Capsule updates to CMT book

CONVICTION " PROBATION BEFORE JUDGMENT " MARYLAND

Yanez-Popp v. INS, 998 F.2d 231 (4th Cir.1993) (Maryland court's granting of probation without judgment, in which a plea of guilty is entered and then stricken during imposition of probation at sentence, constituted a conviction within the meaning of the immigration laws); see INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).

jurisdiction: 
Fourth Circuit

RELIEF " WAIVERS " CANCELLATION OF REMOVAL " WEIGHT OF HARDSHIP FACTORS NONREVIEWABLE

Ettienne v. Holder, 659 F.3d 513, 518 (6th Cir. Oct. 5, 2011) (court lacks jurisdiction to review weight attached by Immigration Judge to hardship evidence relating to cancellation of removal; this court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner's case and those of precedential decisions).

jurisdiction: 
Sixth Circuit

RELIEF " REINSTATEMENT OF REMOVAL

Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. Oct.

jurisdiction: 
Tenth Circuit

RELIEF " ADJUSTMENT OF STATUS " FIVE-YEAR STATUTE OF LIMITATIONS

Alhuay v. U.S. Atty. Gen., 661 F.3d 534 (11th Cir. Oct. 26, 2011) (per curiam) (a removal order ends lawful permanent resident status, even if issued more than five years after the grant of LPR status, because INA 246(a), 8 U.S.C. 1256(a), bars rescission after five years, and does not bar issuance of a removal order on the basis that the grant of LPR status was based on misrepresentations); see Matter of Belenzo, 17 I. & N. Dec.374, 382 (BIA 1981); Matter of S, 9 I. & N. Dec.

jurisdiction: 
Eleventh Circuit

CRIMES OF MORAL TURPITUDE " CATEGORICAL ANALYSIS " SILVA-TREVINO REJECTED

Sanchez Fajardo v. Atty Gen., 659 F.3d 1303 (11th Cir. Oct. 12, 2011) (rejecting the framework for determining whether a crime involves moral turpitude announced in Matter of Silva-Trevio, 24 I&N Dec. 687 (A.G. 2008)).

jurisdiction: 
Eleventh Circuit

JUDICIAL REVIEW " STATUTORY INTERPRETATION " CONGRESS IS PRESUMED TO KNOW AND APPROVE OF JUDICIAL INTERPRETATIONS OF A STATUTE WHEN IT DOES NOT ALTER THEM IN AMENDING A STATUTE

Sanchez Fajardo v. Atty Gen., 659 F.3d 1303, 1309 (11th Cir. Oct. 12, 2011) ([W]hen Congress incorporated the language premising inadmissibility on whether a person was convicted of a crime involving moral turpitude into the INA, it was presumably aware that this language had been interpreted to require the application of a categorical and modified categorical approach. . . . [If Congress had wanted to change that interpretation,] it could easily have amended the statute to allow adjudicators to consider the actual conduct underlying a conviction.).

jurisdiction: 
Eleventh Circuit

CONVICTION " NON-CONVICTION DISPOSITION " NO-PLEA DIVERSION

Practice Advisory. State no-plea diversion programs in which a defendants confession is not placed in the court file do not constitute convictions for immigration purposes under the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). The admission of facts referred to in this statute must mean an admission to the court, rather than to the prosecutor. It is possible, however, for an ICE attorney to ask the prosecutor for a copy and try to use it in removal proceedings to establish a conviction.

jurisdiction: 
Other

JUDICIAL REVIEW " ABUSE OF DISCRETION " ERROR OF LAW IS AN ABUSE OF DISCRETION

James v. Schriro, 659 F.3d 855 (9th Cir. Oct. 12, 2011) (an error of law is an abuse of discretion); Strauss v. Comm'r, 635 F.3d 1135, 1137 (9th Cir.2011) (An error of law is an abuse of discretion.).

jurisdiction: 
Ninth Circuit

CRIMES OF MORAL TURPITUDE " ACCESSORY AFTER THE FACT

Matter of Rivens, 25 I&N Dec. 623, 627 n.5 (BIA Oct. 19, 2011) (federal conviction of accessory after the fact, in violation of 18 U.S.C. 3 (2000), is a crime involving moral turpitude, but only if the underlying offense is a crime involving moral turpitude); see Matter of Sanchez-Marin, 11 I&N Dec.

jurisdiction: 
US Supreme Ct

JUDICIAL REVIEW " PETITION FOR REVIEW " DENIAL OF CONTINUANCE " ABUSE OF DISCRETION

Jiang v. Holder, 658 F.3d 1118 (9th Cir. Sept. 26, 2011) (We weigh four factors to determine whether the BIA has abused its discretion in denying a continuance: 1) the importance of the evidence, 2) the unreasonableness of the immigrant's conduct, 3) the inconvenience to the court, and 4) the number of continuances previously granted.); citing Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir.2008); citing Baires v. INS, 856 F.2d 89, 92"93 (9th Cir.1988).

jurisdiction: 
Ninth Circuit

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