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Recent Developments In Criminal Immigration Law - December 2006

by Norton Tooby and Joseph Justin Rollin

STATUTES -- ARTICLE UPDATE -- GROUNDS OF DEPORTATION - STATE SEX OFFENDER REGISTRATION VIOLATIONS DO NOT TRIGGER DEPORTATION UNDER NEW FEDERAL DEPORTATION GROUND
A previous article described the new sex offender registration ground of deportation. N. Tooby, New Deportation Ground: Federal Conviction of Failure to Register as a Sex Offender.

ICE has reportedly been taking the position that a state-court conviction of failure to register as a sex offender, under state statutes such as California Penal Code § 290, triggers deportation under this new ground. ICE is wrong.

Congress did not state in the new sex offender registration bar that state failure to register offenses that are analogous (or coextensive) with the federal offense also trigger deportation or other adverse immigration consequences. It specified that only convictions 'under 18 USC 2250' would do so. Compare the aggravated felony definition, that expressly states analogous state convictions are included in the aggravated felony definition. The controlled substances deportation ground explicitly includes violations of 'any law or regulation of a State . . . .' INA 237(a)(2)(B)(i). The firearms ground expressly includes people 'convicted under any law . . . .' INA 237(a)(2)(C). It is impossible to conclude that any state convictions occur 'under' 18 USC 2250. Since Congress did not specify state convictions under state laws analogous to 18 USC 2250, they are simply not included. Many judicial decisions hold that if a conviction is not listed as triggering deportation, it does not do so. See N. Tooby & J. Rollin, Aggravated Felonies § 3.48(B) (2006). If there were any reasonable doubt about this question of statutory interpretation, the immigrant must receive the benefit of that doubt. (Ibid., § 4.41.)

REGULATIONS -- RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIENS NOW ELIGIBLE TO APPLY FOR AOS UNDER INTERIM RULE
'Arriving aliens' in removal proceedings are now eligible to apply for adjustment with USCIS under the interim rule. 71 Fed. Reg. 27585 (May 12, 2006). The interim rule, effective on May 12, 2006, deleted the absolute bar on an 'arriving alien's' ability to adjust status in removal proceedings. Prior to the issuance of the interim rule, several courts of appeals had struck down the former regulation barring adjustment, finding that it violated the statute. For more information about the rule and the litigation that prompted it, see AILF's Practice Advisory, 'Arriving Alien' and Adjustment of Status: What is the Impact of the Government's Interim Rule of May 12, 2006? (Updated October 3, 2006) available at http://www.ailf.org/lac/lac_pa_chrono.shtml.

FIRST CIRCUIT -- RELIEF - WAIVERS - 212(C) WAIVER - AGGRAVATED FELONY - MATTER OF BLAKE FOLLOWED IN FIRST CIRCUIT
Kim v. Gonzales, ___ F.3d ___, 2006 WL 3317662 (1^st Cir. Nov. 16, 2006)(immigrant was not eligible for 212(c) waiver of deportability as to a Rhode Island conviction of manslaughter, in violation of R.I. Gen. Laws § 11-23-3 (1993), with sentence to 10 years in prison, which constituted an aggravated felony crime of violence, even if it also constituted a crime of moral turpitude, since Congress did not enact a parallel aggravated felony ground of inadmissibility), following In re Brieva-Perez, 23 I. & N. Dec. 766, 772-73 (BIA 2005), and Komarenko v. INS, 35 F.3d 432, 435 (9th Cir.1994).http://laws.lp.findlaw.com/1st/052462.html

FIFTH CIRCUIT -- AGGRAVATED FELONY - CRIME OF VIOLENCE - TEXAS ASSAULT HELD NOT AGGRAVATED FELONY CRIME OF VIOLENCE BECAUSE ELEMENTS REQUIRE INSUFFICIENT VIOLENCE
United States v. Villegas-Hernandez, ___ F.3d ___ (5^th Cir. October 31, 2006)(Texas misdemeanor conviction for assault, in violation of Penal Code § 22.01(a)(1) ['intentionally, knowingly, or recklessly causes bodily injury to another'], with a one-year sentence imposed, did not constitute an aggravated felony crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), or 18 U.S.C. § 16(a), because its elements require insufficient violence, and use of force is not an element of the offense, so it did not constitute an aggravated felony under USSG 2L1.2(b)(1)(C) for purposes of imposing an 8-level enhancement of sentence for illegal reentry after deportation).http://caselaw.lp.findlaw.com/data2/circs/5th/0540988cr0p.pdf

FIFTH CIRCUIT -- RECORD OF CONVICTION - CONDUCT OR FACTS UNDERLYING AN OFFENSE CANNOT BE USED TO SHOW THE CONVICTION FALLS WITHIN A GROUND OF DEPORTATION, EVEN IF THE FACTS ARE ALLEGED IN THE CHARGE OF CONVICTION, IF THEY DO NOT CONSTITUTE ELEMENTS OF THE OFFENSE
United States v. Villegas-Hernandez, ___ F.3d ___ (5^th Cir. October 31, 2006)(conduct or facts underlying an offense cannot be used to show the conviction falls within a ground of deportation, even if the facts are alleged in the charge of conviction, if they do not constitute elements of the offense; under Texas law, the manner and means of commission of the offense do not constitute elements). http://caselaw.lp.findlaw.com/data2/circs/5th/0540988cr0p.pdf

