JUDICIAL REVIEW - PETITION FOR REVIEW - DENIAL OF SUA SPONTE MOTION TO REOPEN BY BIA
Lenis v. US Atty. Gen., 525 F.3d 1291 (11th Cir. May 5, 2008) (court lacks jurisdiction to review BIA denial of sua sponte reopening).
POST CON RELIEF - MODIFICATION OF RECORD OF CONVICTION SOLELY FOR IMMIGRATION PURPOSES MAY NOT BE AFFECTIVE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21.
STATUTORY INTERPRETATION - RULE OF SUPERFLUITIES
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Pauley, Boardmember, concurring) ("Indeed, it appears that crimes of child neglect or abandonment are a subset of "child abuse" and, although technically redundant, were likely inserted by Congress to assure coverage of such crimes, however denominated by the State. See Ali v. Federal Bureau of Prisons, 128 S. Ct.
INADMISSIBILITY - CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION
United States v. Rodriquez, 553 U.S. ___ (May 19, 2008) (for purposes of considering whether a state drug-trafficking offense, for which a ten-year recidivism-based sentence was imposed, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e)), the federal sentencing court must consider the recidivist sentence enhancement in determining the sentence imposed), disagreeing with United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.
CATEGORICAL ANLAYSIS - BURDEN OF PROOF - FACT REQUIRED TO BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE IS NOT SUFFICIENTLY SHOWN BY RECORD OF CONVICTION THAT NEED BE SHOWN ONLY BY A PREPONDERANCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington restitution order, contained in judgment, indicating that the respondent owed no restitution to his "child victim" did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. Specifically, in Washington the facts upon which a restitution award may be based need only have been proven to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173, 1175 (Wash. Ct. App. 2000).
RECORD OF CONVICTION - NO CONTACT ORDER - FAILURE TO CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF NATURE OF CONVICTION WHERE NO CONTACT ORDER MAY BE BASED ON PREPONDERANCE OF THE EVIDENCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington no contact order, contained in criminal case file, identifying the victim's date of birth, did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. . . . [A]lthough a "no-contact order" must bear a relationship to an offender's convicted offense, no direct causal link need be established between such an order and the crime committed. State v. Warren, 138 P.3d 1081, 1094 (Wash. Ct. App. 2006) (citing State v. Llamas-Villa, 836 P.2d 239 (Wash. Ct. App. 1992)).
RECORD OF CONVICTION - CHARGE - ORIGINAL CHARGE AT TIME OF PLEA COULD NOT BE CONSIDERED AS PART OF RECORD OF CONVICTION SINCE AGE OF VICTIM DID NOT APPEAR IN FINAL, BACK-DATED CHARGE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21.
CONVICTION - NATURE OF CONVICTION - CATEGORICAL ANALYSIS - BIA REAFFIRMS CATEGORICAL DETERMINATION OF THE NATURE OF DEPORTABLE CONVICTIONS UNLESS CONGRESS INVITED EXCEPTION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (BIA rejected DHS argument to go beyond elements of offense, and beyond record of conviction, to determine whether conviction constituted "crime of child abuse" under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), using reasoning applicable to all criminal grounds of deportation except those specifically excluded by earlier decisions), citing Matter of Babaisakov, 24 I. & N. Dec.
NATURE OF CONVICTION - CATEGORICAL ANALYSIS - BIA HAS NO AUTHORITY TO REJECT CATEGORICAL ANALYSIS OR CONSIDER POLICY ARGUMENTS EXCEPT IN INTERPRETING OTHERWISE AMBIGUOUS IMMIGRATION LEGISLATION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("The principal difficulty with the DHS's position [arguing for abandonment of categorical analysis] is that we simply have no authority to consider such policy matters except as they may bear on the proper interpretation of an otherwise ambiguous statute.
CATEGORICAL ANALYSIS - NON-ELEMENTS IN CHARGING DOCUMENT ARE SURPLUSAGE
United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. May 22, 2008) (court may not look to language in charge, that defendant committed burglary "willfully and unlawfully" to determine whether the California burglary conviction fits within they Taylor generic definition of burglary where an "unlawful" entry into the building is not an element of the crime of conviction; because the California burglary statute is not divisible, there was no need to look to the record of conviction), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007).