Crimes & Immigration enewsletter

Transcription

1 Crimes & Immigration enewsletter January, 2013 This enewsletter contains selected recent developments in criminal immigration law occurring during January, The coded references following each case summary refer to the title and section number in our practice manuals in which the subject of the recent development is discussed more fully. For example, CD 4.19 refers to N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 4.19 (2007), with monthly updates online at INSIDE Recent Case Decisions Articles... 1 Supreme Court Cases... 4 BIA... 4 First Circuit... 5 Fourth Circuit... 5 Fifth Circuit... 6 Seventh Circuit... 6 Ninth Circuit... 6 Eleventh Circuit... 9 Upcoming Seminars... 9 RECENT DEVELOPMENTS Articles SAFE HAVENS CRIMES OF MORAL TURPITUDE DEPOSITING GOODS IN BUILDINGS NEAR THE U.S. BORDER PRACTICE ADVISORY 1 18 U.S.C Depositing goods in buildings on boundaries, punishes [w]hoever receives or deposits any merchandise in any building upon the boundary line between the United States and any foreign country, or carries any merchandise through the same, in violation of law This offense constitutes a regulatory offense, that is not a crime of moral turpitude. See N. TOOBY, ET AL., TOOBY S CRIMES OF MORAL TURPITUDE 8.22 (2008). There is nothing inherently evil about taking goods across a border in violation of an unspecified law. SH:9.12, 9.46, 9.28 RELIEF INSPECTION AND ENTRY AT A PORT OF ENTRY DEFINITION OF ADMISSION PRACTIVE ADVISORY Practice Advisory, Legal Action Center, Deferred Action for Childhood Arrivals Inspection and Entry at a Port of Entry: Where is There an Admission? (Jan. 30, 2013) (this applies beyond the DACA context and discusses entries in three common situations: where a noncitizen is waved through a port of entry with no questions asked; where entry is gained by fraud or misrepresentation; and where there is a false claim to U.S. citizenship). CD4:17.5;SH:4.34;AF:3.11;CMT3:5.4 IMMIGRATION OFFENSES ILLEGAL REENTRY ELEMENTS CONTROLLED SUBSTANCES DEPORTATION SINGLE MARIJUANA

2 OFFENSE EXCEPTION PRACTICE ADVISORY Practice Advisory, National Immigration Project, Matter of Davey and the Categorical Approach, takes a close look at the Board s reasoning in Matter of Davey and suggests strategies to challenge the decision or limit its impact. It also contains an appendix surveying state marijuana laws and their weight requirements. lresources/practice_advisories/pa_matterofdav ey&thecategoricalapproach-16jan2013.pdf CD4:21.35;SH:7.144 BIBLIOGRAPHY -- DETENTION IMMIGRATION DETENTION Christopher N. Lasch, How the Court s Upholding of Federal Immigration Enforcement Authority in Arizona v. United States Casts Doubt on the Validity of Federal Immigration Detainers, 46 Loyola Los Angeles L. Rev. --- (forthcoming 2013) (federal government lacks the authority to issue immigration detainers as it has being doing with great frequency in recent years). First, Lasch argues, the regulation DHS relies on gives its agents more power to arrest than Congress authorized. The INA lets immigration officers arrest individuals pursuant to an immigration arrest warrant or where a person is likely to escape before a warrant can be obtained. Lasch at The detainer regulation, 8 C.F.R (d), in contrast, either requires or permits local officers to detain a person for no reason other than to give DHS time to investigate whether the person may be removable. Lasch at 78. This is far in excess of the scope the statute allows, and the Arizona Court s interpretation of preemption doctrine suggests that this overbroad view of the statute cannot withstand a constitutional challenge. Lasch at 72-73, 80. Moreover, as the Arizona Court noted, Congress authorized local officers to arrest 2 people on suspicion of civil immigration violations only when operating pursuant to a 287(g) program. Officers acting pursuant to a 287(g) agreement receive training in immigration law and operate, according to the statute, as adjuncts of the Secretary of Homeland Security. ICE, however, issues immigration detainers without regard for