Crimes & Immigration Premium Newsletter

Crimes & Immigration Premium Newsletter May, 2015 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 sign in to your account. INSIDE Recent Case Decisions Articles... 1 Resources... 3 Practice Advisories... 4 BIA... 5 Second Circuit... 5 Third Circuit... 6 Fourth Circuit... 6 Fifth Circuit... 6 Seventh Circuit... 6 Ninth Circuit... 6 RECENT DEVELOPMENTS Articles CONVICTION NATURE OF CONVICTION CATEGORICAL ANALYSIS ALMANZA ARENAS VACATED Almaza Arenas (overruling Young v. Holder) was vacated. It's going en banc. Many of you may be aware of this already, but if not--here it is. Now arguably, Moncrieffe still trumps Young v. Holder on the burden issue (for affirmative applications for relief), but this makes our advisory world much more challenging when advising undocumented clients. Here is an update sent to criminal defenders in the Ninth Circuit on this case, where the court en banc will consider what is a divisible statute under Descamps, and may consider who has the burden of proving whether a divisible statute is a bar to eligibility for relief. Below the first section, which is instructions for defenders, is a brief analysis of the issues and possible outcomes. Thanks to Kathy Brady. Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014) will be Heard En Banc -- Divisible statutes, Burden of Proof Bottom line for defenders: This case concerns when a statute is divisible. The advice on the matter has not changed. Where possible, the best practice is to make a record of a plea to specific conduct that would avoid an immigration penalty -- even if it appears that the statute is not truly divisible, and regardless of whether the person is fighting deportability or applying for relief. 2015 Law Offices of Norton Tooby

For example, Almanza-Arenas addresses whether Cal Veh Code 10851 (taking a vehicle with intent to "temporarily or permanently" deprive the owner) is a crime involving moral turpitude (CIMT). Taking with permanent intent is a CIMT, taking with temporary intent is not. We ask that whenever possible, the defendant should plead to taking with intent to temporarily deprive the owner. This probably always will be the advice. Even if we get good law, there always is the chance that overworked immigration judges might not have the correct analysis, and this makes it crystal clear. However, in terms of the actual law, depending on how this case goes, the Ninth Circuit might find that either: (a) VC 10851 and statutes like it are not divisible and must be judged solely on the minimum conduct ever prosecuted under the statute. In that case, even a specific plea to permanent taking is not a CIMT, because the minimum conduct is temporary taking; or (b) VC 10851 is divisible. In that case, the question is burden of proof. If the issue is whether a permanent resident is deportable for moral turpitude, the government has the burden of proving that the person in fact was convicted of permanent intent. The question is, what happens if the immigrant is applying for relief, like cancellation. Does the Young rule stand, which would mean that the immigrant must produce a record of conviction that proves temporary intent? Or, as the Almanza-Arenas panel held, did the Supreme Court implicitly overrule Young, so that an inconclusive record of conviction would mean Mr. Almanza- Arenas would be eligible for relief, even if the statute were divisible? You can see why we would like to avoid these questions by having the person specifically plead to temporary intent, where possible. But where that is not possible -- or where that was not done in a prior conviction that we must analyze -- Almanza-Arenas will help determine the rules. Analysis. The Almanza-Arenas review presents an opportunity to clarify the categorical approach. Here is how I understand the basic issues. A great team, including Jayshri Srikantiah of Stanford Law School and Kara Hartzler of the Fed Defenders, is working on the case -- they can correct this summary as needed. The Almanza-Arenas panel decision (Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014)) addressed two questions about divisible statutes and the categorical approach. Question 1: Is vehicle taking, Cal Veh Code 10851, "truly divisible" between alternative elements, under the test set out by the U.S. Supreme Court in 2013 in Descamps and Moncrieffe? (If a criminal statute is truly divisible, an immigration (or federal criminal court) judge may look at the individual's record of a conviction to see which of the statutory offenses the person was convicted of.) Question 2: If a statute is truly divisible for purposes of eligibility for some relief -- here, cancellation of removal -- then who has the burden of proof and document production? Currently under Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), the immigrant (read, the often indigent, detained, and unrepresented immigrant) has the burden of obtaining the record of conviction from the prior criminal case, and that record must prove that he or she was convicted of an offense that does not bar the relief. Earlier, better law had provided that due to the nature of the categorical approach, if an inconclusive record of conviction under a divisible statute is before the immigration judge, the immigrant has met his or her burden of showing eligibility for relief. 2

