New Practice Advisory, "Orozco v. Mukasey: Current Status of the Case and Preliminary Strategies" (May 19, 2008). This Practice Advisory discusses the holding in Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), its current status, and preliminary strategies and arguments - both within and outside of the Ninth Circuit - to avoid its negative impact. In Orozco, the Ninth Circuit held that a non-citizen who obtains entry into the U.S.

Federal immigration prosecutions continued their recent and highly unusual surge in March 2008, apparently reaching an all-time high, according to timely data obtained from the Justice Department by TRAC. The total of 9,350 such prosecutions was up by almost 50% from the previous month and 73% from the previous year. http://trac.syr.edu/tracdhs/

Dada v. Mukasey, ___ U.S. ___, 128 S.Ct. 2307 (2008) (filing a motion to reopen does not toll a period of voluntary departure, however, noncitizen should be provided with opportunity, prior to expiration).



Note: The 3d, 8th, 9th, and 11th Circuits had previously found that the filing of a motion to reopen automatically tolls the voluntary departure period, while the 1st, 4th and 5th Circuits had rejected the tolling arguments. The BIA also refused to toll the voluntary departure period. Matter of Shaar, 20 21 I&N Dec. 541 (BIA 1996).

AILF Article on Brand X in Immigration Cases: Http://www.ailf.org/lac/clearinghouse_brandx.shtml

Penal Code 1203.1 authorizes the sentencing court to impose a fine or county jail incarceration as a condition of probation. This fine or jail is not considered to be imposed on account of the conviction, however, but instead as a condition of probation. (See League of Women Voters of California v.

United States v. Becerril-Lopez, 528 F.3d 1133 (9th Cir. Jun. 12, 2008) (to show conviction does not fall within ground of removal, noncitizen must show reasonable probability that the state would apply its statute to conduct outside the generic definition, which in the Ninth Circuit can be done by showing that the text of the state statute expressly includes a broader range of conduct than the Guideline: "In Duenas-Alvarez, the defendant's argument relied not on the express text of the statute at issue, but on how state courts might conceivably apply it.

Paredes v. Attorney General of U.S., 528 F.3d 196 (3d Cir. Jun.9, 2008)("[A] conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived." Matter of Ozkok, 19 I. & N. Dec. 546, 552 n. 7 (BIA 1988) (citing Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir.1975); Will v. INS, 447 F.2d 529 (7th Cir. 1971)), superceded by statute on other grounds.

Paredes v. Attorney General of U.S., 528 F.3d 196 (3d Cir. Jun. 9, 2008) ("pendency of post-conviction motions or other forms of collateral attack . . . does not vitiate finality [of a conviction for removal purposes], unless and until the convictions are overturned as a result of the collateral motions."), citing United States v. Garcia-Echaverria, 374 F.3d 440, 445-46 (6th Cir. 2004); Grageda v. INS, 12 F .3d 919, 921 (9th Cir. 1993); Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982); Will v. INS, 447 F.2d 529, 533 (7th Cir. 1971).

Ali v. Mukasey, 529 F.3d 478 (2d Cir. Jun.18, 2008) (IJ's seeming bias against the petitioner and reliance on unfounded assumptions about homosexuals deprived the petitioner of his right to a fair hearing).

Ali v. Mukasey, 529 F.3d 478 (2d Cir. June 18, 2008) (counsels acknowledgement on the record that IJs decision was "final" signified that counsel had waived appeal to the BIA).