Book updates to PCN

CONVICTION - STATE ALTERNATIVE DISPOSITION - NEW YORK - "ACD" DOES NOT CONSTITUTE A CONVICTION FOR IMMIGRATION PURPOSES

An "Adjournment in Contemplation of Dismissal" or "ACD"  is an immigration neutral disposition in that it is a pre-plea disposition in which the prosecution eventually dismisses the case after a specified period of time (usually 6 months or a year) without ever taking any plea on the issue of guilt or making any determination.  During the ACD period, the criminal case is open.

jurisdiction: 
Other

CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION

Morales v. Ashcroft, 2004 WL 363432 (9th Cir. February 25, 2004) (unpublished) (IJ erred in finding that single misdemeanor conviction rendered noncitizen statutorily ineligible for suspension of deportation where misdemeanor conviction of California Penal Code 273.5, corporal injury, fell within petty offense exception of 8 U.S.C. 1182(a)(2)(A)(ii)(II)).

jurisdiction: 
Ninth Circuit

CRIMINAL DEFENSE - SENTENCE - SENTENCING COURT CAN CONSIDER ILLEGAL IMMIGRATION STATUS IN IMPOSING SENTENCE IN CRIMINAL CASE

Alire v. State, ___ Ariz. App.2d ___, 2005 WL 189682 (Jan. 28, 2005) (criminal sentencing court is free to consider defendant's illegal immigration status as a factor in determining appropriate sentence for criminal conviction for driving under influence of alcohol).
http://www.apltwo.ct.state.az.us/Decisions/CR20040044Opinion.pdf

jurisdiction: 
Lower Courts of Ninth Circuit

CRIMINAL DEFENSE - SENTENCE

Daniel M. Kowalski, Sentencing Options for the Deportable Non-Citizen, 8 fed. Sentencing Rep. 286 (1996).

jurisdiction: 
Other

SENTENCE - PAROLE - GUIDELINES DEFINITION

United States v. Benitez-Perez367 F.3d 1200 (9th Cir. May 20, 2004) ("sentence imposed" for purposes of 2L1.2(b)(1) means the actual sentence imposed by the judge; parole [unlike probation] is not to be considered in determination of the "actual sentence imposed").
http://caselaw.lp.findlaw.com/data2/circs/9th/0310419p.pdf

jurisdiction: 
Ninth Circuit

CRIMINAL DEFENSE - CRIMINAL RECORDS SEARCHES

FBI records requests: for information on how to do them go to: http://www.fbi.gov/hq/cjisd/fprequest.html

Most state highway patrols maintain statewide criminal history data. They have web sites. For example, the Washington State Patrol can be found at:   http://www.wsp.wa.gov/crime/crimhist.htm
The OJIN (Oregon Judicial Information Network) records all Oregon criminal activity. It is possible to subscribe to this network, or OJIN checks can be run at the local county court house.

jurisdiction: 
Other

POST CON RELIEF - STATE REHABILITATIVE RELIEF - FIREARMS CONVICTION IS NOT ELIMINATED BY CALIFORNIA EXPUNGEMENT FOR DEPORTATION PURPOSES

Matter of Luviano, 23 I. & N. Dec. 718 (AG Jan. 18, 2005) (firearms conviction expunged pursuant to California state rehabilitative relief statute, Penal Code 1203.4(a), remained a conviction for immigration purposes under the statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)).

jurisdiction: 
Other

CRIM DEF - RIGHT NOT TO DISCLOSE IMMIGRATION STATUS POST CONVICTION RELIEF - STATE ADVISAL STATUTES - RIGHT NOT TO DISCLOSE IMMIGRATION STATUS

Arizona rules of criminal procedure contain a state advisal requirement that the court, before accepting a plea of guilty or no contest, advise every defendant concerning potential adverse immigration consequences of the plea. These rules also state the defendant is not to be required to disclose his or her immigration status. After plea, however, defendants are seen by a presentence report writer, who asks them their birthplace, mothers name and birthplace, the fathers name and birthplace.

jurisdiction: 
Other

NEGOTIATION

Vasquez-Ramirez v. US Dist. Court for the S. Dist. of California, 443 F.3d 692 (9th Cir. Apr. 6, 2006) (once a prosecutor brings charges against a defendant, Federal Rule of Criminal Procedure 11 requires judge to accept defendants guilty plea to those charges, regardless of whether the judge feels prosecutors charging decision was too aggressive or too lenient).
http://caselaw.lp.findlaw.com/data2/circs/9th/0475715p.pdf

jurisdiction: 
Ninth Circuit

CRIM DEF - NEGOTIATING WITH PROSECUTORS POST CON RELIEF - NEGOTIATING WITH PROSECUTORS

Some issues to cover when negotiating with prosecutors, either to obtain a safe plea bargain that will not result in adverse immigration consequences, or when trying to negotiate the reopening of a case via post conviction relief for the same purposes, would be the following: (1)  It is legitimate to negotiate dispositions in light of the immigration consequences to the defendant and innocent family and friends;
(2)  Prosecutorial discretion is broad enough to take into account totality of the circumstances;

jurisdiction: 
Other

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