Criminal & Immigration

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1 Criminal & Immigration enewsletter January 2009 This enewsletter contains selected recent developments in criminal immigration law occurring during January, For a complete report, see the January Report sent to Premium Members of 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 (2008), with monthly updates online at A RTICLES: MISPRISON OF A FELONY A conviction of misprision of a felony, such as the federal version, 18 U.S.C. 4, has been regarded as a safe haven that does not trigger deportation. (Matter of Espinoza, 22 I. & N. Dec. 889 (BIA June 11, 1999) (en banc) (federal conviction for misprision of a felony under 18 U.S.C. 4 (1994) does not constitute a conviction for an aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), as an offense relating to obstruction of justice), distinguishing Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (accessory after the fact conviction constitutes obstruction of justice aggravated felony). I NSIDE T HIS I SSUE: continued on page 2 Articles: Misprision of a Felony Use of a False Social Security Card Agg Fel Drug Trafficking, Second Possession False Claim to U.S. Citizenship by Child Controlled Substances, Single Offense Exception Lozada Overruled Recent Circuit Decisions Upcoming Events Tooby s Crimes of Moral Turpitude (2008) Criminal and Immigration Web Resource R ECENT C IRCUIT D ECISIONS: Second Circuit REMOVAL PROCEEDINGS EXISTENCE OF CONVICTION ADMISSION IN PROCEEDINGS OF CONVICTION THROUGH LAWYER SUFFICIENT TO ESTABLISH CONVICTION FOR PURPOSES OF ESTABLISHING REMOVABILITY Roman v. Mukasey, 553 F.3d 184 (2d Cir. Jan. 21, 2009) ( There is no legal or constitutional error in the IJ and BIA's determination that Roman's admission of removability-which explicitly admitted the allegations in the NTA and the basis for the charge of removal -satisfied the government's evidentiary burden. [W]hen an admission is made as a tactical decision by an attorney in a deportation proceeding, the admission is binding on his alien client and may be relied upon as evidence of deportability. Matter of Velasquez, 19 I. & N. Dec. 377, 382 (B.I.A.1986); cf. Ali v. Reno, 22 F.3d 442, 446 (2d Cir.1994) (alien bound by counsel's admission that a timely answer had not been filed). ). CD: Fifth Circuit AGGRAVATED FELONY CRIME OF VIOLENCE STALKING United States v. Mohr, 554 F.3d 604 (5 th Cir. Jan. 6, 2009) (South Carolina conviction for stalking, in violation of S.C.Code (B) is a crime of violence for purposes of the Armed Career Criminal Act; even though the judgment indicated that the defendant was convicted under the non-violent portion of the statute; the elements of the statute itself indicate that the offense involved a substantial potential risk of physical injury to another). CD: 19.44; SH: 7.54; AF: 5.26, A.14, B.16 Sixth Circuit SAFE HAVEN INTERFERING WITH POLICE OFFICER United States v. Gagnon, 553 F.3d 1021 (6 th Cir. Jan. 29, 2009) (federal conviction in violation of 18 U.S.C. 111, punishes activity less serious than simple assault; defendant who had spit at border patrol officers and forced himself to vomit was therefore guilty under 18 U.S.C. 111). Note: counsel can therefore argue that a conviction under this statute is not necessarily a crime of violence or a crime of moral turpitude. But see United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir. 2008) (concluding that its construction of 111 leaves no room for a conviction that does not involve at least some form of assault ). SH: 9.19 Newsletter 1

2 continued from page 1 ARTICLE: MISPRISION OF A FELONY (CONT D.) A number of more recent decisions, however, cast doubt on this conclusion. (E.g., Patel v. Mukasey, 526 F.3d 800 (5th Cir. 2008) (conviction of misprision of a felony was a fraud offense aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), because it necessarily entails fraud or deceit and in the particular case the loss to the victim exceeded $10,000); Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. Apr. 22, 2002); Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006) (federal conviction of misprision of a felony, in violation of 18 U.S.C. 4, was a CMT) (this issue is presently pending before the Ninth Circuit).) Criminal counsel must therefore seek alternative dispositions where possible, but immigration counsel can make the following argument in immigration proceedings that appears to be prevailing in the Ninth Circuit. The reasoning of the Ninth Circuit, however, is far more persuasive on this issue. In Navarro-Lopez the Ninth Circuit en banc found accessory after the fact under California Penal Code 32 not to be a crime of moral turpitude. (Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074 (9 th Cir 2007) (en banc).) Misprison of a felony can be seen as a smaller step or less of a criminal act than accessory after the fact. In Navarro-Lopez, the Ninth Circuit stated: Judge Tallman's dissent