This file contains recent developments occurring in October, 2012.

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1 Web Update October, 2012 This file contains recent developments occurring in October, Dear Premium Subscriber, This monthly update is a feature of our Premium Resources Subscription. It contains recent developments relating to all of our six Practice Manuals, valuable articles on topical issues of importance to criminal immigration law, and practice advisories. For more information on how these updates are sorted, or to view archives of these updates, please login to your account. RECENT DEVELOPMENTS Articles. PRACTICE ADVISORY JUDICIAL REVIEW PETITION FOR REVIEW COURT CANNOT AFFIRM AGENCY DECISION ON NEW GROUND ON WHICH THE AGENCY DID NOT RELY Securities & Exchange Comm n v. Chenery Corp., 318 U.S. 80, 87, 94 (1943) (reviewing courts only review the reasons invoked by the agency below and may not entertain post hoc rationalizations by government counsel in appellate litigation: The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based..... [C]ourts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review. ); Securities & Exchange Comm n v. Chenery Corp., 332 U.S. 194 (1947); Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) (holding that the INS may not seek to have the BIA opinion upheld on the grounds that there was no reasonable fear of persecution because the letters were not authentic; the agency simply has not ruled on the authenticity issue, either implicitly or explicitly. ); De Rivera v. Ashcroft, 394 F.3d 37, 40 (1st Cir. 2005) ( Since the agency action, under Succar, cannot be sustained on the stated grounds, the appropriate remedy is to remand to the BIA for further proceedings consistent with the holding in Succar. ); Song Jin Wu v. INS, 436 F.3d. 157, 164 (2d Cir. 2006) ( It is not the function of a reviewing court in an immigration case to scour the record to find reasons why a BIA decision should be affirmed. Rather,

2 we take the Board's decision as we find it, and if the reasoning it advances for denying a petitioner s claim cannot support the result, we will vacate the decision. ); Singh v. United States DOJ, 461 F.3d 290, 294 (2d Cir. 2006) ( And we cannot, on appeal, substitute an argument even one the BIA made in another context for those that the BIA actually gave to support the conclusion [petitioner] disputes on appeal. ); Garcia v. AG of the United States, 665 F.3d 496, 502 (3d Cir. 2011) ( [W]e may affirm the BIA s decision only if we find that its stated reasons are correct, as it was the BIA not the IJ th.at provided the final and authoritative grounds invoked by the agency, citing Chenery); Qun Wang v. AG of the United States, 423 F.3d 260, 271 (3d Cir. 2005) (... we will not supply the basis for [the agency s] decision where appropriate reasons are not set forth by the administrative agency itself ) (internal citations omitted); Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004) (... we are unable to square this practice [of taking judicial notice of post-final order country reports] with the clear command from SEC v. Chenery Corp. that courts reviewing the determination of an administrative agency must approve or reject the agency s action purely on the basis of the reasons offered by, and the record compiled before, the agency itself. )(internal citation omitted); Li Fang Lin v. Mukasey, 517 F.3d 685, (4th Cir. 2008) ( Here, we cannot review the BIA s decision because the BIA has given us nothing to review. We would run the risk of violating fundamental separation-of-powers principles if we attempted to divine the BIA s thoughts on this matter and tried to build a legal conclusion in a veritable vacuum where BIA interpretation should always first exist. ); Island Creek Coal Co. v. Henline, 456 F.3d 421, (4th Cir. 2006) ( We cannot accept the invitation to affirm the Board s rejection of Island Creek s statute of limitations defense on a ground not actually relied upon by the Board. ); Garcia Carias v. Holder, No , -- F.3d --, 2012 U.S. App. LEXIS 20284, *7-8 n.1 (5th Cir. Sept ) (stating [b]ecause the timeliness of Garcia s motion was not addressed by the Board, we will refrain from reaching this issue, citing Chenery); Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) ( [S]ince the BIA is a division of the Executive Office for Immigration Review ( EOIR ), and a judicial judgment cannot be made to do service for an administrative judgment,..., we may usually only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States. ) (internal citations and quotations omitted); Pruidze v. Holder, 632 F.3d 234, 240 (6th Cir. 2011) ( These are all things the Board may do, but because we review what the Board did do... they are questions for another day, citing Chenery) (emphasis in the original); NLRB v. USPS, 833 F.2d 1195, 1201 (6th Cir. 1987) ( This Court will not affirm the Board's actions based on reasons not relied upon by the Board itself. ); Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007) ( The Supreme Court of the United States has admonished, in Chenery I, that we may not sanction an agency decision based upon the posthoc rationalizations of appellate counsel for the agency's decision. ) (citation omitted); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir.