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Almanza-Arenas found that: Q 1: Cal Veh Code 10851 is not truly divisible as a crime involving moral turpitude, because a jury is not required to unanimously agree that the intent was to deprive the vehicle's owner permanently as opposed to temporarily; and Q 2: Even if the statute had been divisible, the BIA was wrong to apply the Young rule because in Moncrieffe the Supreme Court effectively overturned Young. Therefore, where a statute is divisible, a noncitizen meets his or her burden of proving eligibility for relief if an inconclusive record of conviction is before the immigration judge. Now the Ninth Circuit en banc will hear Almanza-Arenas. The bad news is that at this point the panel decision is vacated and the Young burden of proof rule applies. This is bad, but not a surprise -- it was expected that the court en banc would review the question. The ambivalent news is that a likely, although not guaranteed, outcome of the Almanza- Arenas en banc review is that the court will find that Veh Code 10851 is not divisible - yay - and therefore that the Young issue is not before the court - boo. Again, Young only addresses who carries the burden when a statute is divisible. The significant upside of this result would be that it could cement the Ninth Circuit's ruling in cases like Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014), that divisibility requires jury unanimity on statutory alternatives. There the Ninth Circuit held that under Descamps a statute is not divisible unless (a) the statute literally sets out the different elements, phrased in the alternative ; (b) at least one, but not all, of the alternatives would trigger the removal ground at issue; and (c) (the great requirement) in order for these alternative statutory phrases to be "elements" rather than mere means to commit the offense, there must be law requiring a jury to unanimously decide between the alternatives in order to find the defendant guilty. The sua sponte request for rehearing en banc was 3 rejected in Rendon, but with dissents, including one by Judge Kozinski on the mysterious footnote 2 in Descamps (782 F.3d 466). If the Ninth Circuit en banc were to use Almanza-Arenas to upheld the Rendon jury unanimity interpretation, that would further nail down the victory for our side. The Almanza-Arenas statute, Veh Code 10851, presents a clear example for the court to address. The downside would be that the court en banc well might rule that because the statute is not divisible it should not reach the Young issue, which would leave Young standing until it can be litigated another day. Or possibly the anti-rendon faction would have enough votes to find that Veh Code 10851 is divisible, in which case it could get to the Young issue. Young is a very harmful decision. Still, a good reading of Descamps/Moncrieffe/Rendon, etc. would mean that fewer and fewer statutes are held divisible, and therefore the amount of cases where Young even comes into play decreases commensurately. For more discussion of these decisions and questions, see ILRC advisory "How to Use the Categorical Approach Now" at http://www.ilrc.org/resources/how-to-use-thecategorical-approach-now ; CD4:16.3;AF:4.2;CMT3:6.2 Resources DETENTION IMMIGRATION DETAINERS A Congressional Research Service (CRS) report on immigration detainers, including ICE detainer regulations and practices, state and local compliance, custody determinations, and constitutional issues. http://fas.org/sgp/crs/homesec/r42690.pdf CD4:611

Practice Advisories CAL CRIM DEF AGGRAVATED FELONY FRAUD MATERIALITY REQUIREMENT PRACTICE ADVISORY Based on the Supreme Court's definition of fraud and deceit in Kawashima v. Holder, 132 S.Ct. 1166 (Feb. 21, 2012), there is a reasonably good argument that conviction of any false statement offense that lacks materiality of a false statement as an essential element does not constitute a fraud or deceit aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i). Kawashima, supra, at ( We conclude that Mrs. Kawashima's conviction establishes that, by knowingly and willfully assisting her husband's filing of a materially false tax return, Mrs. Kawashima also committed a felony that involved deceit. )(emphasis added). California Penal Code 550(a) (false financial statements on an insurance claim) does not have an express statutory materiality requirement, but simply requires a false or fraudulent claim. Thanks to Dan Kesselbrenner. Cal Crim Def 13.1, CD4:19.74;AF:5.56;SH:7.82 SENTENCE IMPRISONMENT INCLUDES WORK RELEASE The common meaning of imprisonment is incarceration in a prison, jail, or