Recent Developments In Criminal Immigration Law - December 2006
STATUTES -- ARTICLE UPDATE -- GROUNDS OF DEPORTATION - STATE SEX OFFENDER
REGISTRATION VIOLATIONS DO NOT TRIGGER DEPORTATION UNDER NEW FEDERAL DEPORTATION
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 (1st 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
United States v. Villegas-Hernandez, ___ F.3d ___ (5th
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
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 ___ (5th 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).
SIXTH CIRCUIT -- JUDICIAL REVIEW - PETITION FOR REVIEW - CONTINUANCE - NO
PETITION FOR REVIEW OF DISCRETIONARY DENIAL OF CONTINUANCE
Berri v. Gonzales,
___ F.3d ___ (6th Cir. Nov. 16, 2006)(petition for review denied
where IJ's denial of a continuance was not an abuse of discretion).
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 (7th 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
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),
NINTH CIRCUIT -- AGGRAVATED FELONY - BURGLARY - BURGLARY OF A DWELLING NOT
CATEGORICALLY AGGRAVATED FELONY BURGLARY
United States v. Reina-Rodriguez,
___ F.3d ___ (9th 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
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 (9th 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 (9th 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
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 (9th 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
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th
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 (9th 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
(6th 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
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th 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 (6th Cir. 2006).
NINTH CIRCUIT -- SAFE HAVEN -- CONTROLLED SUBSTANCES OFFENSES - AGGRAVATED
FELONIES - ACCESSORY AFTER THE FACT AS SAFE HAVEN DESPITE CMT RISK>
OF MORAL TURPITUDE - ACCESSORY AFTER THE FACT - REHEARING GRANTED IN
Navarro-Lopez v Gonzales, 455 F.3d 1055 (9th 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 ___ (9th 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
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
Copyright (c) 2006 by Norton Tooby. All rights reserved.
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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