Updates to criminal defense

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

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

AGGRAVATED FELONY - DRUG TRAFFICKING - DELIVERY OF A CONTROLLED SUBSTANCE

United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (Texas conviction for delivery of a controlled substance, in violation of V.T.C.A., Health & Safety Code 481.112, was not a drug-trafficking offense for illegal re-entry sentence enhancement purposes, since the definition of "deliver" includes solicitation, and solicitation is not included as a non-substantive offense that can trigger a sentence enhancement under the 2004 version of U.S.S.G. 2L1.2).

jurisdiction: 
Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCING CONTEXT - COMMON SENSE VS. CATEGORICAL APPROACH

United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. Apr. 17, 2007) ("In deciding whether a prior statute of conviction qualifies as a crime of violence, this court has alternatively employed (1) a "common sense approach," defining the offense according to its "ordinary, contemporary, [and] common meaning," or (2) a "categorical approach," defining the offense according to a "generic, contemporary definition." Compare United States v. Izaguirre-Flores, 405 F.3d 270, 273-74 (5th Cir.2005), with United States v.

jurisdiction: 
Fourth 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

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