Web Update March 2005 <REGULAR CASE CAPSULES>

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1 Web Update March 2005 <REGULAR CASE CAPSULES> CRIME OF VIOLENCE INDECENT LIBERTIES WITH CHILD CD 6.70; AF 5.46; C&C SEXUAL ABUSE OF A MINOR INDECENT LIBERTIES WITH CHILD United States v. Izaguirre-Flores, F.3d, 2005 WL (5 th Cir. March 31, 2005) (taking indecent liberties with a child, in violation of North Carolina General Statutes Annotated (a)(1), is a crime of violence, as sexual abuse of a minor, for sentencing purposes under U.S.S.G. 2L1.2, following illegal reentry; this holding based on common meaning, rather than categorical analysis). C&C; CD 6.39; AF 5.15 ILLEGAL REENTRY FIFTH CIRCUIT REJECTS CATEGORICAL ANALYSIS AS IT APPLIES TO DETERMINING WHETHER AN OFFNSE IS A CRIME OF VIOLENCE FOR PURPOSES OF U.S.S.G 2L1.2 United States v. Izaguirre-Flores, F.3d, 2005 WL (5 th Cir. March 31, 2005) (the Fifth Circuit held that determination of whether taking indecent liberties with a child constituted sexual abuse of a minor for purposes of determining whether the offense was a crime of violence under U.S.S.G. 2L1.2, is to be made by use of a ordinary contemporary, and common meaning approach rather than by use of the categorical analysis used to determine whether an offense is a crime of violence under 18 U.S.C. 16). AF 6.6 MOTION TO REOPEN 180 DAY DEALINE SUBJECT TO EQUITABLE TOLLING Borges v. Gonzales, F.3d, 2005 WL (3d Cir. March 30, 2005) (180 day time limit filing a motion to reopen removal proceeding following in order entered in absentia is in nature of statute of limitations, so as to be subject to equitable tolling). PCN DEPORTATION GROUNDS FAILURE TO ABIDE BY VISA RESTRICTIONS Kalal v. Gonzales, F.3d (9th Cir. March 30, 2005) (Conditional permanent resident status cannot be properly granted to a noncitizen who enters with a K-1 visa, granted for the purpose of marrying one person, were the noncitizen marries someone else). SH 7.198

2 ADMISSION TO US TURNING AROUND AT US BORDER Handa v. Clark, F.3d, 2005 WL (9 th Cir. March 25, 2005) (lawfully admitted noncitizen denied admission into Canada, but allowed by Canadian immigration officials to drive into Canada to turn his car around is not making an exit, and subsequent reentry to the United States; upon arrest by U.S immigration officials, noncitizen should be placed in deportation, rather than inadmissibility proceedings). CD 4.32; CMT 5.3; AF 3.6 RELIEF ADJUSTMENT OF STATUS DOES GRANT OF 212(C) RELIEF AS TO CMT ERASE THE CMT AS AN AGGRAVATED FELONY SO RESPONDENT IS NOT DISQUALIFIED FROM 212(H) RELIEF FOR CMTS DURING ADJUSTMENT AS DEFENSE TO DEPORTATION? Comas v. McDonough, F.Supp.2d (D. Mass. March 23, 2005) (case remanded to BIA to address issue of whether noncitizen may apply for INA 212(c) relief so that he may then become eligible for adjustment in conjunction with a waiver under INA 212(h)). RELIEF CANCELLATION SIMULTANEOUS GRANT OF 212(C) RELIEF DISQUALIFIES RESPONDENT FROM ELIGIBILITY FOR CANCELLATION Comas v. McDonough, F.Supp.2d (D. Mass. March 23, 2005) ( simultaneous grants of INA 212(c) relief and cancellation of removal are not possible for persons with aggravated felony convictions because applicant would have to receive a 212(c) waiver before the cancellation, because otherwise he would clearly be banned from receiving a cancellation as an aggravated felon; the 212(c) waiver would have to be prior to the cancellation, but cancellation may not be granted where an applicant has already received relief under INA 212(c)). CRIMES OF MORAL TURPITUDE MULTIPLE CMT DEPORTATION GROUND PRIOR GRANT OF 212(C) RELIEF AS TO FIRST CMT DOES NOT ERASE IT IF RESPONDENT IS CONVICTED OF SECOND CMT Comas v. McDonough, F.Supp.2d (D. Mass. March 23, 2005), following Matter of Balderas, 20 I & N Dec. 389 (BIA 1991); Molina-Amezcua v. INS, 6 F.3d 646, (9th Cir. 1993) (holding that a conviction could be used as grounds for deportation of an alien as one of two crimes involving moral turpitude, even though the conviction had previously been waived under 212(c)); Molenda v. INS, 998 F.2d 291, (5th Cir. 1993) (same).