3 2004) ( As we tirelessly remind the lawyers from the Justice Department's Office of Immigration Litigation,, the Chenery rule bars a reviewing court from upholding an agency's decision on a ground different from the agency s ) (citations to case examples omitted); Mengistu v. Ashcroft, 355 F.3d 1044, 1046 (7th Cir. 2004) ( [The Chenery doctrine] forbids the lawyers for an administrative agency to defend the agency s decision on a ground different from that stated or at least discernible in the decision itself. ) (citations omitted); Ngure v. Ashcroft, 367 F.3d 975, 984 (8th Cir. 2004) ( It is, of course, a basic principle of administrative law that where agency action is subject to judicial review, the agency must provide an adequate reasoned explanation of its decision, referencing Chenery I and II); Mayo v. Schiltgen, 921 F.2d 177, 179 (8th Cir. 1990) ( [A] reviewing court cannot search the record to find other grounds to support the [agency s] decision... [but] must consider the agency s rationale for its decision, and if that rationale is inadequate or improper the court must reverse and remand for the agency to consider whether to pursue a new rationale for its decision or perhaps to change its decision. ) (footnote omitted); Altamirano v. Gonzales, 427 F.3d 586, 595 (9th Cir. 2005) ( Chenery requires that an agency s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself ); Recinos de Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) ( We may affirm the IJ only on grounds set forth in the opinion under review, citing Chenery); Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) (rejecting government counsel s post hoc rationalization, stating [t]his court cannot affirm the BIA on a ground upon which it did not rely. ); Haga v. Astrue, 482 F.3d 1205, (10th Cir. 2007) ( [T]his court may not create or adopt post-hoc rationalizations to support [an agency s] decision that are not apparent from the [] decision itself. ); Contreras- Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (en banc) ( While agencies have the power under certain circumstances to promulgate categorical rules that supplant individualized adjudication,..., we cannot uphold the Board s action on grounds not provided by the agency itself. ) (internal citation omitted); N.L.R.B. v. Episcopal Cmty. of St. Petersburg, 726 F.2d 1537, 1540 (11th Cir. 1984) ( [A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. ) (citation omitted); Druid Hills Civic Ass n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 714 (11th Cir. 1985) ( If the record fails to show a sufficient basis for the administrative decision, the... determination must be overturned. ). Thanks to the National Immigration Project of the National Lawyers Guild for its practice advisory, entitled Immigration Litigation & the Chenery Doctrine. ry_practice_advisory_oct2012.pdf CD4:15.37;AF:2.19;CMT3:3.18

4 CATEGORICAL ANALYSIS YOUNG AND OCA REVISED PRACTICE ADVISORY CD4:16.7;AF:4.6 RELIEF DEFERRED ACTION FOR CHILDHOOD ARRIVALS DACA PRACTICE ADVISORY Oct. 26, 2012 Legal Action Center (LAC) updated Practice Advisory, Deferred Action for Childhood Arrivals. f For additional resources related to DACA, visit the Immigration Policy Center s website. CD4:24.26;AF:2.37;CMT3:3.36 POST CON RELIEF GROUNDS INEFFECTIVE ASSISTANCE OF COUNSEL PADILLA Two-and-a-half years after pushing the Supreme Court to change the face of crimmigration law, José Padilla convinced Kentucky s intermediate appellate court to vacate his conviction. Padilla v. Kentucky, No CA MR, slip op. (Ky. Ct. App. Sept. 28, 2012) (Dixon, Moore, and Thompson, JJ.). PCN:6.18 DETENTION MANDATORY DETENTION WHEN RELEASED There is a very strong argument that a noncitizen is not subject to mandatory detention, under INA 236(c), if not detained by ICE immediately when released from criminal custody. The majority of district court decisions on this point in the Third Circuit have held in favor of the immigrant on this issue. E.g., Christie v. Elwood, 2012 U.S. Dist. LEXIS (DNJ 2012); but see Hosh v. Lucero, 680 F.3d 375 (4 th Cir. 2012) (an alien is subject to mandatory detention under INA 236(c) regardless of when released). No other court of appeals has decided the issue, although it is pending before the Third Circuit, in Desrossiers v. Hendricks, 2011 U.S. Dist. LEXIS (DNJ 2011). CD4:6.39 DETENTION IMMIGRATION DETENTION FACILITY LOCATORS Ice detention facility locator By region, by state, and by facility name