other penal institution, including work furlough from a custody sentence. See, e.g., United States v. Miller, 547 F.3d 1207, 1213 (9th Cir. 2008) (incarceration in county jail work release program constituted part of defendant s term of imprisonment where defendant remained under the authority of the Bureau of Prisons). CD4:10.63;AF:2.62;AF:7.25;PCN:7.3 AGGRAVATED FELONY CRIME OF VIOLENCE BURGLARY PRACTICE ADVISORY The Supreme Court commented, in dictum, that a residential burglary conviction, with a oneyear sentence imposed, would qualify as an aggravated felony crime of violence under 18 U.S.C. 16(b). It stated: The classic example is burglary. A burglary would be covered under 16(b) not because the offense can be committed in a 4 generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). This statement, however, was not necessary to the decision, and the court offered no evidence or authority in support. The court followed this up with the decision in James v. United States, 550 U.S. 192 (2007), in which it held that attempted burglary constituted a crime of violence for purposes of enhancing a federal sentence based on a violent prior conviction. Examination of the statistical facts, however, contradictions the court s assumption in these cases. A study funded by the National Institute of Justice found that burglary and attempted burglary rarely involve violence. Is Burglary A Crime Of Violence? An Analysis of National Data 1998-2007, see https://www.ncjrs.gov/pdffiles1/nij/grants/248651.p df. Here is the abstract: Traditionally considered an offense committed against the property of another, burglary is nevertheless often regarded as a violent crime. For purposes of statistical description, both the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS) list it as a property crime. But burglary is prosecuted as a violent crime under the federal Armed Career Criminal Act, is sentenced in accord with violent crimes under the United States Sentencing Guidelines, and is regarded as violent in state law depending on varied circumstances. The United States Supreme Court has treated burglary as either violent or non-violent in different cases. This study explored the circumstances of crimes of burglary and matched them to state and federal laws. Analyzing UCR, NCVS, and the National Incident Based Reporting System (NIBRS) data collections for the ten year period 1998-2007, it became clear that the majority of burglaries do not involve physical violence and scarcely even present the possibility of physical violence. Overall, the incidence of actual violence or threats of violence during burglary ranged from a low of.9% in rural areas based upon NIBRS data,

Publication Announcement California Criminal Defense of Immigrants Newsletter (CEB 2014) By Norton Tooby We are happy to announce a new newsletter, the California Criminal Defense of Immigrants E-Newsletter. Continuing Education of the Bar is kind enough to publish this new online newsletter, beginning with the October 2014 issue. This newsletter will cover the relevant national immigration law that affects criminal defense of immigrants in California, as well as the California law on the subject. The case summaries and other developments will be cross-referenced to the relevant sections of the new CEB practice manual, California Criminal Defense of Immigrants, so the newsletter will serve as a cumulative indexed update from the research cutoff date for the printed volume of the current edition to the present on an ongoing basis. You may subscribe to this newsletter from Continuing Education of the Bar. The Law Offices of Norton Tooby will continue to publish monthly online updates to the 3000-page, three-volume Criminal Defense of Immigrants, along with all of our other practice manuals, through our Premium Web Updates. These updates are keyed to our practice manuals, making it easy for you to check each month to see if a new development has occurred concerning the particular practice manual, and section number, that is relevant to your work, to ensure you are aware of the most recent legal authorities on each topic. While this office is discontinuing its California Post-Conviction Relief for Immigrants newsletter, those interested may obtain the same content, and more, by subscribing to the new CEB newsletter, California Criminal Defense of Immigrants E-Newsletter. In addition to the California developments on post-conviction relief for immigrants, this new newsletter will cover other topics of great importance to immigrants, including safe havens that can be used as replacement convictions when a problematic conviction is vacated, and the actual immigration consequences of most of the most common California convictions, which can be very useful in establishing claims of ineffective assistance of counsel. Subscribers to our California post-conviction relief newsletter are urged to consider subscribing to the new CEB newsletter, California Criminal Defense of Immigrants E- Newsletter.