3 DERIVATIVE CITIZENSHIP Solis-Espinoza v. Gonzales, F.3d (9 th Cir. March 23, 2005) (blood-relation to U.S. citizen not required to obtain derivative citizenship where child was raised by U.S. citizen mother, married to biological father, since birth). ( CD 9.12; CMT 3.23, 2.22 DERIVATIVE CITIZENSHIP Minasyan v. Gonzales, F.3d (9 th Cir. March 22, 2005) (derivative citizenship shown through naturalization of mother only, based upon 2001 nunc pro tunc court order dissolving marriage and showing that parents were separated and mother was in sole custody since 1993). CD 9.12; CMT 3.23, 2.22 POST CON RELIEF HABEAS FEDERAL Brown v. Payton, U.S. (March 22, 2005) (grant of habeas relief to defendant is reversed where Ninth Circuit's decision was contrary to the limits on federal habeas review imposed by the Antiterrorism and Effective Death Penalty Act). PCN 5.28 SAFE HAVEN -- IDENTITY THEFT -- UNAUTHORIZED USE OF IDENTITY People v. Hagedorn, Cal.App.4th (March 18, 2005) (California Penal Code (use of identifying information for unlawful purpose) can be violated where person attempts to cash check made out in another's name, using that person's identification, for work that the actor had done using the other person's name; therefore this statute does not require an intent to defraud). SH 9.46 IMMIGRATION OFFENSES NONCITIZEN IN POSSESSION OF FIREARM BOOKER SENTENCING REMAND United States v. Villegas, F.3d, 2005 WL (5 th Cir. March 17, 2005) (case remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005), to determine whether four level enhancement to 18 U.S.C. 922(g)(5) conviction sentence was proper upon court finding that firearm possession was in connection with use of fraudulent immigration documents). AF 3.31; CMT 5.9; PCN 7.36, 7.48; CD 6.22, 1.56 ABANDONMENT OF LAWFUL PERMANENT RESIDENCE Hana v. Gonzalez, 400 F.3d 472 (6 th Cir. March 14, 2005) (looking at totality of the circumstances, Iraqi woman did not abandon her LPR status, despite 4 ½ years of living abroad, where the reason for her absence from the United States was

4 because she feared her absence would alert the Government to her attempt to immigrate herself and her family to the United States, and because she needed to care for her ailing mother). CD 4.36;CMT 5.7; AF 3.10 IMMIGRATION CONSEQUENCES NATURALIZATION GOOD MORAL CHARACTER ASSAULT AND BATTERY DISMISSAL Jalloh v. Dept. of Homeland Security, F.Supp.2d (D.C.Mass. March 11, 2005) (assault and battery with a dangerous weapon conviction held not to be a crime involving moral turpitude for purposes of finding good moral character for naturalization purposes where, examining the underlying facts of the case, it did not appear that the applicant has any evil intent in committing the offense; 8 C.F.R (b) (3) (iii) allows the court to examine the underlying facts behind a conviction to determine whether a naturalization applicant has establishe[d] extenuating circumstances that show that applicant does not lack good moral character). CD 9.12; CMT 3.23; AF 2.22 AGGRAVATED FELONY CRIME OF VIOLENCE Szucz-Toldy v. Gonzalez, F.3d (7 th Cir. March 11, 2005) (Illinois conviction for "harassment by telephone" under 720 ILCS 135/1-1(2), prohibiting "making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number is not an aggravated felony crime of violence for immigration purposes because it is not necessary to prove the use or threatened use of physical force to sustain a conviction under the statute). CD 6.39; AF 5.15; C&C RELIEF CANCELLATION OF REMOVAL Ortiz-Cornejo v. Gonzalez, F.3d (8 th Cir. March 11, 2005) (physical presence required for cancellation of removal not interrupted where noncitizen was turned away at border, but without evidence that the threat of deportation was expressed by the immigration officials, and understood by the noncitizen). CD 6.81; CMT 3.3; AF 2.4 ALIEN SMUGGLING AIDING AND ABETTING United States v. Garcia, F.3d (9th Cir. March 11, 2005) (aiding and abetting is not a separate offense from the substantive offenses of alien smuggling and transportation of aliens, but rather a different theory of liability for the same offense). CD 6.28; AF 5.4; C&C POST CON RELIEF DIRECT APPEAL WAIVER OF APPEAL

