Recent Developments In Criminal Law - February 2009
RECENT CIRCUIT DECISIONS:
First Circuit
REMOVAL PROCEEDINGS – EVIDENCE – NO ERROR IN
ADMISSION OF UNTRANSLATED FOREIGN
DOCUMENTS– DUE PROCESS CONSIDERATIONS OF
FAIRNESS AND RELIABILITY GOVERN AND WERE NOT
OFFENDER HERE
Nadal-Ginard v. Holder, 558 F.3d 61 (1st Cir. Feb. 25, 2009
(no error in admitting untranslated foreign documents in
removal proceedings); citing United States v. Diaz, 519 F.3d
56, 64 (1st Cir. 2008) (no plain error in a criminal case where
untranslated foreign language documents, including a
passport, were admitted under the Federal Rules of Evidence
because the “evidentiary significance was facially apparent”);
Toure v. Ashcroft, 400 F.3d 44, 48 (1st Cir. 2005) (“[T]he
Federal Rules of Evidence do not apply in INS proceedings,”
rather, “ ‘the less rigid constraints of due process impose
outer limits based on considerations of fairness and
reliability.’ ”), quoting Yongo v. INS, 355 F.3d 27, 30 (1st Cir.
2004)).
CD4:15.26.
Second Circuit
AGGRAVATED FELONY – DRUG TRAFFICKING –
SECOND POSSESSION CONVICTION HELD NOT TO BE
AN AGGRAVATED FELONY
United States v. Ayon-Robles, 557 F.3d 110 (2d Cir. Feb. 24,
2009) (per curiam) (California second conviction of simple
possession of a controlled substance did not constitute an
aggravated felony, under INA § 101(a)(43)(B), for illegal reentry
sentencing purposes), following Alsol v. Mukasey, 548
F.3d 207 (2d Cir. 2008) (second felony conviction for simple
drug possession was not an aggravated felony for purposes
of the Immigration and Nationality Act of 1990, 8 U.S.C. §
1101(a)(43)(B), where the noncitizen did not admit the prior in
being convicted a second time).
CD4:19.58;SH:7.66, 8.3;AF:5.40, A.18, B.3 .
Third Circuit
JUDICIAL REVIEW – PETITION FOR REVIEW – FULL
JUDICIAL REVIEW IS AVAILABLE FOR REINSTATEMENT
OF REMOVAL ORDERS
Ponta-Garcia v. Attorney General of U.S., 557 F.3d 158 (3d
Cir. Feb. 20, 2009) (holding full judicial review is available to
a noncitizen adjudged removable following reinstatement of
removal procedures, so they do not violate due process on
this basis); see United States v. Charleswell, 456 F.3d 347,
353 (3d Cir. 2006); Ponta-Garc[i]a v. Ashcroft, 386 F.3d 341,
342 (1st Cir. 2004) (“An order reinstating an earlier order of
deportation is subject to review....”); 8 U.S.C. § 1252
(providing for judicial review of final orders of removal);
Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n. 3 (10th
Cir. 2003) (finding that 8 U.S.C. § 1252 covers review of
reinstatement orders).
CD4:15.37, 15.40;AF:2.35, 2.19;CMT3:3.18, 3.34
Fifth Circuit
RECORD OF CONVICTION – PROBATION REPORT –
PRIVACY OBJECTION TO PRESENTENCE REPORT –
SEEK ORDER FROM U.S. DISTRICT COURT TO
PROTECT PRIVACY OF REPORT
Arguelles-Olivares v. Mukasey, 526 F.3d 171, 180 (5th Cir.