to a high of 7.6% in highly urban areas based upon NCVS data. At most, 2.7% involved actual acts of violence. A comprehensive content analysis of the provisions of state burglary and habitual offender statutes showed that burglary is often treated as a violent crime instead of prosecuting and punishing it as a property crime while separately charging and punishing for any violent acts that occasionally cooccur with it. Legislative reform of current statutes that do not comport with empirical descriptions of the characteristics of burglaries is contemplated, primarily by requiring at the minimum that the burglary involved an occupied building if it is to be regarded as a serious crime, and preferably requiring that an actual act of violence or threatened violence occurred in order for a burglary to be prosecuted as a violent crime. Thanks to Raymond Bourluchi. CD4:19.30;AF:5.10;CMT3:7.37 BIA RELIEF VISA-FRAUD WAIVER ADJUSTMENT OF STATUS CONSTITUTES AN ADMISSION Matter of Agour, 26 I&N Dec. 566 (BIA 2015) (adjustment of status constitutes an "admission" for purposes of determining an alien s eligibility to apply for a visa-fraud waiver under INA 237(a)(1)(H), 8 U.S.C. 1227(a)(1)(H) (2012)); distinguishing Matter of Connelly, 19 I&N Dec. 156 (BIA 1984). CD4:24.30;AF:2.46;CMT3:3.45 JUDICIAL REVIEW BOARD OF IMMIGRATION APPEALS REVIEW OF IMMIGRATION JUDGE S PREDICTIVE FINDINGS OF FUTURE FACT Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015) (an Immigration Judge s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review); overruling Matter of V-K-, 24 I&N Dec. 500 (BIA 2008); Matter of A-S- B-, 24 I&N Dec. 493 (BIA 2008). CD4:15.37;AF:2.19;CMT3:3.18 DEPORTATION VOTING IN FEDERAL ELECTION STRICT LIABILITY Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015) (noncitizen who has voted in a federal election, in violation of 18 U.S.C. 611(a), is removable under INA 237(a)(6)(A), 8 U.S.C. 1227(a)(6)(A) (2012), regardless of whether the alien knew that he or she was committing an unlawful act by voting). CD4:17.30 Note: This conviction does not constitute a crime involving moral turpitude, because a scienter of strict liability is insufficiently culpable to qualify. See Leocal v. Ashcroft, 543 U.S. 1 (2004). RELIEF WAIVERS INA 212(h) WAIVER AGGRAVATED FELONY BAR Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) (noncitizen who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under INA 212(h), 8 U.S.C. 1182(h) (2012), as a result of an aggravated felony conviction); withdrawing Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010). CD4:24.29;AF:2.45;CMT3:3.44 Second Circuit RELIEF CANCELLATION OF REMOVAL CONTINUOUS RESIDENCE REQUIREMENT STOP-TIME RULE Guaman-Yuqui v. Lynch, F.3d, 2015 WL 2365838 (2d Cir. May 19, 2015) (notice to appear triggered the stop-time rule, under INA 240A(d)(1)(A), 8 U.S.C. 1229b(d)(1)(A), for the continuous residence requirement for cancellation of removal, even though it omitted the date and time of the initial removal hearing). CD4:24.6;AF:2.6;CMT3:3.6 5

