Updates to criminal defense

RELIEF - ADJUSTMENT OF STATUS

Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. Sept. 4, 2007) (noncitizens who are apprehended within the United States after illegal re-entry, who are detained by the DHS, and who are thereafter "conditional[ly] parole[d]," under INA 236(a)(2)(B); 8 U.S.C. 1226(a)(2)(B) are not "paroled into the United States" for purposes of being eligible for adjustment of status pursuant to 8 U.S.C. 1255(a)).

jurisdiction: 
Ninth Circuit

POST CON RELIEF - EFFECTIVE ORDER - MOTION TO REOPEN - BURDEN OF PROOF THAT CONVICTION HAD NOT BEEN VACATED SOLELY FOR IMMIGRATION PURPOSES IS ON RESPONDENT IN MOTION TO REOPEN

Matter of Chavez-Martinez, 24 I. & N. Dec. 272 (BIA Aug. 31, 2007) (noncitizen seeking to reopen proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes).
http://www.usdoj.gov/eoir/vll/intdec/vol24/3578.pdf

jurisdiction: 
BIA

SAFE HAVEN - DUI DRUGS

Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000) (expungement
eliminates conviction of possession of paraphernalia, by analogy to the
FFOA and simple possession, because this offense is a misdemeanor
that is not forbidden under federal drug laws, and it would be absurd if
the FFOA did not cover it). Counsel can apply the same reasoning applies to
misdemeanor driving under the influence of drugs.

jurisdiction: 
Ninth Circuit

CONVICTION - RESTITUTION AS PUNISHMENT - AGGRAVATED FELONY - FRAUD - RESTITUTION

De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (an order to pay restitution was sufficient to meet "punishment" requirement of INA 101(a)(48)(A)(ii), 8 U.S.C. 1101(a)(48)(A)(ii), and the disposition therefore constituted a "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for immigration purposes).

jurisdiction: 
First Circuit

AGGRAVATED FELONY - FRAUD OFFENSE -- LOSS TO VICTIM

De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (Massachusetts conviction of larceny of property valued at more than $250.00 and false representations to the Department of Public Welfare in order to secure support, based on noncitizen's admission of sufficient facts to warrant a finding of guilt [even though the court did not make an actual finding of guilt], and restitution in excess of $10,000 was ordered by the court, constituted fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C.

jurisdiction: 
0

JUDICIAL REVIEW - PETITION FOR REVIEW - BIA USED INAPPROPRIATE LEGAL STANDARD IN DECIDING MOTION TO REOPEN

Kozak v. Gonzales, 502 F.3d 34 (1st Cir. Sept. 14, 2007) (petition for review of a denial of a motion to reopen removal proceedings is granted where the BIA applied an inappropriate legal standard in determining whether or not petitioner had received notice of the removal hearing).

jurisdiction: 
First Circuit

POST-CON RELIEF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS FOR AGGRAVATED FELONIES

Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (judicial recommendations against deportation prevent deportation based upon an aggravated felony conviction as well as convictions of crimes of moral turpitude).

jurisdiction: 
Second Circuit

POST-CON - JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS FOR AGGRAVATED FELONIES - RETROACTIVITY

Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (deportation may be avoided even as a result of new aggravated felonies, created after repeal of JRAD statute: "[J]ust as respondents may rely on IIRIRA's expanded definition of aggravated felony to argue petitioner's deportability on that ground, petitioner may rely on the same definition to claim JRAD protection from deportation on that ground.").

jurisdiction: 
Second Circuit

CRIME OF MORAL TURPITUDE - DUI + SUSPENDED LICENSE

Marmolejo-Campos v. Gonzales, __ F.3d __, 2007 WL 2610788 (9th Cir. Sept. 12, 2007) (Arizona conviction for violation of A.R.S. 28-1383(A)(1), driving under the influence with knowledge that defendant did not have valid license to drive, is a crime involving moral turpitude for immigration purposes).

jurisdiction: 
0

AGGRAVATED FELONY - CRIME OF VIOLENCE - SIMPLE ASSAULT

United States v. Otero, __ F.3d __ 2007 WL 2610412 (3d Cir. Sept. 12, 2007) (Pennsylvania conviction of simple assault, in violation of 18 Pa. Cons.Stat. Ann. 2701(a) (2003), is not necessarily a crime of violence for illegal re-entry sentencing purposes since the offense does not necessarily require proof of the use of force when causing "bodily injury."), applying reasoning of Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005) (same statute is not necessarily an aggravated felony crime of violence) to the sentencing context.

jurisdiction: 
Third Circuit

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