April 22, 2008), revised opinion, (5th Cir. Feb. 2009)
(rejecting privacy objection to use of federal presentence
report to establish loss to victim over $10,000 for fraud
offense aggravated felony, under INA § 101(a)(43)(M)(i), 8
U.S.C. § 1101(a)(43)(M)(i): "[noncitizen] additionally asserts
that the PSR is confidential and cannot be accessed without
leave of court. Arguelles-Olivares made no attempt during
the immigration proceedings to seek an injunction or order
from the district court to maintain the confidentiality of the
PSR. He did not identify any provisions of the PSR that
would jeopardize his own privacy or the government's
interest in maintaining the trust of third-party witnesses by
keeping the PSR confidential. There was no abuse of
discretion in admitting the PSR.").
CD4:16.32;AF:4.31 .
Ninth Circuit
AGGRAVATED FELONY – CRIME OF VIOLENCE –
AGGRAVATED ASSAULT
United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir.
Feb. 25, 2009) (per curiam) (Arizona conviction for
aggravated assault under Arizona Revised Statutes § 13-
1204(A)(11) (“[i]ntentionally, knowingly or recklessly causing
any physical injury to another person”) was not a conviction
for a “crime of violence” under USSG § 2L1.2(b)(1)(A)(ii), as
an “offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of
physical force against the person of another,” under U.S.S.G.
§ 2L1.2 n. 1(b)(iii), because "Under the categorical approach,
aggravated assault requires a mens rea of at least
recklessness “under circumstances manifesting extreme
indifference to the value of human life.” Esparza-Herrera's
statute of conviction, A.R.S. § 13-1204(A)(11), encompassed
ordinary recklessness, and therefore his conviction was not a
conviction for generic aggravated assault or a crime of
violence.").
CD4:19.40;AF:5.22, A.14, B.9;SH:7.49, 8.10 .
JUDICIAL REVIEW – PETITION FOR REVIEW – FUGITIVE
DISENTITLEMENT DOCTRINE NOT APPLICABLE WHERE
PETITIONER’S WHEREABOUTS KNOWN DURING
PETITION FOR REVIEW
Wenqin Sun v. Mukasey, 555 F.3d 802 (9th Cir. Feb. 9, 2009)
(fugitive disentitlement doctrine, which developed in the
criminal context to limit a person’s ability to appeal as long as
s/he remained a “fugitive,” has also been applied in the
immigration context, but could not preclude the court's
consideration of a petition for review on the grounds that the
petitioner did not report for removal, as ordered by the
government, several years prior to filing a petition for review:
“the critical question” is “whether the appellant is a fugitive at
the time the appeal is pending.” Because the petitioner’s
whereabouts were known to her counsel, DHS, and the court
while the petition for review was pending, it would be
inappropriate to dismiss the case).
See generally AILF's practice advisory at
http://www.ailf.org/lac/pa/lac_pa_fugdis.pdf;
AILF Legal
Action Center Litigation Clearinghouse Newsletter, Vol. 4,
No. 3 (Feb. 24, 2009). CD4:15.37;AF:2.19;CMT3:3.18
ASYLUM PARTICULARLY SERIOUS CRIME DUI
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27,
2009) (The BIA determined that Anaya's testimony
establishes that the respondent, after drinking alcohol to the
point where he was intoxicated, began driving a motor
vehicle in reckless disregard for persons or property
whereupon he drove his car into the home of his victim
causing property damage and bodily injury. The BIA also
noted that Anaya was confined for his criminal actions. We
therefore conclude that the BIA properly considered the
nature of the conviction, the circumstances and underlying
facts of the conviction, [and] the type of sentence imposed
when reaching its conclusion that Anaya's drunk driving
constituted a particularly serious crime.).
CD4:24.19;AF:2.31;CMT3:3.30 .
