Ortega-Mendez v. Gonzales, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (looking to California state law to determine meaning of "force or violence" in California Penal Code 242).



On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006) ("As Miller v. Gammie, 335 F.3d 889 (9th Cir.2003) (en banc), explained, a three-judge panel may not itself overrule a prior decision of the court, id. at 899, but "where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority," id. at 893, three-judge panels "should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled," id. at 900.

Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006) ("We do not defer to BIA interpretations of state law or of provisions of the federal criminal code referenced within, but not part of, the Immigration and Nationality Act.") See Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.2005); Singh v. Ashcroft, 386 F.3d 1228, 1230-31 (9th Cir.2004).



On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 7, 2006) (evidentiary hearing required to determine if prison's failure to provide Spanish-language materials and assistance to Spanish-speaking inmates constituted extraordinary circumstance justifying tolling of one-year period for filing federal habeas petition); distinguishes Kane v. Garcia Espitia, 126 S. Ct. 407, 408 (2005) (per curiam) (denial of access to a law library cannot provide a basis for a pro se petitioner's habeas relief) because Mendoza only involves the tolling of an AEDPA deadline, not grant of habeas relief.

United States v. Staten, __ F.3d __ (9th Cir. Jun. 7, 2006) (enhancements resulting in disproportionate, albeit advisory, guidelines sentences must find support in facts established by clear and convincing evidence).

Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (immigration judges must apply the law of the circuit in which they sit; noncitizens in removal proceedings have no legal right to have removal proceedings commenced in a particular place, or to have the laws of a particular federal circuit applied to them), reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007), to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006). See also Latu v. Ashcroft, 375 F.3d 1012 (10th Cir. 2004); Menowitz v.

Cisneros-Perez v. Gonzales, ___ F.3d ___, 2006 WL 1728068 (9th Cir. Jun. 26, 2006) (distinguishing between INA 237(a)(2)(E)(i), and 8 U.S.C. 921(a)(33)(A)(i) [sentence enhancement for person with prior domestic violence conviction found in possession of a firearm], in that the former requires that the domestic relationship be an element of the offense, where the latter merely requires that the offense was in fact committed against someone with a domestic relationship), distinguishing United States v. Belless, 338 F.3d 1063, 1065-1067 (9th Cir. 2003).

If restitution is ordered, even in excess of $10,000, for losses specifically noted as flowing from “relevant conduct that was not charged," it would not qualify a fraud offense as an aggravated felony. Thanks to Mat Millen for this argument.

It took the petitioner in Doe v. Immigration & Customs Enforcement, __ F.Supp.2d ___, 2006 U.S. Dist. LEXIS 28300 (S.D.N.Y. May 16, 2006) several years and two district court decisions to get his record expunged. Take a look at the orders in that case, which describe the process for expunging an incorrect NCIC record. Thanks to Dan Kesselbrenner.

United States v. Gonzalez-Lopez, __ U.S. __ (Jun. 26, 2006) (trial court's erroneous deprivation of criminal defendant's choice of counsel not subject to harmless-error analysis and entitles the defendant to reversal of his conviction).
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