Third Circuit ASYLUM MATERIAL SUPPORT Sesay v. Att y Gen., F.3d (3d Cir. May 26, 2015) (no duress exception exists for material support bar to asylum or withholding of removal). CD4:24.18;AF:2.30;CMT3:3.29 Fourth Circuit SENTENCE FELONY MAXIMUM SENTENCE United States v. Bercian-Flores, F.3d, 2015 WL 2239325 (4 th Cir. May 14, 2015) (rejecting an argument that the top sentence of six months in pre-booker Guidelines range controls over statutory maximum sentence in determining maximum sentence of prior felony for illegal reentry sentencing purposes). CD4:10.63;AF:2.62;AF:7.25;PCN:7.3 Fifth Circuit RELIEF LPR CANCELLATION OF REMOVAL ADMITTED IN ANY STATUS Tula-Rubio v. Lynch, F.3d (5th Cir. May 21, 2015) (noncitizen admitted at a port of entry by immigration officials by a wave-through has been admitted in any status for purposes of cancellation of removal eligibility under INA 240A(a)(2), 8 U.S.C. 1229b(a)(2)). CD4:24.4;AF:2.4;CMT3:3.4 OVERVIEW CONTACT WITH ICE ILLEGAL STOP De La Paz v. Coy, F.3d (5 th Cir. May 14, 2015) (noncitizens may not pursue Bivens claims against CBP agents; these claims should be pursued in civil immigration proceedings), citing Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2011) (no Bivens claim for constitutionally invalid immigration detention); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc) CD4:15.19 CITIZENSHIP DERIVATIVE JOINT CUSTODY Kamara v. Lynch, F.3d (5 th Cir. May 18, 2015) ( sole legal custody requirement for purposes of derivative citizenship only applies where divorced parents entered in to a child custody arrangement; where no custody arrangement exists, the test is whether naturalized parent had actual uncontested custody over child). CD4:3.17 Seventh Circuit SENTENCE CREDIT FOR TIME SERVED DELAY IN CHARGING DENIED DEFENDANT CHANCE TO GET CREDIT FOR TIME SERVED IN PART IN IMMIGRATION DETENTION United States v. Estrada-Mederos, F.3d,, 2015 WL 1926371 (7 th Cir. Apr. 29, 2015) ( The sentencing judge could view the time spent under ICE s custody as the basis for granting a convicted migrant a downward departure from the sentencing range for illegal reentry. ). CD4:10.63;AF:2.62;AF:7.25;PCN:7.3 RELIEF 212(h) WAIVER NUNC PRO TUNC Palma-Martinez v. Lynch, F.3d (7 th Cir. May 11, 2015) (nunc pro tunc waivers under INA 212(h) are not available on a stand alone basis; petition must be filed in conjunction with application for adjustment of status). CD4:24.29;AF:2.45;CMT3:3.44 Ninth Circuit AGGRAVATED FELONY SEXUAL ABUSE OF A MINOR CHILD MOLESTATION United States v. Martinez, F.3d,, 2015 WL 3406178 (9 th Cir. May 28, 2015) (Washington conviction of third-degree child molestation, in violation of Wash. Rev.Code 9A.44.089, is categorically not an aggravated felony sexual abuse of a minor offense, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the offense is not divisible and includes touching over clothing; sexual abuse of a minor requires skin on skin contact); see State v. Soonalole, 992 P.2d 541, 544 & n.13 (Wash.Ct.App.2000) (holding that the fondling and thigh rubbing over the victim's clothes constituted a separate act of third-degree child molestation under state criminal law for double jeopardy purposes); see also United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as 6

amended (holding that a California statute prohibiting lewd and lascivious acts on a child, under Penal Code 288(a), was categorically broader than the generic definition for sexual abuse of a minor because [l]ewd touching [under the state statute] can occur through a victim's clothing and can involve any part of the victim's body ). CD4:19.89;AF:5.72, A.38, B.73;SH:7.98, 8.77 EXTRADITION Patterson v. Wagner, F.3d, 2015 WL 1963541 (9 th Cir. May 4, 2015) (order certifying petitioner for extradition to South Korea on murder charge did not violate the 1998 extradition treaty's time-of-lapse provision, or the double-jeopardy provision of the Status of Forces Agreement (SOFA) governing American military personnel). CD4:6.48 JUDICIAL REVIEW PETITION FOR REVIEW MOOTNESS Maldonado v. Lynch, F.3d, 