5 CD4:6.36 CAL POST CON PLEA NEGOTIATION IN LIGHT OF IMMIGRATION CONSEQUENCES PROPRIETY Alameda County District Attorney s Office, Guidelines Regarding the Consideration of Collateral Immigration Consequences During Plea Negotiations 1 (Oct. 8, 2012) ( Because the Supreme Court recognized and indeed encourages the consideration of collateral consequences, this ruling puts to rest earlier arguments that this would be somehow illegal or improper (e.g., a violation of separation of powers or equal protection principles). ). [I]t is appropriate to consider collateral consequences associated with a conviction when seeking to arrive at a just resolution of a criminal case. 1) When it would be just to do so, it is appropriate to consider the collateral consequences (including potential immigration consequences) of a criminal conviction during the plea negotiation process. This sort of analysis will necessarily be fact specific and require consideration of a variety of relevant factors. There is no specific formula that can be applied in every case. 2) It is generally considered appropriate to offer an accommodation if the collateral consequences are disproportionate to the crime and sentence being discussed. a) In other words, consideration of collateral consequences is not typically appropriate in serious or violent felony cases (especially those resulting in a lengthy sentence). b) On the other hand, it would be typically appropriate to consider collateral consequences when dealing with less serious crimes (with shorter sentences). 3) If the consideration of collateral consequences is deemed appropriate and some mitigating modification of an offered plea agreement is suggested, it is also appropriate to require some form of concession by the defendant (to make the resolution roughly equivalent to an offer made to a U.S. citizen). Examples would include more custody time or a longer period of probation. 4) Given the complexity and evolving nature of immigration law, it is difficult for any individual prosecutor to determine the truth of defense assertions regarding potential collateral consequences. It can be assumed, however, that if a defendant is willing to endure a more onerous sentence in return for a modification of the offered plea agreement, then the feared consequence is authentic.

6 5) These guidelines are not intended to limit the discretion of individual prosecutors. 6) The decision to factor in collateral consequences should be openly made and noted in the file. a) A corollary of this is that when collateral consequences are considered and any modification of an offer is rejected as inappropriate, that fact should be made part of the record. 7) These guidelines are not intended to create a new procedural right in favor of criminal defendants or be enforceable in a court of law. 8) If there are any questions regarding whether these guidelines are applicable to any specific situation or how they should be applied, the prosecutor handling the case should consult with his or her supervisor. CPCN:11.4 CAL POST CON CORRECTING STATE CRIMINAL HISTORY Penal Code 11126(c) (provides for a hearing after denial of a request to correct California criminal history; no specific requirement on how fast the Department of Justice must investigate the claim in Sections (a) and (b)). CPCN:12.5 MORAL TURPITUDE A TERM NOT IN COMMON USAGE Matter of X, (unpublished) (Aug. 28, 2012) ( [W]e acknowledge that the term "moral turpitude" is not in common usage, and it is unlikely that the average person is aware of its meaning and application in U.S. immigration law.... There is no indication that this applicant was aware that he had committed a crime involving moral turpitude at the time he submitted his 1-94W forms. In fact, both the applicant and his spouse have submitted statements recalling that the applicant was confused about the crime involving moral turpitude query on his Form l-94w, but answered to the best of his ability at that time.... Based on the record, the AAO finds that the applicant has demonstrated rehabilitation and that his admission to the United States would not be contrary to the national welfare, safety, or security or the United States pursuant to section 212(h)( I )(A) of the Act. ) CD4:20.2;CMT3:8.2 DETENTION IMMIGRATION DETENTION DHS MEMO ON DETENTION PRIORITIES