whether the local law enforcement agency has entered into a 287(g) agreement with DHS. This means that officers who receive an immigration detainer lack the training and cooperative agreement that Congress contemplated. Lasch at Secondly, the authorizing regulation runs up against the Fourth Amendment by condoning detention without the probable cause required for an arrest. As Lasch recounts, the Arizona Court explained that SB 1070 s show me your papers provision was not facially unconstitutional because the inquiry about immigration status happened during the course of an authorized, lawful detention or after a detainee has been released. Arizona v. United States, 132 S. Ct. 2492, 2509 (2012). The detainer regulation does exactly the opposite. It requires the local law enforcement agency to maintain custody of a prisoner who is not otherwise detained. Lasch at 73. That is, it kicks in only when all other justification to detain has ended. In this way, Lasch contends, it is a Fourth Amendment seizure carried out without the reasonable suspicion or probable cause that the Fourth Amendment requires. Lasch at Both claims are intuitively rather intriguing. ICE, acting pursuant to a regulation, is either telling or asking local police to do what Congress has not allowed them to do even though as Lasch points out it has enacted a number of statutory provisions detailing the circumstances under which local police may help the federal government police immigration law. And in doing as ICE wants, local police deny people their liberty without the prerequisites enshrined in Fourth Amendment

3 jurisprudence: reasonable suspicion or probable cause. ICE s new guidance on when to issue immigration detainers may limit the number of instances that irk Lasch, but there s no indication that the agency plans to cease using them. Indeed, the Secure Communities program that has become the Obama Administration s immigration policing initiative of choice dramatically amplified the importance of detainers, Lasch writes. Lasch at 62. The administration s recent announcement about the end of 287(g) comes with the promise of a greater role for Secure Communities. Thanks to Crimmigration.com for this summary. CD4:6.11 POST CON RELIEF RETURN TO THE US AFTER VACATING REMOVAL ORDER PRACTICE ADVISORY National Immigration Project, National Lawyers Guild, Practice Advisory, Return to the United States After Prevailing on a Petition for Review or Motion to Reopen or Reconsider, lications.htm This advisory contains practical and legal suggestions for individuals seeking to return to the US after having prevailed on a petition for review or an administrative motion to reopen or reconsider before an IJ or the BIA. It also provides an overview of relevant developments over the past few years, including ICE s issuance of a return directive in February It discusses administrative steps to try to obtain return under the directive, summarizes potential litigation options if ICE refuses to facilitate or unreasonably delays return, suggests strategies for avoiding in absentia orders in removal proceedings while pursuing return, and includes a sample to the ICE Public Advocate to initiate return. This advisory was written by the National Immigration Project/NLG, Immigrant Rights Clinic, a clinic of Washington Square Legal Services at New York University School of Law, and the American Immigration Council. 3 rces/practice_advisories/cd_pa_return_to_us_ After_Successful_Petition_for_Review_or_%2 0Motion%20( ).pdf CD 4:15.38;PCN:10.15 CONTROLLED SUBSTANCES INADMISSIBILITY CONSULAR PROCESSING The relevant Foreign Affairs Manual notes have been updated to explain how Nunez-Reyes is not retroactive, but basically states that if the Federal First Offender Act issue comes up, the agent should seek an Advisory Opinion. At least one has advised to apply Lujan if the applicant will be seeking admission at a Port of Entry in the Ninth Circuit. See 9 FAM 40.21(a) N3.2-2 Expunging Conviction Under U.S. Law (CT:VISA-1784; ); 9 FAM 40.21(b) N4.1-3 Applying State Equivalents to 21 U.S.C. 844(b)(1) (TL:VISA-223; ); 