Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (New York conviction of second-degree assault, in violation of N.Y. Penal Law 120.05 ["recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"], does not constitute an aggravated felony "crime of violence" under 18 U.S.C. 16(a), since its definition does not contain an element that there be the intentional employment of physical force against a person or thing).

Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (New York conviction of second-degree assault, in violation of N.Y. Penal Law 120.05 ["recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"], does not constitute a "crime of violence" under 18 U.S.C. 16(b), and thus is not an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since recklessness, like negligence, is not enough to support a determination that a crime is a "crime of violence"), following Bejarano-Urrutia v.

A Massachusetts "continued without a finding" disposition, where there is no admission to sufficient facts, is not a conviction because the disposition does not satisfy the first prong of the conviction definition under INA 101(a)(48), which requires a plea of guilty, nolo or an admission to sufficient facts. In Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989), the Board held that a noncitizen placed in Florida's pre-trial intervention program did not have a conviction because there was no plea of any kind.

TRAC report: http://trac.syr.edu/immigration/reports

Ortega-Mendez v. Gonzales, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (Ninth Circuit leaves as an open question whether the term "felony" for purposes of 18 U.S.C. 16(b) is defined by state label or term of imprisonment exceeding one year). See Francis v. Reno, 269 F.3d 162, 166-71 (3d Cir.2001); Doe v. Hartz, 134 F.3d 1339, 1342-43 (8th Cir.1998).



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, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (Citing Leocal to find that "[i]n construing both parts of 16, we cannot forget that we ultimately are determining the meaning of the term crime of violence " and noting that "[t]he ordinary meaning of this term, combined with 16's emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes.")



On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v.

United States v. Juvenile, __ F.3d __ (9th Cir. Jun. 22, 2006) (district court may assume a juvenile's guilt of the crime charged for purposes of a motion to transfer a juvenile to adult status pursuant to 18 U.S.C. 5032 for criminal prosecution; assumption may not be expanded beyond the offense or offenses charged in the information).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530410p.pdf

Ortega-Mendez v. Gonzales, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (California misdemeanor conviction of battery, in violation of Penal Code Penal Code 242 is not categorically a "crime of violence" within the meaning of 18 U.S.C. 16(a), because the "force or violence" element requires neither force capable of hurting or causing injury nor violence in the usual sense of the term since the least touching suffices), implicitly overruling United States v. Robinson, 967 F.2d 287 (9th Cir. 1992)(simple battery is crime of violence under USSG U .S.S.G.

United States v. Urbina-Mejia, 450 F.3d 838 (8th Cir. Jun. 20, 2006) (NCIC report, which verifies records based upon fingerprint matches, was sufficient to show by a preponderance of the evidence that defendant had previously been convicted of an aggravated felony offense for purposes of illegal re-entry sentence enhancement).
http://caselaw.lp.findlaw.com/data2/circs/8th/054125p.pdf

Esponda v. U.S. Atty Gen., __ F.3d __ (11th Cir. Jun. 28, 2006) (conflicting regulations should be resolved in the alien's favor).
http://caselaw.lp.findlaw.com/data2/circs/11th/0513875p.pdf