7 CD4:6.35 OVERVIEW CONTACT WITH ICE ICE Memo on Enforcement Actions at or focused on sensitive locations. CD4:15.19 BIA CONTROLLED SUBSTANCES DEPORTATION SINGLE OFFENSE EXCEPTION CIRCUMSTANCE-SPECIFIC INQUIRY Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) (for purposes of INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006), the phrase a single offense involving possession for one s own use of thirty grams or less of marijuana calls for a circumstance-specific inquiry; respondent convicted of more than one marijuana-related offense arising out of the same underlying facts may still meet the single offense exception). CD4:21.13;SH:7.139 CONTROLLED SUBSTANCES DEPORTATION SINGLE OFFENSE EXCEPTION CIRCUMSTANCE-SPECIFIC INQUIRY Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) (noncitizen convicted of more than one statutory crime may still meet single offense involving possession for one s own use of thirty grams or less of marijuana exception to deportability if all the noncitizen s crimes were closely related to or connected with a single incident, provided that none of those crimes was inherently more serious than simple possession). NOTE: This might be analogized to fit a noncitizen with the petty offense exception to inadmissibility for one CMT where the noncitizen was charged with two counts arising out of the same incident. CD4:24.29;AF:2.45;CMT3:3.44 DETENTION MANDATORY DETENTION JOSEPH HEARING BURDEN OF PROOF ON GOVERNMENT Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) ( The relevant question in a Joseph hearing is whether the DHS is substantially unlikely to prove a charge that would justify mandatory detention. Matter of Joseph, 22 I&N Dec. at 800. To prove a charge under section 237(a)(2)(B)(i), the DHS bears the burden of proving that the respondent s conviction does not fall within the possession for personal use exception. See Matter of Moncada, 24 I&N Dec. 62, 67 n.5 (BIA 2007). It cannot meet that burden unless the record establishes that the respondent

8 possessed marijuana for some reason other than personal use; an inconclusive record is not sufficient. ). CD4:6.40 INADMISSIBILITY APPLICANT FOR ADMISSION ARRIVING LPR COMMITTING ILLEGAL ACTIVITY AT PORT OF ENTRY Matter of Martinez, 25 I&N Dec. 845, 848 (BIA 2012) (a lawful permanent resident of the United States may be treated as an applicant for admission, pursuant to INA 101(a)(13)(C)(iii), 8 U.S.C. 1101(a)(13)(C)(iii), where the returning LPR engaged in illegal activity at a United States port of entry by attempting to bring an undocumented juvenile alien into the United States); citing Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). CD4:17.6;AF:3.14;CMT3:5.7 AGGRAVATED FELONY OBSTRUCTION OF JUSTICE ACCESSORY AFTER THE FACT Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 841 (BIA 2012) (crime relate[s] to obstruction of justice within the meaning of INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice, irrespective of the existence of an ongoing criminal investigation or proceeding); reaffirming Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997); clarifying Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999). CD4:19.80;AF:5.63 AGGRAVATED FELONY OBSTRUCTION OF JUSTICE ACCESSORY AFTER THE FACT Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 842 (BIA 2012) (California conviction of accessory after the fact, in violation of Penal Code 32, with a sentence of 16 months imprisonment, is a conviction for an aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S) because it include[s] the element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice), quoting Matter of Espinoza, 22 I&N Dec. 889, 894 (BIA 1999); disagreeing with Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1164 (9th Cir. 2011) (BIA requires actual interference with an ongoing criminal proceeding or investigation). Note: The BIA interpreted the obstruction of justice provision more broadly than the Ninth Circuit s more restrictive approach, pursuant to Brand X, the Supreme Court decision that allows an agency to issue a reasonable interpretation of a statute within its expertise even after a court has found an earlier agency interpretation unreasonable. Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 840 (BIA 2012), discussing Nat l Cable & Telecomms. Ass n v.

9 BrandX Servs., 545 U.S. 967 (2005). The question remains whether the Ninth Circuit will conclude that the aggravated felony definition, also used extensively in federal criminal cases, falls exclusively within the purview of the BIA to interpret immigration laws. The Ninth Circuit could also determine the statute is not ambiguous, after employing normal statutory interpretation standards, or that the BIA s interpretation is unreasonable, to justify deference. CD4:19.80, 19.15;AF:5.63, 5.2, A.31, A.2, B.62 First Circuit AGGRAVATED FELONY SEXUAL ABUSE OF A MINOR CHILD ENDANGERMENT Campbell v. Holder, 698 F.3d 29, *31 (1 st Cir. Oct. 19, 2012) (Connecticut conviction of risk of injury to a minor under of the Connecticut General Statutes 53 21(a)(1) (penalizing [a]ny person who... wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child... ], does not categorically constitute aggravated felony sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the statute includes non-sexual acts such as providing alcohol to a minor). CD4:19.89;SH:7.98, 8.77;AF:7.52, A.38, B.73 CATEGORICAL ANALYSIS STRICT CATEGORICAL ANALYSIS REAFFIRMED AFTER BIA S LANFERMAN DECISION Campbell v. Holder, 698 F.3d 29, (1 st Cir. Oct. 19, 2012) (First Circuit acknowledged BIA decision not to follow strict categorical analysis in immigration cases, but held Supreme Court clearly required it anyway, even in sexual abuse of a minor case). The court stated: Although the BIA has said that the Taylor Shepard approach need not be applied with the same rigor in the immigration context as in the criminal arena, In re Lanferman, 25 I. & N. Dec. 721, (B.I.A. 2012), the Supreme Court's decision in Nijhawan v. Holder, 557 U.S. 29 (2009), requires the Taylor Shepard analysis in INA cases save where the matching INA offense is phrased so as to require a fact-specific determination rather than identification of a generic crime. [FN3] Further, certain offenses listed in INA 101(a)(43) must refer to generic crimes and one such offense is sexual abuse of a minor. Nijhawan, 557 U.S. at 37; accord

