Professional Documents
Culture Documents
JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS CORPUS
CAN BE USED TO CHALLENGE DETENTION
The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final
orders of removal, deportation, and exclusion and consolidate such review in the
court of appeals. The REAL ID Act, however, did not affect the ongoing availability of
habeas corpus to challenge the length or conditions of immigration detention. Since
the REAL ID Act’s enactment on May 11, 2005, the courts of appeals have uniformly
upheld the right to file a habeas corpus petition to challenge the lawfulness of
detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005); DeBarreto v. INS,
427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d 442, 446
n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assuming
without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS
21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App.
LEXIS 31388, *9 (6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist.
LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006) (unpublished); Moallin v. Cangemi, 427 F.
Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1075
(9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v.
Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks to
AILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12,
2007
1252(d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of
subject matter jurisdiction to consider those issues.”).
JUDICIAL REVIEW – EXTREME HARDSHIP QUESTION UNDER INA 212(i)
Zhang v. Gonzales, ___ F.3d ___, 2006 WL 1901014 (2d Cir. Jul. 12, 2006) (judicial review of
whether respondent showed extreme hardship for purposes of adjustment of status under INA §
212(i) is barred as a discretionary determination under 8 U.S.C. § 1252(a)(2)(B)(i)).
JUDICIAL REVIEW – JURISDICTION LIMITATION – DISCRETIONARY DECISIONS –
DENIAL OF 212(C) WAIVER
Avendano-Espejo v. Department of Homeland Sec., __ F.3d __ (2d Cir. May 11, 2006) (court
lacks jurisdiction to review discretionary denial of INA § 212(c) relief).
http://caselaw.lp.findlaw.com/data2/circs/2nd/0340921p.pdf
JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS
SUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT
REVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONS
OF LAW ARE RAISED
Bugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denial
of adjustment of status and INA § 212(h) waiver on discretionary basis not subject to judicial
review; REAL ID Act of 2005, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310
(codified at 8 U.S.C. § 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8
U.S.C. § 1252(a)(2)(B)(i)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf
JUDICIAL REVIEW – RELIEF – 212(C) RELIEF – CANCELLATION OF REMOVAL –
ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUS
Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (court did
not have jurisdiction to review determination that alien had abandoned her permanent resident
alien status for purposes of § 212(c) and cancellation of removal eligibility).
JUDICIAL REVIEW – JURISDICTION OF BIA TO ORDER REMOVAL
James v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006) (while the
BIA has jurisdiction to order noncitizen removed when IJ found removability, but
granted relief, and the BIA then reverses the grant of relief, the BIA does not have
jurisdiction to order removal where the IJ initially found noncitizen was not
removable, and the BIA reverses; in such case, BIA must remand to IJ),
distinguishing Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006),
following Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-881 (9th Cir. 2003).
prior to adjustment when the Government was aware of those convictions at the
time of adjustment and either granted a waiver (Rafipour), or no waiver was needed
since the convictions triggered deportation, but not inadmissibility (Rainford). The
noncitizen in this case had 21 total convictions, and had been involved in litigating
pro se for a number of years at all court levels.
We have stated clearly and without equivocation that an individual who may be deportable for a given offense, but
whose status is adjusted is no longer deportable for that offense. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992);
Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978); cf. Matter of V-, 1I&N Dec. 273 (BIA 1942).
Medina v. United States, 993 F.2d 499, 503 Moosa v. INS, 171 F.3d
994, 1003 (5th Cir. 1999).
(1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "covers
deportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions."
Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc).
(2) Although the Board of Immigration Appeals disagrees with the court's holding, the decision of the Ninth Circuit that the
EAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of the
Ninth Circuit.
(3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in
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conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit. JUDICIAL REVIEW –
Koloamatangi, 23 I. & N. Dec. 548d the immigration laws against Savoury. Laches
cannot be asserted to prevent it from doing so.").
1956), where the BIA exercised its discretion to grant § 212(c) relief to an alien
who had lawfully attained permanent resident status and otherwise met the
requirements of that provision. Id. at 276. The special inquiry officer had denied §
212(c) relief because he noted that even if it were granted, the respondent would
still be subject to deportation under a different section of the INA. Id. at 275. In
reversing the denial of § 212(c) relief the BIA explained that once it had “waived”
under § 212(c) a ground of inadmissibility based on a criminal conviction, a
deportation proceeding would not be instituted based on that same criminal
conviction, unless the Attorney General revoked the previous grant of relief. Id.
That is not what happened here.
Deciding
Petitioner’s nationality claim, no genuine issue of material fact can exist about 7
the claim; otherwise, we must transfer the mater to the district court for resolution. 8 U.S.C. §
1252(b)(5)(A)-(B). A genuine issue of fact does exist about whether INS Officer Finnerty
actually administered a modified oath of allegiance to Sebastian during his preliminary
investigation. This fact, however, is not material: even had Petitioner taken the oath at that time,
it would not satisfy the statutory prerequisite for citizenship that Petitioner take the oath of
allegiance in “open court.”See 8 U.S.C. § 1448(a) (1988).
First Circuit’s decision in Succar, which held that 8 C.F.R. § 245.1(c)(8), the
regulation that precludes arriving aliens from seeking adjustment
of status in removal proceedings, is invalid. the rationale of Succar
v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), hold that the regulation
promulgated by the Attorney General, 8 C.F.R.
§ 245.1(c)(8), which precludes “arriving aliens” from applying
for adjustment of status in removal proceedings, is invalid
because it is in direct conflict with 8 U.S.C. § 1255(a).4The regulation shows that an alien
paroled under 8U.S.C. § 1182(d) remains an “arriving alien” regardless of her
parole status. The section also creates two exemptions from
the definition of “arriving alien”: 1) aliens paroled into the
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Edwards v. INS, 393 F.3d 299. Edwards held that, in cases in which
an alien accrued more than five years’ imprisonment subsequent to an INS denial of § 212(c)
relief on the erroneous ground that AEDPA’s amendment or IIRIRA’s repeal of that statute
applied retroactively, the alien was entitled to “nunc pro tunc relief” because “agency error
would otherwise result in an alien being deprived of the opportunity to seek [§ 212(c)]
relief.” Id. at 310-11.6
Hey, state practitioners, we know you regularly seek conditional discharge sentences in
all the City/Village/Town courts, especially for non-criminal violation offenses, because
of the lack of a term of imprisonment and the lack of supervision that a conditional
discharge affords. We know that conditional discharges are regularly offered by
prosecutors and imposed by state judges as a way to clear massive New York city,
town and village court dockets, and are regularly accepted as a way to quickly resolve a
case and to avoid incarceration. And we know a conditional discharge sentence is one
of the most lenient sentences permissible under New York law.
Statistical evidence confirms that conditional discharge sentences are given in the
overwhelming majority of misdemeanor offenses prosecuted in New York State. (80,000
in the year 2000 and nearly 70,000 in 2001). And, these numbers do not even include
the greater number of defendants who received conditional discharge sentences for
violation/petty offenses! Compare these numbers to those receiving probation - less
than 10,000 in each of the years reported. See Crime and Justice Annual Report 2000
and 2001 at http://criminaljustice.state.
IN THIS ISSUE:
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United States V. Ramirez, 421 F.3d 159 (2005) - What State Practitioners Need to
Know About the Hazards of Conditional Discharges
8 U.S.C.
§ 1255; 8 C.F.R. § 245a.2(m)(1); Navarro-Aispura v. INS, 53
F.3d 233 (9th Cir. 1995). The IJ explained that 8 C.F.R.
§ 245a.2(m)(1) contemplates that an alien who obtains
advance parole would be “readmitted,” rather than treated as
a newly-arriving alien applying for admission.7Matter of S-O-S-, 22 I. & N. Dec.
107 (BIA 1998); 8 C.F.R. § 245a.2(m) (2002
during deportation proceedings, did not preclude the government from thereafter
seeking to remove the alien based on subsequent criminal acts).
http://caselaw.lp.findlaw.com/data2/circs/3rd/044412p.pdf
In some cases, you may also be able to raise retroactivity concerns based on the length of time
that has passed since the plea. The St Cyr Court stated that there is no single test for assessing
retroactive effect. Thus, while reasonable reliance is one way of establishing a retroactive effect,
retroactivity concerns are also raised when time has passed and the affected individuals have
developed interest in repose. See, e.g., United States v. Carlton, 512 U.S. 26, 37-38 (1994)
(O'Connor, J., concurring) (describing interests of repose in curbing retroactive legislation).
Application of a rule that looks only at the length of domicile at the time of the plea would
violate these interests by allowing for mandatory deportation of persons who may have pled
guilty to an offense a few years after obtaining their lawful permanent residency, but who
attained their seven years of lawful domicile long before the enactment of 1996 laws.
JRAD:
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CA3 Extends St. Cyr to All Individuals Convicted of a Pre-IIRAIRA Aggravated Felony
http://www.aila.org/content/default.aspx?docid=21953
The court held that IIRAIRA's repeal of §212(c) cannot be applied retroactively to preclude from
relief otherwise eligible persons convicted of a pre-IIRAIRA aggravated felony, whether by plea
or by trial, because the repeal attached new legal consequences to the conviction and resulting
sentence. (Atkinson v. Att'y Gen. of the U.S., 3/8/07). AILA Doc. No. 07032661
First Circuit
The term "arriving alien" is not defined in the Immigration and Nationality Act [INA], but is
defined by regulation at 8 C.F.R. 1001.1(q):
The term arriving alien means an applicant for
admission coming or attempting to come into the
United States at a port-of-entry, or an alien seeking
transit through the United States at a port-of-entry,
or an alien interdicted in international or United
States waters and brought into the United States by
any means, whether or not to a designated port-of-
entry, and regardless of the means of transport. An
arriving alien remains such even if paroled pursuant
to section 212(d)(5) of the Act, except that an alien
who was paroled before April 1, 1997, or an alien
who was granted advance parole which the alien
applied for and obtained in the United States prior
to the alien's departure from and return to the
United States, shall not be considered an arriving
alien for purposes of section 235(b)(1)(A)(i) of the
Act.
8 C.F.R. § 287.7(a) refers to the purpose of the detainer being ICE seeking custody
to “arrest and remove” because immediate custody by ICE is impracticable. That
appears to essentially require an NTA or ICE warrant of arrest as a basis for the
detainer, i.e., just like any other detainer from counties or states based on an
outstanding warrant. In practice, however, the detainer precedes issuance of an
NTA or Warrant of Arrest.
8 C.F.R. § 287.7(c) requires that state and local law enforcement provide records
necessary to determine if issuing detainer/NTA is appropriate. It states “the criminal
justice agency requesting such action (issuing detainer) shall” provide said records.
That is, authority flows from § INA 287(d) that a detainer only issues when
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requested by the state or local agency under INA § 287(d) – not that ICE decides to
issue a detainer absent a request. 8 C.F.R. § 287.7(d) then allows issuance of the
detainer, after a determination by ICE (based on a request from a state and local
agency under INA § 287(d).
GOOD MORAL CHARACTER
Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles:
First, the applicant cannot have a conviction on the list enumerated in INA § 101(f), 8 U.S.C. §
1101(f), during the period for which Good Moral Character must be shown, in order to avoid a
complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR §
316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction
listed on INA § 101(f) committed prior to the beginning of the period during which Good Moral
Character must be shown. This second hurdle is not a complete bar to showing Good Moral
Character. The agency must weigh positive factors against negative factors. Torres-Guzman v.
INS, 804 F.2d 531 (9th Cir. 1986).
CITIZENSHIP
United States citizenship of the respondent can be raised as a defense to removal. Murphy v.
INS, 54 F.3d 605, 610 (9th Cir. 1995). The government bears the heavy burden of proving
alienage through "clear, unequivocal, and convincing evidence." Scales v. INS, 232 F.3d 1159,
18
1163 (9th Cir. 2000) (quoting Woodby v. INS, 385 U.S. 276, 277 (1966)); see also Lopez-
Urenda v. Ashcroft, 345 F.3d 788, 795 (9th Cir. 2003) (citations omitted); 8 U.S.C. § 1229a(c)
(3)(A). As the Ninth Circuit has explained, "[t]his burden of proof is ‘much more than a mere
preponderance of the evidence.’ The evidence must not leave the issue in doubt." Lim v.
Mitchell, 431 F.2d 197, 199 (1970) (citation omitted); see also Murphy v. INS, 54 F.3d 605, 610
(9th Cir. 1995) (noting that the clear and convincing evidence standard is a "heavier burden than
the preponderance of the evidence standard") (citation omitted). Because a United States
citizen cannot be removed from the country, reliable proof of alienage in a removal proceeding is
constitutionally required. As the Supreme Court has long recognized, "[t]o deport one who . . .
claims to be a citizen[ ] obviously deprives him of liberty, . . . [and] may result also in loss of
both property and life; or of all that makes life worth living." Agosto v. INS, 436 U.S. 748, 753
(1978) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)); cf. Bridges v. Wixon, 326
U.S. 135, 154 (1945) ("[D]eportation . . . visits a great hardship on the individual and deprives
him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be
exercised lest the procedure by which he is deprived of that liberty not meet the essential
standards of fairness."). Thanks to Jennifer C. Chang for this argument.
Tovar-Alvarez v. U.S.Attorney General, ___ F.3d ___, 2005 WL 2561503 (11th Cir.
