JUDICIAL REVIEW - PETITION FOR REVIEW -- FUGITIVE DISENTITLEMENT DOCTRINE RESULTS IN DISMISSAL OF PETITION FOR REVIEW
In quite a few cases recently, the court have denied petitions for review on the basis that the petitioner is a fugitive, but this result is not automatic. See Annot., Application of "Fugitive Disentitlement Doctrine" in Federal Civil Actions, 176 A.L.R. FED. 333 (2002). Counsel can consider recommending that the client surrender to the DHS so as no longer to be a fugitive, thus mooting the fugitive disentitlement doctrine. Counsel can also argue equitable, compelling reasons why the court should hear case anyway.
CONTROLLED SUBSTANCES - DEPORTABILITY - 30 GRAM EXCEPTION - DOES NOT APPLY TO POSSESSION IN PRISON
Matter of Moncada-Servellon, 24 I. & N. Dec. 62 (BIA 2007) (exception to deportability under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), for a noncitizen convicted of possessing 30 grams or less of marijuana for his own use does not apply to a noncitizen convicted under a statute that has an element requiring that possession of the marijuana be in a prison or other correctional setting).
GOOD MORAL CHARACTER - STATUTORY BARS -- HABITUAL DRUNKARD
If the government argues that several convictions of driving under the influence of alcohol mean the person is an habitual drunkard, and therefore statutorily barred from showing good moral character for purposes of naturalization, counsel can: (1) obtain a report from a private psychiatrist with an independent evaluation of the question, (2) send the client to AA meetings, (c) obtain a certificate of completion from the program, and (4) argue that having a dependent personality does not make a person an alcoholic.
RELIEF - 212(C) RELIEF - JURY TRIAL BAR
Carranza-de Salinas v. Gonzales, 477 F.3d 200 (5th Cir. Jan. 23, 2007) (noncitizen convicted after jury trial is eligible for relief under former INA 212(c), if the noncitizen can affirmatively establish actual, subjective reliance, i.e., that s/he waited to apply for 212(c) defensively, before an IJ, rather than file affirmatively with the DD); accord, Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004); Wilson v. Gonzales, 471 F.3d 111 (2d Cir.
RELIEF - 212(C) RELIEF - ADVANTAGE OF WAITING BEFORE APPLICATION TO ACCRUE GREATER REHABILITATION
Matter of Gordon, 17 I. & N. Dec. 389, 391-92 (BIA 1980) (because it is more difficult for LPRs who have recently committed criminal acts to show that discretion should be exercised in their favor than for those who committed the same offenses in the more distant past, "common sense and prudence suggest that a recently convicted alien should prefer to let a considerable time elapse before offering to demonstrate rehabilitation.")
POST-CON HABEAS CORPUS - FEDERAL - EVIDENCE OF ACTUAL INNOCENCE
Smith v. Baldwin, 466 F.3d 805 (9th Cir. Oct. 24, 2006) (petitioner raising claim of actual innocence, and that state coerced principal witness into not testifying, may pursue federal habeas even though he did not comply with all the procedural prerequisites, holding petitioner met Schlup standard after according disputed witness' statements the benefit of the presumption of truthfulness), citing Schlup v. Denno, 513 U.S. 298, 315 (1995).
POST-CON - EFFECTIVE VACATUR - AFTER CONVICTION VACATED
Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7, 2006) (petition for review of removal order based on two crimes of moral turpitude, followed by state court orders vacating the two convictions, dismissed for failure to exhaust administrative remedies where petitioner did not ask BIA to reopen case in light of the vacated convictions, but instead petitioned the district court for habeas and then the court of appeals for review).
http://caselaw.lp.findlaw.com/data2/circs/7th/052697p.pdf
RELIEF - WAIVERS - 212(H) RELIEF - CANCELLATION - STOP-TIME RULE
Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an immigrant "previously . . . admitted . . . as an alien lawfully admitted for permanent residence," even though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore was "bound," by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec.
JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - RES JUDICATA - BIA DECISION HOLDING CONVICTION NOT TO BE AN AGGRAVATED FELONY DID NOT BAR GOVERNMENT FROM ASSERTING ADDITIONAL CHARGES OF DEPORTABILITY SINCE BIA DECISION WAS NOT A FINAL JUDGMENT RENDERED O
Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. Dec. 6, 2006) (DHS was not barred by res judicata from asserting additional charges after the BIA held that underlying conviction was not an aggravated felony because the BIA decision was not a final judgment rendered on the merits in a separate action). http://caselaw.lp.findlaw.com/data2/circs/9th/0570275p.pdf
AGGRAVATED FELONY - FIREARMS OFFENSE - POSSESSION OF FIREARM BY ALIEN
United States v. Rodriguez-Magana, ___ F.Supp.2d ___, 2006 U.S. Dist. LEXIS 87021 (E.D. Wash. Nov. 29, 2006) (Washington conviction of unlawful possession of firearm, in violation of RCW 9.41.040(1)(a), does not categorically qualify as an aggravated felony firearms offense analogous to the federal offense of possession of a firearm by an undocumented noncitizen, under 18 U.S.C.
