Updates to criminal defense

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

CITIZENSHIP - PROOF OF - CENSUS INFORMATION

United States Citizenship may be sometimes proven by showing a child appeared on a U.S. census in the United States shortly after birth. Contact US Census Bureau.
Thanks to Mary Lee Eldridge

jurisdiction: 
Other

AGGRAVATED FELONY - DRUG TRAFFICKING -- TRAFFICKING ELEMENT

De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (court failed to reach claim that Utah misdemeanor conviction of possession of a controlled substance did not constitute a controlled substance offense, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), by analogy to the Sentencing Guidelines' definition requiring a trafficking element, because this specific claim had not been exhausted before the BIA), citing Salinas v. United States, 547 U.S.

jurisdiction: 
Tenth Circuit

AGGRAVATED FELONY - FIREARMS OFFENSE - CLAIM OF SPORTING USE EXCEPTION REJECTED

Alvarado v. Gonzales, 484 F.3d 535 (8th Cir. April 17, 2007) (per curiam) (federal conviction of possession of firearms and ammunition by an unlawful user of a controlled substance, under 18 U.S.C. 922(g)(3), constituted aggravated felony firearms conviction, for purposes of removal and cancellation of removal, despite the alleged sporting purpose of the guns at issue).

jurisdiction: 
Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - JOYRIDING

Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. Mar 19, 2007) (Texas violation of Penal Code 31.07(a), unauthorized use of a vehicle is a "crime of violence" and thus an "aggravated felony").

jurisdiction: 
Fifth Circuit

GOOD MORAL CHARACTER - UNDERPAYMENT OF INCOME TAXES

Matter of Locicero, 11 I&N Dec. 805 (BIA 1966) (an individual who had knowingly provided fraudulent information on his income tax returns for two years, by underreporting, was not a person of good moral character).

Note: The Board has found that failure to file tax returns is not necessarily a bar to good moral character, citing Matter of T, 1 I&N Dec. 158 (BIA 1941), Matter of Carbajal, Int. Dec. 2765 (Comm. 1978). Thanks to
Susan Compernolle.

jurisdiction: 
BIA

DIVISIBLE STATUTE ANALYSIS - STATE LABEL

United States v. Iniguez-Barba, ___ F.3d ___, 485 F.3d 790 (5th Cir. April 25, 2007) (per curiam) ("While we don't look only to the label of the statute at issue to determine what exactly it proscribes, see Fierro-Reyna, 466 F.3d at 326-27, of course we must look to the labels of the statutes to which we compare the statute at issue.")

jurisdiction: 
Fifth Circuit

AGGRAVATED FELONY - BURGLARY - FLORIDA BURGLARY NOT AN AGGRAVATED FELONY

United States v. Gomez-Guerra, 485 F.3d 301 (5th Cir. April 23, 2007) (Florida conviction for burglary, in violation of Florida Statute 810.02(3) (1995), which forbids not only entry into a structure but also entry into its curtilage, where the charge was in accord, including the words "or the curtilage," did not constitute a crime of violence, pursuant to United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ( "burglary of a dwelling" under USSG 2L1.2 cmt.

jurisdiction: 
Fifth Circuit

AGGRAVATED FELONY - BURGLARY - DISTINCTION BETWEEN ARMED CAREER CRIMINAL ACT AND ILLEGAL REENTRY SENTENCE ENHANCEMENT

James v. United States, 550 U.S. ___, 127 S.Ct. 1586 (April 18, 2007) (Florida conviction for attempted burglary of a dwelling qualifies as a violent felony for the purposes of the Armed Career Criminal Act, 18 U.S.C 924(2)(B)(ii), under the residual provision in 18 U.S.C. 924(2)(B)(ii), as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another.")

jurisdiction: 
US Supreme Ct

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