cites Itani v. Ashcroft, 298 F.3d 1213 (11th Cir.2002), and Padilla v. Gonzales, 397 F.3d 1016 (7th Cir.2005), as support for its argument that accessory after the fact is an inherently fraudulent offense. Neither case is persuasive. In Itani, the court found that misprision of felony was a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity. 298 F.3d at All crimes run contrary to accepted societal duties. Thus, the court's statement that misprision does so serves at most to justify the classification of that act as a crime, not as a crime of moral turpitude. The court offers no explanation at all for its pronouncement that misprision involves dishonest or fraudulent activity. It simply offers that bare conclusion. Further, the court wrongly equates dishonest behavior with fraud. Padilla uses the same faulty reasoning in concluding that obstruction of justice is a crime of moral turpitude because it specifically entails dishonesty. 397 F.3d at Most crimes involve dishonesty of some kind, but our precedents require more for an offense to be considered fraudulent. (Navarro-Lopez v. Gonzales 503 F.3d 1063, 1077 (9 th Cir. 2007) (en banc) (Reinhardt, concurring, joined by Schroeder, Kozinski, Michael Daly Hawkins, Thomas, Wardlaw, William A. Fletcher, and Paez)). Thanks to Jonathan Moore. CD: 19.18; AF: 7.85; CMT: 9.5; SH: 8.68 GOOD MORAL CHARACTER USE OF FALSE SOCIAL SECURITY CARD Counsel can argue that use of a false social security card does not evidence a lack of good moral character. See Matter of K, 3 I. & N. Dec. 69 (BIA 1947) (noncitizen admitted committing perjury before a Board of Special Inquiry in February 1931, when he was not yet 18 years of age; he could not have been treated and tried as a juvenile delinquent after the effective date of the Federal Juvenile Delinquency Act (June 16, 1938), when he was over 24 years of age and the statute of limitations had already run on the violation; it would be unrealistic to apply the above 1938 act retroactively to cover the violation of the Federal perjury statute so that it should be regarded as a juvenile delinquency rather than as perjury). Thanks to Lisa Brodyaga. CD: 15.6, CHAPT 13; AF: 2.14; CMT: 3.14 ARTICLE AGGRAVATED FELONY DRUG TRAFFICKING SECOND POSSESSION CIRCUIT BREAKDOWN OF CIRCUMSTANCES UNDER WHICH SECOND POSSESSION CONVICTION CONSTITUTES AGGRAVATED FELONY The general rule is that a conviction of simple possession of a controlled substance cannot constitute an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B). Lopez v. Gonzales, 549 U.S 47 (2006). Two exceptions are simple possession of any amount of flunitrazepam (the date-rape drug) or over five grams of crack cocaine. Id. at. The only other possible time a simple possession conviction might constitute an aggravated felony is when it is a second or subsequent conviction of possession of a federally listed controlled substance. This is because a second conviction would sometimes constitute a felony if it had been prosecuted in federal court. The BIA has held that a second conviction of possession of a controlled substance can constitute an aggravated felony only if the prior drug conviction was pleaded and proven, beyond a reasonable doubt, or admitted by the defendant to be true, during the prosecution of the second offense. Matter of Carachuri, 24 I. & N. Dec. 382, 394 (BIA 2007) (en banc); Matter of Thomas, 24 I_&_N Dec. 416 (BIA 2007). It held this default rule would apply in all circuits that have not held to the contrary. At this time, the default rule applies in all circuits except the Fifth and Seventh Circuits, which hold a second possession conviction is an aggravated felony, even though the first was not pleaded and proven or admitted. United States v. Cepeda- Rios, 530 F.3d 333 (5 th Cir. 2008); Fernandez v. Mukasey, 544 F.3d 862 (7 th Cir. 2008). The First, Second, Third, Sixth, and Ninth Circuits specifically follow the default or majority rule. Berhe v. Gonzales, 464 F.3d 74, (1st Cir. 2006); Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008); Steele v. Blackman, 236 F.3d 130, (3d Cir. 2001); Rashid v. Mukasey, 531 F.3d 438, (6th Cir. 2008); Ferreira v. Ashcroft, 382 F.3d 1045 (9 th Cir. 2004). The Fourth, Eighth, Tenth and Eleventh Circuits as yet have no reported decisions on this point. For an excellent practice advisory on this point, see NYSDA Immigrant Defense Project, Using Lopez v. Gonzales to Challenge Aggravated Felony Drug Trafficking Charges or Bars on Relief, ce.htm (May 19, 2008, visited Jan. 30, 2009). CD: 19.58; AF: 5.40; SH: 7.66 Newsletter 2

