated felon in 1994 proceedings, when the aggravated felon crime of violence definition was not applied retroactively; court agreed with BIA that change of law is an exception to res judicata).
JUDICIAL REVIEW - APPEAL DEADLINE - REAL ID
Dalombo Fontes v. Gonzales, ___ F.3d ___, 2007 WL 949590 (1st Cir. March 30, 2007) (May 11, 2005 changes to jurisdictional bars to review does not provide exception for filing late appeal, even though appeal was jurisdictionally barred prior to that date).
JUDICIAL REVIEW - APPEAL - MOOTNESS -- APPEAL FROM ILLEGAL REENTRY SENTENCE IS MOOT BECAUSE OF DEFENDANT'S RELEASE FROM PRISON AND DEPORTATION
United States v. Rosenbaum-Alanis, ___ F.3d ___, 2007 WL 926832 (5th Cir. March 29, 2007) (defendant's release from prison and deportation renders court of appeals incapable of granting relief from erroneous aggravated felony finding, so appeal is dismissed as moot).
JUDICIAL REVIEW - REMOVAL PROCEEDINGS - EVIDENCE - ARGUMENT OF COUNSEL DOES NOT CONSTITUTE EVIDENCE
Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007) (argument of counsel does not constitute evidence), citing Carrillo-Gonzalez v. INS, 353 F.3d 1077 (9th Cir. Dec. 31, 2003) ("In this case, the record contains no evidence that Carrillo-Gonzalez was in any way defrauded by a notary; Carrillo-Gonzalez forwards this claim solely through the argument of her counsel, which does not constitute evidence.").
CONVICTION - NATURE OF CONVICTION - ELEMENTS OF OFFENSE OF CONVICTION - STATE JUDICIAL DECISIONS INCLUDE INTERMEDIATE APPELLATE COURTS AS WELL AS STATE SUPREME COURT
Blake v. Gonzales, ___ F.3d ___, ___, n.3, 2007 WL 914865 (2d Cir. March 28, 2007) (in determining the elements of the offense of conviction under state law, "we are bound to apply the law as interpreted by a state's intermediate appellate courts unless we find persuasive evidence that the state's highest court, which has not ruled on this issue, would reach a different conclusion. See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir.1999).").
DIVISIBLE STATUTE ANALYSIS - WHETHER STATUTE IS DIVISIBLE - MASSACHUSETTS STATUTE PROHIBITING ASSAULT ON POLICE OFFICER AND NUMEROUS OTHER PUBLIC OFFICIALS CONSTITUTED DIVISIBLE STATUTE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, constituted divisible statute - allowing analysis of specific offense of assault on police officer, as distinguished from assault on other possible victims, because "the various categories of public safety officers protected by the statute are listed sequentially, each separated by a comma, and are phrased in the disjunctive."), quoting Canada v.
AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) -- MASSACHUSETTS CONVICTION OF ASSAULT ON OFFICER UNDER INTENTIONAL THEORY CONSTITUTED CRIME OF VIOLENCE SINCE HAS ELEMENT OF USE OF FORCE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, under intentional theory of assault, constitutes a crime of violence under 18 U.S.C. 16(a), since it has an element of use of force).