Oct. 13, 2005) (noncitizen must participate in public citizenship ceremony in order
to fully naturalize
who entered plea agreements with the government before IIRIRA became effective ‘almost
certainly’ relied upon the likelihood of receiving a discretionary waiver of deportation from the
Attorney General – a possibility that the new IIRIRA provision eliminated - when deciding to
forgo their right to a trial.’). Other circuits have likewise noted the importance that protecting
reliance interests played in the Court’s St. Cyr decision. See Ponnapula v. Ashcroft, 373 F.3d
480, 492 (3d. Cir. 2004) ("St. Cyr is principally concerned with the reasonable reliance interests
of aliens who enter into plea agreements as a class."); Rankine v. Reno, 319 F.3d 93, 102 (2d.
Cir. 2003) ("The issue of reliance has played a central role in the Supreme Court’s and the circuit
court ‘s reasoning with respect to the retroactivity of the IIRIRA and AEDPA."); Chambers v.
Reno, 307 F.3d 284, 289 (4th Cir. 2002) ("In reaching [its] conclusion, the Court focused on an
alien’s reasonable reliance on the possibility of discretionary relief under INA § 212(c) as one of
the most important factors prompting him to forego trial and enter a plea agreement."); Domond
v. INS, 244 F.3d 81, 86 (2d. Cir. 2001) (finding that expectation interests of alien in St. Cyr were
"especially strong" when his guilty plea was entered before the effective date of the AEDPA,
"because an alien is likely to consider the immigration consequences when deciding whether and
how to plead").").
RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF
ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA
Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005)
(noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of
plea in order to be eligible for INA § 212(c) relief under INS v. St. Cyr; following rule that seven
years for domicile for 212(c) stops at time of application for 212(c)).
RELIEF – 212(C) RELIEF – NONCITIZEN ERRONEOUSLY ADMITTED AS LPR WAS
NOT ELIGIBLE TO APPLY FOR 212(C) RELIEF
Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where INS erroneously
granted LPR status to noncitizen who had prior aggravated felony conviction, noncitizen was
ineligible for 212(c) relief in removal proceedings).
RELIEF – 212(C) RELIEF – LAWFUL DOMICILE – UNREVOKED DOMICILE = LAWFUL
DOMICILE EVEN IF LPR WOULD NOT HAVE BEEN GRANTED IF CRIMINAL
HISTORY HAD BEEN KNOWN
While a noncitizen must be a lawful permanent resident to obtain a waiver under INA § 212(c),
and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen
who obtained LPR status though amnesty legalization, even though s/he was not technically
qualified because of a criminal offense committed while s/he was a temporary resident, should
still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and
therefore no fraud could have occurred), and the failure of the INS to rescind the temporary
status prior to adjustment bars the INS from denying that they are lawful permanent residents
now. But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005). If the government
mistakenly granted lawful temporary residence to your client, the government's remedy was to
terminate the LTR status. See INA sec. 245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec.
216(BIA 1990). Having failed to terminate, your client is a resident. See INA sec. 246; Matter of
Belenzo, 17 I. & N. Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status
granted under sec.245 or 249). Under the rescission cases and statute, the U.S. can rescind at any
time if a noncitizen received LPR status by fraud. After having LPR status for five years the
government can't rescind in the absence of fraud. Even if a noncitizen gets LPR status by fraud,
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she or he can still apply for 212(c) if she or he gets a 237(a)(1)(H) waiver to forgive the fraud.
Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993). See also Perez-Enriquez v. Gonzales,
411 F3rd 1079 (9th Cir 2005). Thanks to Dan Kesselbrenner
http://www.ilw.com/immigdaily/cases/2005,1227-arellano.pdf
Can dismissed charges be considered,
http://209.85.165.104/search?
q=cache:ZCl5W02BNSUJ:www.ca3.uscourts.gov/opinarch/051632p.pdf+Balogun+v.+Ashcroft,
+270&hl=en&ct=clnk&cd=5&gl=us
In United States v. Robinson, 967 F.3d 287 (9th Cir. 1992), the Ninth Circuit
concluded that under California law a probation order is not a “judgment” when
the imposition of sentence is suspended. See id. at 293. The Ninth Circuit noted
that California law provides: “[W]hen a sentencing court grants probation after
a conviction, it may suspend the imposition of sentence, in which case no
judgment of conviction is rendered, or it may impose sentence and order its
execution to be stayed. In the latter case only, a judgment of conviction is
rendered.” Id. (citing People v.Arguello,381 P.2d 5,6 (Cal.1963)); see also
United States v.Haggerty,85 F.3d 403,406 (8th Cir. 1996) (citing Robinson for
the proposition that a probation order is not a judgment). In Stallings’s case,
there was no judgment of conviction entered and the appropriate time for
revoking his probation and entering judgment has lapsed. See Cal. Penal Code
§1203.3(a) (“The court shall have authority at any time during the term of
probation to revoke, modify, or change its order of suspension of imposition or
execution of sentence. . . .”); see also In re Perez, 418 P.2d 6, 11 (Cal. 1966) (“If
probation was timely revoked, judgment could be imposed at any time
thereafter.”);
Smith, 90 Cal. Rptr. at 814 (“It is also settled that an order revoking probation,
to be valid, must be made within the period fixed in the order of probation. If
not revoked within that period, the probation terminates automatically on the
last day.”).
Accordingly, no valid judgment has been entered against Stallings and,
therefore , the enhanced sentence imposed in reliance upon the California
conviction was improper.
with the DD); accord, Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004); Wilson v.
Gonzales, 471 F.3d 111 (2d Cir. 2006) (“Restrepo reliance” – or reliance on an
affirmative 212(c) possibility-- requires an “individualized showing of reliance” that
includes a belief that waiting would improve the chances of obtaining the waiver
based on a stronger case of rehabilitation or other equities); see Ponnapula v.
Ashcroft, 373 F.3d 480 (3d Cir. 2004) (allowing all convicted after jury trial to apply
for 212(c) relief). The Carranza argument can be raised in any circuit, and may be
especially promising in the Fourth Circuit. See Olatunji v. Ashcroft, 387 F.3d 383,
389-91 (4th Cir. 2004).
Rainford, ID#3191
A respondent who is convicted of criminal possession of a weapon is deportable under section 241(a)(2)(C) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. II 1990); however, such a conviction does not preclude
a finding of admissibility in connection with an application for adjustment of status under section 245(a) of the Act, 8
U.S.C. § 1255(a) (1988), and it may not serve as a ground of deportability if the respondent's status is adjusted to that of
a
lawful permanent resident. Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978), followed. Matter of V-, 1 I&N Dec. 293 (BIA
1942), distinguished.
Gabryelsky, ID#3213
(1) A waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)
(Supp. IV 1992), may be used in conjunction with an application for adjustment of status by an
alien who is deportable for both drug and weapons offenses; thus a lawful permanent resident
alien who has been convicted of a weapons violation is not ineligible to apply for adjustment of
status and may concurrently apply for section 212(c) relief to waive his deportability arising from
his drug conviction.
(2) Under the regulations at 8 C.F.R. § 245.1(e) (1993), an alien may concurrently apply for
adjustment of status and section 212(c) relief.
(3) An applicant for adjustment of status is not precluded from concurrently applying for a waiver
of inadmissibility under section 212(c) of the Act to waive another deportable offense, even
though section 212(c) of the Act would not separately and independently waive all grounds of
deportability.
Second Circuit
to correct: Despite arguments that the doctrine of nunc pro tunc may only be used to correct
inadvertent errors, and not to remedy a defect in a judgment order, the court held that in the
immigration context nunc pro tunc relief was available to correct such defects in the immigration
context. Edwards v. INS, 393 F.3d, at 309 n. 12.
POST CON - TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF -
WASHINGTON STATE
Washington v. Littlefair, 112 Wash.App. 749, 51 P.3d 116 (2002) (one-year statute of limitations
to bring collateral attack equitably tolled from date of plea until defendant first discovered
immigration consequences).
TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF - OREGON
Benitez-Chacon v. State of Oregon, 178 Or. App. 352 (2001) (petition for post conviction relief
subject to two year statute of limitations running from date of final judgment).
Non-discretionary actions,
however, and purely legal determinations made by the agency,
remain subject to judicial review. See, e.g., Sepulveda v.
Gonzales, 407 F.3d 59, 63 (2d Cir. 2005)
(“[Section]1252(a)(2)(B) does not bar judicial review of
nondiscretionary, or purely legal, decisions. . . .”).
Determination of eligibility for adjustment of status –
unlike the granting of adjustment itself – is a purely legal
question and does not implicate agency discretion. The
determination at issue here, whether a prior conviction precludes
eligibility for adjustment of status, was also at issue in
Sepulveda. In that case, the Second Circuit held that statutory
restrictions on the jurisdiction of district courts to hear
challenges to removal orders and other discretionary actions do
not affect the district courts’ “jurisdiction to determine whether
g judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set
aside pursuant to writ of coram nobis for a constitutional defect could not serve as
basis for order of deportation). Subsequently set-aside convictions of this type fall
outside the text of the new definition because, in light of the subsequent
proceedings, they cannot be considered formal adjudications of the alien's guilt.")
POST CON RELIEF – APPEAL – WAIVER OF APPEAL IN PLEA AGREEMENT DOES NOT
BAR COLLATERAL ATTACK RAISING ERRORS IN MEANS BY WHICH PLEA AGREEMENT
WAS REACHED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS
26
28404 (E.D. N.Y. Nov. 18, 2005) (waiver of appeal in plea agreement does not bar
collateral attack raising errors in means by which plea agreement was reached:
"'There is no general bar to a waiver of collateral attack rights in a plea agreement.'
Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir.
2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)).
'However, a waiver of appellate or collateral attack rights does not foreclose an
attack on the validity of the process by which the waiver has been produced, here,
the plea agreement.' Id. (citations omitted). Where, as here, a petitioner claims a
violation of Rule 11 or the ineffectiveness of trial counsel, the Second Circuit has
stated that he is not barred under the terms of the plea agreement from bringing a
petition to vacate the conviction based on the legal shortcomings of the process in
which the waiver was obtained. See id. at 196. Accordingly, the Court will address
'the merits of [the] petition notwithstanding [the petitioner's] general waiver of the
right to collaterally attack his conviction.' Id. at 193; see also Lebron v. United
States, 267 F. Supp.2d 325, 328 (E.D.N.Y. 2003).").
POST CON – FEDERAL – CAUSE AND PREJUDICE FOR NOT RAISING GROUNDS ON
DIRECT APPEAL GROUNDS
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404
(E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on
involuntary plea and ineffective counsel grounds for misadvice concerning immigration
consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290
F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the
defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United
States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255
claim regarding the voluntariness of a guilty plea made when the petitioner was not properly
informed that deportation was absolute).
POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS
Isley v. Arizona Dept. of Corr., __ F.3d __ (9th Cir. Sept. 15, 2004) (petition for
habeas corpus granted where state petition for post-conviction relief was pending
within the meaning of 28 U.S.C. section 2244(d)(2) and entitled defendant to toll
one year statute of limitation period for filing federal post-conviction relief).
http://caselaw.lp.findlaw.com/data2/circs/9th/0315858p.pdf
Chavis v. Lemarke, ___ F.3d ___ (9th Cir. Aug. 27, 2004) (district court dismissal of
federal habeas corpus petition as untimely reversed since statute of limitations was
tolled due to filing of state habeas petitions).
http://caselaw.lp.findlaw.com/data2/circs/9th/0117072p.pdf
POST CON RELIEF – CORAM NOBIS – NEED TO PETITION FOR CORAM NOBIS
DIRECTLY IN FEDERAL COURT
Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir. June 27,
2005) (district court did not commit error in failing to consider 28 U.S.C. § 2241
habeas to be a petition for coram nobis, because this issue had not been raised in
the district court and petitioner provided no authority suggesting that the district
court might have a duty to sua sponte raise the issue), distinguishing United States
v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005), in which the Ninth
Circuit held that coram nobis relief was available under similar circumstances,
because here the petitioner did not file coram nobis in the district court). The court
in Resendiz rejected a claim that the district court should have sua sponte
construed the petition as a petition for coram nobis, instead of habeas corpus:
"Resendiz argues that the district court should not have construed his petition as
one under § 2241, but instead should have construed it as a writ of coram nobis,
even though Resendiz never asked the court to do so. Because Resendiz did not
contend below that his petition should be construed as a writ of coram nobis, and
because he provides no authority suggesting that the district court might have a
duty to sua sponte raise the issue, we decline to address this claim. Whittaker Corp.
v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate
court will not hear an issue raised for the first time on appeal."). In footnote 3 to this
quotation, the Resendiz court stated: "Our recent decision in United States v. Kwan,
No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which we held that
coram nobis relief was available under similar circumstances, does not affect our
decision. Unlike Kwan, Resendiz did not petition the district court for the writ of
coram nobis, but argued instead that the court should have so construed his habeas
petition sua sponte
following Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) ('We construe the
intent of Congress's restoration under the Real ID Act rubric of 'constitutional claims
or questions of law' to encompass the same types of issues that courts traditionally
exercised in habeas review over Executive detentions'
The meaning of forgery” in federal law is ambiguous. Congress has never specifically
defined forgery, although it has used the term in numerous statutes outlawing various acts.
In some of these statutes, Congress did not specify the requisite culpable intent. See, e.g.,
18 U.S.C. § 485 (prohibiting forgery of coins or bars in denominations greater than five
cents). In at least twenty other statutes, however, Congress specified that an intent to
31
defraud is required. In four of those statutes, Congress used the term #147;forgery”
together with the phrase #147;with intent to defraud,” seemingly indicating that the two
need not be joined. See, e.g., 18 U.S.C. § 471 (prohibiting forgery of federal obligations );
18 U.S.C. § 500 (prohibiting forgery of postal service money orders #147;with intent to
defraud”). Thus, in Congress’ view, it may well be [*10] possible to commit #147;forgery”
without #147;fraud,” or at least fraud in the ordinary sense of misrepresentation for
material gain. See United States v. Cowan, 116 F.3d 1360, 1361-63 (10th Cir. 1997) (had
Congress intended to make the intent to defraud an element of 18 U.S.C. § 505, it would
have done so expressly).
POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE
PLEA FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING
State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel ineffective
by failing to file motion in arrest of judgment to challenge guilty plea on grounds that neither
written plea of guilty nor in-court colloquy informed defendant that guilty plea might affect
32
immigration status; failure to move in arrest of judgment does not bar challenge to guilty plea if
failure to file motion in arrest of judgment resulted from ineffective assistance).
Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004)
(reversing district court's dismissal of habeas corpus petition based on four
constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal;
(2) appellate counsel was ineffective for not raising potential winning issues on
appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz
during the taking of his plea, (b) advise Deitz of potential immigration
consequences of a guilty plea, required by Ohio Rev. Code § 2943.031, and
(c) notify Deitz of his right to contact the Mexican consulate, required by
Article 36 of the Vienna Convention of Consular Relations, and directing
district court to decide the ineffective assistance claims on their merits,
since ineffective assistance of counsel constitutes cause to excuse a
procedural default: "Given that Dietz's claim of ineffective assistance of counsel
is not procedurally defaulted, that he has alleged facts that can establish cause for
his failure to file a direct appeal, and that prejudice would be presumed, he is
entitled to habeas relief if he can in fact prove that he asked his attorney to file a
timely appeal and that the attorney failed to do so."). POST
United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through
"coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due
process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487
(1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered
with full knowledge of its direct consequences, it cannot stand if "induced by threats (or
promises to discontinue improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business . . . . " Brady v. United States, 397 U.S. at 755
(1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty
plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686
F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsel’s failure to advise
the defendant that he or she will be deported is not "ineffective assistance of counsel," and the
trial court’s failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d
1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet,
as the quoted passage in Brady suggests, and as the federal courts have consistently held over the
last three decades, this distinction between "direct" and "collateral" consequences loses all
significance when the defendant’s plea results from affirmative misadvice about its immigration
or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United
States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861
F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert.
denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir.
1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v.
Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d
Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States
v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46
F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212
(E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), aff’d,
831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th
Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the
"collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other
cases demonstrate, a plea that results from actual misinformation provided to the defendant about
its effects is not knowing and voluntary, and cannot be given force. Applying these principles,
the federal courts have consistently voided guilty pleas entered – as this one was – on the basis of
affirmative misadvice regarding considerations of consequence to the defendant. For example, in
United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea
induced by material misinformation from the prosecution, court, and defense counsel was
involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the
sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both
the government’s attorney and the district judge confirmed that defendant’s understanding. Id. at
1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397.
After the receipt of the pre-sentence report, the defendant moved to withdraw his guilty plea;
however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98.
The Ninth Circuit determined that the defendant had been misinformed by the court,
government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do
not believe Toothman was ‘equipped intelligently to accept the plea offer made to him.’" Id. at
1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of
34
Appeal accordingly found that the plea was involuntary. Id. at 1401. Thanks to Don Chairez
for the suggestion for this argument.
POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA
WHERE DEFENDANT TOLD ONLY CONVICTION "COULD"
RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY
CERTAIN TO DO SO
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL
3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18,
2005) (vacating conviction through granting motion to
vacate sentence pursuant to 28 U.S.C.§ 2255 on
involuntary plea and ineffective counsel grounds for
misadvice concerning immigration consequences where
defendant was informed only that the conviction "could
result in your deportation," where it was certain to do so).
U.S. 1059, 110 S. Ct. 873, 107 L. Ed. 2d 956 (1990); United
States v. George, supra, 869 F.2d 337–38; United States
v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989); United
States v. Yearwood, supra, 863 F.2d 7–8; United States
v. Campbell, supra, 778 F.2d 768–69; United States v.
Gavilan, 761 F.2d 226, 228–29 (5th Cir. 1985); United
States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975);
Government of Virgin Islands v. Pamphile, 604 F. Sup.
753, 756–57 (D.V.I. 1985); Oyekoya v. State, 558 So. 2d
990, 990–91 (Ala. Crim. App. 1989); Tafoya v. State, 500
P.2d 247, 252 (Alaska 1972), cert. denied, 410 U.S. 945,
93 S. Ct. 1389, 35 L. Ed. 2d 611 (1973); State v. Rosas,
183 Ariz. 421, 423, 904 P.2d 1245 (Ariz. App. 1995); Matos
v. United States, 631 A.2d 28, 31–32 (D.C. 1993); State
v. Ginebra, 511 So. 2d 960, 962 (Fla. 1987); People v.
Huante, 143 Ill. 2d 61, 73–74, 571 N.E.2d 736 (1991);
Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987); Daley
v. State, 61 Md. App. 486, 490, 487 A.2d 320 (1985);
Commonwealth v. Fraire, 55 Mass. App. 916, 917–18,
774 N.E.2d 677 (2002); Alanis v. State, 583 N.W.2d 573,
579 (Minn. 1998); State v. Chung, supra, 210 N.J. Super.
435; People v. Boodhoo, 191 App. Div. 2d 448, 449, 593
N.Y.S.2d 882 (1993); People v. Dor, 132 Misc. 2d 568,
572, 505 N.Y.S.2d 317 (1986); State v. Dalman, 520
N.W.2d 860, 863–64 (N.D. 1994); Commonwealth v. Fro-
meta, 520 Pa. 552, 556, 555 A.2d 92 (1989); State v.
The government will not necessarily accept nunc pro tunc orders as
issued on the nunc pro tunc date. E.g., Fierro v. Reno, 217 F.3d 1
(1st Cir. 2000) (nunc pro tunc order that granted custody to Fierro's
father retroactively did not satisfy the custody requirement for
automatic citizenship under 8 U.S.C. § 1432(a)); Matter of Cariaga,
15 I & N Dec. 716 (1976) (no "retroactive" adoptions for adjustment
purposes). But see Allen v. Brown, 953 F. Supp. 199 (N.D. Ohio
1997) (distinguishing "retroactive" adoptions from "nunc pro tunc"
adoptions). Therefore, vacating a conviction, and entering a new
plea "nunc pro tunc" will not necessarily be accepted by the
immigration authorities or courts as occurring on the nunc pro tunc
date
De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006)
(no due process violation where BIA denied request to grant sua
sponte motion on the basis of recently vacated convictions, allowing
noncitizen to apply for relief, where BIA denied motion on the basis
that it would deny any application for relief as a matter of discretion
because noncitizen, “had previously been convicted of four criminal
offenses, and while three of these had been vacated, none had been
vacated because De Araujo was not guilty of the crimes
committed.”)
Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug.
3, 2006) (noncitizen bears burden of showing conviction was
vacated on a basis of legal invalidity where the order of removal has
already become final, and the noncitizen is making a late motion to
reopen/reconsider in light of the new evidence that the conviction
has been vacated). http://laws.lp.findlaw.com/1st/051895.html
Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug.
3, 2006) (noncitizen bears burden of showing conviction was
vacated on a basis of legal invalidity where the order of removal has
already become final, and the noncitizen is making a late motion to
reopen/reconsider in light of the new evidence that the conviction
has been vacated). http://laws.lp.findlaw.com/1st/051895.html
Johnson v. Ashcroft, __ F.3d __ (2d Cir. Aug. 5, 2004) (INA may not
move to remand case to Immigration Judge in order to lodge
additional grounds of removal based upon information that was
available at the time of the initial proceeding).
40
http://caselaw.lp.findlaw.com/data2/circs/2nd/032071p.pdf POST
CON RELIEF – VACATUR MUST BE PRESENTED TO IMMIGRATION
COURT TO BE CONSIDERED ON PETITION FOR REVIEW
Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. §
1252(b)(4)(A); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th
Cir. 2003) (en banc) (holding BIA violated noncitizen's right to due
process, in appeal of decision granting suspension of deportation,
when BIA stated it was entirely precluded from considering new
evidence bearing on hardship including evidence that, in the eight
years intervening between immigration judge's decision and
proceedings before BIA, noncitizen's daughter had been diagnosed
with serious medical condition for which treatment was likely
unavailable if noncitizen was deported).
Ninth Circuit
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3,
2006) (BIA acted arbitrarily, irrationally, or contrary to law in
denying motion to reopen removal proceedings after conviction had
been vacated, even where order vacating conviction did not specify
whether the conviction was vacated on ground of invalidity or solely
for rehabilitative or immigration purposes).
Other
Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (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)
Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7,
2006) (petition for review of removal order based on two crimes of
moral turpitude, followed by state court orders vacating the two
convictions, dismissed for failure to exhaust administrative remedies
where petitioner did not ask BIA to reopen case in light of the
vacated convictions, but instead petitioned the district court for
habeas and then the court of appeals for review).
http://caselaw.lp.findlaw.com/data2/circs/7th/052697p.pdf
Seventh Circuit
Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not
need judicial permission to reopen a case sua sponte after the filing
of a petition for review).
http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf
Ninth Circuit
43
those assertions.7
7 Given the INS’s representations in the first appeal and our disposition
2. Prejudice
[6] Salgado-Diaz must also establish prejudice by showing
his rights were violated “in a manner so as potentially to
affect the outcome of the proceedings.” Campos-Sanchez v.
INS, 164 F.3d 448, 450 (9th Cir. 1999) (internal quotations
and citations omitted). Clearly, Salgado-Diaz’s arrest and
expulsion had a prejudicial impact on his underlying immigration
proceedings. The agents’ conduct ultimately prevented
him from seeking the type of relief from deportation for
which he was eligible before his arrest and expulsion. Had
petitioner been given an evidentiary hearing, he might have
established that the INS border agents’ conduct was indeed
unconstitutional either under the Fourth Amendment or as a
matter of due process.
In the case of an alien who is convicted of an offense which makes the alien subject to
deportation, the Attorney General shall begin any deportation proceeding as expeditiously as
48
not arguing. He is not, for example, asserting that the government’s conduct in this case rose to
the level of a due process violation. Cf. Singh v. Reno, 182 F.3d 504, 507 (7th Cir. 1999)
(finding that an alien had stated a substantial due process claim where the INS filed an Order to
Show Cause in 1992, but then “drag[ged] its feet,” despite the alien’s pleas for a hearing, until it
finally held a hearing in late 1996, after the AEDPA had abrogated his right to seek 212(c)
deportable crime, because, in the INS’s estimation, the alien would be a very strong candidate
for 212(c) relief. Cf. Matter of Gordon, 17 I. & N. Dec. 389, 392 (BIA 1980) (noting that an
INS District Director “has every right, in fact, a duty, to exercise his prosecutive judgment
whether or not to institute a deportation proceeding against an alien . . . . If, in screening the file
of, and possibly after consultation with, such an alien, it appears to him that a deportation
proceeding would surely result in a grant of section 212(c) relief . . . it would be pointless to
institute an expensive, vexatious, and needless deportation proceeding.”). Such an alien might
reasonably rely on the INS’s inaction and decide on that basis to make important commitments
to his residency in the United States (such as by marrying, establishing a business, and losing
ties with his home country) only later to find that, after Congress had eliminated 212(c) relief,
the INS seeks to deport him. Under these circumstances—and where Congress’s intent as to the
retroactivity of the elimination of 212(c) relief is unclear—an alien might argue with some force
that he has demonstrated the kind of reasonable reliance and settled expectations under
Landgraf, 511 U.S. at 270, that would render the elimination of 212(c) relief impermissibly
In contrast with the various decisions on laches, it seems settled that the government may, in
the appropriate circumstances, be equitably estopped in the immigration context. See, e.g.,
Rojas-Reyes v. INS, 235 F.3d 115, 126 (2d Cir. 2000); Drozd v. INS, 155 F.3d 81, 90 (2d Cir.
1998); Corniel-Rodriguez v. INS, 532 F.2d 301, 307 (2d Cir. 1976) alien’s reliance on the
continued availability of 212(c) relief. As a result, the diligence of the
Diligence is, by contrast, crucial to the defense of laches. A party claiming this defense
must establish two elements: 1) a lack of diligence by the party against whom the defense is
asserted, and 2) prejudice to the party asserting the defense. Costello, 365 U.S. at 282.
Petitioner cannot establish either element. We find no lack of diligence in the INS’s decision to
institute deportation proceedings three years before the expiration of Petitioner’s twenty-year
minimum sentence. If the INS had instituted deportation proceedings immediately after
Petitioner’s 1982 murder conviction, or at any time until shortly before the expiration of his
minimum term, it might well have been a colossal waste of time. Any number of events might
make his later deportation unnecessary or inappropriate. For example, Petitioner might not
survive until the end of his long prison term. Conditions in the country to which he would be
deported might preclude his immediate deportation upon release, see 8 C.F.R. § 208.17(a)
(providing for deferral of removal under the Convention Against Torture, where it is more likely
than not that the alien will be tortured if deported), thus making the INS’s resources better used
elsewhere. And, the law with respect to deportation of aliens like Petitioner might change so as
to make deportation impossible or unlikely. See generally Cheryl Shanks, Immigration and the
over the last century). For these and other similar reasons, delay in a case like the one before us,
far from indicating a lack of diligence, suggests common sense on the part of the INS.