3 continued from page 1 U PCOMING E VENTS: JUNE 2, 2009 PRE-AILA LAS VEGAS CRIMES & IMMIGRATION SEMINAR UNLV WILLIAM S. BOYD SCHOOL OF LAW 4505 S. MARYLAND PARKWAY, LAS VEGAS, NV TIME: 9AM 5PM Come to Las Vegas one day early to join us for a day-long CLE training on defending non-citizens for immigration and criminal attorneys! Dan Kesselbrenner and Norton Tooby will present on the following topics: I. Recent Developments Concerning Categorical Analysis Categorical analysis, extra-element analysis and its limits: Wherethe government is limited to the elements of the offense of conviction, and the record of conviction, and where it is not. Different rules depend on the criminal removal ground and the circuit. II. Attorney General's New Moral Turpitude Analysis The new /Matter of Silva-Trevino/ (AG November 8, 2008) analysis of whether a conviction is a crime of moral turpitude, how to resist this new rule, and how to practice under it. III. Preserving Issues in the Lower Court Tips on how not to waiver important issues: What counsel must do before the IJ to preserve an issue for appeal to the BIA, and before the BIA to preserve an issue for a petition for review. Analogies to similar rules in criminal appeals. IV. Evidentiary Issues in Criminal Removal Cases How to establish a reasonable probability that a nondeportable offense within a divisible statute is actually prosecuted, under the /Duenas /rule. Differences between proof of the existence of a conviction, and proof of the nature of the conviction. Attacks on government evidence, including right to cross-examination, reliability, hearsay, and weight v. admissibility for different types of evidence. Register for this seminar online at SEPTEMBER, 2009 NEW YORK CRIMES AND IMMIGRATION SEMINAR NYU SCHOOL OF LAW TIME: 9AM 5PM CIRCUIT DECISIONS (CONT D.) Seventh Circuit JUDICIAL REVIEW PETITION FOR REVIEW NO JURISDICTION OVER VAWA CANCELLATION EXTREME CRUELTY DETERMINATION Stepanovic v. Filip, 554 F.3d 673 (7 th Cir. Jan. 28, 2009) (VAWA cancellation extreme cruelty determination is within the discretion of the Attorney General; therefore the court lacks jurisdiction to review under 8 U.S.C. 1252(a)(2); over petition for review of BIA holding noncitizen ineligible for VAWA cancellation of removal, under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2), for determining he was not subjected to extreme cruelty; BIA correctly applied the extreme cruelty legal standard in requiring petitioner show psychiatric or medical documents, or other evidence). See also Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005). But see Hernandez v. Ashcroft, 345 F.3d 824, (9th Cir. 2003). CD: 15.37, 24.26; AF: 2.19, 2.38; CMT: 3.18, 3.37 Ninth Circuit AGGRAVATED FELONY BURGLARY BURGLARY United States v. Aguila-Montes, 553 F.3d 1229 (9 th Cir. Jan. 20, 2009), on rehearing withdrawing and superseding previous opinion, 523 F.3d 1071 (California conviction for first-degree residential burglary, in violation of Penal Code 459, could not categorically constitute a crime of violence (burglary of a dwelling) under USSG 2L1.2(b)(1)(A), cmt. n. 1(B)(iii), so as to warrant 16-level enhancement of sentence for illegal reentry, because the California offense encompasses a broader range of proscribed conduct than does the generic offense of the Guidelines since it does not require that the entry be unlawful or unprivileged as the federal definition does), following United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005). CD: 19.30; AF: 5.10, A.10, B.36; SH: 7.37, 8.38 OVERVIEW CONTACT WITH IMMIGRATION AUTHORITIES CHOICE OF LAW RELIEF CONSULAR PROCESSING CHOICE OF LAW The Secretary of State, in an unclassified Advisory Opinion to the U.S. Embassy in Montevideo, stated that an expunged Washington state misdemeanor "first time, minor controlled substance offense relating only to possession" will not trigger inadmissibility as long as the alien intends to enter the U.S. from a port of entry in the 9th Circuit, following Lujan- Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Thanks to the firm of Gibbs, Houston, Pauw in Seattle. CD: 15.12; AF: 2.7; CMT: 3.7 Eleventh Circuit CONVICTION JUVENILE ADULT COURT CONVICTION OF JUVENILE CONSTITUTES A CONVICTION FOR IMMIGRATION PURPOSES Singh v. U.S. Att'y Gen., 553 F.3d 1369 (11 th Cir. Dec. 31, 2008) (conviction rendered in adult court constitutes a conviction for immigration purposes, no matter how old the noncitizen was at the time of the offense). CD: 7.23; SH: 4.10; AF: 3.41; CMT: 2.9 Newsletter 3

4 Tooby s Crimes of Moral Turpitude By N. Tooby, J. Rollin and J. Foster (2008) New, revised and expanded All moral turpitude cases from all U.S. courts organized by the nature of the crime Fully indexed for ease of use A must have for questions of admissibility as well as removal defense Amazingly comprehensive. Dan Kesselbrenner, National Immigration Project, Boston, MA... a wonderful collection on a topic that has confused people for decades. Kathy Brady, Immigrant Legal Resource Center, San Francisco, CA Place your order online: CRIMINAL AND IMMIGRATION WEB RESOURCE America s leading source of legal information on the overlap of criminal and immigration law. We offer quality law books and seminars for criminal and immigration lawyers. Legal information online anytime. 