POST CON RELIEF - SENTENCE - GROUNDS - ALLOCUTION - NO RIGHT OF ALLOCUTION ON LIMITED REMAND FOR RESENTENCING - CRIMINAL LAW & PROCEDURE, SENTENCING
United States v. Silva, 472 F.3d 683 (9th Cir. Jan. 3, 2007) (defendant does not have a right to allocute during a limited remand to the district court from a sentencing appeal).
http://caselaw.lp.findlaw.com/data2/circs/9th/0550871p.pdf
CRIME OF MORAL TURPITUDE - COMMUNICATION WITH MINOR FOR IMMORAL PURPOSES CONSTITUTED CMT
Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes of a sexual nature, in violation of Wash. Rev. Code 9.68A.090, categorically constituted crime of moral turpitude).
JUDICIAL REVIEW - JURISDICTION LIMITATION - COURT OF APPEALS HAS PETITION FOR REVIEW JURISDICTION OVER POLITICAL ASYLUM DETERMINATION, DESPITE CRIME OF MORAL TURPITUDE CONVICTION, BECAUSE ASYLUM IS STATUTORILY EXEMPT FROM JURISDICTION-STRIPPING STATUTE
Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes of a sexual nature, in violation of Wash. Rev. Code 9.68A.090, although it constituted crime of moral turpitude, did not deprive court of appeals of petition for review jurisdiction over political asylum claim because jurisdiction-stripping statute, 8 U.S.C. 1252(a)(2)(B)(ii), specifically exempts asylum cases).
JUDICIAL REVIEW - JURISDICTION LIMITATION - QUESTION OF WHAT IJ MAY CONSIDER IN MAKING PSC DETERMINATION IS NOT DISCRETIONARY DECISION
Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (question of what evidence IJ may consider in making decision whether conviction constitutes PSC is not a discretionary decision).
RECORD OF CONVICTION - PARTICULARLY SERIOUS CRIME - LIMITED TO RECORD OF CONVICTION
Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) ("only the record of conviction and sentencing information may be considered in determining whether Morales's conviction was for a particularly serious crime."), citing In re L-S-, 22 I. & N. Dec. 645, 651 (BIA 1999).
POST CON RELIEF - AFTER VACATUR, FEDERAL COURT MUST RESENTENCE DEFENDANT WHOSE ORIGINAL SENTENCE HAD BEEN ENHANCED BY VACATED CONVICTION
United States v. Pettiford, 101 F.3d 199, 200-202 (1st Cir. 1996); United States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996); United States v. Cox, 83 F.3d 336, 339-340 (10th Cir. 1996); United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994) (government conceded Custis allowed defendant to reopen sentencing); United States v. LaValle, 167 F.3d 1255 (9th Cir. 1999); cf. United States v. Fondren, 54 F.3d 533, 535 (9th Cir. 1995).
POST CON RELIEF - VACATUR MUST BE PRESENTED TO IMMIGRATION COURT TO BE CONSIDERED ON PETITION FOR REVIEW
Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. 1252(b)(4)(A); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th Cir.
SENTENCE - CONFINEMENT - HOME DETENTION - ANKLE BRACELET
Ilchuk v. Attorney General of U.S., 434 F.3d 618 (3d Cir. Jan. 17, 2006) (house arrest with electronic monitoring constitutes "imprisonment" for purposes of deportation under INA 237(a)(2)(A), 8 U.S.C. 1227(a)(2)(A)); Rodriguez v. Lamer, 60 F.3d 745, 749 (11th Cir. 1995) (home confinement may constitute custody); see also Salim v. Reno, 2000 WL 33115910, at *4-*5 (E.D.Pa. Jan.16, 2001) (finding that a convict whose sentence was suspended in favor of mental treatment in a state hospital and later in his home "was sentenced and imprisoned within the meaning of the INA").
SENTENCE -- SENTENCE TO TREATMENT FACILITY
Sentence to a state mental hospital following conviction of a crime is a "sentence" for immigration purposes. Matter of V, 7 I. & N. Dec. 242 (BIA 1956). Sentence to a drug treatment facilities is considered a sentence for purposes of the satisfying the definition of "convicted." Dunn-Martin v. District Director, 426 F.2d 894 (9th Cir. 1970); Matter of Robinson, 15 I. & N. Dec. 197 (BIA 1975); United States ex rel. Abbenante v. Butterfield, 112 F. Supp. 324, 326 (E.D. Mich. 1953), aff'd per curiam, 212 F.2d 794 (6th Cir.
INADMISSIBILITY - TIME OF EVALUATION - CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - TIME OF DECISION
Admissibility is normally evaluated under the law at the time of the application to enter or adjust status, but if the law has changed between the date of application, and the date of decision, the decisionmaker will apply law as it exists at the time of the decision. See, e.g., Matter of Alarcon, 20 I. & N. Dec. 557 (BIA 1992) (BIA assesses application for INA 212(h) waiver of inadmissibility under law at time of decision, not the statute as it existed when the application for the waiver was made); Matter of Alarcon, 20 I. & N.