AGGRAVATED FELONY - CRIME OF VIOLENCE - CATEGORICAL ANALYSIS -- DISCHARGING FIREARM AT DWELLING NOT CATEGORICALLY A CRIME OF VIOLENCE
United States v. Martinez-Martinez, ___ F.3d ___ (9th Cir. Nov. 14, 2006) (Arizona conviction of discharging firearm at a residence, in violation of A.R.S. 13-1211, did not categorically constitute a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG 2L1.2(b)(1)(A)(ii), because the statute of conviction encompassed any structure capable of being occupied as a residence, even though it was not presently so occupied), distinguishing United States v. Cortez-Arizs, 403 F.3d 1111 (9th Cir.
ILLEGAL RE-ENTRY - AGGRAVATED FELONY & PRIOR REMOVAL AS ENHANCEMENTS
United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. Aug. 31, 2006) (sentence for illegal re-entry after prior deportation (in 1997) could not be further enhanced because of 2002 aggravated felony conviction, under 18 U.S.C. 1326(b)(2), since the aggravated felony conviction did not occur prior to the 1997 deportation).
JUDICIAL REVIEW - MOTION TO REOPEN - BIA NOT BARRED FROM GRANTING MOTION TO REOPEN REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED - REGULATION DOES NOT BAR CO
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal).
POST CON RELIEF - EFFECTIVE ORDER - NINTH CIRCUIT FOLLOWS PICKERING TO HOLD CONVICTION VACATED FOR SUBSTANTIVE OR PROCEDURAL DEFECT IS ELIMINATED FOR IMMIGRATION PURPOSES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (conviction vacated for any procedural or substantive defect has been eliminated for immigration purposes, and cannot trigger removal, whereas conviction vacated for equitable, rehabilitative, or immigration purposes unrelated to the merits of the conviction remains), following Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 454 F.3d 525 (6th Cir. July 17, 2006).
POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - GOVERNMENT BEARS BURDEN OF PROVING CONVICTION STILL EXISTS AFTER VACATUR HAS BEEN ISSUED
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) ("for the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove "with clear, unequivocal and convincing evidence, that the Petitioner's conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e., to avoid adverse immigration consequences.") (original emphasis), citing Pickering v. Gonzales, 454 F.3d 525 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).
RELIEF - VOLUNTARY DEPARTURE - ADJUSTMENT BAR BASED ON FAILURE TO COMPLY WITH VOLUNTARY DEPARTURE
Singh v. Gonzales, 468 F.3d 135 (2d Cir. Nov. 8, 2006) (failure to voluntarily depart barred adjustment of status, under 8 U.S.C. 1229c(d), following grant of motion to reopen).
http://caselaw.lp.findlaw.com/data2/circs/2nd/055181p.pdf
RELIEF - ADJUSTMENT OF STATUS - ADJUSTMENT BAR TRIGGERED BY ILLEGAL REENTRY AFTER REMOVAL
Lino v. Gonzales. 467 F.3d 1077 (7th Cir. Nov. 6, 2006) (INA 241(a)(5) precludes a previously removed alien who has since illegally reentered the United States from adjusting status under INA 245(i), and petitioner does not fall within any exemption to this statute).
http://caselaw.lp.findlaw.com/data2/circs/7th/051078p.pdf
GOOD MORAL CHARACTER - STATUTORY BARS - FALSE TESTIMONY TO GAIN IMMIGRATION BENEFIT - TIMELY RETRACTION
Matter of M, 9 I. & N. Dec. 118, 119 (BIA 1960) (noncitizen not barred from establishing GMC under INA 101(f)(6) when s/he makes a voluntary and timely retraction of attempted false testimony); cf. Matter of Namio, 14 I. & N. Dec. 412, 414 (BIA 1973) (recantation of false testimony about one year later when disclosure of its falsity was imminent was neither a voluntary recantation nor a timely retraction and thus did not remove the bar to showing GMC under INA 101(f)(6)).
POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES MAY REQUIRE VACATING CONVICTION IF COURT FAILED TO ASCERTAIN DEFENDANT READ AND UNDERSTOOD CONTENTS OF FORM
It is possible to have the defendant's ability to read English tested, and determine the grade level at which s/he reads and understands English. The language used for many of the state advisal statutes, e.g., California Penal Code 1016.5, warning is quite difficult, and it takes a reading level of at least 12th grade to understand 70% of the warning.
Microsoft WORD has the ability to compute the Flesch-Kincaid Grade Level score, which gives the U.S. grade level required to understand a given text, under Tools, Spelling and Grammar, Options, Grammar, Show Readability Statistics.
POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION - BURDEN ON GOVERNMENT TO PROVE RESENTENCING GRANTED SOLELY TO ENABLE COURT TO ISSUE TIMELY JRAD OR ELSE JRAD WOULD BE HELD EFFECTIVE
Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all presumptions normally operating in favor of the judgment operate in favor of the validity of a Judicial Recommendation Aagainst Deportation, and the burden is on the government to prove the criminal resentencing was granted solely to enable the court to issue a timely JRAD or else the JRAD would be held effective).
