Capsule updates to CMT book

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT HAS NO JURISDICTION TO REVIEW DISCRETIONARY DENIAL OF MOTION FOR CONTINUANCE

Moral-Salazar v. Holder, ___ F.3d ___, 2013 WL 717060 (7th Cir. Feb. 28, 2013) (the jurisdictional bar of INA 242(a)(2)(C), 8 U.S.C. 1252(a)(2)(C) does not allow review of the denial of a discretionary motion for continuance).

REMOVAL PROCEEDING " IN ABSENTIA ORDER " MOTION TO REOPEN

Smykiene v. Holder, 707 F.3d 785 (7th Cir. Feb. 13, 2013) (Immigration Judge and the BIA erred in allowing noncitizen who claimed not to have received notice to reopen her case; BIA failed to recognize its own distinction between providing notice, and receipt of notice).

JUDICIAL REVIEW " PETITION FOR REVIEW " GROUNDS " BIA MISAPPLICATION OF ITS OWN PRECEDENT

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. Feb. 13, 2013) (granting petition for review, since BIA misapplied its own precedent in holding that witnesses who testify against gang members may not constitute a particular social group due to a lack of social visibility for purposes of asylum eligibility).

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE

Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).

CRIMES OF MORAL TURPITUDE " THEFT " THEFT OFFENSES INVOLVE MORAL TURPITUDE ONLY IF THEY REQUIRE AN ELEMENT OF INTENT TO PERMANENTLY DEPRIVE THE OWNER OF THE PROPERTY

Patel v. Holder, 707 F.3d 77, ___ (1st Cir. Feb. 1, 2013) (It is common ground among the parties that theft offenses can meet this definition, and that not all theft offenses do so. As noted above, the BIA generally distinguishes between turpitudinous thefts and their less depraved counterparts by asking whether the defendant intended to permanently deprive the owner of the purloined property.); citing In re Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973).

JUDICIAL REVIEW " PETITION FOR REVIEW " REVIEW LIMITED TO THE REASONING ARTICULATED BELOW

Patel v. Holder, 707 F.3d 77, ___ n.1 (1st Cir. Feb. 1, 2013) (court declined to consider government argument not the basis of the BIA decision: In this case, however, the BIA treated the permanent-or-temporary-intent question as dispositive, and our review is limited to the reasoning articulated below. Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.2004); see Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir.2007) (bypassing this issue where the BIA treated the [permanent intent] inquiry as determinative).).

CRIMES OF MORAL TURPITUDE " FORGERY " TRAFFIC IN ID DOCUMENTS

Yeremin v. Holder, ___ F.3d ___, 2013 WL 535755 (6th Cir. Feb. 14, 2013) (federal conviction of 18 U.S.C. 1028(f), for conspiracy to traffic in identification documents in violation of 1028(a)(3), which prohibits knowingly possessing with intent to use unlawfully or transfer unlawfully five or more identification documents or false identification documents, constituted a crime of moral turpitude because the conduct prohibited by the statute inherently involves deceit).

RETROACTIVITY " ADMINISTRATIVE CHANGE IN THE LAW " RETROACTIVE UNLESS BURDEN ON APPLICANT

Whether an administrative (as opposed to statutory or judicial) change in the law is subject to different rules regarding retroactive application. In general an administrative change in law is retroactive unless there is a burden on the applicant. Retail, Wholesale and Department Store Union, AFL"CIO v. NLRB, 466 F.2d 380 (D.C.Cir.1972), Miguel-Miguel v. Gonzales, 500 F.3d 941, 950 (9th Cir. 2007); Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir.1982).
Thanks to Stacy Tolchin.

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE

Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).

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