Updates to criminal defense

DOMESTIC VIOLENCE " NO CONTACT ORDER

Cespedes v. Lynch, 805 F.3d 1274 (10th Cir. Nov. 19, 2015) (any violation of a protection order will trigger 8 U.S.C. 1227(a)(2)(E)(ii), INA 237(a)(2)(E)(ii)), agreeing with Matter of Strydom, 25 I. & N. Dec. 507, 510 (2011).

CONVICTION -- NATURE OF CONVICTION " CATEGORICAL ANALYSIS " CIRCUMSTANCE-SPECIFIC FACTOR " DOMESTIC RELATIONSHIP DOMESTIC VIOLENCE " DOMESTIC RELATIONSHP " CIRCUMSTANCE-SPECIFIC FACTOR

Hernandez-Zavala v. Lynch, (4th Cir. Nov. 20, 2015) (North Carolina conviction for assault with a deadly weapon, in violation of N.C. Gen. Stat. 14-33(c)(1), is a crime of domestic violence, even though domestic relationship is not necessary to convict; applying circumstance specific analysis to domestic relationship element of 8 U.S.C. 1227(a)(2)(E)(i), INA 237(a)(2)(E)(i)).

REMOVAL PROCEEDINGS " EVIDENCE " ALIENAGE " BIRTH CERTIFICATE

Garcia-Aguilar v. Lynch, __ F.3d __ (1st Cir. Nov. 25, 2015) (birth certificate received from Mexican consulate sufficient to establish alienage, independent of alleged constitutional violations).

AGGRAVATED FELONY " CHILD PORNOGRAPHY " POSSESSION OF CHILD PORNOGRAPHY

Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct.

DETENTION " MANDATORY DETENTION " WHEN RELEASED

Lora v. Shanahan, 804 F.3d 601 (2d Cir. Oct. 28, 2015) (DHS retains its authority and duty to detain noncitizen subject to mandatory detention even if not taken into custody immediately upon the noncitizen's release)

DETENTION " MANDATORY DETENTION " SIX MONTH REVIEW

Lora v. Shanahan, 804 F.3d 601 (2d Cir. Oct. 28, 2015) (noncitizen subject to mandatory detention must be afforded a bail hearing before an immigration judge within six months of his or her detention).

DETENTION " MANDATORY DETENTION " SIX MONTH REVIEW

Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. Oct. 28, 2015) (noncitizens subject to mandatory detention entitled to review after six months; DHS must prove by clear and convincing evidence that noncitizen is a flight risk or danger to community).

CONTROLLED SUBSTANCES " DEPORTATION " EXCEPTION FOR FIRST OFFENSE POSSESSION OF SMALL AMOUNT OF MARIJUANA " BIA CANNOT ADD CONDITIONS

Flores v. Lynch, 803 F.3d 699 (5th Cir. 2015) (conviction for possession of marijuana in a school zone meets the personal use exception to deportability for a controlled substances offense; BIA erred in adding to the personal use exception a requirement that the offense be no more than the least serious offense).

NOTE: This reasoning should also invalidate the possession in jail disqualification from the marijuana exception to the controlled substance ground of deportation. The Court specifically cited, and disagreed with, Matter of Moncada"Servellon, 24 I. & N. Dec. 62 (BIA 2007).

CAL CRIM DEF " PRACTICE ADVISORY " GROSS NEGLIGENCE IN CALIFORNIA

Penal Code 191.5(a), gross vehicular manslaughter while intoxicated, arguably involves insufficient intent to qualify as a crime of violence aggravated felony, crime of domestic violence, or crime of moral turpitude.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b)

Dimaya v. Lynch, ___ F.3d ___ (9th Cir. Oct. 15 2015) (California conviction for burglary under Penal Code 459 is not a categorical crime of violence as defined by INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because the language in 18 U.S.C. 16(b), which is incorporated into 1101(a)(43)(F)s definition of a crime of violence, is unconstitutionally vague since the 18 U.S.C. 16(b) language suffers from the same indeterminacy the Supreme Court found void for vagueness in the Armed Career Criminal Acts residual clause definition of a violent felony in Johnson v. United States, 135 S. Ct.

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