50
Moreover, it is highly unlikely that Petitioner would have received 212(c) relief, given
United States v. Scott, 394 F.3d 111 (2d Cir. January 11, 2005) (district court
erred in denying motion to dismiss indictment on ground that underlying
deportation order was invalid because defendant had been prejudiced during
deportation proceeding by his counsel's ineffective assistance in failing to move
for waiver of deportation under INA § 212(c); entry of underlying deportation
order was "fundamentally unfair" within meaning of 8 U.S.C. § 1326(d))
By analogy to the duties of a prosecutor in a criminal case, the TA has a duty of fairness, not
deportation. It is in the government's interest that a noncitizen who is eligible for relief and
deserving of relief receive relief from deportation. See Berger v. United States, 295 U.S. 78, 88
(1935); ABA Standards Relating to the Prosecution Function.
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona
court order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence,
for Arizona misdemeanor conviction was illegal since the state at the time of sentence designated
the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a
misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence
illegal on its face, required remand to the BIA to consider the issue in the first instance; issue
could not have been considered earlier, since Arizona court entered 2004 minute entry over six
months after initial BIA decision in this case), citing Velezmoro v. Ashcroft, 362 F.3d 1231,
1233-1234 (9th Cir; 2004) (remanding to BIA to consider in first instance whether petition
continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per
curiam) (remanding "changed circumstances" issue to BIA for "opportunity to address the matter
in the first instance).
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted
arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after
conviction had been vacated, even where order vacating conviction did not specify whether the
conviction was vacated on ground of invalidity or solely for rehabilitative or immigration
purposes).
Ninth Circuit
51
Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R.
§ 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation
does not apply when criminal conviction that formed a “key part” of the order of removal has
been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d
1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of
deportation based on certain vacated convictions are not legally valid, and thus do not bar
motions to reopen)
1. The BIA Has Jurisdiction to Reopen Proceedings After Deportation if the Conviction
Has Been Vacated
Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7, 2006) (petition for
review of removal order based on two crimes of moral turpitude, followed by state court
orders vacating the two convictions, dismissed for failure to exhaust administrative
remedies where petitioner did not ask BIA to reopen case in light of the vacated
convictions, but instead petitioned the district court for habeas and then the court of
appeals for review). http://caselaw.lp.findlaw.com/data2/circs/7th/052697p.pdf
Third Circuit
Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (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).
As the Supreme Court declared in Woodby, the ties that legal residents develop to the American
communities in which they live and work, should not be lightly severed:
This Court has not closed its eyes to the drastic deprivations that may follow when a resident of
this country is compelled by our Government to forsake all the bonds formed here and go to a
foreign land
by clear, unequivocal, and convincing evidence that the facts
alleged as grounds for deportation are true.” Gameros-
Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989) (citing
Woodby v. INS, 385 U.S. 276, 286 (1966)); see also 8 U.S.C.
§ 1229a(c)(3)(A). “Although we review for reasonable, sub-
stantial, and probative evidence in the record as a whole,” we
affirm only if “the [agency] has successfully carried this
heavy burden of clear, unequivocal, and convincing evi-
dence.” Cortez-Acosta v. INS, 234 F.3d 476, 481 (9th Cir.
2000) (per curiam) (internal citations and quotation marks
53
RES JUD :
The United States Supreme Court has defined the doctrine of collateral estoppel as providing
that “once an issue is actually and necessarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits based on a different cause of action
involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153 (1979).
The Court has applied the doctrine of collateral estoppel in the context of “an administrative
agency…acting in a judicial capacity” as well. United States v. Utah Constr. & Mining Co., 384
U.S. 394, 422 (1966).
Accordingly, circuit courts have given preclusive effect to determinations made by immigration
judges in immigration hearings. See Medina v. INS, 993 F.2d 499, 504 (5th Cir. 1993)
(concluding that a prior determination that petitioner was a citizen precluded subsequent
deportation proceedings, even where the first decision was based on an erroneous factual finding
and understanding of the law); Ramon-Sepulveda v. INS, 824 F.2d 749, 750-51 (9th Cir. 1987)
(holding that the INS was precluded from seeking deportation of petitioner when it failed to
prove that he was an alien in a prior hearing). The fundamental purpose underlying the doctrine
is “that one full opportunity to litigate an issue is sufficient.” Hammer, 195 F.3d at 840
“Laches requires proof of (1) lack of diligence by the party against whom the defense is
asserted, and (2) prejudice to the party asserting the defense.” Id. at 282. Dang has not shown a
lack of diligence on the part of the government
When rule providing for relief from void judgments is applicable, relief is not
discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo.
1994
MOTION TO REOPEN – SUA SPONTE
54
Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need judicial permission to reopen a
case sua sponte after the filing of a petition for review).
http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf
United States v. Jose, ___ F.3d ___ (9th Cir. October 19, 2005) (reversal of a
conviction on a greater offense, coupled with a final conviction on a lesser included
offense, does not preclude retrial of the greater offense when the offenses were
charged in the same indictment and tried together in the same original trial).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410202p.pdf
United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of
conviction, the trial court has jurisdiction to resentence the defendant on all remaining
counts of conviction). Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997);
United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d
531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate
double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v.
United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States v. Morris, 116
F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997);
United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106
F.3d 1170 (4th Cir. 1997).
Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed
counts are not reinstated since defendant did not breach plea agreement), with United
55
States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (No. 97-5066) (dismissed counts are
reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add
dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106
F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section
2255 petition, the defendant may be placed in exactly the same position in which he
would have been had there been no error in the first instance."), quoting United States
v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir.
2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006)
Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the
U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was
ordered removed in absentia and removed from the United States. He filed a motion to reopen to rescind
the in absentia order based on lack of notice. The IJ denied the motion, concluding that the immigration
court lacked jurisdiction because petitioner was outside of the United States. The BIA affirmed the
dismissal. The Eleventh Circuit found that petitioner’s motion was governed by 8 C.F.R. § 1003.23(b)(4)
(ii), which says that a motion to reopen in absentia proceedings may be made at any time if the person
shows that he or she did not receive notice. This regulation does not bar reopening when the person has
been removed from the United States. The court noted that Patel v. United States AG, 334 F.3d 1259
(11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the BIA’s dismissal of
a motion to reopen because the person was outside of the United States. Patel, however, did not involve a
motion to reopen to rescind an in absentia order.
De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA
denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing
noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application
for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal
offenses, and while three of these had been vacated, none had been vacated because De Araujo was not
guilty of the crimes committed.”)
4th Amnd.
The stop constituted an egregious violation of his Fourth Amendment rights because race was
the motivating factor. According to Hernandez, the other reasons given by the agents to
justify the stop were insufficient to establish reasonable suspicion under the law.
56
Abandonment
Alaka claims that the conclusion that she abandoned her permanent
legal resident status is based on legal error, and the Government
argues it is a factual question that we do not have jurisdiction to
review. In this particular context, we agree with the Government.
The basic test for evaluating whether a lawful permanent resident
has abandoned that status by virtue of traveling abroad is “whether
[the petitioner’s] extended trips outside the United States]constitute
‘temporary visits abroad.’”
Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); see also Moin v.
Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003); Ahmed v.Ashcroft, 286
F.3d 611, 612-13 (2d Cir. 2002). A trip is “temporary” if it is (1)
“relatively short,” or (2) if not short, the petitioner had “a
continuous, uninterrupted intention to return to the United States
during the entirety of his visit.” Singh, 113 F.3d at 1514 (internal
quotation marks and citations omitted). As to intent, “[t]he issue is
not whether the petitioner had the intent to return ultimately, but
the intent to return to the United States within a relatively short
period.” Id.
APPEAL:
EAJA:
Alternatively, he argues that the statute violates the substantive and due
process provisions of the Fifth Amendment of the United States Constitution.
Under the immigration laws, exhaustion of administrative remedies is
statutorily required only on appeals of final orders of removal. 8 U.S.C. §
1252(d)(1).
Exhaustion is not required when a petitioner challenges decisions concerning
bond.
Further guidance is found in the case law considering whether the IIRIRA
retroactively eliminated 212(c) discretionary relief.4 “‘Several courts have
concluded that ‘the operative event for determining whether . . . IIRIRA
amendments should apply is the actual commission of the crime for which
the petitioners now face deportation.’” Santos-Gonzalez v. Reno, 93 F. Supp.
2d 286 295 (E.D. N.Y. 2000) (quoting Dunbar v. INS, 64 F. Supp. 2d 47, 54 (D.
Conn.1999)); see also Maria v. McElroy, 68 F. Supp. 2d 206 (E.D. N.Y. 1999).
The Supreme Court has set forth the basic framework for
addressing
whether a statute has retroactive application:
Matter of Abosi, 24 I&N Dec. 204, Int. Dec. No. 3568 (BIA 2007)
Matter of Abosi, 24 I&N Dec. 204, Int. Dec. No. 3568 (BIA 2007), June 19, 2007: "A returning lawful
permanent resident seeking to overcome a ground of inadmissibility is not required to apply for
adjustment of status in conjunction with a waiver of inadmissibility under section 212(h) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000)."
58
establishes that:
the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a
visa, entry or adjustment of status (unless the alien is excludable for prostitution under INA §212(a)(2)(D)(i) or INA
§212(a)(2)(D)(ii), in which case the 15 year time period is not required),
1. the admission to the United States of such alien would not be contrary to the national welfare,
safety or security of the United States, and
2. the alien has been rehabilitated.
CITIZENSHIP
FALSE Matter of K, 3 I. & N. 18 U.S.C. § 911 NMT
STATEMENT— Dec. 69, 71 (BIA 1947)
CLAIM TO UNITED
STATES
CITIZENSHIP
FALSE Matter of S, 2 I. & N. 18 U. S. C § 80 MT
STATEMENT— Dec. 225, 1944 WL 5185
CONSPIRACY TO (BIA 1944)
MAKE FALSE
STATEMENTS
FALSE Zaitona v. INS, 9 F.3d Mich. Comp. Laws Ann. § MT
STATEMENT— 432 (6th Cir. 1993) 257.324(1)(e)
DMV APPLICATION
FALSE Matter of G, 8 I. & N. 18 U.S.C. § 1001 NMT
STATEMENT— Dec. 315, 1959 WL
MATERIALITY NOT 11574 (BIA 1959)
AN ELEMENT
FALSE Matter of Correa-Garces, MT
STATEMENT— 20 I. & N. Dec. 451 (BIA
PASSPORT 1992)
APPLICATION
FALSE Matter of B, 7 I. & N. 18 U.S.C. § 1542 MT
STATEMENT— Dec. 342, 1956 WL
PASSPORT 10292 (BIA 1956)
APPLICATION
FALSE Kabongo v. INS, 837 18 U.S.C. § 1001 MT
STATEMENT—TO F.2d 753, 758 (6th Cir.
FEDERAL OFFICER 1988)
FALSE Matter of Marchena, 12 I. 18 U.S.C. § 1001 NMT
STATEMENT—TO & N. Dec. 355, 1967 WL
FEDERAL OFFICER 14033 (BIA 1967)
FALSE Matter of Espinosa, 10 I. 18 U.S.C. § 1001 NMT
STATEMENT—TO & N. Dec. 98, 1962 WL
FEDERAL OFFICER 12937 (BIA 1962)
FALSE Matter of Jurado- Pennsylvania Consoldated MT
STATEMENT TO Delgado, 24 I. & N. Dec. Statutes Title 18 § 4904(a)
GOVERNMENT 29 (BIA Sept. 28, 2006)
AGENT
FALSE Matter of BM, 6 I. & N. 18 U.S.C. § 1001 MT
STATEMENT—TO Dec. 806, 1955 WL 8757
UNITED STATES (BIA 1955)
OFFICIAL
60
FORGERY LOG
Matter of Canadian Crim. MT OUT
Jensen, 10 I. & Code §§ 309(1)
N. Dec. 747, and 311
1964 WL 12130
(BIA 1964)
The specific provision under which an alien was convicted may or may not
be discernible from the record. See Matter of Torres-Varela, supra, at 84-85
(stating that a determination whether a violation of a particular statute is a
crime involving moral turpitude requires an objective analysis of the elements
necessary to secure a conviction under that statute). In such cases, the
conviction will be found to be for a crime involving moral turpitude only if the
full range of the conduct prohibited in the statute supports such a finding. See
Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses
both acts that do and do not involve moral turpitude, a deportability finding
based on that statute cannot be sustained.
In previous cases we have held that neither the offender’s state of mind nor
the resulting level of harm, alone, is determinative of moral turpitude. For
example, in Matter of Sanudo, supra, at 972-73, we found that the alien’s
California domestic battery offense was not a crime involving moral turpitude
because, despite the intent element of the offense, a conviction required only
The specific provision under which an alien was convicted may or may not
be discernible from the record. See Matter of Torres-Varela, supra, at 84-85
(stating that a determination whether a violation of a particular statute is a
crime involving moral turpitude requires an objective analysis of the elements
necessary to secure a conviction under that statute). In such cases, the
conviction will be found to be for a crime involving moral turpitude only if the
full range of the conduct prohibited in the statute supports such a finding. See
Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses
both acts that do and do not involve moral turpitude, a deportability finding
based on that statute cannot be sustained).
63
CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A Person Is
Removed William v. Gonzales (4th Cir. Sept. 6, 2007)
Holding: The regulation barring motions to reopen filed after a person departs or is
removed, 8 C.F.R. § 1003.2(d), is invalid because it conflicts with the motion to reopen
statute. The Board of Immigration Appeals has jurisdiction to adjudicate a motion to reopen
filed post-departure
III
[4] The Sulits maintain that the INS violated their due
process rights by seizing their "green cards" without
providing a rescission hearing pursuant to 8 U.S.C. S
1256 and issuing a warrant of deportation despite their
adjustment of status.3 "It is well established that the
Fifth Amendment entitles aliens to due process of law
in deportation proceedings." Reno v. Flores, 507 U.S.