5 POST CON RELIEF GROUNDS GUILTY PLEA WAIVES GROUNDS United States v. Lopez-Armenta, F.3d (9th Cir. March 10, 2005) (defendant's challenge to the district court's denial of his motion to suppress is dismissed since he waived his right to appeal pretrial constitutional defects when he entered an unconditional guilty plea). PCN 5.22 RELIEF 212(C) RELIEF 212(C) RELIEF REMAINS AVAILABLE NOW IN CONJUNCTION WITH AN ADJUSTMENT OF STATUS A LA GABREYELSKY FOR PLEA ENTERED BEFORE AEDPA RELIEF ADJUSTMENT OF STATUS (C) RELIEF REMAINS AVAILABLE NOW IN CONJUNCTION WITH AN ADJUSTMENT OF STATUS Matter of Azurin, 23 I. & N. Dec. 695 (BIA March 9, 2005) (noncitizen who pleaded guilty before the April 24, 1996 AEDPA amendments to former INA 212(c), 8 U.S.C. 1182(c) (1994), to a crime of moral turpitude that also constituted an aggravated felony and a firearms offense, may seek an INA 212(c) waiver of inadmissibility in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c) relief), reaffirming Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993). ALIEN SMUGGLING Tapucu v. Gonzales, F.3d (6 th Cir. March 9, 2005) (driving an undocumented noncitizen to the United States boarder, and presenting him to the immigration authorities upon inspection, not knowing that the noncitizen is not entitle to enter the United States, at least on a temporary basis, does not constitute alien smuggling ). CD 6.28; AF 5.4; C&C AGGRAVATED FELONY SEXUAL ABUSE OF A MINOR Patel v. Ashcroft, F.3d, 2005 WL (6th Cir. March 8, 2005) (Illinois conviction of criminal sexual abuse, in violation of 720 Ill. Comp. Stat. 5/12-15 (1993), constituted a crime of violence under 18 U.S.C. 16(b), and was therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), precluding the court of appeals from petition for review jurisdiction under 8 U.S.C. 1252(a)(2); because of the disparate ages of the defendant and the victim, or the mental incapacity or physical helplessness of the victim, or the defendant's position of authority over the victim, the crime, semper et ubique, includes a substantial risk of physical force. ) CD 6.70; AF 5.46; C&C

6 AGGRAVATED FELONY CONVICTION YOUTHFUL TRAINEE Uritsky v. Gonzales, F.3d, 2005 WL (6 th Cir. March 7, 2005) (sentence of probation and a designation of "youthful trainee" under Michigan's Holmes Youthful Trainee Act ("YTA"), Mich. Comp. Laws , constitutes a conviction for immigration purposes). CD 1.57; CMT 5.8; AF 3.32; SH 4.13 POST CON RELIEF GROUNDS PROSECUTION MISCONDUCT Hays v. Brown, F.3d (9th Cir. March 7, 2005) (prosecutor's knowing presentation of false evidence and failure to correct the record violate a criminal defendant's due process rights). PCN 6.53 POST CON RELIEF GROUNDS INEFFECTIVE ASSISTANCE REMEDY RETURN TO PRE-ERROR STAGE OF PROCEEDINGS Riggs v. Fairman, F.3d (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding). PCN 5.74; CMT 10.16; PCN 6.8 RECORD OF CONVICTION POLICE REPORTS Shepard v. United States, U.S. (March 7, 2005) (a court sentencing under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary). Relying on its sentencing enhancement cases, the First Circuit has refused to bar an immigration factfinder from examining a police report as part of the record of conviction in determining whether a noncitizen has been convicted of an aggravated felony. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (relying on United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and United States v. Shepard, 231 F.3d 56 (1st Cir. 2000) to hold that there is no due process problem where factfinder considers police report as part of the record of conviction). Yesterday's Shepard decision overruled United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and reversed Shepard. In light of this development, practitioners may take the position that Emile is no longer good law regarding whether police reports are part of the record of conviction because the Supreme Court has expressly rejected the reasoning on which it relied.

