CAL CRIM DEF " DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE " CRIME OF MORAL TURPITUDE
Penal Code 273.5(a) has been amended to expand the list of persons who qualify as victims of this offense. It now includes the offender's fianc or fiance, or someone with whom the offender has or previously had, an engagement or dating relationship, as defined in Penal Code 243(f)(10). In Morales-Garcia v. Holder, 567 F.3d 1058, 1-64-1065 (9th Cir.
CONVICTION " NATURE OF CONVICTION -- CATEGORICAL ANALYSIS " ELEMENTS " TEST FOR ELEMENTS VERSUS MEANS
Schaud v. Arizona. 501 U.S. 624, 632-33 (1991) (plurality opinion) (when a criminal statute provides alternative routes to a conviction, whether jurors must be unanimous with respect to a particular route depends on the answers to two questions: First, did the legislature intend to create different offenses or different means for violating a single offense?
CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry.
REMOVAL PROCEEDINGS " EVIDENCE " MOTION TO SUPPRESS " PRACTICE ADVISORY
Under certain limited circumstances, the immigration judge must grant a motion to suppress evidence of the noncitizens identity in removal proceedings. See Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015"16 (9th Cir. Aug. 8, 2008) (the exclusionary rule applies in immigration court only to evidence seized in connection with a Fourth Amendment violation that is an egregious one in which a government agent deliberately committed the violation or did so by conduct a reasonable officer should have known would violate the Constitution); Orhorhaghe v. INS, 38 F.3d 488, 497 (9th Cir.
CONTROLLED SUBSTANCES " FLORIDA " PRACTICE ADVISORY
Here is a link to a new practice advisory discussing defenses to removal for immigrants with convictions under common Florida drug statutes: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2376821.
Thanks to Rebecca Sharpless.
CONVICTION " EXISTENCE OF CONVICTION " CONVICTION VOID ON ITS FACE " CONVICTION FOR VIOLATION OF AN UNCONSTITUTIONAL STATUTE
Matter of Rodriguez-Carrillo, 22 I. & N. Dec. 1031, 1034 (BIA 1999) ([I]t is clear that an Immigration Judge and the Board cannot entertain a collateral attack on a judgment of conviction, unless that judgment is void on its face, and cannot go behind the judicial record to determine the guilt or innocence of an alien. See Matter of Madrigal, Interim Decision 3274 (BIA 1996).) (emphasis added).
Note: A conviction pursuant to an unconstitutional statute is void on its face.
INADMISSIBILITY " DATE OF CONSIDERATION " VACATED CONVICTION
Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA 1984) (We have long held that an application for admission to the United States is a continuing application and admissibility is determined on the basis of the law and the facts existing at the time the application is finally considered.) (emphasis added); Matter of Ching and Chen, 19 I&N Dec. 203 (BIA 1984); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).
REMOVAL PROCEEDINGS -- MOTION TO REOPEN " NEW EVIDENCE -- MATERIALITY STANDARD
Rosales-Perez v. Holder, 740 F.3d 57 (1st Cir. Jan. 15, 2014) (BIA properly denied petitioner's motion to reopen his removal proceedings, since the BIA did not misapply the materiality standard where it evaluated whether the new evidence showed that a "different outcome is warranted" in petitioner's case, or abuse its discretion in finding the new evidence was not material).
JUDICIAL REVIEW " JURISDICTION " DISCRETIONARY DENIAL OF RELIEF
Lopez v. Holder, ___ F.3d ___, 2014 WL 185541 (1st Cir. Jan. 17, 2014) (affirming BIAs order affirming removal order, because IJ exercised discretion in denying waivers based on extreme hardship, 8 U.S.C. 1186a(c)(4)(A), and good faith, id. 1886a(c)(4)(B), of the joint-filing requirement for removal of conditions on permanent residency, id. 1186a(c)(1)(A), so the noncitizen raised no colorable legal or constitutional claims and review is barred, so the petition is dismissed for want of jurisdiction under 8 U.S.C. 1252(a)(2)(B)).
DETENTION " PROLONGED DETENTION " BRIGHT LINE RULE THAT DETENTION OVER SIX MONTHS IS PRESUMPTIVELY UNREASONABLE REQUIRING A BOND HEARING
Reid v. Donelan, ___ F.Supp.2d ___, 2014 WL 105026 (D.Mass. Jan 9, 2014) (detention under INA 236(c) is presumptively unreasonable after six months; detainees entitled to bond hearing after six months has passed).