292, 306 (1993).
The INS failed to properly notify the Sulits of its
intent to rescind their adjustment of status, see 8
U.S.C. S 1256, or to conduct a hearing as required by
the INS regulations, see 8 C.F.R. S 246.1, prior to
seizing their "green cards." The INS therefore clearly
failed to follow its own procedural rules to the extent
that it sought to "seize"the Sulits' green cards.
Aliens who obtain adjusted status have a legitimate expectation that their
immigration will be permanent. In Fulgencio v. INS, 573 F.2d 596, 598 (9th
Cir. 1978) They should not remain constantly at risk for deportation because
of preconceived intent, a discretionary factor considered during the
adjustment proceeding.
http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0256.resp.html
The Third Circuit concluded in Bamidele v. INS, 99
F.3d 557 (1996), that the INS was barred from
initiating deportation proceedings against an alien
after the lapse of Section 246(a)'s five-year
limitations period where the grounds for deporting
the alien relate solely to the erroneous grant of an
adjustment of status.
692, 696-97 (7th Cir. 2000) (retroactive denial of a vested right to the
exercise of discretion “is a cognizable claim under the Due Process
Clause”). More fundamentally, Mendoza-Lopez affirmed the dismissal of
the indictment because the denial of access to discretionary relief resulted in
“a complete deprivation of judicial review” of the hearing. Id. at 840;
accord id. at 842. Aguirre-Tello and Mendoza-Lopez cannot be reconciled.
See United States v. Lepore, __ F. Supp.2d __, 2004 WL 292483, *12-13
(D. Mass. Feb. 12, 2004) (agreeing Ag tello is incosistentv with Mendoza) - See United States v.
Arrieta, 224 F.3d 1076, 1080 (9th 2000) 212 h undocumented.
The Immigration
Judge's factual findings serve both as a basis and a boundary for our scope of review. See 8 C.F.R.
§ 1003. I(d)(3)(i) (2006) (requiring the Board not to engage in de novo review of facts determined
by an immigration Judge, but to review whether the findings of an Immigration Judge are "clearly
erroneous."). Thus, while our review of the final judgment of an Immigration Judge is under a de
novo standard, the degree to which we may disturb an Immigration Judge's decision is affected
where an Immigration Judge's factual findings are not "clearly erroneous." If an Immigration Judge
has come to factual conclusions which, on the face of the record, are not clearly erroneous, those
factual conclusions serve as a boundary under which we operate in our capacity as an appellate
reviewing body. Thus, a trier's findings of fact establish a foundation under which we then review
legal conclusions at de novo standard. This principle is illustrated in the instant case I do not find
clear error with the Immigration Judge's findings that the respondents' visit would be considered a
temporary visit abroad and that respondent did not intend to abandon her status as a legal perma
anent resident.
Patricia A.
Lewis v. Commonwealth
93-CA"000941-MR, 5/6/94
The defendant was charged and convicted of two counts of fraudulent use of a credit card in
violation of KRS 434.650 as a result of purchasing tennis shoes from the shoe department and
clothes from the men’s department at J. C. Penney’s with an allegedly stolen credit card. Prior
to trial and at the close of all the evidence, the defendant argued he could only be charged with
one count of fraudulent use of a credit card because KRS434.650 and KRS 434.690 consolidate
all fraudulent credit card transactions which occur during a six month period into one offense.
The circuit court disagreed. The Count of Appeals agreed with the defendant that the terms of
the abovementioned statutes "prohibit and punish a course of conduct over a six-month period,
rather than individual acts." After examining the statutes and case law from other states with
similar statutes, the Court of Appeals held the defendant "was incorrectly indicted and convicted
of two felony counts of fraudulently using a credit card and should have been convicted of[only
68
one count." The defendant’s conviction for the second count of fraudulent use of a credit card
was reversed and the case was remanded for resentencing.
The Supreme Court on several occasions has noted the longstanding principle that
ambiguities in deportation laws should be construed in favor of the alien. See, e.g., INS v.
St. Cyr, 533 U.S. 289, 320 (2001); INS v.Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
First Circuit
70
NOTE: Under the particular facts of this case, it appears that the deportation order
may not have actually been final (see dissent). However, assuming (as the majority
did), that the deportation order was final and therefore the holding of the case does
not apply outside the context of late motions to reopen/reconsider will limit the
reach of this otherwise unfortunate decision.
Second Circuit
Seventh Circuit
Eighth Circuit
PROCEEDINGS
Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by
granting DHS motion to reopen pursuant to 8 C.F.R. § 1003.23(b)(3) because DHS
failed to establish that the evidence submitted with its motion to reopen was not
only material, but was also unavailable and undiscoverable prior to the conclusion
of removal proceedings).
Ninth Circuit
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION
TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted
arbitrarily, irrationally, or contrary to law in denying motion to reopen removal
proceedings after conviction had been vacated, even where order vacating
conviction did not specify whether the conviction was vacated on ground of
invalidity or solely for rehabilitative or immigration purposes).
BIA
Other
When a theft offense has occurred, property has been obtained from its
owner "without consent"; in a fraud scheme, the owner has voluntarily
"surrendered" his property, because of an "intentional perversion of truth,"
or otherwise "acted upon" a false representation to his injury. The key and
controlling distinction between these two crimes is therefore the "consent"
element -- theft occurs without consent, while fraud occurs with consent
that has been unlawfully obtained.
76
Id. at 282. Under this definition Cal. P.C. §484(a) would be held divisible, since it includes
both fraud and theft offenses. The Third Circuit held that where an offense constitutes both
theft and fraud, it must meet both requirements in order to be an aggravated felony: a year’s
sentence must be imposed and loss to the victim must be greater than $10,000. Nugent v
Ashcroft, 367 F.3d 162 (3rd Cir. 2004
TAX FRAUD
A plea to a violation of 26 U.S.C. 7206(2) does not constitute an aggravated felony.
INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) ["is described in section 7201 of
the Internal Revenue Code of 1986 (relating to tax evasion) in which the revenue
loss to the Government exceeds $10,000"]). See Evangelista v. Ashcroft, 359 F.3d
145, 149-53 (2004); Lee v. Ashcroft, 368 F.3d 218 (2004) (federal conviction of
violating § 7206(a) is not an aggravated felony, since Congress specified only one
tax crime (Section 7201) as an aggravated felony). It may be a crime involving
moral turpitude.
Jurisdiction We begin by noting that, although the IJ found Kelava removable for
being convicted of an aggravated felony, we are not deprived of jurisdiction to hear
his appeal under 8 U.S.C. § 1252(a)(2)(C), because the BIA chose not to address the
aggravated felony conviction in its decision, basing its decision solely on the
terrorist activity charge. We addressed a similar situation in Toro-Romero v.
Ashcroft, 382 F.3d 930 (9th Cir. 2004). There, the IJ found Toro Romero removable
for having been convicted of a crime involving moral turpitude and for falsely
representing himself as a United States citizen. While § 1252(a)(2)(C) would have
prohibited this court's jurisdiction over the moral turpitude removal, the BIA
affirmed Toro-Romero's removal only on the false representation ground, expressly
declining to decide any other issues raised by Toro-Romero on appeal. Id. at 93233.
We explained that our review is limited to the BIA's decision, and the sole ground
for the final order of removal was therefore Toro-Romero's false representation.
The Court then determined whether the application of the statute would result in a
retroactive effect. Id. at 320. The Court noted that a statute has retroactive effect
when it "takes away or impairs vested rights acquired under existing laws, or
creates a new obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past." Id. at 321 (internal
quotation marks omitted
of the allegations and allow counsel the chance to respond before the petitioner
files the motion; and (3) the motion must state whether a complaint has been
filed with the appropriate disciplinary authorities and, if it has not been filed, an
explanation as to why it has not been filed. Matter of Lozada, 19 I. & N. Dec.
637, 639 (BIA 1988
Nativi-Gomez points out that one court has recognized a due process violation
where an alien sought discretionary relief. See Rabiu v. INS, 41 F.3d 879, 883
(2d Cir. 1994). But Rabiu does not discuss Dumschat or consider whether a
constitutionally protected liberty interest is implicated where an alien seeks
discretionary relief. As this issue was not before the court in Rabiu, we believe
Rabiu is of limited utility to our analysis. Nativi-Gomez points out that Rabiu
involved a request for statutorily-created relief, the same type of relief, in broad
terms, that Nativi-Gomez seeks, but the source of relief sought by an alien is
irrelevant.
2
LO
G
IN
Medina v. INS, 1 F.3d 312, denying reh'g of 993 F.2d 499 (5th
Cir. 1993), may be viewed without charge at:
http://www.ca5.uscourts.gov/opinions/pub/92/92-5305.CV0.wpd.pdf
If no sentence has been imposed, the defendant does not have a final conviction for
immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a
criminal conviction may not be considered by the immigration authorities until it is
final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed.
1377 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman
v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937)); United
States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992)(citing United States v.
Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final
decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571 (6th
Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction is
final for deportation purposes
The doctrine of res judicata proclaims that “a valid and final judgment
precludes a second suit between the same parties on the same claim
or any part thereof.” Medina v. INS, 993 F.2d 499, 503 (5th Cir. 1993);
see also Dye v. U.S. Farm Servs. Agency, 129 Fed. Appx. 320, 322 (7th
Cir. 2005) (“Res judicata bars suits where there is a final judgment on
the merits; an identity of the issues of the lawsuit; and an identity of
the parties or their privies.”). Res judicata (as well as the related
principle of collateral estoppel) applies to administrative proceedings
such as the adjudication of petitions for relief in immigration courts.
See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107-08
(1991); Santana-Albarran v. Ashcroft, 393 F.3d 699, 704 (6th Cir.
2005); Johnson v. Ashcroft, 378 F.3d 164,
Although section 11366.5(a) and § 856(a)(2) are very similar, they differ in
one important respect: the mens rea requirement for section 11366.5(a) is only
"knowingly," while for § 856(a)(2) it is "knowingly and intentionally."
"Intentionally" and "knowingly" are terms with traditional meanings in criminal
law, and the meanings are different. Cf. Salviejo-Fernandez v. Gonzales, 455
F.3d 1063, 1067 (9th Cir. 2006) (citations omitted)(noting that generally,
"purpose" equates with specific intent, and "knowingly" with general intent).
Indeed,
82
such behavior may be unwise and socially unacceptable to many, but it is not
“inherently base, vile, or depraved,” Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.
1996),or accompanied by a “vicious motive or corrupt mind,”Michel, 206 F.3d at
263. Nor is it “so far contrary to the moral law” as to “give rise to moral outrage.”
Navarro-Lopez, 2007 WL 2713211, *6. In short, the conduct discussed does not
meet the first Fernandez-Ruiz requirement of being an “act of baseness or
depravity contrary to accepted moral standards.”Fernandez-Ruiz, 468 F.3d at
1165-66 13600 QUINTERO-SALAZA
[5] If the crime of conviction does not categorically qualifyas a predicate offense
under a federal statute, it still may qualify under a modified categorical analysis.
Corona-Sanchez,291 F.3d at 1203. Under the modified categorical approach we
examine “ ‘documentation or judicially noticeable facts that clearly establish that
the conviction is a predicate conviction’” for removal purposes. Id. (quoting
United States v.Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en
banc)).Under the modified categorical approach, if “judicially noticeable facts
would allow the defendant to be convicted of an offense other than that defined as
a qualifying offense,” it cannot be used as a basis for removal. Id. (quoting United
States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999)). “As we have noted
repeatedly, the government has the burden to establish clearly and unequivocally
the conviction was based on all of the elements of a qualifying predicate offense.”
United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (citing United
States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. 2002); United States v.
Pimentel- Flores, 339 F.3d 959, 968 (9th Cir. 2003); Corona-Sanchez, 291 F.3d at
1211).
83
[6]Here, the only evidence that the government tendered was the fact of
conviction. Therefore, absent any other judicially noticeable facts,
application of the modified categorical approach does not alter our
analysis.
The Third Circuit in very strong language ordered that immigration judges must allow
someone in deportation proceedings to be heard in their case even if they were slightly
tardy for a hearing. In this case, the government frequently warned someone that she
had to bring witnesses at her next, major hearing. A witness got to her house late so they
set off from home a bit late and got a bit lost driving in downtown Newark, NJ. Her
attorney arrived exactly on time but by the time she got to the courtroom, she was
around 20 minutes late. The IJ had ordered her deported and when she asked the court
staff to get the judge to try to be heard, they refused. They tried to reopen the case and,
depressingly, the IJ refused to reopen it and the BIA upheld the judge's decision on
appeal. The case had to go all the way up to the Third Circuit to do justice and allow her
case to be heard on the merits.
Sadly, this is not the first time someone was ordered deported for arriving slightly late,
the IJ refused to reopen, the BIA affirmed, and a circuit court had to step in and do the
right thing. Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (reopening where 20 minutes
late but IJ was still in the courtroom working on other cases); Alarcon-Chavez v.
Gonzales, 403 F.3d 343 (5th Cir.
2005) (reopening where 20 minutes late and IJ was either still in the courtroom or had
just left and still nearby); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) (reopening
where two hours late due to late arrival of personally-hired interpreter after IJ failed to
get an interpreter at prior court appearance that led the immigrant to think she had to
bring her own interpreter).
85
The legal rule is that due process rights exist in immigration cases and the IJ and BIA
abused their discretion by refusing to reopen the case for minimal tardiness when the IJ
was either still in the courtroom or had recently left but was still nearby. Especially
when there was no history of the person arriving late in the case.
