Updates to criminal defense

FALSE CLAIM TO US CITIZENSHIP - INADMISSIBILITY - NOT DONE FOR SOME LEGAL PURPOSE OR BENEFIT - EMPLOYMENT DOES NOT QUALIFY

Even if client has made a false claim to U.S. citizenship, the false claim ground of inadmissibility requires it to be done for some "purpose or benefit" under federal or state law, which does not include an employment benefit. Matter of Oduor, A75 904 456 (BIA March 15, 2005), available on lexis and westlaw ("citizen or national" assertion on an I-9 form does not constitute a false claim of U.S. citizenship for either deportation or inadmissibility purposes).

jurisdiction: 
BIA

IMMIGRATION PROCEEDINGS

Dababneh v. Gonzales, __ F.3d __ (7th Cir. Dec. 20, 2006) (Department of Homeland Security may indicate in the NTA that it will give the alien subsequent notice of the precise time and place of the hearing once it files the NTA with the appropriate immigration court).
http://caselaw.lp.findlaw.com/data2/circs/7th/054001p.pdf

jurisdiction: 
0

AGGRAVATED FELONY - DRUG TRAFFICKING

Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007) (Idaho felony conviction of possession of a controlled substance, reversing Ballesteros v. Gonzales, 452 F.3d 1153 (10th Cir. 2006), only to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006)).

jurisdiction: 
Tenth Circuit

SENTENCE - SUSPENDED SENTENCE - ILLEGAL RE-ENTRY SENTENCING

United States v. Alvarez-Hernandez, __ F.3d __, 2007 WL 601991 (9th Cir. Feb. 28, 2007) (a sentence that has been suspended in full [i.e. defendant served no time in prison] does not trigger 12 level sentence enhancement under U.S.S.G. 2L1.2(b)(1)(B), for having a previous conviction for "a felony drug trafficking offense for which the sentence imposed was 13 months or less").

jurisdiction: 
0

INADMISSIBILITY - REASON TO BELIEVE

Igwebuike v. Caterisano, ___ F.3d ___ , ___, 2007 WL 1180300 (4th Cir. April 20, 2007) ("An arrest or charge by itself is not substantial evidence of drug trafficking.

jurisdiction: 
Fourth Circuit

INADMISSIBILITY - REASON TO BELIEVE - ARREST ALONE INSUFFICIENT; GOVERNMENT MUST REQUEST FURTHER EVIDENCE

Igwebuike v. Caterisano, ___ F.3d ___ , 2007 WL 1180300 (4th Cir. April 20, 2007) (an arrest for drug trafficking, without any of the facts of the underlying arrest, is insufficient evidence to sustain a reason to believe charge; the DHS should have requested additional evidence; "The drug trafficking arrest, however, does raise underlying questions regarding eligibility, see 103.2(b)(8), and the Director was obliged to request further information, such as arrest or police reports, if he believed it was necessary to determine Igwebuike's eligibility for relief.

jurisdiction: 
Fourth Circuit

JUVENILE - RELIEF - PARENTS KNOWLEDGE OF CHILDS INADMISSIBILITY MAY BE IMPUTED TO THE CHILD FOR SOME PURPOSES

Senica v. INS, ___ F.3d ___, No. 92-70423 (9th Cir. Feb. 14, 1993) (parent's knowledge of a child's ineligibility for admission to the U.S. can be imputed to the child to preclude discretionary relief under INA 212(k); effectively prevents a parent from making a derivative claim for a waiver under INA 241(f) as the parent of a noncitizen lawfully admitted for permanent residence).

jurisdiction: 
Ninth Circuit

INADMISSIBILITY - ALIEN SMUGGLING - AIDING ANOTHER TO ENTER ILLEGALLY

Soriano v. Gonzales, 414 F.3d 318 (5th Cir. Apr. 5, 2007) (any noncitizen seeking admission to the U.S. who participates in a scheme to aid other aliens in an illegal entry is inadmissible under INA 212(a)(6)(E)(i), regardless of whether the assisting individual was present at the border crossing).

jurisdiction: 
Fifth Circuit

REMOVAL PROCEEDINGS - DUE PROCESS - PROCEDURAL DUE PROCESS PROTECTIONS APPLY TO NONCITIZENS IN REMOVAL PROCEEDINGS

De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (procedural due process protections apply to noncitizens in removal proceedings: "when facing deportation ... aliens are entitled to procedural due process, which provides an opportunity to be heard at a meaningful time and in a meaningful manner."), quoting United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004) (en banc).

jurisdiction: 
0

REMOVAL PROCEEDINGS - VIENNA CONVENTION

De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting argument that the INS's failure to apprise him that he was entitled to communicate with Mexican consular or diplomatic officers under the Vienna Convention and immigration regulations violates Article 36(1)(b) of the Vienna Convention on Consular Relations and 8 C.F.R. 236.1(e), on grounds the argument was waived because he failed to assert the issue before the IJ, and, in any event, Torres could not show that the violation resulted in any prejudice).

jurisdiction: 
Tenth Circuit

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