Updates to criminal defense

IMMIGRATION OFFENSES " ILLEGAL REENTRY " COLLATERAL ATTACK " PREJUDICE

United States v. Zamudio, ___ F.3d ___, 2015 WL 162855 (9th Cir. Jan. 14, 2015) (affirming illegal reentry conviction, where defendant failed to meet his burden in collaterally attacking his underlying deportation proceeding: even if the Immigration Judge erred in failing to advise defendant of his ability to apply for relief from removal, defendant suffered no prejudice because if he had obtained relief from removal for his 1994 conviction, he would have been rendered ineligible for relief from removal for his 2000 conviction).

CAL CRIM DEF " CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE DEFENSE " PRACTICE ADVISORY

Health & Safety Code 11350-11352. Formerly, these offenses covered certain substances that were not on the federal list, and these statutes were therefore divisible for purposes of removal and eligibility for relief under the strict standards of Moncrieffe and Descamps. For example, the government conceded in Esquivel-Garcia v. Holder, 593 F. 3d 1025 (9th Cir. 2010) that 11350 was divisible, but the conviction in that case occurred in 1989 when schedule II at HS 11055(b) (referenced by 11350) still included apomorphine, which is specifically excluded from the federal CSA.

RELIEF " SPECIAL IMMIGRANT JUVENILE

In re Israel O., ___ Cal.App.5th ___, 2015 WL 227892 (1st Dist. Jan.

AGGRAVATED FELONY " FIREARMS OFFENSES " FIRST-DEGREE ARSON

Espinal-Andrades v. Holder, ___ F.3d ___, 2015 WL 268528 (4th Cir. Jan. 22, 2015) (Maryland conviction of first-degree arson, in violation of Md.Code Ann., Crim. Law 6"102, qualified as an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), because the elements are identical to the elements of the federal arson statute, 18 U.S.C.

DETENTION " IMMIGRATION DETENTION " IMMIGRATION HOLD DISQUALIFIED DEFENDANT FROM ELIGIBILITY FOR MANDATORY SUPERVISION PORTION OF SENTENCE

People v. Camp, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 273088 (4th Dist. Jan. 21, 2015) (immigration hold disqualified defendant from eligibility for mandatory supervision portion of realignment , so criminal court modified sentence, terminated mandatory supervision, and ordered defendant released to ICE custody).

INADMISSIBILITY " FALSE CLAIM TO US CITIZENSHIP " EVIDENCE

Mayemba v. Holder,776 F.3d 542 (8th Cir. Jan. 13, 2015) (Form I-9 is acceptable evidence before immigration court of proof of making a false claim of U.S. citizenship for immigration purposes; even if the I-9 form is expressed in the disjunctive[citizen or national], additional evidence may be examined to establish noncitizens intent upon checking the box, including testimony and other applications).

AGGRAVATED FELONY " FRAUD OFFENSES " LOSS AMOUNT " CANNOT INCLUDE LOSSES INCURRED PRIOR TO MOMENT DEFENDANT JOINED THE CONSPIRACY

United States v. Rice, ___ F.3d ___, 2015 WL 265459 (9th Cir. Jan. 22, 2015) (reversing sentence for conspiracy to commit money laundering offense, in violation of 18 U.S.C. 1956(a)(3)(A), since district court improperly based the sentence and restitution order on a loss amount that included money laundered before the defendant joined the conspiracy).

IMMIGRATION COURT " CHOICE OF LAW " IMMIGRATION JUDGES MUST FOLLOW LAW OF THE CIRCUIT IN WHICH THEY SIT

Matter of Chairez, 26 I. & N. Dec. 478 (BIA 2015) (Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit).
http://www.justice.gov/eoir/vll/intdec/vol26/3825.pdf

OVERVIEW " REMOVAL PROCEEDINGS " MOTIONS TO SUPRRESS

American Immigration Counsel practice advisory on filing motions to suppress in removal proceedings. http://www.americanimmigrationcouncil.org/sites/default/files/motions_to...

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