The Third Circuit used strong language, saying they would "expect nothing less from
immigration judges who sit in this circuit" to reopen such cases and that just like the
Fifth Circuit said in Alarcon-Chavez, immigration judges must "remember they are
appointed, not anointed."
Monjaraz-Munoz v. INS, 327 F.3d 892, 896 (9th Cir. 2003). Under similar circumstances in Monjaraz-
Munoz, the
Ninth Circuit stated:
86
The role of an attorney . . . is especially important. For the alien unfamiliar with the laws of our
country, an attorney serves a special role in helping the alien through a complex and completely
foreign process. It is therefore reasonable for an alien to trust and rely upon an attorney’s advice to
such an extent that if an alien fails to show up to a hearing because of an attorney, we can say that
this is an exceptional circumstance “beyond the control of the alien.”
Id at 897; see also Iturribarria v. INS, 321 F.3d 889, 901 (9th Cir. 2003) (“One reason that aliens . . .
retain legal assistance in the first place is because they assume that an attorney will know how to comply
with the procedural details that make immigration proceedings so complicated.”).
5 Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 712 (6th Cir. 2004) (BIA abuses its
discretion when it ignores its ownprecedent); Hernandez v. Ashcroft, 345 F.3d 824,
846 (9th Cir. 2003) (same); Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002)
(“Although an agency can change or adapt its policies, it acts arbitrarily if it
departs from its established precedents without ‘announcing a
principled reason’ for the departure.”); Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996)
(“[A]dministrative agencies must apply the same basic rules to all similarly
situated supplicants. An agency cannot merely flit serendipitously from case to
case, like a bee buzzing from flower to flower, making up the rules as it goes
along.”); Salameda v. INS, 70 F.3d 447, 450 (7th Cir. 1995) (“An agency may not
abandon an interpretation without an explanation . . . . Agencies do not have the
same freedom as courts to change direction without acknowledging and justifying
the change.”); Davila-Bardales v.INS, 27 F.3d 1, 5 (1st Cir. 1994) (requiring BIA
to “confront the issue squarely and explain why the departure is reasonable” when
it departs from its own precedents).
6 We decline the Government’s invitation to affirm the IJ’s decision on the grounds that Galvez has not
shown that he was prejudiced byhis counsel’s performance. First, In re Grijalva-Barrera, 21 I. &N. Dec.
at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to
constitute an “exceptional circumstance” justifying rescission of an in absentia removal order. Second,
we may not affirm an agency decision on reasons other than those it provided. Dong Sik Kwon v. INS, 646
F.2d 909, 916 (5th Cir. 1981) (en banc) (court may not affirm BIA’s decision on reasoning other than that
adopted by the BIA
these rights.
212c blake
gave teeth to the admonition of Judge Learned Hand: “It is well that we
should be free to rid ourselves of those who abuse our hospitality; but it is
more important that the continued enjoyment of that hospitality once granted,
shall not be subject to meaningless and irrational hazards.” DiPasquale v.
Karnuth, 158 F.2d 878, 879 (2d Cir. 1947).
N. Dec. 168, 172-73 (BIA 1948)). Among other uses, the BIA has issued nunc pro tunc orders
to retroactively legalize an alien’s admission into the United States thereby eliminating the
grounds
for deporting the alien. Matter of L, 1 I. & N. Dec. at 1; Matter of T, 6 I. & N. Dec. at 413-14;
Matter of A, 3 I. & N. Dec. 172-73. For example, in the Matter of T, the BIA issued a nunc pro
tunc order waiving an alien’s perjury as grounds for deportation, despite the fact that the version
of the INA in effect at the time the BIA issued the order did not authorize such a waiver. Matter
of T, 6I. & N. Dec. at 413-14. The BIA reasoned that the version of the INA in effect when the
alien entered the United States authorized a waiver, and thus that the BIA had the authority to
issue a retroactive order granting waiver based on the former version of the INA. Id.
Although the INA does not explicitly confer the power to issue nunc pro tunc orders on the
BIA, the BIA has interpreted the INA to implicitly confer such power. See Matter of L, 1 I.&.N.
at 5-6. In 1940, the BIA concluded that Congress did not intend for immigration laws to operate
in a “capricious and whimsical fashion,” and that Congress therefore must have intended to
allow the Attorney General to have discretion to correct errors through retroactive orders. Id. The
BIA has held that the power to issue nunc pro tunc orders has survived numerous amendments
of the INA, including amendments that restrict the availability of discretionary waivers. See
Matter of T, 6 I.
Page 7
No. 04-3829
Patel, et al. v. Gonzales
Page 7
& N. Dec. at 413-14 (granting a waiver nunc pro tunc where the petitioner was not eligible for
discretionary relief under the current version of the INA due to an amendment to the INA
restricting the availability of waiver); see also In re Po Shing Yeung, 21 I. & N. Dec. 610, 624
(BIA 1997)(Rosenberg, Board Member, concurring in part and dissenting in part). As explained
by the Second Circuit in Edwards,The BIA has, through much of § 212(c)’s history, explicitly
deemed it appropriate to award § 212(c)’s waivers nunc pro tunc. And, despite multiple
amendments and a recodification of the statute, Congress has not expressly countermanded this
long-standing practice. Congressional reenactments, when made in the light of
administrative interpretations of this kind, go a long way to precluding the INS’s
current contention [that the 1996 restrictions on availability of the § 212(c) waiver
evince a congressional intent to preclude nunc pro tunc grants of § 212(c) waivers
based on the pre-1996 version of § 212(c)].
Edwards, 393 F.3d at 309-10 (internal citations omitted).
Although the BIA has the authority to issue nunc pro tunc orders, it only issues such orders
in two situations: (1) where the only ground of deportability or inadmissibility would thereby be
eliminated; and (2) where the alien would receive a grant of adjustment of status in connection
with the grant of any appropriate waivers. In re Felipe Garcia-Linares, 21 I. & N. Dec. 254, 259
(BIA1996); Matter of Roman, 19 I. & N. Dec. 855, 857 (BIA 1988). In its earlier cases, the BIA
also weighed the equities, including how long the Petitioner had resided in the United States and
whether the Petitioner had family living in the United States. Matter of T, 6 I. & N. Dec. at 413-
14; Matter of A, 3 I. & N. Dec. at 171-72.
89
Contrary to Respondent’s assertion, the BIA does not grant nunc pro tunc orders only where
the DHS (formerly the INS) erred causing an alien prejudice. Respondent mistakenly relies on
cases in which federal courts have granted, or ordered the BIA to grant, nunc pro tunc orders,
and not cases in which federal courts have remanded to allow the BIA to determine whether to
grant nunc pro tunc relief. (Resp’t Br. 24 (citing Edwards, 393 F.3d at 310).) In contrast, BIA
case law indicates that the BIA has authority under the INA to issue nunc pro tunc orders even
where there is no clear agency error. Matter of T, 6 I. & N. Dec. at 413-14; Matter of A, 3 I. & N.
Dec. at 171-72; see also Yeung, 21 I. & N. Dec. at 624 (Rosenberg, Board Member, concurring
in part and dissenting in part). Respondent offers no reason or authority suggesting that the
standard appropriate in federal court is also the standard appropriate for the DHS.
The standard employed by federal courts should not be imposed on the BIA and overrule its
longstanding precedent. It makes persuasive sense that the power of the BIA to enter nunc pro
tuncorders is greater than that of federal courts. Unlike the BIA, Congress did not entrust the
federal courts to implement the INA but rather to insure that the DHS and BIA act within their
statutory authority under the INA. Where there is no agency error, this Court has no reason to be
involved in immigration cases. In contrast, the BIA may reasonably determine that a nunc pro
tunc order is necessary to effectively implement the goals of the INA even where the DHS has
not erred.
Therefore, the authority of the BIA to issue a nunc pro tunc order need not be interpreted to be
identical to that of federal courts in immigration cases.
b.
As Applied in This Case
Here, the IJ incorrectly assumed that she did not have the authority to issue a nunc pro tunc
order granting Petitioners a discretionary waiver pursuant to the 1993 version of the INA. The IJ
reasoned that the 1996 amendments to the INA eliminated § 212(i) waivers for parents of United
States citizens, and thereby also eliminated the DHS’s authority to issue nunc pro tunc orders
Page 8
No. 04-3829
Patel, et al. v. Gonzales
Page 8
granting such waivers. Although the IJ’s reasoning has facial appeal, it is unreasonable because it
conflicts with BIA precedent. Rodriguez-Roman, 98 F.3d at 427 (declining to defer to IJ and
BIA
decisions in conflict with BIA precedent). Therefore, this Court will not defer to the IJ’s
interpretation of the INA and will instead follow the long-standing interpretation of the INA
articulated by the BIA. As noted above, the BIA has interpreted amendments to the INA
restricting the availability of discretionary waivers of deportation not to eliminate its authority to
issue nunc pro tunc orders granting such waivers. See Matter of T, 6 I. & N. Dec. at 413; see
also Edwards, 393 F.3d 299. Thus, the DHS has the authority to issue nunc pro tunc orders
granting waivers under the pre-1996 version of the INA even though Congress has eliminated
such waivers. See id.
Nonetheless, this Court will not grant the petition for review. Although the IJ has the
90
authority to issue nunc pro tunc orders granting waiver under the 1993 version of the INA, and
such relief would eliminate the sole grounds for removing Petitioners, Petitioners are not eligible
for such relief. When Petitioners entered the United States in 1993, their son, Sanjay Herat, was
not yet a United States citizen. Consequently, in 1993, Petitioners were not eligible for a
discretionary waiver under the 1993 version of § 212(i). Thus, the IJ does not have the authority
to grant such relief under the 1993 version of § 212(i). See Matter of T, 6 I. & N. Dec. at 413
(granting a discretionary waiver nunc pro tunc to an alien who qualified for the waiver at his
time of entry).
III.
CONCLUSION
For the reasons set forth above, we DENY the petition for review.
vacated, he or she has a right to file a motion to reopen, despite having been removed, if the
conviction was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179
(9th Cir. 1990). But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR §
3.2(d) trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).
JUDICIAL REVIEW – PETITION FOR REVIEW – NUNC PRO TUNC
AUTHORITY
Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. Jun. 4,
2007) (court of appeal's equitable nunc pro tunc authority could
not be used to fix the type of error that occurred when BIA denied
petitioner's initial application for a waiver of removal under
former INA § 212(c) based on an erroneous interpretation of
statute; “the BIA, on the other hand, has a long history of
employing nunc pro tunc to backdate proceedings and orders
where the error was not clerical or where there was no error at
all. . . . The BIA’s use of nunc pro tunc . . . is based on a statutory
commitment of authority to use back-dating measures where the
BIA deems it appropriate.”), compare with Edwards v. INS, 393
F.3d 299, 309-310 (2d Cir. 2004) (extending BIA’s nunc pro tunc
powers to allow appellate court to use nunc pro tunc in
immigration context as well). See also, Fernandes-Pereira v.
Gonzales, 417 F.3d 38 (1st Cir. 2005).
Sinotes-Cruz v. Gonzalez, 468 F.3d 1190 (9th Cir. Nov. 2006) (permanent
stop time rule for cancellation of removal cannot be applied retroactively to
convictions occurring prior to the effective date of IIRAIRA, therefore allowing a
person to apply for cancellation despite a conviction of a crime of moral turpitude
that occurred during the first seven years of physical presence).
finding hardship to be a discretionary issue not subject to judicial review, Jun Min Zhang v.
Gonzales, 457 F.3d 172 (2d Cir.2006), may no longer be binding precedent in this court, in light
of Xiao Ji Chen, 471 F.3d 315, 319 (2d Cir.2006).
authority to use back-dating measures where the BIA deems it appropriate.”), compare with
Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. 2004) (extending BIA’s nunc pro tunc powers
to allow appellate court to use nunc pro tunc in immigration context as well). See also,
Fernandes-Pereira v. Gonzales, 417 F.3d 38 (1st Cir. 2005).
NOTE: The court here engaged in no analysis of Matter of Rafipour, 16 I. & N. Dec.
470 (BIA 1978), or Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), which
specifically prohibit the Government from starting removal proceedings based upon
convictions occurring prior to adjustment when the Government was aware of those
convictions at the time of adjustment and either granted a waiver (Rafipour), or no
waiver was needed since the convictions triggered deportation, but not
inadmissibility (Rainford). The noncitizen in this case had 21 total convictions, and
had been involved in litigating pro se for a number of years at all court levels.
behalf of any alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders against any
alien under this chapter.
While this provision bars courts from reviewing certain exercises of discretion by
the attorney general, it does not proscribe substantive review of the underlying
legal bases for those discretionary decisions and actions. See Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 485 n.9, 119 S. Ct. 936, 944 n.9 (1999)
(“Section 1252(g) was directed against a particular evil: attempts to impose judicial
constraints upon prosecutorial discretion.”); see also Kwai Fun Wong v. United
States, 373 F.3d 952, 964 (9th Cir. 2004) (“[W]e have held that the reference to
‘executing removal orders’ appearing in § 1252(g) should be interpreted narrowly,
and not as referring to the underlying merits of the removal decision.”)
Here, Madu does not challenge the INS’s exercise of discretion. Rather, he brings a
constitutional challenge to his detention and impending removal. See Pet. for Writ of
Habeas Corpus at ¶ 21 (alleging that the “detention and imminent deportation of
Petitioner are denials of his substantive right to due process . . . .”). Accordingly, section
1252(g) does not apply
Third Circuit
person, through no fault of his or her own, was unaware of the voluntary departure
order or was physically unable to depart within the time granted).
