DIVISIBLE STATUTE ANALYSIS - RECORD OF CONVICTION - MODIFIED CATEGORICAL ANALYSIS IMPOSSIBLE FOR LACK OF RECORD OF CONVICTION DOCUMENTS
United States v. Baza-Martinez, ___ F.3d ___, 2006 WL 2729691 (9th Cir. Sept. 26, 2006) (court of appeals was unable to undertake modified categorical analysis, because record in district court failed to include any documents from the court of conviction on which to base modified categorical analysis).
CONVICTION - EVIDENCE - NCIC REPORT SUFFICIENTLY RELIABLE TO ESTABLISH EXISTENCE OF CONVICTION BY A PREPONDERANCE FOR CRIMINAL SENTENCE PURPOSES, AT LEAST ABSENT SPECIFIC CHALLENGE
United States. v. Martinez-Jimenez, ___ F.3d ___, 2006 WL 2789865 (9th Cir. Sept. 29, 2006) (NCIC report is sufficiently reliable to be used to establish existence of criminal conviction, for purposes of increasing criminal history category for criminal sentence, at least where no evidence of inaccuracy of such reports has been presented); accord, United States v. Urbina-Mejia, 450 F.3d 838 (8th Cir. 2006); cf. United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir.
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
There is currently a conflict in the Ninth Circuit between Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (California misdemeanor conviction of unlawful sexual intercourse with a minor, in violation of Penal Code 261.5(c), constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C.
RELIEF - WAIVERS - 212(C) RELIEF - NONCITIZEN WAS NOT ELIGIBLE FOR 212(C) RELIEF BECAUSE HIS PLEA WAS ENTERED A MONTH AFTER AEDPA BECAME EFFECTIVE, AND BECAUSE HE WAS NOT ELIGIBLE FOR 212(C) RELIEF AT THE TIME OF THE PLEA
Cruz-Bucheli v. Gonzales, 463 F.3d 105 (1st Cir. Sept. 22, 2006) (per curiam) (Florida conviction of attempted trafficking in a controlled substance, i.e., cocaine, constituted aggravated felony, disqualifying noncitizen from eligibility for relief under former INA 212(c), because when noncitizen entered into his plea agreement on May 23, 1996, he was no longer eligible for 212(c) relief because AEDPA had already been effective for one month).
AGGRAVATED FELONY - EFFECTIVE DATE - RETROACTIVE EXPANSION OF DEFINITION IS LAWFUL
Chan v. Gantner, ___ F.3d ___, 2006 WL 2686852 (2d Cir. Sept. 20, 2006) (1996 INA amendments that expanded the class of aggravated felonies to include conspiracy to smuggle noncitizens apply retroactively).
DETENTION - CUSTODY REDETERMINATION - EVIDENCE - PENDING CHARGES AND UNDERLYING EVIDENCE
Matter of Guerra, 24 I. & N. Dec. 37 (BIA Sept. 28, 2006) (no error for immigration judge to consider a pending criminal charge, and the evidence underlying it, in deciding whether a noncitizen would be a danger to the community if released from immigration custody).
RELIEF - CANCELLATION - STOP-TIME RULE TRIGGERED BY CRIMINAL CONDUCT THAT CONSTITUTES GROUND OF INADMISSIBILITY OR DEPORTABILITY EVEN THOUGH NOT CHARGED OR FOUND AS GROUND OF REMOVAL
Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (commission of offense stops the clock for cancellation of removal, by terminating a period of continuous residence in the United States pursuant to INA 240A(d)(1)(B), even though the offense was not charged as nor found to be a ground of inadmissibility or deportability), distinguishing Matter of Fortiz, 21 I. & N. Dec. 1199 (BIA 1998); see also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006) (rejecting due process challenge to use of uncharged conviction to find a noncitizen ineligible for relief).
RELIEF - CANCELLATION - STOP-TIME RULE TRIGGERED BY CRIMINAL CONDUCT THAT CONSTITUTES GROUND OF INADMISSIBILITY OR DEPORTABILITY EVEN THOUGH COMMITTED PRIOR TO EFFECTIVE DATE OF IIRAIRA
Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (commission of criminal offense mentioned in INA 212(a)(2) that constitutes a ground of inadmissibility or deportability stops accrual pursuant to INA 240A(d)(1)(B) of period of continuous residence for cancellation of removal even though committed prior to effective date of IIRAIRA), following Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999); Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006) (Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), does not require different conclusion); see also Fernandez-Vargas v.
SAFE HAVEN - AGGRAVATED FELONY FRAUD - TAX FRAUD
A plea to a violation of 26 U.S.C. 7206(2) does not constitute an aggravated felony. INA 101(a)(43)(M)(ii), 8 U.S.C. 1101(a)(43)(M)(ii) ["is described in section 7201 of the Internal Revenue Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000"]). See Evangelista v. Ashcroft, 359 F.3d 145, 149-53 (2004); Lee v. Ashcroft, 368 F.3d 218 (2004) (federal conviction of violating 7206(a) is not an aggravated felony, since Congress specified only one tax crime (Section 7201) as an aggravated felony).
CONVICTION - BURDEN OF PROOF
In Matter of Kaneda, 16 I. & N. Dec. 677, 679-680 (BIA 1979), the BIA stated:
We have held that where a conviction is revoked and the charge dismissed by a trial judge that conviction cannot be used to sustain a finding of deportability. Matter of G, 7 I. & N. Dec. 171 (BIA 1956). We have also specifically held that when the Service claims that a trial judge lacked authority to dismiss a criminal charge after a conviction, such lack of jurisdiction must be affirmatively shown. Matter of Sirhan, 13 I. &N. Dec. 592 (BIA 1970); Matter of O'Sullivan, 10 I. &N. Dec.