10 Sanchez Avalos v. Holder, No , F.3d, 2012 U.S.App. LEXIS 18570, at *6 n. 1, 2012 WL , at *2 n. 1 (9th Cir. Sept. 4, 2012). FN3.Nijhawan reasoned that some subparagraphs of the aggravated felony definition in INA 101(a)(43) invite inquiry into the specific circumstances surrounding an offender's commission of a [certain crime] on a specific occasion, 557 U.S. at 40, e.g., a provision covering offenses that involve[ ] fraud or deceit in which the loss to the... victims exceeds $10,000, INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) (emphasis added). But where the INA's aggravated felony listing refers to a generic crime e.g., murder the Taylor Shepard inquiry is required. Nijhawan, 557 U.S. at 34, 37; accord Carachuri Rosendo v. Holder, 130 S.Ct. 2577, 2586 n. 11 (2010). More recently the Supreme Court again stressed that (fact-specific provisions aside), the categorical approach operates similarly in the INA context as in the criminal context. In Kawashima v. Holder, 132 S.Ct (2012), the Court said: To determine whether the Kawashimas' offenses involv[e] fraud or deceit within the meaning of [the INA aggravated felony statute], we employ a categorical approach by looking to the statute defining the crime of conviction, rather than to the specific facts underlying the crime. Id. at (Id. at ) CD4:16.7;AF:4.6 CONTROLLED SUBSTANCES STATES THAT FOLLOW FEDERAL DRUG SCHEDULES James v. Holder, 698 F.3d 24, *27 (1 st Cir. Oct. 19, 2012) ( Any controlled substance within the meaning of INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), is also automatically a controlled substance under the Connecticut statute. Conn. Gen.Stat. Ann. 21a 243(g); cf. 18 U.S.C. 924(c)(2); 21 U.S.C Although the state can choose to make other drugs subject to its statute, see Conn. Gen.Stat. Ann. 21a 243(c), James does not argue that it has in fact done so, cf. Gonzales v. Duenas Alvarez, 549 U.S. 183, 193 (2007), nor have we found any evidence that it has done so. ). CD4:21.34;SH:7.143 AGGRAVATED FELONY DRUG TRAFFICKING OFFENSES SOLICITATION

11 James v. Holder, 698 F.3d 24, *27 (1 st Cir. Oct. 19, 2012) ( The more difficult issue is whether James' conviction under section 21a 277(b) was for an offense that would also comprise trafficking which is true of some but not necessarily all of the subordinate offenses listed in the Connecticut statute. The INA (through a series of cross-references) defines illicit trafficking to include the manufacture, distribution and dispensing of a controlled substance, as well as possession with intent to do any of these; INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), cf.18 U.S.C. 924(c)(2); 21 U.S.C. 841(a); but this definition does not appear to encompass offers and gifts, which are criminalized under the Connecticut statute. ); citing United States v. Savage, 542 F.3d 959, 965 (2d Cir.2008) (Conn.Gen.Stat. 21a 277(b) plainly criminalizes, inter alia, a mere offer to sell a controlled substance, which might be made absent possession); Mendieta Robles v. Gonzales, 226 Fed. App'x 564, (6th Cir.2007) (conviction under state statute that criminalizes gift of drugs is not necessarily an illicit trafficking offense under INA); see also Matter of Davis, 20 I. & N. Dec. 536, 541 (B.I.A. 1992) ( business or merchant nature is [e]ssential to the term trafficking under INA). ). CD4:19.63, 19.19;SH:7.100, 8.69;AF:5.75, A.39: B.66 NATURE OF CONVICTION RECORD OF CONVICTION RECORDS OF APPEALS COURT DECISION James v. Holder, 698 F.3d 24, *28 (1st Cir. Oct. 19, 2012) ( Whether Shepard's reference to the records of the convicting court, 544 U.S. at 23, excludes records of an appeals court decision in the same case is an unresolved question. A Ninth Circuit decision may have thought that it did, Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir.2007), but Morales relied on BIA precedents and the BIA subsequently said Morales misread those precedents. See In re N A M, 24 I. & N. Dec. 336, 344 (B.I.A.2007). ). CD4:16.33;AF:4.32;CMT3:7.12 MOTION TO CONTINUE PROSPECTIVE CHANGE IN THE LAW INSUFFICENT Sheikh v. Holder, 696 F.3d 147 (1st Cir. 2012) (the prospect of comprehensive immigration reform was a speculative event that was insufficient to justify a continuance). CD4:15.25 Second Circuit JUDICIAL REVIEW PETITION FOR REVIEW MOOTNESS Fuller v. BIA, F.3d,, 2012 WL (2d Cir. Oct. 16, 2012) (petition for review is moot because the court can provide no effective relief from

