AGGRAVATED FELONY - EFFECTIVE DATE
Garrido-Morato v. Gonzales, ___ F.3d ___ (5th Cir. April 24, 2007) (the Illegal Immigration Reform and Immigrant Responsibility Act amendments that made harboring aliens an aggravated felony are not impermissibly retroactive).
POST CON RELIEF - STATE REHABILITATIVE RELIEF - EFFECTIVE IF ELIGIBLE FOR FFOA TREATMENT AND EXPUNGEMENT IS IN PROCESS PURSUANT TO A COURT ORDER
In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), the noncitizen's conviction had been expunged at the time of the lower court ruling. Since then, the Ninth Circuit has not ruled in a case in which an expungement or deferred dismissal process was in progress, but not yet completed. Nevertheless, the Ninth Circuit has suggested that if a noncitizen is in such a process, s/he can argue that the DHS cannot deport on the basis of the conviction-pending-expungement. In Lujan, the court stated:
RECORD OF CONVICTION - BIA FINDS COURTS MAY GO BEYOND RECORD OF CONVICTION WHEN LOOKING TO "EXTRA ELEMENTS"
Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (federal conviction of conspiracy to entice interstate travel to engage in prostitution, in violation of 18 U.S.C. 2422(a), constituted aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C.
AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT PRESENTED A RISK THAT FORCE WILL RECKLESSLY BE USED IN THE COMMISSION OF THE OFFENSE, AND RECKLESS USE OF FORCE IS INSUFFICIENT TO QUALIFY AS CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because it presented a substantial risk that that violent force will recklessly be used in the commission of the offense, and reckless use of force does not qualify as a crime of violence).
DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGE OF TWO DIFFERENT POSSIBLE ELEMENTS UNDER A DISJUNCTIVE STATUTE DOES NOT ESTABLISH CONVICTION OF BOTH, BUT ONLY ONE OR THE OTHER, BECAUSE PLEA ADMITS ONLY THOSE ELEMENTS NECESSARY FOR CONVICTION AND EITHER OF
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir.
CATEGORICAL ANALYSIS -- MINIMUM CONDUCT TEST - IF THE FULL RANGE OF CONDUCT FORBIDDEN BY THE STATUTE DOES NOT FALL WITHIN THE GROUND OF DEPORTATION, THE CONVICTION DOES NOT TRIGGER DEPORTATION
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because the full range of conduct forbidden by the harassment portion of the statute does not constitute a crime of violence since "some stalking crimes [those committed at a distance by telephone or mail] include no substantial risk of violence").
DETENTION - MANDATORY DETENTION - NONCITIZEN IS SUBJECT TO MANDATORY DETENTION EVEN THOUGH NOT TAKEN INTO CUSTODY BY DHS AT TIME OF RELEASE FROM CRIMINAL CUSTODY IF STILL ON PROBATION FOR CRIMINAL CONVICTION AND RELEASED FROM CRIMINAL CUSTODY AFTER OCTOBE
Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007) (noncitizen arrested at home while on criminal probation is subject to mandatory detention under INA 236(c)(1), 8 U.S.C. 1226(c)(1) (2000), regardless of the reason for the most recent criminal custody, provided it can be ascertained from the facts that he was released from criminal custody after October 8, 1998, the expiration date of the Transition Period Custody Rules).
http://www.usdoj.gov/eoir/vll/intdec/vol24/3558.pdf
DETENTION - MANDATORY DETENTION - NONCITIZEN IS SUBJECT TO MANDATORY DETENTION ON BASIS OF A DEPORTATION GROUND EVEN IF NOT CHARGED WITH THAT GROUND OF DEPORTATION
Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007) (noncitizen need not be charged with the ground of deportation that provides the basis for mandatory detention under INA 236(c)(1) in order to be considered an alien who "is deportable" on that ground).
http://www.usdoj.gov/eoir/vll/intdec/vol24/3558.pdf
DIVISIBLE STATUTE - EXTRA ELEMENT
Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry whether a violation of 18 U.S.C. 2422(a), interstate travel to engage in prostitution, was committed for "commercial advantage" and thus qualifies as an aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C.
AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(a) - STALKING NOT COV SINCE NO ELEMENT OF FORCE SINCE THREAT TO SAFETY WAS NOT LIMITED TO PHYSICAL SAFETY
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(a), because the threat to safety is not limited to physical safety, and the offense therefore did not have the required element of the use of force), following United States v. Jones, 231 F.3d 508 (9th Cir. 2000).