Immig Judicial Review Caselaw

1 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 LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App.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 Mar. 7, 2006) (unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117,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

JUDICIAL REVIEW – QUESTIONS OF LAW Chen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition “question of law” for purpose of judicial review is not limited to questions of statutory construction), revising prior opinion, 434 F.3d 144 (2d Cir. 2006). JUDICIAL REVIEW – AFTER DEPORTATION Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf JUDICIAL REVIEW – BIA JURISDICTION TO ORDER REMOVAL Lazo v. Gonzales, __ F.3d __, 2006 WL 2528553 (2d Cir. Sept. 1, 2006) (where IJ found removability, but granted relief, then BIA reverses grant of relief, BIA has jurisdiction to order noncitizen deported without remand to IJ), following Solano-Chicas v. Gonzales, 440 F.3d 1050, 1053-54 (8th Cir.2006); Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1156 (11th Cir.2003); Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006). Disagrees with MolinaCamacho v. Ashcroft, 393 F.3d 937, 940-41 (9th Cir.2004). JUDICIAL REVIEW – ISSUE EXHAUSTION Zhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (“We are persuaded, both on the language of § 1252(d)(1) and on these authorities, that the exhaustion of 'all administrative remedies available to [an] alien as of right' under 8 U.S.C. § 1252(d)(1) does not require - as a statutory matter - that a petitioner for relief from removal raise to the BIA each issue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. §

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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). JUDICIAL REVIEW – RES JUDICATA Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf 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

3 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).

We have held, however, that Congress intended to repeal § 212(c) as of April 1, 1997, and that relief under that section is not available to aliens whose removal proceedings were brought after that date. LaraRuiz, 241 F.3d at 943-44. There are two limited exceptions to this rule, but neither helps Montenegro. First, aliens who pleaded guilty to an aggravated felony before AEDPA’s enactment may apply for § 212(c) relief if they would have been eligible for that relief at the time of their pleas. INS v. St. Cyr, 533 U.S. 289, 326 (2001); Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir. 2000). But this exception does not apply to aliens like Montenegro who chose to go to trial; such aliens did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief. Lara-Ruiz, 241 F.3d at 945; Rankine v. Reno, 319 F.3d 93, 100-02 (2d Cir. 2003) (collecting cases). Second, aliens who conceded deportability before AEDPA’s enactment, with the expectation that they could seek waivers under § 212(c), remain eligible to apply Anselmo, ID#3105 (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 –

HABEAS CORPUS EVEN AFTER REAL ID ACT Okeezie v. Chertoff, __ F.Supp.2d __, 2006 WL 1280962 (W.D. Tex. May 4, 2006) (noncitizen with aggravated felony convictions was denied CAT by BIA on 2/3/05; with passage of REAL ID Act, on 5/11/05, the criminal alien bar to petition for review with the Fifth Circuit was removed, but the petition was automatically untimely; district court held that to apply REAL ID Act denial of habeas corpus jurisdiction in this case would be unconstitutional under INS v. St. Cyr, as noncitizen would have no means to obtain judicial review of removal order

JUDICIAL REVIEW – PETITION FOR REVIEW – VALIDITY OF CHANGE OF AGENCY POSITION When an administrative agency inexplicably departs from past practices, precedents, and/or established procedures, it abuses its discretion. Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) (BIA abused discretion by changing its position without explanation re: § 212(c) tolling period); Gonzalez-Batoun v. INS, 791 F.2d 681 (9th Cir. 1986) (BIA abused discretion when it gave no reason for deviation from past practice); Salehpour v. INS, 761 F.2d 1442 (9th Cir. 1985) (abuse of discretion occurs where agency interpretation is inconsistent with its own regulations); Ke Zhen Zhao v. U. S. DOJ, 265 F.3d 83 (2d Cir. 2000) (an abuse of discretion may be found in those circumstances where the government inexplicably departs from established policies). In Sang Seup Shin v. INS, 750 F.2d 122, 125 (D.C. Cir. 1984), the court noted that although agencies like INS and EOIR do have broad discretion in adjustment cases, they cannot proceed "at whim, shedding [their] grace unevenly from case to case." An agency should explain its departures from settled policies, and it may not unaccountably hold relevant one day considerations it disregarded on another. The INS Operations Instruction 245.5(d) notes that the Service should strive to achieve "more uniform decisions with respect to the exercise of discretion in Section 245 cases." This issue is being adjudicated inconsistently within this District, and inconsistent with INS policy nationwide. JUDICIAL REVIEW – JURISDICTION LIMITATION – QUESTION OF WHAT IJ MAY CONSIDER IN MAKING PSC DETERMINATION IS NOT DISCRETIONARY DECISION Morales v. Gonzales, ___ F.3d ___, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (question of what evidence IJ may consider in making decision whether conviction constitutes PSC is not a discretionary decision, court jdsn under INA 242 (a)2 (d)).