12 a removal order that has been vacated and replaced by an order that relies on materially different reasoning). CD4:15.37;AF:2.19;CMT3:3.18 Third Circuit IMMIGRATION OFFENSES FRAUD United States v. Kouevi, 698 F.3d 126 (3d Cir. Oct. 24, 2012) (18 U.S.C. 1546(a), includes visa fraud involving authentic immigration documents obtained by fraud). CD4:CHAPT13 Fifth Circuit AGGRAVATED FELONY CRIME OF VIOLENCE HIGH SPEED FLIGHT United States v. Vargas-Soto, 700 F.3d 180 (5 th Cir. Oct. 24, 2012) (Texas conviction for evading arrest using a motor vehicle, in violation of Tex. Penal Code Ann (b)(1), qualified as an aggravated felony crime of violence); following United States v. Sanchez Ledezma, 630 F.3d 447, 451 (5th Cir. 2011) (same), cert. denied, U.S., 131 S.Ct. 3024, 180 L.Ed.2d 851 (2011). CD4:19.44;AF:5.26, A.14, B.59, B.25 CRIMES OF MORAL TURPITUDE ASSAULT WITH A WEAPON Esparza-Rodriguez v. Holder, 699 F.3d 821 (5 th Cir. Oct. 18, 2012) (Texas conviction of assault, in violation of Penal Code 22.01(a)(1), properly held a crime involving moral turpitude, where there was a heightened mens rea, the use of a weapon, and violent conduct, applying the modified categorical analysis). CD4:20.7;CMT3:8.6, 9.15, CHART CRIMES OF MORAL TURPITUDE ASSAULT GENERIC DEFINITION OF CMT ASSAULT Esparza-Rodriguez v. Holder, 699 F.3d 821, *823, 2012 WL (5 th Cir. Oct. 18, 2012) ( To rise to the level of a CIMT, the BIA has held that an assault statute must have at least two characteristics. First, the scienter element must require specific intent, or, put another way, the actus reus must be accompanied by the evil intent, depraved or vicious motive, or corrupt mind associated with moral turpitude. Id. at 241. Second, the assault statute must require a meaningful level of harm, which must be more than mere offensive touching. Id. at Several courts, but not all, and the BIA, but not always, require also an aggravating element indicative of the inherent vileness of the prohibited conduct. ). In footnote 6, the court cited additional authority:

