Updates to criminal defense

DETENTION - HABEAS - APPOINTMENT OF COUNSEL

Liu v. Chertoff, et al., __ F.Supp.2d __, 2007 WL 2429754 (S.D. Cal. Aug., 24, 2007) (appointing counsel to represent noncitizen in habeas corpus petition challenging immigration detention, pursuant to 18 U.S.C. 3006A(a)(2)).

jurisdiction: 
Lower Courts of Ninth Circuit

ADMISSION - ARRIVING ALIEN - NONCITIZEN WHO DEPARTS UNITED STATES AND RETURNS AFTER CANADA DENIES REFUGEE STATUS IS SEEKING ADMISSION TO UNITED STATES AND IS AN ARRIVING ALIEN

Matter of RD, 24 I. & N. Dec. 221 (BIA 2007) (noncitizen who leaves the United States and is admitted to Canada to seek refugee status has made a departure from the United States, and upon returning to United States after denial of an application for refugee status in Canada, is seeking admission into the United States and is therefore an arriving alien under 8 C.F.R. 1001.1(q) (2007)).
http://www.usdoj.gov/eoir/vll/intdec/nfvol24.htm

jurisdiction: 
BIA

CRIME OF MORAL TURPITUDE - ASSAULT - DOMESTIC

Matter of Sejas, 24 I. & N. Dec. 236 (BIA 2007) (Virginia conviction of assault and battery on a family or household member in violation of Virginia Code 18.2-57.2 is not necessarily a crime involving moral turpitude), following Matter of Sanudo, 23 I. & N. Dec. 968, 970-71 (BIA 2006).

jurisdiction: 
BIA

BURGLARY - ELEMENTS -- INTENT TO STEAL - TIMING OF

United States v. Jones, 993 F.2d 58, 61-62 (5th Cir.1993) (distinguishing between 18 U.S.C. 2113(a) and (b), where the former requires that an intent to steal exists prior to entry of the bank, while the intent required for (b) may be formed after entry into the bank).

jurisdiction: 
Fifth Circuit

DEPORTATION - EVIDENCE - BURDEN OF PRODUCTION - AFTER GOVERNMENT HAS MADE PRIMA FACIE CASE, RESPONDENT MAY BE REQUIRED TO PRODUCE EVIDENCE WITHIN HIS CONTROL

Matter of Vivas, 16 I. & N. Dec. 68 (BIA 1977) (while the government has the initial burden of proof in deportation proceedings, after it has presented a prima facie case, respondent may be required to produce evidence in rebuttal when respondent has better control or knowledge of the evidence (in this instance, the proper identity of his alleged United States citizen wife)).

jurisdiction: 
BIA

INTRODUCTION - CRIMINALITY OF NONCITIZENS

"Myth of Immigrant Criminality and the Paradox of Assimilation, Incarceration Rate of Native Born and Foreign Born Men"
http://www.ailf.org/ipc/special_report/sr_022107.pdf

jurisdiction: 
Other

REMOVAL - RETURN OF THE WRONGFULLY REMOVED

One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal" under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks to Beryl B. Farris, Atlanta.

jurisdiction: 
Other

JUVENILE - TRANSFER FROM JUVENILE TO ADULT - ERROR TO TRANSFER JUVENILE TO ADULT PROSECUTION AFTER MAKING CLEARLY ERRONEOUS FINDINGS CONCERNING DEFENDANT'S SOCIAL BACKGROUND

United States v. Juvenile Male, 492 F.3d 1046 (9th Cir. July 5, 2007) (reversing district court order granting government motion to transfer a juvenile case alleging second degree murder to adult criminal prosecution pursuant to the Federal Juvenile Delinquency Act where district court made clearly erroneous findings concerning defendant's social background).

jurisdiction: 
Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - CHILD MOLESTATION

United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.)

jurisdiction: 
Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - BANK ROBBERY

United States v. Dentler, 492 F.3d 306 (5th Cir. No. Jul. 3, 2007) (federal conviction in violation of 18 U.S.C. 2113(a), of attempted entry of a bank with intent to commit robbery, is not a crime of violence for Armed Career Criminal Act sentencing provisions).

jurisdiction: 
Fifth Circuit

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