Motion to reopen after removal and illegal reentry is OK LIN v Gonzales.

Murray v. Ashcroft, 321 F. Supp. 2d 385 (D. Conn. 2004), argues that the doctrine of res judicata barred the government from filing additional charges against him following the BIA’s August 6, 2002 opinion

5 Res judicata or claim preclusion bars a subsequent action “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Cromwell v. County of Sac., 94 U.S. 351, 352 (1877); see 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 131.01 (3d ed. 2006). Claim preclusion is sometimes confused with issue preclusion, which bars a subsequent action on an issue that was actually and necessarily determined in the first action. See 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 132.01[1] (3d ed. 2006). ValenciaAlvarez asserts claim preclusion, not issue preclusion, as it is clear that the BIA’s decision did not actually and necessarily determine whether the underlying conviction concerned a controlled substance. 6

JUDICIAL REVIEW – PETITION FOR REVIEW – 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). JUDICIAL REVIEW – STREAMLINING Padilla-Padilla v. Gonzales, ___ F.3d ___, 2006 WL 2614167 (9th Cir. Sept. 13, 2006) (because BIA issued a streamlined order, it was required to affirm the entirety of the IJ's decision, including the length of the voluntary departure period granted). http://caselaw.lp.findlaw.com/data2/circs/9th/0273627p.pdf JUDICIAL REVIEW – MOTION TO REOPEN – BIA NOT BARRED FROM GRANTING MOTION TO REOPEN REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED – REGULATION DOES NOT BAR CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal). JUDICIAL REVIEW – ABUSE OF DISCRETION – ERROR OF LAW United States v. Almazan-Becerra, ___ F.3d ___, ___, 2006 WL 2129724 (9th Cir. August 1, 2006) ("A district court by definition abuses its discretion when it makes an error of law."), quoting Koon v. United States, 518 U.S. 81, 100 (1996). JUDICIAL REVIEW – PETITION FOR REVIEW – WAIVER OF ARGUMENT BY FAILURE TO RAISE IT IN OPENING BRIEF United States v. Almazan-Becerra, ___ F.3d ___, 2006 WL 2129724 (9th Cir. August 1, 2006) ("The government tried to save the enhancement at oral argument by

6 pointing to a statement of the counsel of Almazan-Becerra suggesting that the charged conduct involved sales. This argument is waived, however, both for the government's failure to raise it in its opening brief, see Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (“on appeal, arguments not raised by a party in its opening brief are deemed waived”), and for its failure to raise it before the district court, see Monetary II Ltd. P'ship v. Comm'r, 47 F.3d 342, 347(9th Cir.1995) (“As a general rule, an appellate court will not consider arguments which were not first raised before the district court, absent a showing of exceptional circumstances”) (internal quotations and citation omitted)."). http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf

JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS JURISDICTION UNDER REAL ID ACT TO REVIEW QUESTION OF LAW WHETHER BIA APPLIED PROPER LEGAL STANDARD TO DETERMINE WHETHER CRIME WAS PARTICULARLY SERIOUS Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (Court of appeals has jurisdiction under REAL ID Act to review question of law whether BIA applied proper legal standard to determine whether conviction constituted a "particularly serious crime" for purposes of withholding of removal). JUDICIAL REVIEW – PETITION FOR REVIEW – DUE PROCESS -- BIAS OF IMMIGRATION JUDGE Reyez-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) (bias of immigration judge her from acting as a neutral fact-finder and prevented her from considering and evaluating evidence relevant to establishing extreme hardship

RELIEF – JUDICIAL REVIEW – LACHES DOCTRINE IS INAPPLICABLE AGAINST THE GOVERNMENT Savoury v. U.S. Attorney General, ___ F.3d ___, ___, 2006 WL 1426950 (11th Cir. May 25, 2006) (doctrine of laches is inapplicable against government who admitted respondent as LPR despite knowledge of a controlled substances conviction, and later sought to exclude him when he arrived from a trip abroad: "Neither this Court nor the Supreme Court has ever indicated that laches applies against the government. Instead, the Supreme Court has stated that, "[a]s a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest." Hibi, 414 U.S. at 8, 94 S.Ct. at 21. We have gone even further, holding that laches "cannot be asserted against the United States in its sovereign capacity to enforce a public right or to protect the public interest." United States v. Arrow Transp. Co., 658 F.2d 392, 394 (5th Cir. Unit B 1981).The INS does act in the public interest when it enforces the immigration laws of this country. Hibi, 414 U.S. at 8, 94 S.Ct. at 21. That is what happened in this case: after years of failing to do so, the INS finally enforce

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Koloamatangi, 23 I. & N. Dec. 548d the immigration laws against Savoury. Laches cannot be asserted to prevent it from doing so.").

