Book updates to PCN

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - REMEDY - RETURN TO PRE-ERROR STAGE OF PROCEEDINGS

Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding).
http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf

jurisdiction: 
Ninth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL -- TIMELINESS - RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE

Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.")

jurisdiction: 
BIA

SENTENCE - GUIDELINES - WOBBLER - REDUCED SENTENCE IS USED FOR GUIDELINES CALCULATIONS

United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a defendant is convicted of an alternative "felony-misdemeanor" or "wobbler," the alternative sentence ultimately executed is the one to be used in guidelines calculations).

jurisdiction: 
Ninth Circuit

POST CON RELIEF - SENTENCE - VACATION OR REDUCTION OF SENTENCE IS EFFECTIVE FOR IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S REASONS FOR GRANTING IT

Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to modify or reduce a criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v.

jurisdiction: 
BIA

POST CON RELIEF - FEDERAL -- CORAM NOBIS - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE

United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (affirmative misadvice by defense counsel concerning immigration consequences of disposition of criminal case constitutes ineffective assistance of counsel where counsel said deportation was not a serious possibility, and in fact it became a near certainty).

jurisdiction: 
Ninth Circuit

POST CON RELIEF - GROUNDS - COUNSEL - IMMIGRATION CONSEQUENCES CRIMINAL DEFENSE - INTRODUCTION

Lory Diana Rosenberg, Preventative Lawyering: How Defense Counsel can Defend Immigrants Rights, 27 The Champion 43 (Nat'l Ass'n of Criminal Defense Lawyers, March, 2003).

jurisdiction: 
Other

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL

David M. Siegel, "My Reputation or Your Liberty (Or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings," 23 Journal of the Legal Profession 85 (1999).

jurisdiction: 
Other

POST CON RELIEF - GROUNDS - COUNSEL - ADVICE CONCERNING IMMIGRATION CONSEQUENCES

Brian Bates, Law of the Land: Good Ideas Gone Bad: Plea Bargains and Resident Aliens, 66 Tex. B. J. 878 (November, 2003).

jurisdiction: 
Other

POST CON RELIEF - EFFECTIVE ORDER VACATING CONVICTION - ILLINOIS ORDER AMENDING FELONY CONVICTION OF POSSESSION WITH INTENT TO DISTRIBUTE THC TO MISDEMEANOR POSSESSION OF MARIJUANA WAS INEFFECTIVE TO ELIMINATE THE FORMER CONVICTION FOR REMOVAL PURPOSES, S

Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (Illinois order amending felony conviction of possession with intent to distribute THC, in violation of Wis. Stat. 961.41(1m)(h)(1), to misdemeanor possession of marijuana was ineffective to eliminate the former conviction for removal purposes, since it was not based on a ground of legal invalidity).

jurisdiction: 
Seventh Circuit

CONVICTION - STATE REHABILITATIVE RELIEF

Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been "convicted" for immigration purposes; Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3508.pdf

jurisdiction: 
Other

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