9 FAM 40.21(b) N4.1-4 Requests for Advisory Opinions (CT:VISA-1008; ); 9 FAM 40.21(b) N4.1-6 Action After Conviction (CT:VISA-1790; ). CD4:21.36, 11.20;SH:7.145, 4.27;PCN:8.5;AF:6.14 STATISTICS Immigration Policy Center, Fact Check, A Decade of Rising Immigration Enforcement (Jan. 8, 2013) (immigration laws are enforced more strictly now than ever before: the DHS reported record numbers of removals during the Obama Administration, while fewer noncitizens are trying to enter the country illegally, and those caught by the Border Patrol are now regularly charged with federal crimes. Together, these trends reflect a sweeping and punitive transformation in U.S. immigration enforcement. CD4:1.2 POST CON RELIEF GROUNDS INEFFECTIVE ASSISTANCE OF COUNSEL PLEA KNOWING INTELLIGENT PLEA

4 VOIDED BY INEFFECTIVE ASSISTANCE OF COUNSEL Ineffective assistance of counsel voids a guilty plea (which is supposed to be a knowing, intelligent, and voluntary waiver of many rights) if there is prejudice, i.e., a reasonable probability of a different outcome absent counsel s error. The most recent all-jurisdiction Supreme Court statement of this principle is found in Missouri v. Frye, 132 S.Ct (March 21, 2012). The court there held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. That right applies to all critical stages of the criminal proceedings. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, established that Strickland s twopart test governs ineffective-assistance claims in the plea bargain context. There, the defendant had alleged that his counsel had given him inadequate advice about his plea, but he failed to show that he would have proceeded to trial had he received the proper advice. 474 U.S., at 60, 106 S.Ct In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, where a plea offer was set aside because counsel had misinformed the defendant of its immigration consequences, this Court made clear that the negotiation of a plea bargain is a critical stage for ineffective-assistance purposes, id., at 1392, 130 S.Ct., at 1486 and rejected the argument made by the State in this case that a knowing and voluntary plea supersedes defense counsel's errors. PCN:6.16 RELIEF CONSULAR PROCESSING PROVISIONAL UNLAWFUL PRESENCE WAIVERS PRACTICE ADVISORY A practice advisory on provisional waivers of unlawful presence is available here: =42954 CD4:15.12;AF:2.17;CMT3:3.7 4 Supreme Court Cases POST CON RELIEF GROUNDS INEFFECTIVE ASSISTANCE OF COUNSEL FEDERAL CONSTITUTION PROVIDES MINIMUM STANDARDS STATES ARE FREE TO PROVIDE GREATER PROTECTION IF THEY CHOOSE Missouri v. Frye, 132 S.Ct. 1399, 1411 (March 21, 2012) ( The Court has established the minimum requirements of the Sixth Amendment as interpreted in Strickland, and States have the discretion to add procedural protections under state law if they choose. ). PCN:6.1 POST CON RELIEF GROUNDS INEFECTIVE ASSISTANCE OF COUNSEL FAILURE TO ADVISE FAILURE TO DEFEND PADILLA APPLIES TO CASES THAT WENT TO TRIAL Commonwealth v. Marinho, SJC-11058, 2013 Mass. LEXIS 9 (Jan. 14, 2013) (Padilla applies to cases that go to trial: the Padilla duty to advise at plea extends to advising noncitizen clients prior to trial and further includes advocating at sentencing for dispositions that minimize immigration consequences). Thanks to Wendy S. Wayne. PCN:6.18 BIA CRIMES OF MORAL TURPITUDE DEPORTATION MULTIPLE CONVICTION GROUND COMBINING WAIVED PRIOR CMT WITH SECOND CMT CONVICTION PRACTICE ADVISORY Matter of Balderas, 20 I&N Dec. 389 (BIA 1991), held that immigration authorities can combine a conviction waived in a first set of removal proceedings with a conviction obtained