7 Thanks to Dan Kesselbrenner for this analysis. CD 4.55; CMT 7.12; AF 4.15; SH 6.34 AGGRAVATED FELONY FORGERY POSSESSION OF FORGED DOCUMENT Richards v. Ashcroft, F.3d, 2005 WL (2d Cir. Mar. 3, 2005) (Connecticut conviction of possession of a forged document with intent to defraud, deceive, or injure, in violation of Conn. Gen. Stat. 53a-139, is "an offense relating to... forgery" within the meaning of INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R), and is therefore an aggravated felony for deportation purposes under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii).) CD 6.54, 6.24; AF 5.30, 4.24; C&C JUDICIAL REVIEW PETITION FOR REVIEW JURISDICTION PRECLUSION Hor v. Gonzales, 400 F.3d 482 (7 th Cir. March 2, 2005) (INA 242(f)(2), prohibiting courts from enjoining the removal of any alien unless the alien showed that the entry or execution of such order was prohibited as a matter of law, does not apply to requests for stays of removal). CMT 3.18; AF 2.17 GROUNDS OF DEPORTATION UNLAWFUL VOTING NONCITIZEN NOT DEPORTABLE FOR VOTING IN VIOLATION OF HAWAII LAW SINCE SHE DID NOT HAVE THE MENS REA REQUIRED TO VIOLATE THE HAWAII STATUTE McDonald v. Gonzales, F.3d (9th Cir. March 2, 2005) (noncitizen found not to have voted "in violation of any Federal, State, or local constitutional provision, statute, ordinance or regulation," under 8 U.S.C. 1227(a)(6)(A), because she did not have the requisite mental state to have violated the Hawaii unlawful voting statute, H.R.S (2)). SH CONTROLLED SUBSTANCES IMMIGRATION CONSEQUENCES JURISDICTION PRECLUSION JUDICIAL REVIEW -- PETITION FOR REVIEW JURISDICTION PRECLUSION Santos-Salazar v. U.S. Dept. of Justice, F.3d (2d Cir. March 1, 2005) (New York conviction of attempted possession of cocaine, in violation of N.Y. Penal Law (2000), constituted a controlled substance conviction listed in INA 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B), and precluded petition for review jurisdiction under 8 U.S.C. 1252(a)(2)(C) to review BIA denial of a motion to reopen and the underlying order of removal).

8 CMT 3.18; AF 2.17 RELIEF 212(C) RELIEF RESTROPO III WHETHER PRETRIAL CUSTODY COUNTS TOWARD FIVE YEAR BAR Restropo v. McElroy, 354 F. Supp. 2d 254 (E.D.N.Y. February 18, 2005) (respondent's service of more than five actual years in custody prior to the issuance of the deportation order, exclusive of pretrial time served, barred him from eligibility for INA 212(c) relief and precluded him from relying on the availability of that relief so retroactive application of the repeal of 212(c) relief was not unlawful and it was unnecessary to decide whether pretrial custody, later credited against the sentence imposed, could form part of the custody necessary to trigger the five-year bar). RELIEF 212(C) RELIEF RESTROPO III FIVE-YEAR BAR PRECLUDED RELIANCE Restropo v. McElroy, 354 F. Supp. 2d 254; 2005 U.S. Dist. LEXIS 2297 (E.D.N.Y. February 18, 2005) (respondent's service of more than five actual years in custody prior to issuance of deportation order, exclusive of pretrial time served, barred him from eligibility for INA 212(c) relief and precluded him from relying on availability of that relief; retroactive application of the repeal of 212(c) relief not unlawful). CONVICTION STATE REHABILITATIVE RELIEF Matter of MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. Jan. 18, 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code is still convicted for immigration purposes under INA 101(a)(48)). PCN 6.57; CD 10.10; CMT 10.11; AF 7.4 CONVICTION STATE REHABILITATIVE RELIEF Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. Jan 18, 2005) (noncitizen whose firearms conviction was expunged pursuant to section of the California Penal Code has been convicted for immigration purposes; Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.). PCN 6.57; CD 10.10; CMT 10.11; AF 7.4 DRUG TRAFFICKING POSSESSION OF A CONTROLLED SUBSTANCE

