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

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT

United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. Apr. 17, 2007) (Tennessee conviction for aggravated assault, in violation of Tennessee Code 39-13-102, is a "crime of violence" for illegal re-entry sentencing purposes, applying the "common sense" analysis).

jurisdiction: 
Fifth Circuit

INADMISSIBILITY - REASON TO BELIEVE

Matter of Rico, 16 I. & N. Dec. 181, 186 (BIA 1977); Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000) (BIA did not rest on the evidence of Rico's arrest for drug trafficking, but detailed all of the evidence against him, including the undisputed fact that he had a "large quantity of marihuana concealed in his motor vehicle" at the time of his arrest).

jurisdiction: 
BIA

INADMISSIBILITY - REASON TO BELIEVE

Rojas-Garcia v. Ashcroft, 339 F.3d 814, 818 (9th Cir. 2003) (affirming BIA's decision to
deny an I-485 application because, in addition to a previous arrest for drug trafficking, two undercover detectives testified that they had personally arranged drug deals with the petitioner).

jurisdiction: 
Ninth Circuit

INADMISSIBILITY - REASON TO BELIEVE

Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004) (finding sufficient reason to believe the alien had committed illegal acts underlying previous drug trafficking arrest because the government submitted documents describing the police surveillance of the alien and the alien's subsequent attempt to escape with 147 pounds of marijuana).

jurisdiction: 
Ninth Circuit

CONVICTION - RECORD OF CONVICTION - MINUTE ORDER

United States v. Snellenberger, 480 F.3d 1187 (9th Cir. April 3, 2007) (a minute order, coupled with a charging document, is not sufficient under Shepard v. United States, 544 U.S. 13 (2005), to establish the nature of a prior conviction as a crime of violence for purposes of sentence enhancement for a conviction of illegal reentry after deportation); see United States v. Diaz-Argueta, 447 F.3d 1167, 1169 (9th Cir. 2006) (a minute order is "not a judicial record that can be relied upon" to establish the nature of a prior conviction).

jurisdiction: 
US Supreme Ct

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO ADVISE CONCERNING FOREIGN IMMIGRATION CONSEQUENCES

United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995) (defense counsel's failure to advise defendant before plea of adverse Nigerian immigration consequences of plea did not constitute ineffective assistance of counsel).

jurisdiction: 
Lower Courts of Eleventh Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF A CHILD

United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. Apr. 2, 2007) (Kansas conviction for violation of K.S.A. 21-3510(a)(1), solicitation of a child to perform an illegal sex act is "sexual abuse of a minor" and thus a "crime of violence" for illegal re-entry sentencing purposes, on the basis that the act "is abusive because of the psychological harm it can cause, even if any resulting sex is consensual").

jurisdiction: 
Fifth Circuit

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