5 after a grant of relief to charge the person with removability in a second set of proceedings. Several unpublished cases distinguished Balderas when the person in a single set of proceedings seeks to waive the pre-96 offenses and terminate proceedings because there is only one CIMT conviction occurring after Matter of Ortiz-Perez, 2006 WL (BIA 2006) (unpublished); Matter of Horns Bazuaye, 2006 WL (BIA 2006) (unpublished); Matter of Ayinde Smith, 2006 WL (BIA 2006) (unpublished). Judulang had a pre- 96 manslaughter conviction, but he also had a 2005 theft conviction. From the Supreme Court's decision, the government did not make an argument that the 2005 theft conviction might be a CIMT that could disqualify him. Judulang v. Holder, 132 S.Ct. 476, (2011). In Carillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009), the court referred to the Board's decision that found him eligible for 212(c) relief to waive a 1993 aggravated felony conviction despite a 2005 conviction for running a chop-shop. Counsel can therefore argue that the client can obtain a 212(c) waiver in removal proceedings of a qualifying CMT conviction, leaving only a single CMT which cannot trigger multiple CMT deportability, provided the waiver is obtained in a single removal proceeding. Thanks to Thalassa Kingsnorth. CD4:20.38;SH:7.131;CMT3:5.12 First Circuit REVIEW REMAND WHERE NEITHER IJ NOR BIA PRESENTED A REASONED ANALYSIS OF THE EVIDENCE AS A WHOLE Khattak v. Holder, 704 F.3d 197 (1st Cir. Jan. 17, 2013) (granting petition for review of Board of Immigration Appeal s denial of petitioner s application for asylum, where neither the IJ or the BIA has presented a reasoned analysis of the evidence as a whole). Fourth Circuit NATURE OF CONVICTION RECORD OF CONVICTION RESPONDENT S EVIDENCE DURING REMOVAL PROCEEDINGS NOT PART OF RECORD OF CONVICTION Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondent s sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code , constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence. CD4:16.33;AF:3.42;CMT3:7.12 5

6 Fifth Circuit AGGRAVATED FELONY CRIME OF VIOLENCE 18 U.S.C. 16(b) ATTEMPTED SEXUAL ASSAULT NOT CATEGORICALLY A CRIME OF VIOLENCE BECAUSE IT INCLUDES SITUATIONS WHERE ACTUAL CONSENT EXISTS Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Texas conviction of attempted sexual assault, in violation of Texas Penal Code (a)(1(C) [ (1) intentionally or knowingly:... (C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; ], did not categorically constitute an aggravated felony crime of violence for immigration purposes, because in a sexual encounter with a physician or a clergyman [both contained within the statutory definition of without consent ], a victim could factually assent to the sexual relation, despite consent being deemed a legal nullity. In such situations, there is not a substantial risk that physical force may be used because there is not the same risk that the victim may figure out what's really going on and decide to resist as there would be if, as in Zaidi, a victim could wake up and resist an ongoing assault. ); quoting Zaidi v. Ashcroft, 374 F.3d 357, 358 (5th Cir.2004) (per curiam). CD4:19.44;AF:5.26, A.14, B.77 NATURE OF CONVICTION JUDICIAL SENTENCING FINDING THAT VICTIM WAS 16 YEARS OLD DOES NOT DETERMINE NATURE OF OFFENSE Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) ( Rodriguez's Adjudication of Guilt states that [t]he Sex Offender Registration Requirements... do apply to the Defendant. The age of the victim at the time of the offense was 16 years of age. However, this 6 statement does not indicate that the age of the victim was an element of the offense under which Rodriguez was convicted. Nor is this an explicit factual finding by the trial judge to which the defendant assented. [Footnote omitted.] Rodriguez did not plead guilty to the sexual assault of a child. [Footnote omitted.] ); quoting Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. Aug. 24, 2006). CD4:16.18;AF:4.16;CMT3:7.8 STATUTORY INTERPRETATION RULE OF LENITY APPLIES TO 8 U.S.C. 16, WHICH HAS BOTH CRIMINAL AND NONCRIMINAL APPLICATIONS Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) ( Section 16 has both criminal and noncriminal applications, and thus, the rule of lenity applies. We therefore are constrained to interpret any ambiguity in the statute in [Rodriguez's] favor. ) (footnotes omitted); quoting Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). CD4:16.38, 19.34;AF:4.41, 5.14;SH:5.25, 7.41;CMT3:6.7 Seventh Circuit RELIEF CONVENTION AGAINST TORTURE DEFERRAL OF REMOVAL JUDICIAL REVIEW Wanjiru v. Holder, 705 F.3d 258 (7 th Cir. Jan. 11, 2013) (court has jurisdiction to review denial of a request for deferral of removal under the Convention Against Torture; INA 242(a)(2)(C) does not bar review). CD4:2.19;AF:2.31;CMT3:3.30 Ninth Circuit

