Realignment Expungements under Penal Code 1203.41
By Norton Tooby

In 2013, the California Legislature enacted a Realignment Expungement statute granting the court the discretion to expunge felony sentences in excess of one year imposed under the realignment legislation. See Penal Code 1203.41 (effective Jan. 1, 2014, added by Stats.2013, c. 787, A.B.

Vega v. Ryan, 735 F.3d 1093 (9th Cir. Nov. 13, 2013) (counsels failure to familiarize himself with clients case, leading to failure to present key witness, was ineffective assistance of counsel).

Urooj v. Holder, 734 F.3d 1075 (9th Cir. Nov. 6, 2013) (IJ erred by granting termination of asylee status on the basis of fraud based solely on the adverse inference drawn from the silence of the sole witness who refused to answer questions; the IJ violated due process by filing to require DHS to adhere to the local operating procedures requiring advance disclosure of witnesses and exhibits).

United States v. Garza-Mendez, __ F.3d __ (11th Cir. Nov. 15, 2013) (Florida conviction for possession of cannabis with intent to sell or deliver, in violation of Fla. Stat. 893.13(a)(1)(2), is not a drug trafficking aggravated felony since the Florida statute does not require, as an element, proof that the defendant had knowledge of the nature of the controlled substance).

Donawa v. U.S. Atty Gen., ___ F.3d ___ (11th Cir. Nov. 8, 2013) (Florida conviction under Fla. Stat. 813.13(1)(a)(2), possession with intent to sell or deliver a controlled substance (cannabis), is not categorically an aggravated felony, because the Florida statute is missing any intent element, since Floridas unique statute presumes guilty intent [innocence is an affirmative defense]).

Effective December 1, 2013, an amendment to Federal Rule of Criminal Procedure 11(b)(1) takes effect that requires a judge, during a plea colloquy, to inform the defendant and ensure that he understands that "if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future." FRCP 11(b)(1)(O). This amendment is intended to implement the holding in Padilla v. Kentucky, 130 S. Ct.

New LAC practice advisory, Motions to Suppress in Removal Proceedings: Fighting Back Against Unlawful Conduct by U.S. Customs and Border Protection.
http://www.legalactioncenter.org/practice-advisories/motions-suppress-re...

In California burglary cases, the jury need not unanimously agree on the identity of the offense that the defendant intended to commit crime at entry. CALCRIM 1700 provides: The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry.

If a respondent has obtained post-conviction relief in the court of conviction, respondent can ask the immigration judge or Board of Immigration Appeals sua sponte to reopen removal proceedings based upon a gross miscarriage of justice. There is a line of cases in the Ninth Circuit (Cardoso-Tlaseca v. Gonzalez, 460 F.3d 1103 (9th Cir. 2006); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990)) that supports the argument that if the prior conviction was vacated on constitutional grounds, the removal was illegal and ought not to stand.

While the Board of Immigration Appeals has previously held that a nonimmigrant would have to affirmatively show that the firearm in the particular case actually was an antique (Matter of Mendez-Orellana (BIA 2010) 25 I&N Dec 254, 255), it would appear that the Supreme Court overruled that finding in Moncrieffe v Holder (2013) 133 SCt 1698, 1673. In Moncrieffe, the Court both reaffirmed that a statute defining an offense of conviction must be evaluated solely on the minimum conduct sufficient to commit it, and specifically discussed the antique firearm exception.