Updates to criminal defense

DIVISIBLE STATUTE ANALYSIS - WHEN APPLICABLE

James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) (remanding to the BIA to decide whether New York misdemeanor conviction of endangering the welfare of a child, in violation of Penal Law 260.10 ["knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health"], is a divisible statute).

jurisdiction: 
Second Circuit

REMOVAL PROCEEDINGS - VISA WAIVER PROGRAM OVERSTAYS

Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. Mar. 31, 2008) (persons who entered the United States under the Visa Waiver Program, who marry and apply for Adjustment of Status after their 90 days have elapsed, cannot obtain removal proceedings before being removed, and are ineligible to adjust status), distinguishing Freeman v. Gonzales, 1444 F.3d 1031 (9th Cir. 2006).

jurisdiction: 
Ninth Circuit

REMOVAL PROCEEDINGS - IMPARTIAL JUDGE - PROSECUTORIAL QUESTIONING OF RESPONDENT

Cuko v. Mukasey, 522 F.3d 32 (1st Cir. Mar. 31, 2008) (petition for review granted because IJ improperly assumed role of a government attorney by engaging in "prosecutorial questioning").

jurisdiction: 
First Circuit

STATISTICS - IMMIGRATION HOLDS

Mar. 28, 2008
The head of Immigration and Customs Enforcement, Julie L. Myers, announced to the House Appropriations Committee that at least 304,000 immigrant criminals eligible for deportation are behind bars nationwide. The annual number of deportable immigrant inmates was expected to vary from 300,000 to 455,000, or 10 percent of the overall inmate population, for the next few years.

jurisdiction: 
Other

GOOD MORAL CHARACTER - FAILURE TO FILE CURRENCY REPORT

Angel v. Chertoff, ___ F.3d ___, 2007 WL 3085962 (5th Cir. Oct. 22, 2007) ("[I]n July 2004, Angel attempted to enter Mexico from Laredo, Texas. An inspection by United States Customs and Border Protection revealed that Angel had secreted more than $90,000.00 in unreported cash in an ice chest. In July 2006, Angel pled guilty to the offense of failing to file a currency and monetary instrument report in violation of 31 U.S.C. 5316(a)(1)(B) and 5322(a). He was fined and sentenced to three years probation. ...

jurisdiction: 
Fifth Circuit

RIGHT TO INTERPRETER

The District of Columbia has a specific statute entitled the "Interpreters for Hearing-Impaired and Non-English Speaking Persons Act ("the Interpreter Act"), D.C. Code 2-1901 et seq. (2001), which requires an arresting officer to secure a qualified interpreter for a non-English speaker in custody before questioning that person. See Torres v. United States, 929 A.2d 880, (D.C Court of Appeals, Aug. 2007)

jurisdiction: 
DC Circuit

REMOVAL PROCEEDINGS - RIGHT TO COUNSEL - RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

Singh v. Gonzales, 499 F.3d 969, 972 n.2 (9th Cir. 2007) ("The BIA acknowledges and adjudicates IAC claims in immigration proceedings. We note that although alien petitioners do not have a Sixth Amendment right to counsel, precedent in this circuit permits IAC claims as a due process challenge under the Fifth Amendment. See Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999). This claim is not coextensive with a Sixth Amendment challenge and, as our cases reflect, the contours of the claim depend on the factual circumstances."); Magallanes Damien v. INS, 7 83 F.2d 931, 933 (9th Cir.

jurisdiction: 
Ninth Circuit

RECORD OF CONVICTION - DISJUNCTIVE - SURPLUSAGE

Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) (BIA found conviction to be under one prong of a divisible statute because the judgment mentioned the use of a firearm, but the Fifth Circuit found it to be under another, based on the language of the complaint), compare Omari v. Gonzales, 419 F.3d 303, 309 n.10 (5th Cir. 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud" as recited in the statute, does not mean that Omari was necessarily convicted of transferring fraudulently obtained property.

jurisdiction: 
Fifth Circuit

DEPORTATION GROUNDS - ILLEGAL VOTING

McDonald v. Gonzales, 400 F.3d 684 (9th Cir. Mar. 2, 2005) ("Ellen Valle McDonald, a native of the Philippines and legal permanent resident of the United States, was found removable under 8 U.S.C. 1227(a)(6)(A) for voting in violation of Hawaii law. Although 1227(a)(6)(A) provides the reason for deportation, we look to the relevant Hawaii statute, H.R.S. 19-3.5(2), to decide whether that reason is substantiated, i.e., whether a violation occurred. Because we determine that McDonald did not have the requisite mental state to have violated H.R.S. 19-3.5(2), we grant her petition.").

jurisdiction: 
Ninth Circuit

GOOD MORAL CHARACTER - ILLEGAL VOTING

See Yates Memo (May 7, 2002), "Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully or Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote."

jurisdiction: 
Other

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