AGGRAVATED FELONY FIREARMS OFFENSES FELON IN POSSESSION OF FIREARM ARGUMENT
THAT STATE OFFENSE LACKS INTERSTATE COMMERCE ELEMENT NECESSARY TO CORRESPOND
TO FEDERAL OFFENSE
In United States v. Castillo-Rivera, 244 F.3d 1020 (9th
Cir. 2001), the Ninth Circuit has already determined that the
interstate commerce element under 922 should not be a
requisite of the criminal state statute at issue when
conducting the categorical matching process. The Ninth
Circuit stated that the wording of INA 101(a)(43) makes
evident that Congress clearly intended state crimes to serve
as predicate offenses for the purpose of defining what
constitutes an aggravated felony. Ibid. The Court noted that
INA 101(a)(43)(E) defines aggravated felony as "an
offense described in" several federal statutory provisions,
including 18 U.S.C. 922(g)(1). Ibid. The Court reasoned:
[I]nterpreting the jurisdictional element of
922(g) to be necessary in order for a state
firearms conviction to constitute an
aggravated felony under
1101(a)(43)(E)(ii) would reduce the
number of state firearms offenses that
qualify to no more than a negligible
number. Rarely, if ever, would a state
firearms conviction specify whether a
commerce nexus exists. If we were to
construe the jurisdictional nexus of the
federal felon in possession provision to be
a necessary element for a state crime to
qualify as an aggravated felony, we would
undermine the language of the
aggravated felony statute and the evident
intent of Congress. Ibid.
However, Castillo-Rivera has arguably been overruled by
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.
October 20, 2008) (en banc), in which the Ninth Circuit sitting
en banc visited the same quandary and came to the opposite
conclusion.
This principle was reiterated in Navarro-Lopez v. Gonzales,
503 F.3d 1063 (9th Cir. 2007) (en banc) (finding California
accessory after the fact missing an entire element of the
generic definition of a crime involving moral turpitude), and
Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008)
(finding the state fraud statute missing an entire element –
the $10,000 loss to the victim – of aggravated felony fraud
offenses).
Because the Ninth Circuit has now clarified en banc in two
cases that there must be a categorical match to each
element of the state statute to the federal immigration statute
or generic definition, Castillo-Rivera has arguably been
overruled and the case circumvents this requirement.
Because the California felony in possession of a firearm
statute has no interstate commerce element, it is a
categorical mismatch to the federal definition and the
noncitizen cannot be considered an aggravated felon.
Thanks to Holly S. Cooper.
Counsel can also argue that the Ninth Circuit did not
fully consider the issue of the federal element in that case.
The original BIA opinion in Matter of Vasquez-Muniz, 22 I. &
N. Dec. 1415 (BIA Dec. 1, 2000), ruled for the immigrant,
noting that Congress knows how to say "no federal
jurisdictional element is required" when it wants to, and citing
other legislation in which Congress did just that. Castillo-
Rivera did not discuss that argument.
CD4:19.8, 19.70;AF:4.35, 5.52 .
Tenth Circuit
AGGRAVATED FELONY – CRIME OF VIOLENCE –
SEXUAL ASSAULT
United States v. Yanez-Rodriguez, 555 F.3d 931 (10th Cir.
Feb. 10, 2009) (Kansas conviction for violation of Kan. Stat.
Ann. § 21-3517 (1988) (“unlawful, intentional touching of the
person of another who is not the spouse of the offender and
who does not consent thereto, with the intent to arouse or
satisfy the sexual desires of the offender or another”) is a
“forcible sex offense” for illegal re-entry sentencing purposes,
even though the statute does not require that the actor used
force), disagreeing with United States v. Meraz-Enriquez,
442 F.3d 331 (5th Cir.2006).
CD4:19.22, 19.38;AF:4.40, 5.20, A.14, B.77
Other
SAFE HAVEN – TRAVEL ACT
18 U.S.C. § 1952 (“travels. . . or uses the mail or any facility
in interstate or foreign commerce, within intent do (1)
distribute the proceeds of any unlawful activity.”), by it
minimum conduct is arguably not controlled substances
offense or a crime involving moral turpitude (the funds may
have been obtained through non-CMT activity and be
distributed for non-CMT purposes).
Thanks to Jonathan Moore.
SH:9.47
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