7 AGGRAVATED FELONY CRIME OF VIOLENCE 18 U.S.C. 16(b) FALSE IMPRISONMENT Barragan-Lopez v. Holder, 705 F.3d 1112 (9th Cir. Jan. 29, 2013) (California conviction of false imprisonment, in violation of California Penal Code [false imprisonment under 236, for purposes of protection from arrest, which substantially increases the risk of harm to the victim], is categorically a crime of violence under 18 U.S.C. 16(b), because it involves a substantial risk that force may be used, and petitioner was thus removable as an aggravated felon) under INA 101(a)(43)(F), 8 U.S.C. 1101(A)(43)(f)). Note: This case did not address California Penal Code 236 by itself, but rather as enhanced under Penal Code 210.5, which includes the additional element of specific intent of avoid arrest, substantially increasing the risk of harm to the victim. CD4:19.44;AF:5.6, A.4, B.11 REVIEW COURT CANNOT AFFIRM THE BIA ON A GROUND ON WHICH IT DID NOT RELY Barragan-Lopez v. Holder, 705 F.3d 1112 (9th Cir. Jan. 29, 2013) (court of appeal cannot affirm the BIA or IJ on a ground upon which it did not rely. ); quoting Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011). REVIEW BIA FAILURE ADEQUATELY TO EXPLAIN ITS REASONS Alphonsus v. Holder, 705 F.3d 1031, 2013 WL (9th Cir. Jan. 18, 2013) (BIA did not adequately explain its reasons for designating noncitizen s conviction for resisting arrest as a particularly serious crime rendering him ineligible for withholding from removal; In making a discretionary immigration decision, the agency must indicate how it weighed the 7 factors involved and how it arrived at its conclusion. ). AGGRAVATED FELONY CRIME OF VIOLENCE STATUTORY RAPE United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. Jan. 17, 2013) (Washington conviction for third-degree rape, in violation of RCW 9A (1)(a), qualified as a "forcible sex offense" supporting a 16-level crime-ofviolence enhancement under the Sentencing Guidelines, U.S.S.G. 2L1.2(b)(1)(A)). Note: RCW 9A (1)(A) punishes any rape that does not constitute first or second degree rape. The statute does not contain any further elements. Without conducting any analysis of Washington case law to determine whether any judicially identified elements exist, and thus whether the statute could be considered divisible, the Court found it could skip the categorical analysis, and apply directly the modified categorical analysis. This allowed the court to conclude the offense was a forcible sex offense which includes any nonconsensual sexual intercourse, because the factual basis specified that no consent had been given. The court did not cite Aguila-Montes de Oca, 655 F.3d 915 (9 th Cir. Aug. 11, 2011). CD4:19.22, 19.92;AF:4.40, 5.76, A.40, B.78 REVIEW CONSTITUTIONAL VOID-FOR- VAGUENESS CHALLENGE ALLOWED TO IMMIGRATION STATUTE BUT FAILED Alphonsus v. Holder, 705 F.3d 1031, (9th Cir. Jan. 18, 2013) (holding void-forvagueness constitutional doctrine applies to allow a facial constitutional vagueness challenge to 8 U.S.C. 1231(b)(3)(B)(ii), maintaining that the provision is unconstitutionally vague because the statute provides no definition of particularly serious crime, to be made, but rejecting it on the merits; [T]he void-for-vagueness doctrine requires that a penal statute define the criminal

