Updates to criminal defense

AGGRAVATED FELONIES - DRUG TRAFFICKING - POSSESSION - SECOND POSSESSION

For those litigating challenges to drug aggravated felony charges post-Lopez, the NYSDA Immigrant Defense Project has updated its "Practice Advisory: Removal Defense of Immigrants in Drug Possession Cases - The Impact of Lopez v. Gonzales." http://www.nysda.org/idp/docs/07_PostLopezAdvisoryforRemovalDefense41207.... Also available on the IDP website are copies of amicus briefs addressing post-Lopez issues filed before the Board of Immigration Appeals and before the Second, Fifth, and Eleventh Circuits. http://www.nysda.org/idp/webPages/drugLitigationInit.htm
Thanks to Manny Vargas.

jurisdiction: 
Other

AGGRAVATED FELONY - EFFECTIVE DATE - ILLEGAL REENTRY - SENTENCE - AGGRAVATED FELONY CONVICTIONS TRIGGER SENTENCE ENHANCEMENT REGARDLESS OF DATE OF CONVICTION

United States v. Olmos-Esparza, 484 F.3d 1111 (9th Cir. April 24, 2007) (district court did not err by considering convictions from 1972 and 1976 in calculating illegal reentry sentencing enhancements under USSG 2L1.2), (USSG 2L1.2 contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements); accord, United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006), petition for cert. filed November 22, 2006 (No. 06-7990); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1312-13 (11th Cir.), cert. denied, 126 S.Ct. 457 (2005).

jurisdiction: 
Ninth Circuit

NON-SUBSTANTIVE OFFENSES - STATUTORY CONSTRUCTION - EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (statutory construction maxim expressio unius est exclusio alterius means when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in the instances in which it was listed but not in others).

jurisdiction: 
Ninth Circuit

PETTY OFFENSE EXCEPTION - COMMISSION OF SECOND CMT AS DISQUALIFICATION - BURDEN OF PROOF

Matter of SF, 7 I. & N. Dec. 495 (BIA 1957) (if the preponderance of the evidence shows the noncitizen committed a second CMT, the petty offense exception to inadmissibility for one CMT conviction or admission does not apply).

jurisdiction: 
BIA

CRIME OF MORAL TURPITUDE - SEX OFFENSES - FAILURE TO REGISTER AS SEX OFFENDER HELD CMT

Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007) (California conviction of willful failure to register by a sex offender who has been previously apprised of the obligation to register, in violation of Penal Code 290(g)(1), is a crime involving moral turpitude).
http://www.usdoj.gov/eoir/vll/intdec/vol24/3562.pdf

jurisdiction: 
BIA

CRIM DEF - EARLY RELEASE TO DEPORTATION - PRISONER TRANSFER

The general rule is that a noncitizen cannot be removed until the sentence has been served. INA 241(a)(4)(A). The exception to this rule applies to certain nonviolent offenders. INA 241(a)(4)(B).

jurisdiction: 
Other

SAFE HAVEN - STATE REHABILITATIVE RELIEF - PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT

The Federal First Offender Act, 18 U.S.C. 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.

jurisdiction: 
Other

RELIEF - PAROLE - HUMANITARIAN PAROLE

Humanitarian parole is granted in cases of medical emergencies and the like. These are rarely granted, are generally good for up to a year, and are examined case-by-case by the Secretary of Homeland Security.

jurisdiction: 
Other

Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. May 29, 2007) (petitioner was statutorily ineligible to prove good moral character because he had engaged in alien smuggling).

jurisdiction: 
Ninth Circuit

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).

jurisdiction: 
Fifth Circuit

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