Matter of Ayala, 22 I. & N. Dec. 398 (BIA 1998), Matter of T-, 6 I.& N. Dec. 136, 137–38 (BIA 1954 Savoury cites the decision in Matter of G-A-, 7 I. & N. Dec. 274 (BIA 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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United States before April 1, 1997, and 2) aliens granted advance parole. However, a plain reading of the regulation clearly shows that both exceptions only exempt these aliens from the definition of “arriving alien” for the purpose of excluding them from expedited removal proceedings under 8 U.S.C. § 1225(b). Accordingly, Delia, as a parolee, was properly deemed an “arriving alien” within the meaning of section 1.1 q

JUD REVIEW applable

1252(a)(2)(D), which states: Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. 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). JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION – EQUITABLE TOLLING – ESTOPPEL – DUE PROCESS DaCosta v. Gonzales, __ F.3d __ (1st Cir. May 24, 2006) (court lacks jurisdiction to review claims where BIA was not presented with opportunity to address legal questions raised for the first time on appeal to the circuit court), citing Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005) (circuit courts lack authority "to consider points not squarely raised before the BIA"). http://laws.lp.findlaw.com/1st/051438.html

9 RELIEF – JUDICIAL REVIEW – NO PETITION FOR REVIEW JURISDICTION TO REVIEW DISCRETIONARY DENIAL THAT DOES NOT PRESENT QUESTIONS OF LAW Elysee v. Gonzales, ___ F.3d ___, 2006 WL 390456 (1st Cir. Feb. 21, 2006) (court of appeals has no petition for review jurisdiction under REAL ID Act to review discretionary denial of cancellation of removal for LPRs, under 8 U.S.C. § 1229b(a), where petition fails to present any constitutional or legal questions JUDICIAL REVIEW – AFTER DEPORTATION Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf

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. ny.us/crimnet/ojsa/cja_00_01/sec3.pdf (last accessed Nov. 15, 2005).

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 FPD Fall Seminar Announcement United States Court of Appeals Second Circuit Review JUDICIAL REVIEW – ISSUE EXHAUSTION Zhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (“We are persuaded, both on the language of § 1252(d)(1) and on these authorities, that the exhaustion of 'all administrative remedies available to [an] alien as of right' under 8 U.S.C. § 1252(d)(1) does not require - as a statutory matter - that a petitioner for relief from removal raise to the BIA each issue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. § 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 – 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

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 JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION OF REMOVAL Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. § 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under 8 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

11 JUDICIAL REVIEW – STREAMLINING – THREE JUDGE PANEL Purveegiin v. Gonzales, __ F.3d __ (3d Cir. Jun. 1, 2006) (court has jurisdiction to review question of whether BIA member responsible for an appeal erred in not referring the appeal to a three-member BIA panel). But see, Guyadin v. Gonzales, __ F.3d __ (2d Cir. May 30, 2006). http://caselaw.lp.findlaw.com/data2/circs/3rd/043797p.pdf

JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS JURISDICTION TO CONSIDER CLAIMS OF ABUSE OF DISCRETION AND VIOLATION OF DUE PROCESS IN DENIAL OF REQUEST FOR CONTINUANCE OF REMOVAL PROCEEDING Khan v. Attorney General, ___ F.3d ___, 2006 WL 1377054 (3d Cir. May 22, 2006) (court of appeals jurisdiction to consider arguments that BIA erred in affirming denial of request for continuance of removal hearing as abuse of discretion and as a violation of due process). JUDICIAL REVIEW – JURISDICTION LIMITATION – NO BAR UNLESS REMOVAL ORDER GROUNDED ON LISTED OFFENSE McAllister v. United States Att’y Gen., __ F.3d __ (3d Cir. Apr. 10, 2006) (for purposes of jurisdictional bar at 8 U.S.C. section 1252(a)(2)(C), a noncitizen is not "removable for reason of having committed [an enumerated] criminal offense" unless the final order of removal is grounded, at least in part, on one of those enumerated offenses). http://caselaw.lp.findlaw.com/data2/circs/3rd/034513p.pdf JUDICIAL REVIEW – PETITION FOR REVIEW – DEFERENCE – QUESTION WHETHER COURT OF APPEALS OWES ANY DEFERENCE TO BIA STREAMLINING RUBBER STAMP APPROVAL OF IMMIGRATION JUDGE DECISION Ng v. Attorney General, ___ F.3d ___, ___ n.4 (3d Cir. Feb. 7, 2006)(open question whether court of appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration Judge's decision: "We have also previously questioned whether a BIA decision is entitled to deference when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. § 1003.1(e) (4). See Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 ["[I]t would seem to be, at the very least, an open question as to whether an IJ's decision affirmed through the streamlining process would be entitled to Chevron deference . . . [D]eferring to the reasoning of an IJ from which the BIA would be free to depart in other cases would seem highly problematic."); cf. Singh, 383 F.3d at 152 ("[T]he BIA, by affirming without opinion, gave no considered and authoritative agency-wide interpretation of the statute . . . .")). http://caselaw.lp.findlaw.com/data2/circs/3rd/044672p.pdf