13 See Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir.2000) (explaining that an assault may or may not be a crime of moral turpitude, noting that the dividing line is the aggravating element ); Uppal v. Holder, 605 F.3d 712, 717 (9th Cir.2010) ( [T]o rise to the level of moral turpitude, an assault crime must involve a particular type of aggravating factor, one that says something about the turpitude or blameworthiness inherent in the action. ). Contra Mustafaj v. Holder, 369 Fed.Appx. 163, (2d Cir.2010) (unpublished) (holding that a New York assault statute qualified as a CIMT even though it lacked an aggravating factor). The BIA's decision-making on this point also has been uneven. Compare Matter of Ahortalejo Guzman, 25 I. & N. Dec. 465, 465 (BIA 2011) (explaining that simple assault is not a CIMT unless it necessarily involves some aggravating factor that indicates the perpetrator's moral depravity ), with In re Solon, 24 I. & N. Dec. at (explaining that although the presence of an aggravating factor can be important in determining whether a particular assault amounts to a crime involving moral turpitude... the need for, and the nature of, any aggravating factor is affected by the mental state required for the conviction ). (Id. at n.6.) CD4:20.7;CMT3:8.6;SH:7.121 CRIMES OF MORAL TURPITUDE ASSAULT Esparza-Rodriguez v. Holder, 699 F.3d 821 (5th Cir. Oct. 18, 2012) (Texas conviction of assault, in violation of Tex. Penal Code 22.01(a)(1), where the record shows intentional mens rea, is a crime of moral turpitude for immigration purposes), following Matter of Solon, 24 I. & N. Dec. 239, (BIA 2007). CD4:20.12;CMT3:8.12;SH:7.114 CRIMES OF MORAL TURPITUDE ASSAULT Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 (5th Cir. Oct. 18, 2012) (Texas conviction of assault, in violation of Penal Code 22.01(a)(1), properly held a crime involving moral turpitude: we cannot say that it was unreasonable for the BIA, upon careful consideration, to conclude that an intentional assault that is intended to and does cause more than a de minimis level of physical harm, is contrary to the accepted rules of morality and the duties owed between persons or to society in general. ); quoting Mustafaj v. Holder, 369 Fed.Appx. 163, (2d Cir.2010) (unpublished) (holding that a New York assault statute qualified as a CIMT even though it lacked an aggravating factor). CD4:20.7;CMT3:8.6;SH:7.121

14 CATEGORICAL ANALYSIS CRIMES OF MORAL TURPITUDE SILVA- TREVINO Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 n.8 (5th Cir. Oct. 18, 2012) (the third-step of Silva-Trevino, which looks to the underlying facts of the conviction and beyond the record of conviction, to be inconsistent with Fifth Circuit case law), citing Bianco v. Holder, 624 F.3d 265, 269 (5th Cir.2010). CD4:16.7;CMT3:6.2 AGGRAVATED FELONY SEXUAL ABUSE OF A MINOR SEXUAL ASSAULT OF A CHILD United States v. Rodriguez, 698 F.3d 220 (5 th Cir. Oct. 3, 2012) (per curiam) (Texas conviction of sexual assault of a child, in violation of Penal Code (a)(2) (sexual intercourse with a child, defined as a person under the age of seventeen), is a crime of violence for illegal re-entry sentencing purposes under U.S.S.G. 2L1.2(b)(1)(A)(ii), as an enumerated offense); Calderon Terrazas v. Ashcroft, 117 Fed.Appx. 903, (5th Cir.2004) ( [S]exual assault of a child under TEX. PENAL CODE [(a)(2)] qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(A). (internal quotation marks omitted)). CD4:19.22;AF:4.40 Seventh Circuit ADJUSTMENT OF STATUS 245(i) ADJUSTMENT BARRED BY ILLEGAL RE-ENTRY UNDER INA 212(a)(9)(C) Nunez-Moron v. Holder, F.3d, 2012 WL (7 th Cir. Oct. 30, 2012) (inadmissibility under INA 212(a)(9)(C)(i)(II), 8 U.S.C 1182(a)(9)(C)(i)(II), bars adjustment of status under INA 245(i)); following In re Briones, 24 I. & N. Dec. 355 (BIA 2007); In re Torres Garcia, 23 I. & N. Dec. 866 (BIA 2006). CD4:24.2;AF:2.2;CMT3:2.2 RELIEF CANCELLATION OF REMOVAL FOR NON-LPRS CONTINUOUS PRESENCE EXPEDITED REMOVAL Nunez-Moron v. Holder, F.3d, 2012 WL (7 th Cir. Oct. 30, 2012) (expedited removal broke noncitizen s continuous physical presence period for purposes of non-lpr cancellation of removal). CD4:24.6;AF:2.6;CMT3:3.6 JUDICIAL REVIEW PETITION FOR REVIEW BIA OVERLOOKED MATERIAL EVIDENCE AND IMPROPERLY RELIED ON A REPORT Lam v. Holder, 698 F.3d 529, *531 (7 th Cir. Oct. 16, 2012) (granting petition for review of BIA decision affirming IJ s denial of a waiver of inadmissibility, under INA 212(h)(1)(B), 8 U.S.C. 1182(h)(1)(B), for insufficient hardship:

