RELIEF - 212(c) - DETERMINING SENTENCE FOR 5-YEAR BAR
Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006) (Pre-conviction detention counts toward five-year imprisonment bar to 212(c) relief, at least where time spent in pre-conviction detention is credited against post-conviction term).
http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf
JUDICIAL REVIEW - AFTER DEPORTATION
Spina v. Department of Homeland Sec., 470 F.3d 116 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004).
http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf
AGGRAVATED FELONY - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___ , 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not categorically involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), since the offense of conviction does not necessarily require a "violent use of force").
DOMESTIC VIOLENCE - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___ , 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not categorically involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), since the offense of conviction does not necessarily require a "violent use of force").
AGGRAVATED FELONY - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___, 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), under a modified categorical analysis, since nothing in the record of conviction establishes that the defendant acted with a mental state greater than recklessness).
DOMESTIC VIOLENCE - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___, 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), under a modified categorical analysis, since nothing in the record of conviction establishes that the defendant acted with a mental state greater than recklessness).
JUDICIAL REVIEW - PETITION FOR REVIEW - BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes).
POST CON RELIEF - MOTION TO REOPEN - BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes).
JUDICIAL REVIEW - PETITION FOR REVIEW - STANDARD FOR REVIEW OF DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, 467 F.3d 1185 (9th Cir. November 3, 2006)(court of appeals standard of review of denial of motion to reopen removal proceedings after conviction has been vacated: "We review the BIA's ruling on the motion to reopen for an abuse of discretion and will reverse the denial of the motion to reopen only if the BIA acted " arbitrarily, irrationally, or contrary to law. " Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)).").
POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - GOVERNMENT BEARS BURDEN OF PROOF THAT ORDER VACATING CRIMINAL CONVICTION WAS INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen).