SIXTH CIRCUIT -- JUDICIAL REVIEW - PETITION FOR REVIEW - CONTINUANCE - NO PETITION FOR REVIEW OF DISCRETIONARY DENIAL OF CONTINUANCE
Berri v. Gonzales, ___ F.3d ___ (6^th Cir. Nov. 16, 2006)(petition for review denied where IJ's denial of a continuance was not an abuse of discretion).
http://caselaw.lp.findlaw.com/data2/circs/6th/054045p.pdf

SEVENTH CIRCUIT -- RELIEF - WAIVER - HEIGHTENED HARDSHIP STANDARD FOR REFUGEES CONVICTED OF DANGEROUS CRIMES DOES NOT VIOLATE STATUTE
Ali v. Achim, ___ F.3d ___, 2006 WL 3162270 (7^th Cir. November 6, 2006)(Attorney General's heightened 'exceptional and extremely unusual hardship' standard, under Matter of Jean, 23 I. & N. Dec. 373, 383 (A.G. 2002), for aliens convicted of 'violent or dangerous' criminal acts who seek to adjust status under 8 U.S.C. § 1159(c)); accord, Rivas-Gomez v. Gonzales, 441 F.3d 1072, 1078 (9th Cir. 2006)(approving Matter of Jean's heightened waiver standard for refugees who commit violent crimes, because the standard was rationally related to the 'national immigration policy of not admitting aliens who would be a danger to society.'); Jean v. Gonzales, 452 F.3d 392, 397 (5th Cir. 2006)(affirming Matter of Jean's heightened waiver standard for refugees who commit violent crimes, because 'the Attorney General did not add a class of aliens to those who are statutorily inadmissible for waiver, nor did he instruct the BIA to ignore statutory considerations of family unity, humanitarian concerns, and public interest.'

NINTH CIRCUIT -- RELIEF - CANCELLATION - STOP-TIME RULE - NOT RETROACTIVELY APPLICABLE TO CONVICTIONS PREDATING IIRAIRA EFFECTIVE DATE
Sinotes-Cruz v. Gonzales, ___ F.3d ___, 2006 WL 3375366 (9th Cir. November 22, 2006) (the permanent stop-time rule of INA § 240A(d)(1) may not be applied retroactively to prevent accrual of the seven-year continuous residence requirement of INA § 240A(a)(2), for cancellation of removal, on the basis of a conviction pre-dating the effective date of the stop-time rule), following reasoning of INS v. St. Cyr, 533 U.S. 289 (2001),
http://caselaw.lp.findlaw.com/data2/circs/9th/0470745p.pdf

NINTH CIRCUIT -- AGGRAVATED FELONY - BURGLARY - BURGLARY OF A DWELLING NOT CATEGORICALLY AGGRAVATED FELONY BURGLARY
United States v. Reina-Rodriguez, ___ F.3d ___ (9^th Cir. Nov. 15, 2006)(Utah conviction of second-degree burglary of a dwelling or attempted aggravated burglary, under Utah Code Ann. § 76-6-202 or 203, does not justify a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii), since the attempted burglary statute does not fall within the burglary of a dwelling portion of the 'crime of violence' definition in the Guidelines, because Utah conviction of attempted aggravated burglary does not require an entry into a dwelling, but it did under modified categorical analysis since record of conviction established it was burglary of dwelling and not attempted aggravated burglary). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf

NINTH CIRCUIT -- AGGRAVATED FELONY - SENTENCE - UNLAWFUL SENTENCE - SENTENCE UNLAWFUL ON ITS FACE DOES NOT CONSTITUTE SENTENCE IMPOSED FOR PURPOSES OF AGGRAVATED FELONY SENTENCE REQUIREMENT
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9^th Cir. Nov. 15, 2006)(Arizona court order imposing a twelve-month sentence, for Arizona misdemeanor conviction of 'theft by control of property with a value of $250 or more,' in violation of A.R.S. §§ 1301802(A)(1), (C)(1992), arguably would not constitute a one-year sentence imposed for removal purposes since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, requiring remand to the BIA to consider the issue in the first instance), citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9^th Cir; 2004)(remanding to BIA to consider in first instance whether petition continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per curiam)(remanding 'changed circumstances' issue to BIA for 'opportunity to address the matter in the first instance).