2015 WL 2343051 (9 th Cir. May 18, 2015) (the petition for review was not moot notwithstanding petitioner s removal after filing his petition for review, because there was solid evidence that the petitioner was currently present in the United States, seeking relief from removal to Mexico to avoid being killed, and thus continues to have a stake in the outcome of the petition for review). The court stated: When there are developments in a proceeding that suggest that it may be moot, we have an obligation to inquire whether a case or controversy under Article III of the Constitution continues to exist. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam). Of concern here is Maldonado's removal to Mexico after he filed his petition for review. After considering the government's response to our concern, we conclude that our review of Maldonado's petition has not been rendered moot by his removal. Mootness is a jurisdictional issue. Blandino Medina v. Holder, 712 F.3d 1338, 1341 (9th Cir.2013). It can be described as the doctrine of standing set in a time frame. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). For a dispute to remain live without being dismissed as moot, [t]he parties must continue to have a personal stake in the outcome of the lawsuit. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (internal quotation marks omitted). (Id. at [footnote omitted].) CD4:15.37;AF:2.19;CMT:3.18 JUDICIAL REVIEW PETITION FOR REVIEW FUGITIVE DISENTITLEMENT DOCTRINE Maldonado v. Lynch, F.3d,, 2015 WL 2343051 (9 th Cir. May 18, 2015) (the petition for review did not warrant discretionary dismissal under the equitable fugitive disentitlement doctrine, which applies where a petitioner has fled custody and cannot be located when their appeals come before this court, since in this case, the petitioner is not a fugitive because he did not flee. He complied with his deportation order and was removed to Mexico. ). CD4:15.37;AF:2.19;CMT:3.18 REMOVAL PROCEEDINGS APPEAL WAIVER OF APPEAL NOT CONSIDERED AND INTELLIGENT SINCE IT WAS BASED ON IMMIGRATION JUDGE S INCORRECT ADVICE Garcia v. Lynch, F.3d, 2015 WL 2385402 (9 th Cir. May 20, 2015) (waiver of appeal from removal order was not considered and intelligent because the decision was based upon an Immigration Judge's incorrect advice). CD4:15.35 7

AGGRAVATED FELONY THEFT OFFENSE THEFT Garcia v. Lynch, F.3d,, 2015 WL 2385402 (9 th Cir. May 20, 2015) (California conviction of theft, under Penal Code 487(a), is not categorically a theft aggravated felony because the California offense includes theft of labor, and because the California statute may be violated even if the victim consented to transfer his property by false pretenses), citing Carrillo Jaime v. Holder, 572 F.3d 747, 751 53 (9th Cir. 2009). CD4:19.94;AF:5.78, A.42, B.43;SH:7.103, 8.46 SENTENCE CREDIT FOR TIME SERVED TIME SPENT IN IMMIGRATION DETENTION PENDING CRIMINAL TRIAL Zavala v. Ives, F.3d, 2015 WL 2343637 (9 th Cir. May 18, 2015) (defendants are entitled to sentencing credit for time in ICE detention pending criminal prosecution). CD4:10.63;AF:2.62;AF:7.25;PCN:7.3 REMOVAL PROCEEDINGS TERRITORIAL JURISDICTION MARIANA ISLANDS Mtoched v. Lynch, F.3d, 2015 WL 2445063 (9 th Cir. May 22, 2015) (United States immigration laws may be applied and enforced within CNMI to noncitizens who entered that territory, committed the crime, and suffered the conviction upon which the removal order is based prior to the extension of United States immigration laws to the Commonwealth). CD4:15.3 RELIEF WAIVERS INA 