15 Because we find that the IJ and BIA overlooked material evidence related to Lam's wife's depression and improperly relied on a report to determine that Lam failed to show rehabilitation, we grant Lam's petition for review, vacate his removal order, and remand to the agency for reconsideration. ). CD4:15.35 RELIEF NON-LPR CANCELLATION OF REMOVAL GOOD MORAL CHARACTER Duron-Ortiz v. Holder, 698 F.3d 523 (7th Cir. 2012) (ten year good moral character period ends upon the date of the final administrative hearing, not when the NTA is served; noncitizen who committed act of moral turpitude after NTA had been served could therefore be barred from non-lpr cancellation of removal), upholding Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA 2005) CD4:24.6;AF:2.6;CMT3:3.6 Ninth Circuit POST CON RELIEF GROUNDS PLEA EN MASS PLEA United States v. Aguilar-Vera, 698 F.3d 1196 (9 th Cir. Oct. 29, 2012) (although the group plea proceeding violated Federal Rule of Criminal Procedure 11(b)(1) and 11(b)(2), the error was harmless beyond a reasonable doubt). PCN:6.56 POST CON RELIEF GROUNDS INEFFECTIVE ASSISTANCE OF COUNSEL SENTENCE FAILURE TO INVESTIGATE OR PRESENT MITIGATION Stankewitz v. Wong, 698 F.3d 1163 (9 th Cir. Oct., 2012) (record shows substantial mitigating evidence that could have been presented with little or no risk of further aggravating the negative information the jury already knew of defendant). PCN:6.18, 7.79 RELIEF ADJUSTMENT OF STATUS INA 212(a)(9)(C) BAR TO ADJUSTMENT Garfias-Rodriguez v. Holder, F.3d, 2012 WL (9 th Cir. Oct. 19, 2012) (en banc) (noncitizens inadmissible under INA 212(a)(9)(C)(i)(I), 8 U.S.C. 1182(a)(9)(C)(i)(I), are ineligible for adjustment of status under INA 245(i), 8 U.S.C. 1255(i); this rule applies retroactively); deferring to Matter of Briones, 24 I. & N. Dec. 355, 371 (BIA 2007), and overruling Acosta v. Gonzales, 439 F.3d 550, (9th Cir. 2006). CD4:24.2;AF:2.2;CMT3:3.2 AGGRAVATED FELONY CRIME OF VIOLENCE KIDNAPPING

16 Delgado-Hernandez v. Holder, 697 F.3d 1125 (9 th Cir. Oct. 9, 2012) (California conviction for attempted kidnapping under Penal Code 207(a) is categorically an aggravated felony crime of violence, because an ordinary case of kidnapping punished under the statute presents a substantial risk of force). CD4:19.44;AF:5.26, A.14, B.12 JUDICIAL REVIEW PETITION FOR REVIEW INCORRECT LEGAL STANDARD Ridore v. Holder, 696 F.3d 907 (9 th Cir. Oct. 3, 2012) (BIA committed legal error by reviewing the IJ's findings under a de novo rather than clear error standard). CD4:15.37;AF:2.19;CMT3:3.18 Lower Courts in the Tenth Circuit POST CON RELIEF GROUNDS INEFFECTIVE ASSISTANCE OF COUNSEL FAILURE TO ASCERTAIN DEFENDANT S IMMIGRATION STATUS State v. Paredez, 136 N.M. 533, 540, 101 P.3d 799, 806 (2004) (defense counsel has an affirmative duty to determine a client s immigration status and provide specific advice on impact of a plea on immigration), cited by Padilla v. Kentucky, 130 S.Ct. 1473, 1484 (2010). PCN:6.9, 6.18 State Court Cases CAL POST CON HABEAS CUSTODY REVOKED PROBATION STOPS RUNNING AND CONTINUES CONSTRUCTIVE CUSTODY INDEFINITELY People v. Salas, 210 Cal.App.4 th 974, 148 Cal.Rptr.3d 852 (Cal.App. 2 Dist. Oct. 31, 2012) (affirming probation violation sentence where defendant s probation was revoked, the running of the probationary period was tolled, and the court had jurisdiction later to revoke probation and execute defendant's suspended sentence). CPCN:6.34 CAL POST CON EXPUNGEMENT PROP 36 ELIGIBILITY People v. Barros, 209 Cal.App. 4 th 1581, 148 Cal.Rptr.3d 105 (Cal.App. 1 Dist. Oct. 16, 2012) (reversing denial of Prop 36 probation, for disqualifying offense in same proceeding, where earlier binding ruling that charges were not properly joined under Penal Code 954 precluded conclusion that both convictions occurred in same proceeding). CPCN:10.71