NINTH CIRCUIT -- AGGRAVATED FELONY - CRIME OF VIOLENCE - CATEGORICAL ANALYSIS -- DISCHARGING FIREARM AT DWELLING NOT CATEGORICALLY A CRIME OF VIOLENCE
United States v. Martinez-Martinez, ___ F.3d ___ (9th Cir. November 14, 2006)(Arizona conviction of discharging firearm at a residence, in violation of A.R.S. § 13-1211, did not categorically constitute a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii), because the statute of conviction encompassed any structure capable of being occupied as a residence, even though it was not presently so occupied), distinguishing United States v. Cortez-Arizs, 403 F.3d 1111 (9^th Cir. 2005)(California conviction of discharging a firearm at an 'inhabited dwelling house,' one 'currently being used for dwelling purposes, whether occupied or not,' in violation of Penal Code § 246, constituted a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii)). http://caselaw.lp.findlaw.com/data2/circs/9th/0610015p.pdf

NINTH CIRCUIT -- JUDICIAL REVIEW - MOTION TO REOPEN - BIA MUST GRANT MOTION TO REOPEN REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED - REGULATION DOES NOT BAR CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9^th Cir. Aug. 21, 2006)(8 C.F.R. § 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal).

NINTH CIRCUIT -- POST CON RELIEF - EFFECTIVE ORDER - NINTH CIRCUIT FOLLOWS PICKERING TO HOLD CONVICTION VACATED FOR SUBSTANTIVE OR PROCEDURAL DEFECT IS ELIMINATED FOR IMMIGRATION PURPOSES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9^th Cir. Aug. 21, 2006)(conviction vacated for any procedural or substantive defect has been eliminated for immigration purposes, and cannot trigger removal, whereas conviction vacated for equitable, rehabilitative, or immigration purposes unrelated to the merits of the conviction remains), following Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 454 F.3d 525 (6^th Cir. July 17, 2006).

NINTH CIRCUIT -- POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - GOVERNMENT BEARS BURDEN OF PROVING CONVICTION STILL EXISTS AFTER VACATUR HAS BEEN ISSUED
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9^th Cir. Aug. 21, 2006)('for the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove 'with clear, unequivocal and convincing evidence, that the Petitioner's conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e., to avoid adverse immigration consequences.')(original emphasis), citing Pickering v. Gonzales, 454 F.3d 525 (6^th Cir. 2006).

NINTH CIRCUIT -- SAFE HAVEN -- CONTROLLED SUBSTANCES OFFENSES - AGGRAVATED FELONIES - ACCESSORY AFTER THE FACT AS SAFE HAVEN DESPITE CMT RISK>
CRIME OF MORAL TURPITUDE - ACCESSORY AFTER THE FACT - REHEARING GRANTED IN NAVARRO
Navarro-Lopez v Gonzales, 455 F.3d 1055 (9^th Cir. 2006), opinion vacated on grant of rehearing en banc (original decision held California conviction of accessory after the fact, in violation of Penal Code § 32, was a CMT and was cited by BIA in Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006)(federal conviction of misprision of a felony, in violation of 18 USC §4, was a CMT).

NINTH CIRCUIT -- DOMESTIC VIOLENCE - VIOLATION OF PROTECTIVE ORDER - WHETHER PROTECTIVE ORDER MUST BE LEGALLY VALID BEFORE A FINDING OF ITS VIOLATION CAN TRIGGER DEPORTATION United States v. Young, ___ F.3d ___ (9^th Cir. Aug. 17, 2006)(18 U.S.C. § 922(g)(8)(A) makes it a federal offense to possess a firearm by one against whom a domestic violence restraining order has been issued 'after a hearing of which such person received actual notice, and at which such person had an opportunity to participate' and there is no right to collaterally attack the constitutionality of the state court restraining order since those proceedings are immaterial except to the extent that the federal statute explicitly requires certain procedural protections).

NINTH CIRCUIT -- JUDICIAL REVIEW - PETITION FOR REVIEW - BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION

POST CON RELIEF - EFFECTIVE ORDER - BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION

POST CON RELIEF - MOTION TO REOPEN - BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. November 3, 2006)(BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes).

TENTH CIRCUIT -- AGGRAVATED FELONY - SOLICITATION - GUIDELINES AGGRAVATED FELONY LANGUAGE BROADER THAN INA SO AS TO INCLUDE SOLICITATION
United States v. Cornelio-Pena, 435 F.3d 1279, 1285 (10th Cir. 2006)('Additionally, Cornelio-Pena argues our decision should be informed by Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999). In these cases, the Ninth Circuit concluded that Arizona's solicitation statute is not a law relating to a controlled substance or an aggravated felony under § 241(a)(2) of the Immigration and Nationality Act when the underlying offense solicited is a narcotics violation. Coronado-Durazo, 123 F.3d at 1326; Leyva-Licea, 187 F.3d at 1150. These cases are inapposite, however, because the statutory definition at issue did not contain expansive language similar to the term 'include' used in the Guidelines. Leyva-Licea, 187 F.3d at 1150 ('the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitations').'

About The Author

Norton Tooby is a criminal defense attorney with offices in Oakland, California. After graduating from Harvard University in 1967, he attended Stanford Law School where he served as President of the Stanford Law Review in 1969-1970. Since 1986, he has specialized in criminal defense of non-citizens, and his career has been devoted almost entirely to criminal defense work, culminating in the successful appeal of a death penalty case before the California Supreme Court under Chief Justice Malcolm Lucas in 1988 in which all convictions were reversed and his client was set at liberty. Since that time, he has increasingly specialized in criminal representation of immigrants.

Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.

For more information about Norton Tooby's Practice Manuals and CD's, see here. For information about upcoming seminars, see here.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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