9 Second Circuit leaves open question of whether 2nd drug possession offense constitutes Aggravated Felony See article by Manuel D. Vargas of NYSDA s Immigrant Defense Project (IDP), here: Immigration Practice Tips Jan.-Feb CD 6.46; AF 5.22; C&C; SH 8.3 AGGRAVATED FELONY FRAUD OFFENSE FALSE STATEMENT TO GOVERNMENT OFFICIAL Li v. Ashcroft, 389 F.3d 892 (9 th Cir. Nov ) (conviction of making a false statement to a United States official, in violation of 18 U.S.C. 1001, is divisible with respect to the fraud offense aggravated felony defined in INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition). C&C; CD 6.55; AF 5.31; SH 8.27, 8.49 AGGRAVATED FELONY FRAUD OFFENSE POTENTIAL OR INTENDED LOSS CAN SATISFY THE LOSS REQUIREMENT Li v. Ashcroft, 389 F.3d 892 (9 th Cir. Nov )("Potential or intended loss can satisfy the second element under 8 U.S.C. 1101(a)(43)(U), which defines an aggravated felony as "an attempt or conspiracy to commit" another aggravated felony defined in 1101(a)(43). See In re Onyido, 22 I. & N. Dec. 552 (BIA 1999)(concluding that submission of a false insurance claim qualified as an aggravated felony under 1101(a)(43)(U), even though the petitioner's scheme was unsuccessful and he received no payment from the insurance company)."). This issue was not contested in Li, so the decision contains no holding on this point. CD 6.55; AF 5.31 RECORD OF CONVICTION LOSS TO VICITM ATTEMPT Li v. Ashcroft, 389 F.3d 892 (9 th Cir. Nov ) ("Potential or intended loss can satisfy the second element under 8 U.S.C. 1101(a)(43)(U), which defines an aggravated felony as "an attempt or conspiracy to commit" another aggravated felony defined in 1101(a)(43). See In re Onyido, 22 I. & N. Dec. 552 (BIA 1999) (concluding that submission of a false insurance claim qualified as an aggravated felony under 1101(a)(43)(U), even though the petitioner's scheme was unsuccessful and he received no payment from the insurance company)."). CD 4.53; AF 4.13

10 AGGRAVATED FELONY FRAUD OFFENSE CONSPIRACY TO DEFRAUD THE UNITED STATES Li v. Ashcroft, 389 F.3d 892 (9 th Cir. Nov ) (conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. 371, is divisible with respect to the fraud offense aggravated felony defined in INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition). C&C; CD 6.55; AF 5.31; SH 8.27 AGGRAVATED FELONY FRAUD OFFENSE FALSE CLAIM AGAINST THE UNITED STATES Li v. Ashcroft, 389 F.3d 892, 897 (9 th Cir. Nov ) (conviction of making a false claim against the United States, in violation of 18 U.S.C. 287, is divisible with respect to the fraud offense aggravated felony defined in INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since even though it does require some intended loss, "no particular amount of intended loss is required," and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition). C&C; CD 6.55; AF 5.31; SH 8.27 RELIEF 212(C) RELIEF AFTER JURY TRIAL BURDEN ON EXERCISE OF RIGHT TO TRIAL BY JURY The denial of 212 (c) relief after a jury trial resulting in a conviction, by virtue of such denial, arguably turns "alienage" into a restriction on the guarantees of the 6th Amendment right to a jury trial. The Ponnapula court briefly notes this when they state: "We feel constrained to note that the notion that Ponnapula should be penalized so harshly, ipso facto, for going to trial, in the hopes of avoiding the disgrace and permanent stain of a conviction, seems to run counter to fundamental principles of the American constitutional polity, which encourages citizens to assert their innocence when convinced that they are not guilty of an offense, and go to trial." Ponnapula v. Ashcroft, 373 F.3d 480, 500 n. 19 (3d Cir. 2004). CRIMINAL DEFENSE SENTENCE