24 hours a day. Free Resources: Our site offers free access to valuable information for both criminal and immigration lawyers. Monthly enewsletter archives from 2001 to the present Articles Checklists Charts And more! Premium Resources: For only $19.95 a month or $199 for an annual subscription, you have access to the latest information on the intersection of criminal and immigration law. Premium Resource members also receive a monthly summary of recent developments and a 15% discount off all of our books and seminars. This includes: Monthly book updates for all our national practice guides Deportation Ground Checklist Crimes of Moral Turpitude Table Search functions for the entire website Case summaries for all cases since 2001 Contact info: Law Offices of Norton Tooby 6333 Telegraph Ave. #200, Oakland, CA (510) , fax (510) Newsletter 4

5 ARTICLES (CONT D.) FALSE CLAIM TO US CITIZENSHIP BY CHILD 8 CFR (b) provides that: "The immigration judge shall not accept an admission of deportability from an unrepresented respondent who is incompetent or under age 16 and is not accompanied by a guardian, relative, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the immigration judge may not accept an admission of deportability, he or she shall direct a hearing on the issues." In the case of an unaccompanied and unrepresented minor under the age of 16 years, however, [former regulation] 8 C.F.R (b) requires that an Immigration Judge may not accept such a minor's admission to an charge of deportability because the minor is presumed to be incapable of determining whether a charge applies to him. However, 8 C.F.R (b) does not preclude an Immigration Judge from accepting such a minor's admissions to factual allegations. Minors under the age of 16, even when unaccompanied and unrepresented, are not presumed incapable of understanding the content of those allegations and of determining whether they are true. Matter of Amaya-Castro, 21 I. & N. Dec. 583 (BIA 1996) (emphasis supplied). By analogy, perhaps a minor s statement that she is a U.S. citizen is more akin to a legal conclusion which in immigration court she would not competent to make by herself than a factual allegation. Thanks to Jonathan Moore. CD: CONTROLLED SUBSTANCES SINGLE OFFENSE EXCEPTION A noncitizen who has pre-trial diversion (no plea entered) for a drug charge does not have a conviction for immigration purposes. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). If that person later pleads guilty to simple possession of 30 grams or less of marijuana, the noncitizen comes within the exception to deportability under INA 237(a)(2)(B), 8 U.S.C. 1227(a)(2)(B) for having a single offense. The "single offense" language creates an exception to the "has been convicted" language in this statute. Since pre-trial diversion is not a conviction, the guilty plea to marijuana possession would still seem to come within the language of the single-offense exception. The Ninth Circuit in de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007), held that a noncitizen with a prior grant of pre-trial diversion is not eligible for treatment under Federal First Offender Act, 18 U.S.C. 3607(a), analogue, which makes the plea in the second case a conviction for immigration purposes. In de Jesus Melendez, however, the Federal First Offender Act itself bars eligibility for one who had previously been treated under 18 U.S.C. 3607, and this statute itself has a pretrial diversion provision. The fact that a pre-trial nonconviction diversion bars effective expungement does not mean that it would be considered a first "offense" under the first-offense exception for 30 grams or less of marijuana. Any ambiguity in the statute must be interpreted in favor of the noncitizen in deportation proceedings. Thanks to Dan Kesselbrenner. CD: 21.35, 24.29, 15.6; AF: 2.45, 2.14; CMT: 3.44, 3.14 ATTORNEY GENERAL: REMOVAL PROCEEDINGS DUE PROCESS ATTORNEY GENERAL FINDS NO DUE PROCESS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN REMOVAL PROCEEDINGS LOZADA OVERRULED Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009) (noncitizens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature, nor under the Fifth Amendment, because due process does not include a general right to counsel, or a specific right to effective assistance of counsel, because it can be violated only by state action, and lawyers privately retained are not state actors for due process purposes, so there is no Fifth Amendment right to effective assistance of counsel in removal proceedings, but respondents have a statutory privilege to retain private counsel at no expense to the Government), overruling Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988); Matter of Assaad, 23 I. & N. Dec. 553 (BIA 2003). CD: 15.23, 15.34; PCN: 10.15; AF: 6.30; CMT: All of our previous enewsletters are archived in the FREE area of our website. Visit Law Offices of Norton Tooby 6333 Telegraph Ave. #200 Oakland, CA (510) , fax (510) Newsletter 5

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