8 offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Although 1231(b)(3)(B)(ii) is not a criminal statute, we entertain Alphonsus's vagueness challenge because of the harsh consequences attached to a particularly serious crime determination and the attendant denial of withholding of removal. See Jordan v. De George, 341 U.S. 223, , 71 S.Ct. 703, 95 L.Ed. 886 (1951) (reviewing a vagueness challenge to the crime involving moral turpitude designation, in view of the grave nature of deportation ). ). REVIEW BIA CAN DEPART FROM ESTABLISHED PRECEDENT ONLY IN PUBLISHED DECISION THAT GIVES ADEQUATE REASONS FOR THE DEPARTURE Alphonsus v. Holder, 705 F.3d 1031, 2013 WL (9th Cir. Jan. 18, 2013) ( an agency changing course must do so in a format capable of modifying an earlier interpretation. Here, an unpublished, non-precedential opinion in this case could not modify earlier, published precedential opinions even if adequate reasons were given for the departure. See Hernandez v. Ashcroft, 345 F.3d 824, (9th Cir.2003). ). CRIMES OF MORAL TURPITUDE SIMPLE KIDNAPPING NOT CATEGORICALLY A CRIME OF MORAL TURPITUDE Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. Jan. 9, 2013) (California conviction of simple kidnapping, under Penal Code 207(a), is categorically not a crime involving moral turpitude making a noncitizen statutorily ineligible for cancellation of removal, because it 8 does not require an intent to injure, actual injury, or a special class of victims). CD4:20.7;CMT3:8.7, 9.19;SH:8.12, IMMIGRATION OFFENSES SENTENCE RESTITUTION ORDER COURT S FAILURE TO PROVIDE AN ADEQUATE LEGAL AND FACTUAL BASIS FOR RESTITUTION ORDER IMMIGRATION OFFENSES SENTENCE COURT CANNOT RELY ON FOREIGN CONDUCT TO MEET SENTENCE REQUIREMENTS United States v. Xu, 706 F.3d 965, 2013 WL (9th Cir. Jan. 3, 2013) (the sentences are vacated, and the cases are remanded for resentencing and reconsideration regarding the legal and factual basis for the $482 million restitution order, where the count one convictions are not the result of an improper extraterritorial application of the RICO conspiracy statute because defendants' criminal enterprise involved both bank fraud and immigration fraud centered on stealing money from the Bank of China and traveling freely with that stolen money in the United States; but the district court improperly relied on defendants' foreign conduct to meet requirements in sentencing, and failed to provide an adequate legal and factual basis for the $482 million restitution order). CD4:CHAPT13 SAFE HAVENS AGGRAVATED FELONIES RAPE SAFE HAVENS CRIMES OF MORAL TURPITUDE INNOCENT INTENT GOOD FAITH BELIEF IN CONSENT NOT A DEFENSE People v. Morales, 212 Cal.App.4th 583, 150 Cal.Rptr.3d 920 (2d Dist. Jan. 2, 2013) (reversing conviction of rape of an unconscious person, where under the precise language of the statute, a person who accomplishes sexual intercourse by impersonating someone other than a married victim's spouse is not guilty of the crime of rape of an unconscious person in violation of Penal Code 261(a)(4), but the

9 record did not disclose whether the jury relied on the improper theory, or on the correct theory argued by the prosecutor, that the victim was unconscious because she was asleep, but the trial court did not err in refusing to give instructions that would have allowed the jury to consider his good faith, but mistaken, belief that the victim had consented to sexual intercourse with him). NOTE: Where a state criminal offense disallows a good faith belief in consent as a defense, it is difficult for the DHS to argue it is a crime of moral turpitude, because there is not necessarily any evil intent required as an element. SH:7.92;7.110 CAL POST CON VEHICLES DISMISSAL UNDER PENAL CODE 1385 COURT HAS NO AUTHORITY TO DISMISS AN ACTION AFTER FORMAL JUDGMENT HAS BEEN IMPOSED AND THE DEFENDANT HAS SERVED THE PRISON SENTENCE People v. Kim, 212 Cal.App.4th 117,, 151 Cal.Rptr.3d 154, 2012 WL (6th Dist. Dec. 19, 2012) ( In short, judgment had been imposed and defendant had served his prison sentence in this case. The trial court therefore had no authority to dismiss the action pursuant to section ). CPCR 6.70; (d)(3) allows BIA to review IJ s factual finding for clear error only). Upcoming Seminars Upcoming Seminar in California Pre-AILA Crimes & Immigration Seminar June 26, 2013 San Francisco, CA 9am - 5pm 6.5 MCLE credits Learn More Eleventh Circuit JUDICIAL REVIEW APPEAL TO BIA FACTUAL FINDINGS BIA MAY NOT CONDUCT DE NOVO REVIEW OF IJ S FACTUAL FINDINGS, ONLY FOR CLEAR ERROR Zhu v. U.S. Atty s Gen, 703 F.3d 1303 (11 th Cir. Jan 4, 2013) (BIA improperly engaged in de novo review of IJ s factual findings; 8 C.F.R. 9