11 POST CON RELIEF SENTENCE GROUNDS INEFFECTIVE ASSISTANCE OF COUNSEL FAILURE TO INVESTIGATE OR ARGUE MITIGATION Tennard v. Dretke, U.S., 124 S.Ct. 2562, 2570 (2004) (error to exclude mitigating evidence from sentencing proceeding on relevance grounds if it tends logically to prove or disprove some fact or circumstance which a factfinder could reasonably deem to have mitigating value). PCN 7.79 RELIEF 212(C) RELIEF WINDOW BETWEEN AEDPA AND IIRAIRA DIFFERENCE BETWEEN DEPORTABILITY AND INADMISSIBILITY Under Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997), the changes to 212(c) enacted by AEDPA only apply to grounds of inadmissibility, not deportability, thus anyone in exclusion proceedings who pled after AEDPA and before IIRAIRA can still apply for 212(c). When anyone leaves the country and tries to reenter with a CIMT, they cannot be lawfully admitted as they are inadmissible. The INS has specifically held in a memo that they do not have the prosecutorial discretion to admit someone who is inadmissible - thus any admission of someone who has a CIMT is unlawful. Anyone who has a post- AEDPA, pre-iiraira conviction that has traveled from the US after their conviction should be able to apply for 212(c), even if they have been "admitted" by the INS because any admission after their conviction could not have been lawful. It seems to be fundamentally unfair to allow DHS to unlawfully admit someone and then put them in deportation proceedings where they are ineligible for 212(c), where if they had done their job correctly and placed them in exclusion proceedings upon their attempted reentry, they would be eligible for a 212(c) waiver. Thanks to Justin Conlon for this analysis. INADMISSIBILITY RETURNING LPR GOVERNMENT BEARS THE BURDEN OF PROVING INADMISSIBILITY Matter of Kane, 15 I & N 256, 264 (BIA 1975) (the Government bears the burden of showing that a returning lawful permanent resident is inadmissible to the United States). CMT 5.7; AF 2.14; CD 4.36 POST CON RELIEF GROUNDS INEFFECTIVE COUNSEL -- TIMELINESS RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ( when the alien is prevented from exercising a right granted him within a statutory period by unexplained or

12 unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right. ) PCN 5.74; CMT 10.16; PCN 6.8 <LONG AND UNDATED UPDATES> SAFE HAVEN FAILURE TO REPORT CASH WHEN LEAVING UNITED STATES The offense of failing to file a report when carrying more than a certain amount of currency out of the United States, in violation of 31 USC 5316 and 5322 and 31 CFR , does not appear to constitute a CMT or aggravated felony conviction. SH 9.36 IMMIGRATION CONSEQUENCES LAWFUL PERMANENT RESIDENCE RESCISSION 8 CFR 1246 states that if person has LPR status and it appears they were not eligible "a proceeding shall be commenced by the personal service upon such person of a notice of intent to rescind...." SH POST CON RELIEF GROUNDS BREACH OF PLEA BARGAIN KEY CASES Santabello v. New York, 404 U.S. 257 (1971) (any promise by the prosecutor which is part of the inducement or consideration for a plea must be fulfilled). United States v. Kramer, 781 F.2d 1380 (9 th Cir. 1986) (whether something is a "promise" for plea agreement breach purposes is to be viewed by an objective standard). United States v. Revis, 969 F.2d 985 (11th Cir. 1992) (central question in determining whether plea agreement has been breached is how the terms of the agreement were "reasonably understood by the defendant."). United States v. Giorgi, 840 F.2d 1022 (1st Cir. 1988) (government bears burden of clarifying any ambiguity in a plea agreement); United States v. McQueen, 108 F.3d 64 (4th Cir. 1997) (same). United States v. Swineheart, 614 F.2d 853 (3d Cir. 1980) (Government s plea agreement promises still enforceable even when the promises are couched in terms of the Government s "sole discretion ).

13 PCN 6.41 POST CON RELIEF STATE ADVISAL STATUTE MASSACHUSETTS M.G.L. c. 278 sec. 29D: 29D. Conviction upon plea of guilty, nolo contendere or an admission to sufficient facts; motion to vacate The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States. If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization. CREDIT(S) Added by St.1978, c Amended by St.1996, c. 450, 254; St.2004, c. 225, 1, eff. Oct. 27, PCN 5.57, 6.57 IMMIGRATION CONSEQUENCES U VISA