212(h) WAIVER VIOLENT OR DANGEROUS CRIME CATEGORICAL ANALYSIS INAPPLICABLE Torres-Valdivias v. Lynch, F.3d, 2015 WL 2146726 (9 th Cir. May 8, 2015) (BIA was not required to apply categorical analysis to determine whether a conviction was for a violent or dangerous crime, for purposes of application of the enhanced hardship standard under Matter of Jean, 23 I. & N. Dec. 373 (Att'y Gen. 2002); immigration judge was allowed to examine documents outside the record of conviction in making the determination whether a conviction was for a violent or dangerous crime). CD4:24.29;AF:2.45;CMT3:3.44 8 RELIEF WAIVERS INA 212(h) WAIVER VIOLENT OR DANGEROUS CRIME DISCRETIONARY DECISION Torres-Valdivias v. Lynch, F.3d, 2015 WL 2146726 (9 th Cir. May 8, 2015) (determination whether conviction was for a violent or dangerous crime, for purposes of considering an application for a waiver of inadmissibility under INA 212(h), is a discretionary decision not subject to review). CD4:24.29;AF:2.45;CMT3:3.44 RELIEF WAIVERS INA 212(h) WAIVER VIOLENT OR DANGEROUS CRIME SEXUAL BATTERY Torres-Valdivias v. Lynch, F.3d, 2015 WL 2146726 (9 th Cir. May 8, 2015) (California conviction of sexual battery, in violation of Penal Code 243.4(a), constituted a violent or dangerous crime, for purposes of triggering application of the Matter or Jean enhanced hardship standard to an application for a waiver of moral turpitude inadmissibility under INA 212(h)). CD4:24.29;AF:2.45;CMT3:3.44 POST CON RELIEF WASHINGTON SUPREME COURT FINDS PADILLA RETROACTIVE In re Yung Ching Tsai, Wash., P.3d, 2015 WL 2164187 (May 7, 2015) (Padilla v. Kentucky, 559 U.S. 356 (2010), applies no matter when the conviction was entered; since Padilla was not a new rule of constitutional law it applies retroactively). http://www.courts.wa.gov/opinions/pdf/887705.pdf PCN:6.18 CAL POST CON GROUNDS INVALID ADMISSION OF TRUTH OF PRIOR CONVICTION SENTENCE ENHANCEMENT ABSENT KNOWING AND INTELLIGENT WAIVER OF PERTINENT TRIAL RIGHTS People v. Cross, Cal.4 th, 2015 WL 2343037 (May 18, 2015) (a stipulation to a prior conviction of violating Penal Code 273.5(a), which increased the maximum prison term for the new conviction from two, three, or four years to two, four, or five years, was reversed on the ground that the trial court accepted the stipulation without advising the defendant of any trial rights or eliciting

his waiver of those rights); following In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561. PRACTICE ADVISORY APPLICATION FOR CALIFORNIA DRIVER S LICENCE In California, driver s licenses are available for undocumented immigrants beginning January 1, 2015. See AB 60.This leads to several suggestions: Anyone with a criminal conviction (including DUI, but not minor misdemeanors) should be careful in applying, because although the DMV will not proactively alert ICE to immigrants with criminal convictions, ICE does have access to DMV database, and an application for an AB60 license can draw ICE attention. People with criminal records, including DUIs, are an enforcement priority, as are people with recent deportation orders. Immigration history, such as a previous deportation or current removal proceedings, is not a factor here, and should not stop an immigrant from applying. Immigrants who plan to apply for LPR status, and immigrants who plan to apply for DACA or DAPA should probably go ahead and apply for an AB60 license, since there is no increased risk from doing so, and because DACA/DAPA status is not yet available and processing those applications will take a long time. 9