In this case, a noncitizen sought to reopen his removal order to apply for cancellation of removal
for permanent residents, cancellation for non-permanent residents, and voluntary departure. The
BIA held that the respondent was ineligible for cancellation for permanent residents because he
was never “lawfully admitted for permanent residence” because he acquired his resident status
through fraud.
If the respondent in this case had been a spouse, parent, son, or daughter of a United States
citizen or lawful permanent resident then he could have filed a waiver under INA section 237(a)
(1)(H), which would have made his admission lawful as of the date he acquired it, and allowed
him to apply for cancellation of removal for permanent residents. See Matter of Sosa-
Hernandez, 20 I&N 758 (BIA 1993) (holding that a noncitizen could file a fraud waiver under
former INA § 241(f), which would make her admission lawful as of the date she acquired it
enabling her to apply for a 212(c) waiver).
An unpublished Board decision does not have a binding effect and does not create a rule of law.
Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1991).
“Decisions which the Board does not designate as precedents are not binding on the Service or the
immigration judges in cases involving the same or similar issues.” Hernandez v. Ashcroft, 345 F.3d
824, 839 n.13 (9th Cir. 2003). “A survey of unpublished BIA decisions shows that they are
treated as limited to their facts. They do not serve as authority for later proceedings involving the
same issues, nor do they make new law.” Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993);
100
cf. Mead, 533 U.S. at 233 (holding that because agency decision binds only the parties and “stops
short of third parties” it lacks lawmaking power). The Board’s unpublished decisions, like this
court’s memorandum dispositions, are “more or less, a letter from the court to parties familiar with
the facts, announcing the result and essential rationale of the court’s decision.” Hart, 266 F.3d at
1178. They lack, by design, the reasoned and considered indicia required to provide guidance on
important questions of law. An unpublished Board opinion is not an authoritative source of the
agency’s interpretation of the law. Under the Chevron doctrine, only authoritative agency
interpretations are afforded deference. Mead, 533 U.S. at 226-27. Accordingly, the unpublished
Board opinions referred to by the court in its February 16, 2006 order do not provide an
interpretation of the statute
http://72.14.205.104/search?q=cache:R0zRwB22HEoJ:ilgrp.com/docs/03-70244%2520Perez
%2520Enriquez%2520Amicus.pdf+Matter+of+Medrano&hl=en&ct=clnk&cd=2&gl=us
Matter of Virk
http://bulk.resource.org/courts.gov/c/F3/295/295.F3d.
1055.01-70055.html
Thus, an alien who, like Virk, obtains permanent resident status through a fraudulent marriage,
but subsequently marries a citizen or lawful permanent resident, can be forgiven the fraud and
maintain lawful permanent resident status through a § 241(f) waiver of deportation
Matter of Manchisi, 12 I. & N. Dec. 132, 137, 1967 WL 13978 (BIA 1967), overruled on other
grounds by Matter of Diniz, 15 I. & N. Dec. 447, 1975 WL 31546 (BIA 1975), rev'd by Matter of
Da Lomba, 16 I. & N. Dec. 616, 1978 WL 36481 (BIA 1978); see also Matter of Da Lomba, 16 I. &
N. Dec. 616, 620, 1978 WL 36481 (BIA 1978) (where alien entered the country with a visa from a
fraudulent marriage, and then entered into a bona fide marriage, the BIA held that "when an
alien is found deportable on the charge arising out of [the fraudulent marriage], section 241(f)
can save him deportation."); Matter of Sosa-Hernandez, 20 I. & N. Dec. 758, 761, 1993 WL
495143 (BIA 1993) (quoting Manchisi, 12 I. & N. Dec. at 137). The BIA has recognized that the
INS has incorporated into its Operations Instructions the policy that "an alien who qualifies as a
nondeportable alien under the authority of section 241(f) `is thereby cleared of the illegality
which attached to the visa and to the entry, and is considered as an alien lawfully admitted for
permanent residence.'" Sosa-Hernandez, 20 I. & N. Dec. at 762(quoting Immigration and
Naturalization Service Operations Instructions 318.5).
before the IJ, applied for a 212(c) waiver and the hearing was continued for
investigation. Then, the LPR departed the United States for a temporary visit
abroad during the course of the pending deportation proceeding in which he had
applied for 212(c), and returned to the United States. The IJ terminated proceedings
and ruled that the 212(c) waiver application had been abandoned. The BIA held that
the IJ erred. The LPR's departure did not interrupt the proceeding, and it could
continue, assuming LPR still was deportable on same grounds. The INS did not need
to start a new proceeding, but could issue another OSC (NTA) or amend if they
chose; and the LPR had not abandoned his application for 212(c).
Thanks to Lory Rosenberg for this information. It should be noted, however, that the
noncitizen might not be admitted (or admissible) to the United States upon return.
See INA § 101(a)(13)(C). On the other hand, this could be a strategy for avoiding
Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005), vacated by Blake v. Carbone, 489
F.3d 88 (2d Cir. 2007). Issues
NATIONAL CLAIM
at his 1998 naturalization interview, he swore allegiance to the United States and signed an oath
declaration form
Matter of Cruz , 15 I. & N. Dec. 236, 237 (BIA 1975). The BIA held that "prima facie
eligibility may be established by an affirmative communication from the Service
[USCIS] or by a declaration of a court that the alien would be eligible for
naturalization but for the pendency of the deportation proceedings. . . ." Id.
(emphasis added).
RELIEF – NATURALIZATION
Okafor v. Gonzales, 456 F.3d 531 (5th Cir. Jul. 18, 2006) (signing oath insufficient to confer
citizenship; it is necessary to participate in public ceremony pledging allegiance to the United
States and renouncing all former allegiances to foreign states and sovereignties).
Circumstances are sufficiently unusual that justice demands his WAIVER
be given retroactive effect.
See, e.g., Apokarina v. Ashcroft, 93 Fed Appx. 469, 471-72, 2004 WL 742286 (3dCir. 2004)
(reversing and remanding district court’s dismissal of petition) (unpublished decision);
Dominguez v.Ashcroft, 2004WL 2632916, at *1 (D. Or. Nov 18, 2004)(reserving decision
pending completion of removal proceeding against petitioner);Saad, 2004 WL 1359165, at **1-2
(considering mer-its of the application, but finding applicant otherwise ineligible for citizen-
ship); Ngwana v. Attorney General ofthe United States, 40 F. Supp.2d 319, 322 (D. Md. 1999)
(holding INA § 318 limits only Attorney General and does not bar judicial review); Gatcliffe v.
Reno, 23 F. Supp.2d 581, 584 (D.VI)
Bellajero
merits of his application for naturalization, a finding of eligibility
for naturalization, and an order granting his naturalization
application or alternatively, a declaration that he is eligible to
naturalize but for the pending removal proceedings.
Bellajaro's remaining argument is that triable issues of fact exist
which preclude summary judgment, but they have to do with
whether he is of good moral character ? not whether the INS
correctly denied his naturalization application on the ground that
removal proceedings are pending.
8 U.S.C. § 1429 states in relevant part that “no person shall be naturalized against
whom there is outstanding a final finding of deportability pursuant to a warrant of arrest
issued under the provision of this or any other Act; and no application for naturalization
shall be considered by the Attorney General if there is pending against the applicant a
removal proceeding pursuant to a warrant of arrest issued under the provisions of this or
any other Act.”
NATIONAL
he signed the affidavit of allegiance to the United States that is part of the citizenship application.
http://www.ailf.org/lac/clearinghouse_brandx.shtml
Affirmative Misconduct
As the Supreme Court has often emphasized, deportation is a drastic measure that may inflict "the equivalent
of banishment or exile," Barber v. Gonzales, 347 U.S. 637, 642-43, 74 S.Ct. 822, 825, 98 L.Ed. 1009; Fong
Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948); Delgadillo v. Carmichael, 332 U.S. 388,
391, 68 S.Ct. 10, 92 L.Ed. 17 (1947), and " result in the loss 'of all that makes life worth living.' " Bridges v.
Wixon,326 U.S. 135, 147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945). When such serious injury may be
caused by INS decisions, its officials must be held to the highest standards in the diligent performance of their
duties. Here, their duty was clear. Unlike the immigrants in Santiago, who had no right to enter the United
States when they did, Yoo had an absolute right to a labor certification under the INS's own regulation. INS
officials, by their affirmative inaction, deprived petitioner of that right without justification. We have stated that "a
person might sustain such a profound and unconscionable injury in reliance on (an official's) action as to
require, in accordance with any sense of justice and fair play, that (he) not be allowed to inflict the injury."
Schuster v. CIR, 312 F.2d 311, 317 (9th Cir. 1962). Justice and fair play can only be achieved in this case by
holding, as we do, that the Government is estopped from denying petitioner the benefit of pre-certification in
seeking an adjustment of his status under 8 U.S.C. § 1255.
By its maneuvers here, the INS has ensnared petitioner in a "Catch-22" predicament; the Service's conduct is
analogous to the entrapment of a criminal defendant and, as such, cannot be countenanced.
Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir.2001) (en banc) (holding negligently provided
misinformation an alien received from an INS officer could not serve as the basis for equitable estoppel,
because the alien must show the INS engaged in "affirmative misconduct," defined as a "deliberate lie" or "a
pattern of false promises")
104
A court of appeals does not have the authority to determine the weight to afford to each factor. Id. This court
will uphold a denial by the BIA unless it was made without a rational explanation, it inexplicably departed from
established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular
race or group. Bal v. Moyer, 883 F.2d 45, 46 (7th Cir.1989).
B) conditional parole.
8 U.S.C. � 1226(a).(13)
The plaintiffs argue that, pursuant to Mathews v. Eldridge, 424 U.S. 319, 334 (1976), due process
requires the INS to provide an LPR with notice of his right to parole within the United States(14) and with
a parole hearing before the Attorney General decides how to exercise her discretion. Congress,
however, has denied the district court jurisdiction to adjudicate deprivations of the plaintiffs' statutory
and constitutional rights to parole.(15)
The plaintiffs respond that the Attorney General's parole authority at issue in this case is found not in 8
U.S.C. � 1226, but instead in 8 U.S.C. � 1225(b)(2)(C). Therefore, they argue, the bar on judicial
review contained in � 1226(e), which applies only to "this section," does not bar this suit. But �
1225(b)(2)(C) only authorizes the Attorney General to return an applicant for admission to Mexico
pending the exclusion proceedings. It is � 1226(a), by contrast, that authorizes her to grant parole
within the United States to an LPR subject to removal proceedings.
Consequently, an alien's LPR status includes elements of liberty and property rights of which he cannot
be deprived without due process of law. For example, the right to seek and engage in employment, to
travel, and to qualify for other benefits and entitlements are attributes or inherent characteristics of
LPR status. Therefore, the government cannot deprive an LPR of these rights or entitlements or
significantly damage them without first affording the LPR due process of law guaranteed by the Fifth
Amendment. For instance, the INS and other government agents may not, without affording an LPR
such due process of law, (1) confiscate his green card without providing him a reasonably adequate
substitute document that will afford him equal access to all attributes of LPR status or (2) deny an LPR
readmission. Of course, an LPR can be investigated, arrested, or prosecuted for a crime just as any
other alien or citizen. But an LPR cannot be deprived of any of the attendant rights of his status
without due process of law, because the Due Process clause of Fifth Amendment does not
acknowledge any distinction between citizens and resident aliens. See Galvan v. Press, 347 U.S. 522
(1954) ("[Because] an alien who legally became part of the American community ... is a 'person,' [he]
has the same protection for his life, liberty and property under the Due Process Clause as is afforded to
a citizen."); Bridges, 326 U.S. at 161 (Murphy, J., concurring) ("None of these provisions acknowledges
any distinction between citizens and resident aliens.").
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?
court=5th&navby=case&no=9940122cv0
105
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?
court=6th&navby=docket&no=04a0149p
ZAYED V US :
I think the court has the power to order the AG to Grant my natz application if the
court found that CIS erred in : 1- reopening the application based on new
derogatory info.Eventhough the NTA has not been filed with the immig court, I was
not technically in removal proceedings yet. According to 8 cfr 1239.1(a)
Saba-Bakare contends that the district court has jurisdiction over this
action and consequently over his request that it declare him prima
facie eligible for naturalization and/or review the USCIS’s determination
that he is not prima facie eligible for naturalization.
107
First Circuit
NOTE: Under the particular facts of this case, it appears that the deportation order
may not have actually been final (see dissent). However, assuming (as the majority
did), that the deportation order was final and therefore the holding of the case does
not apply outside the context of late motions to reopen/reconsider will limit the
reach of this otherwise unfortunate decision.
Second Circuit
Fourth Circuit
conflicts with the statute by restricting the availability of motions to reopen to those
aliens who remain in the United States. Therefore, we conclude that this regulation
lacks authority and is invalid.").
Seventh Circuit
Eighth Circuit
Ninth Circuit
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION
TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted
arbitrarily, irrationally, or contrary to law in denying motion to reopen removal
111
proceedings after conviction had been vacated, even where order vacating
conviction did not specify whether the conviction was vacated on ground of
invalidity or solely for rehabilitative or immigration purposes).
Eleventh Circuit
BIA
motion to reopen, despite having been removed, if the conviction was a “key part”
of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990).
But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d)
trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).
Other
Moral turpitude refers generally to conduct that shocks the public conscience as
being inherently base, vile, or depraved, and contrary to the accepted rules of morality
and the duties owed between persons or to society in general. Moral turpitude has been
defined as an act which is per se morally reprehensible and intrinsically
Wrong, or malum in se, so it is the nature of the act itself and not the statutory
prohibition of it which renders a crime one of moral turpitude. Among the tests to
determine if a crime involves moral turpitude is whether the act is accompanied by a
vicious motive or a corrupt mind.