14 According to recent INS memorandum, termination is the suggested remedy for a person who has demonstrated eligibility for interim U relief. For more information, visit the National Immigration Project's website at and then click on "immigrant survivors." CMT 3.27; AF 2.26 SENTENCE SENTENCE IMPOSED ON ACCOUNT OF SENTENCE ENHANCEMENT DOES NOT FORM PART OF SENTENCE IMPOSED FOR OFFENSE RELIEF 212(C) RELIEF SENTENCE ENHANCEMENT SENTENCE DOES NOT COUNT RELIEF WITHHOLDING -- SENTENCE ENHANCEMENT SENTENCE DOES NOT COUNT The Ninth Circuit has established the rule that a sentence imposed pursuant to a recidivist sentence enhancement is not considered to constitute part of a sentence imposed, for determining whether a conviction qualifies as an aggravated felony for purposes of enhancing a sentence for illegal reentry after deportation. United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc). Thus, where the base offense was petty theft under California law, with a maximum of six months in county jail, and the defendant received a two-year prison sentence under a statute that enhanced the sentence on account of a prior conviction, only the six-month sentence that could have been imposed for misdemeanor petty theft counted when determining whether a sentence of one year or more had been imposed on the defendant for purposes of deciding whether the current offense was an aggravated felony. This rule was extended to an Arizona case in which misdemeanor possession of marijuana was elevated to a felony allowing for a possible state prison sentence in excess of one year, since the defendant had suffered a prior conviction. The Ninth Circuit held that this second-offense conviction for possession of marijuana constituted only a misdemeanor with a one-year maximum, for purposes of determining whether it constituted a felony conviction that qualified as a "drug trafficking" offense under 18 U.S.C. 924(c), since the underlying offense itself was only a misdemeanor and the felony status resulting from the recidivist sentence enhancement was ignored for this purpose. United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona second conviction of possession of marijuana, in violation of A.R.S (A, E), did not constitute an aggravated felony for purposes of enhancing a sentence for illegal reentry after deportation, because the first-offense maximum punishment was not in excess of one year and therefore did not qualify as a felony under the federal definition, because the increased sentence resulting from the prior conviction was not considered to be "for" the "offense," but was rather a recidivist sentence enhancement that could not be considered for that purpose under United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002)(en banc)).

15 In United States v. Arellano-Torres, 303 F.3d 1173, 1178 (9th Cir. 2002), the court recognized that the holding of Corona-Sanchez applied equally to 21 U.S.C. 844 (imposing greater sentence upon a subsequent simple possession conviction). This reasoning should extend to other situations as well. For example, where a prior conviction triggers a sentence enhancement authorizing the court to impose an additional separate sentence, the extra sentence would be considered to be on account of the recidivist sentence enhancement, rather than "for" the substantive offense. This might arise under the five-year sentence served disqualification of the former INA 212(c) relief, or the five-year sentence imposed disqualification for withholding of removal, for example. CD 1.57; CMT 5.8; AF 3.32 SAFE HAVEN OFFER TO TRANSPORT LIMITATION TO NINTH CIRCUIT A plea to offering to transport a controlled substance is not an immigration safe plea outside the Ninth Circuit. See, Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992). A person pleading guilty to a California offer to transport offense today could: 1. move to another state; 2. travel outside the country and returns at a non-9th Circuit port of entry; 3. continue to live within the 9th Circuit, but get detained outside the 9th circuit. If any of the above were to take place, there would be problems. However, one may argue that if an Immigration Judge in the Ninth Circuit terminated proceedings upon finding such a conviction was not an aggravated felony or controlled substance offense, that decision should be binding on the immigration authorities, as applied to that person, regardless of the person s location. CD 6.46; AF 5.22 CONVICTION ADJOURNMENT IN CONTEMPLATION OF DISMISSAL NEW YORK The New York State Defenders Association's Immigrant Defense Project mentioned by Sophie Feal has call in hours on Tuesdays and Thursdays and will very kindly walk you through any New York crimmimm issues. Defense lawyers and others (including immigrants themselves) seeking backup support or counseling on criminal/immigration law issues should contact the Project on Tuesdays and Thursdays from 1:30 p.m. to 4:30 p.m. at (212)

16 , or write to the Project at 2 Washington Street, 7 North, New York, NY As a general matter, the rules to remember for NY convictions are: Adjournment in Contemplation of Dismissal (ACD) - pre-plea disposition and not a conviction for immigration purposes Conditional Discharge (CD) - post-plea disposition and is a conviction for immigration purposes Youthful Offender (YO) - not a conviction for immigration purposes CD 1.57; CMT 5.8; AF 3.32; SH 4.13