Summary JUDGMENT
“A district court’s grant of a summary judgment motion is subject to de novo review . . . .
All evidence submitted on the motion is to be construed in the manner most favorable to the
nonmoving party.” Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir. 2004)
(citations omitted). Summary judgment “should be rendered if the pleadings, the discovery and
the disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)
Matter Of Espinosa
This Board has been notified by the Service that the respondent has
departed the United States. We do not know, however, whether that
departure is intended to be temporary or permanent. We held in a recent
precedent decision that an alien’s departure from the United States does
not serve as a constructive withdrawal of an appeal filed by the Service.
114
In 1992, in a Tennessee state court, Sawyers pled guilty to facilitation of a felony or,
more specifically, facilitation of aggravated burglary. He argues that the district
court erred in classifying this as a "violent felony" under the ACCA. We find,
however, that the district court was correct and affirm its holding.
http://www.lexisone.com/lx1/caselaw/freecaselaw?
action=FCLRetrieveCaseDetail&caseID=13&format=FULL&resultHandle=913a1c58
b50ee27990afda5f7e0510ee&pageLimit=10&xmlgTotalCount=18&combinedSearch
Term=facilitation+and+mens+rea+and+intent&juriName=Combined%20Federal
%20Cases&sourceFile=GENFED;COURTS
This case was tried on the theory that, in the course of his dealings with the
cooperating witness, Roy both conspired to and did in fact "conduct[] or attempt to
conduct[] a financial transaction involving property represented to be the proceeds
of specified unlawful activity" -- to wit, marijuana sales involving the cooperating
witness -- "with the intent . . . to promote the carrying on of specified unlawful
activity" -- to wit, future marijuana sales to and by that same witness. 18 U.S.C. §
116
Individual words [*4] usually signify a range of ideas, and we have little trouble
agreeing with Roy that, in some contexts, "promotion" and "facilitation" might
signify different concepts. Moreover, we may grant for the sake of argument that
one sometimes may reasonably be thought to have "facilitated" something without
actually doing anything, whereas "promotion" always (or at least nearly always)
requires affirmative conduct of some sort. But the question here is not whether
"promotion" and "facilitation" are always synonymous; the question is whether, in
the context of the jury instructions, there is a reasonable likelihood that the jury
understood the district court's use of the word "facilitate" to denote something
materially easier for the government to prove than the "promotion" that is required
by the statute. See United States v. DeLuca, 137 F.3d 24, 37 (1st Cir. 1998)
(collecting cases).
Roy says that there is such a reasonable likelihood because the jury instructions
"clearly misled the jury as to the level of involvement required to convict Mr. Roy."
The argument continues:
Had the District Court properly instructed the jury on the meaning of promote, the
verdict likely [*5] would have been different. Mr. Roy's actions may have facilitated
the narcotics activity, but that certainly does not mean he promoted, or intended to
promote, such activity. Unfortunately, based on the District Court's instructions, the
jury believed it was enough to convict Mr. Roy if he merely facilitated the
activity.But Roy's elaboration of his argument incorrectly assumes that the district
court's instruction on promotion or facilitation described the actus reus at which the
statute is directed. It did not. As set forth above, the instruction described the actus
reus prohibited by the statute as the conducting of (or attempted conducting of)
financial transactions involving the proceeds of unlawful activity (here specified to
be marijuana sales). The concepts of "promotion" or "facilitation" came into play
only in describing the mens rea with which one must have engaged in the actus
reus. Thus, contrary to Roy's argument, the jury was not permitted to convict on a
showing that Roy somehow inertly facilitated the narcotics activity. Rather, it was
asked whether Roy had engaged in affirmative conduct while harboring a specified
117
mens rea: "to promote [*6] or facilitate" the carrying on of the specified narcotics-
related activity. Because it is incoherent to say that one engaged in affirmative
conduct with an intent to bring about some consequence by means of one's
facilitative inaction, we think there is no reasonable likelihood that the jury
understood the district court's use of the verb "facilitate" in the jury instructions to
denote conduct-free passivity. And because Roy has not suggested any other
definition of "facilitate" under which the jury was reasonably likely to have
convicted by finding that he engaged in the actus reus with something short of the
promotive intent required by the statute, we reject his challenge to the instructions.
See DeLuca, 137 F.3d at 37.
http://www.lexisone.com/lx1/caselaw/freecaselaw?
action=FCLRetrieveCaseDetail&caseID=1&format=FULL&resultHandle=f3a9a0c963
63367e553dfb31714da7f5&pageLimit=10&xmlgTotalCount=1&combinedSearchTer
m=krs+506.080&juriName=Combined%20Federal
%20Cases&sourceFile=GENFED;COURTS
Jensen argues that because she did not actively participate in the sexual abuse, but
rather only passively allowed it to occur, her conviction for complicity to commit
sexual abuse does not fall within the ambit of offenses which require sex offender
registration. Kentucky courts, however, disagree. In Parks v. Commonwealth,
192 S.W.3d 318, 326 (Ky. 2006), the Kentucky Supreme Court distinguished
complicity liability from liability for an inchoate offense, such as criminal facilitation,
[*10] which carries a reduced penalty because the underlying offense was never
actually committed. See KRS 506.080. The Kentucky Supreme Court explained
that "unlike an inchoate offense, 'KRS 502.020 does not create a new offense
known as complicity.'" Id. at 326 (citing Commonwealth v. Caswell, 614
S.W.2d 253, 254 (Ky. App. 1981)). Rather, as stated earlier by the Kentucky
Supreme Court in Wilson v. Commonwealth, 601 S.W.2d 280, 286 (Ky. 1980),
"one who is found guilty of complicity to a crime occupies the same status as one
being guilty of the principal offense."
www.probono.net/nationalareasearch/attachment.109695
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DETENTION - CONDITIONS
Detention Report: Behind Bars "Between March and July 2006, in response to
123
RELIEF – DETENTION
There’s a new web address for ICE’s Detention Operations Manual (the detention
standards): http://www.ice.gov/partners/dro/opsmanual/index.htm ARIZONA
IMMIGRATION CONSEQUENCES CHART ONLINE Chart:
http://www.ilrc.org/Cal_DIP_Chart_by_section.pdf Notes Accompanying the Chart:
http://firrp.org/documents/arizona%20notes%20revised%202005.doc
provided fraudulent information on his income tax returns for two years, by
underreporting, was not a person of good moral character). Note: The Board has
found that failure to file tax returns is not necessarily a bar to good moral character,
citing Matter of T, 1 I&N Dec. 158 (BIA 1941), Matter of Carbajal, Int. Dec. 2765
(Comm. 1978). Thanks to Susan Compernolle
Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. May 29, 2007) (petitioner was statutorily
ineligible to prove good moral character because he had engaged in alien smuggling).
GOOD MORAL CHARACTER – REGULATIONS
United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. § 316.10(b)(3)(iii),
barring good moral character based on commission of “unlawful acts that adversely reflect upon
the applicant’s moral character, or was convicted or imprisoned for such acts” is not ultra vires to
INA § 101(f); nor is the regulation unconstitutionally vague, as applied to respondent who set
fire to own vehicle with intent to defraud insurance company).
RELIEF – GOOD MORAL CHARACTER – CONVICTIONS OCCURRING OUTSIDE OF
GMC PERIOD CANNOT SERVE AS SOLE BASIS FOR DISCRETIONARY FINDING OF
NO GOOD MORAL CHARACTER
125
Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996) (even a serious conviction or set of
convictions that that occur outside the statutorily mandated period cannot serve as the sole basis
to decline to find good moral character as a matter of discretion).
GOOD MORAL CHARACTER
Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles:
First, the applicant cannot have a conviction on the list enumerated in INA § 101(f), 8 U.S.C. §
1101(f), during the period for which Good Moral Character must be shown, in order to avoid a
complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR §
316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction
listed on INA § 101(f) committed prior to the beginning of the period during which Good Moral
Character must be shown. This second hurdle is not a complete bar to showing Good Moral
Character. The agency must weigh positive factors against negative factors. Torres-Guzman v.
INS, 804 F.2d 531 (9th Cir. 1986).
U.S.C. § 1229b or for adjustment of status under 8 U.S.C. § 1255(i), because they
were based on nondiscretionary grounds).
http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf
JUDICIAL REVIEW – HABEAS – RIPENESS
Edwards v. INS, ___ F.3d ___, 2004 U.S. App. LEXIS 26335 (2d Cir. December 17,
2004) (Unpublished) (petitioner's claims are ripe for judicial review, even though
she will not become eligible for release from criminal custody until 2006, since the
determination of her claims may take that long in any event and may be necessary
to proceed now to avert possibility of mandatory immigration detention pending
litigation of the immigration claims after the criminal custody release date),
The federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, proscribe “any scheme or
artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses,
129
representations, or promises.” (Ibid. [emphasis supplied].) Nowhere do these statutes suggest that
the offense could occur if the defendant intended only to “deprive” someone of money or
property, rather than “obtain” it. Nevertheless, federal courts have often approved jury
instructions that use the word “deprive” instead of “obtain.” For example, the Fifth Circuit’s
pattern jury instructions define “scheme to defraud” in the context of these statutes as “any
scheme to deprive another of money, property, or of the intangible right to honest services by
means of false or fraudulent pretenses, representations, or promises.” Fifth Circuit Criminal Jury
Instructions Nos. 2.59, 2.60. Likewise, while the Ninth Circuit Model Criminal Jury Instructions
use the word “obtain,” the Ninth Circuit Court of Appeals has itself sometimes carelessly used
the word “deprive” in describing the required elements of a mail or wire fraud offense. See, e.g.,
United States v. Thomas, 32 F.3d 418, 419 (9th Cir. 1994) (stating that, in a mail fraud
prosecution, the defendant “must have intended to deprive his victims of money or property”).
The difference between obtaining and depriving is not merely semantic. Consider the case of an
executive at a publicly-traded company accused of making false statements designed to
artificially inflate the price of her company’s stock. The executive in this scenario arguably
intends to deprive any person who purchases the stock at the inflated price of money or property.
But unless the executive also intends to sell her own stock holdings at the inflated prices, she has
not hatched a scheme to obtain money or property from the stock purchasers.
Although §§ 1341 and 1343 use the disjunctive “or” between the phrases “scheme or artifice to
defraud” and “for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises,” the Supreme Court twice has held — based on the history of the
mail and wire fraud statutes and the meaning of the term “defraud” — that those phrases are to
be read together as defining a single offense. Cleveland v. United States, 531 U.S. 12, 25-26
(2000); McNally v. United States, 483 U.S. 350, 358-359 (1987). Thus, a “deprivation is a
necessary but not a sufficient condition” of mail or wire fraud because “only a scheme to obtain
money or other property from the victim by fraud violates” those statutes. United States v.
Walters, 997 F.2d 1219, 1227 (7th Cir. 1993); see also Monterey Plaza Hotel Ltd. P’ship v.
Local 483 of Hotel Employees, Rest. Employees, 215 F.3d 923, 926-27 (9th Cir. 2000) (“The
purpose of the mail and wire fraud proscriptions is to punish wrongful transfers of property from
the victim to the wrongdoer”); United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989) (“after
McNally the elements of mail fraud remain unchanged except that the intent of the scheme must
be to obtain money or property, [and] the Court made it clear that the intent must be to obtain
money or property from the one who is deceived” (emphasis added)); United States v. Baldinger,
838 F.2d 176, 180 (6th Cir. 1988) (Section 1341 “was intended by the Congress only to reach
schemes ‘that have as their goal the transfer of something of economic value to the defendant.’”);
United States v. Alsugair, 256 F. Supp. 2d 306, 312 (D.N.J. 2003) (“[I]n addition to an allegation
that a defendant deprived a victim of money or property, the mail-fraud statute, 18 U.S.C. §
1341, requires an allegation that the defendant obtained money or property as well.”). [For
obvious reasons, this analysis does not apply to fraud charges that allege a scheme to deprive the
victim of “honest services” under 18 U.S.C. § 1346.]
Unless defense counsel watches carefully, the subtle shift from obtain to deprive can deprive a
defendant of the right to have every element of the charged offense proved beyond a reasonable
doubt, permitting the government to obtain a conviction on insufficient evidence in mail and
130
wire fraud cases. Defense counsel should consider moving to dismiss charges that allege only a
scheme to deprive, as opposed obtain, money and property under 18 U.S. C. §§ 1341 and 1343.
Further, counsel should submit instructions that properly define the offense as requiring an intent
to obtain money and property in all mail and wire fraud cases. Finally, counsel should make and
preserve objections to any jury instructions that suggest that an intent to deprive is sufficient for
a mail or wire fraud conviction.
CRIMES OF MORAL TURPITUDE – DEPORTATION FOR SINGLE CMT – NOLO PLEA NOT
SUFFICIENT BY ITSELF TO SHOW OFFENSE “COMMITTED” WITHIN FIVE YEARS OF
ADMISSION
United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) (federal conviction
under 8 U.S.C. § 1253(b) for willful failure to comply with a term of release under
supervision -- which required that he not “commit any crimes” -- is reversed where
misdemeanor nolo contendere convictions were legally insufficient to support his
conviction, because a nolo contendere plea is not an admission of guilt to the
underlying crime, a conviction based on such a plea does not prove that he
"commit[ted] any crimes;" the convictions should not have been admitted under
Federal Rules of Evidence 410, 803(22), or 803(8) for the purpose of proving that he
actually committed the underlying crimes charged).
http://caselaw.lp.findlaw.com/data2/circs/9th/0630011p.pdf
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