JUDICIAL REVIEW -- RES JUDICATA EXCEPTION Duvall v. Attorney General, ___ F.3d ___, 2006 WL 278861 (3d Cir. Feb. 7, 2006) (order granting habeas relief from an order of removal is vacated where a litigation error by the INS, resulting in an adverse determination on the issue of alienage

12 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

See Hamdan v. Gonzales, 4 6 25 F.3d 1051, 1059-60 (7th Cir. 2005); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703-04 (6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d RES JUDICATA

(“The doctrines of res judicata and collateral estoppel are applicable to administrative proceedings when an agency is acting in a judicial capacity.”); cf. Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (applying res judicata to administrative proceedings); Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir. 1997) (same); SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1463-64 (2d Cir. 1996) (same). But cf. Title v. INS, 322 F.2d 21, 23-24 (9th Cir. 1963) (rejecting application of doctrine to preclude alien from relitigating issue of membership in communist party, previously resolved in denaturalization proceedings), rejected by Kairys, 981 F.2d at 939-41, and distinguished by Fedorenko, 19 I. & N. Dec. at 62-64 (“[W]e do not violate Congress’ intent if we apply collateral estoppel . JUDICIAL REVIEW – PETITION FOR REVIEW – REAL ID ACT REPEALED ALL JURISDICTIONAL BARS TO PETITION FOR REVIEW OF FINAL REMOVAL ORDERS EXCEPT THOSE REMAINING IN 8 U.S.C. § 1252 Papageorgiou v. Gonzales, __ F.3d __, 2005 WL 1490454 (3d Cir. June 24, 2005) (agreeing with holding of Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2005 U.S. App. LEXIS 9912 (9th Cir. 2005)). JUDICIAL REVIEW – IMMIGRATION JUDGE DECISION CONFLICTED WITH DOCUMENTARY EVIDENCE Zhang v. Gonzales, __ F.3d __ (3d Cir. April 21, 2005) (petition for review granted where Immigration Judge failed to reconcile his decision with the documentary evidence produced by noncitizen respondent). http://caselaw.lp.findlaw.com/data2/circs/3rd/032111p.pdf

JUDICIAL REVIEW – RES JUDICATA Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf

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JUDICIAL REVIEW – GOOD MORAL CHARACTER Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review). CRIME OF MORAL TURPITUDE – IMMIGRATION CONSEQUENCES – JURISDICTION RESTRICTION Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004) (conviction of one crime of moral turpitude precludes court of appeals from exercising petition for review jurisdiction over final removal order).

JUDICIAL REVIEW – RES JUDICATA – COLLATERAL ESTOPPEL United States v. Castillo-Basa, __ F.3d __, 2007 WL 570326 (9th Cir. Feb. 26, 2007) (doctrine of collateral estoppel, applied in the criminal double jeopardy context, prevents government from charging illegal entrant with perjury where during the initial illegal re-entry prosecution, the government could not find the taped record of the deportation hearing, but later finds the tape after acquittal; “The Double Jeopardy Clause does not only bar a second prosecution on the same charge of which a defendant has been previously acquitted (or convicted). It also prevents the government from seeking to prosecute a defendant on an issue that has been determined in the defendant's favor in a prior prosecution, regardless of the particular offense involved in the earlier trial.”). 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. ILLEGAL REMOVAL OF UNITED STATES CITIZENS Occasionally, persons are placed in removal proceedings, and even removed, even though they are United States citizens. E.g., Diaz v. Reno, 40 F.Supp. 2d 984 (N.D. Ill.1999) (U.S. citizen who had been ordered summarily excluded from the United States mounts several claims related to summary exclusion after returning to the United States) http://209.85.165.104/search? q=cache:O5C0f5l5kxsJ:www.law.nyu.edu/alumni/laa/lecture/documents/diazbivensclaim.pdf+Diaz+v.+Reno&hl=en&ct=clnk&cd=1&gl=us ; Fierro v. INS, 66 F. Supp. 2d 229 (D. Mass. 1999) (court enjoins removal of individual pend-ing resolution of claim to United States citizenship). JRAD:

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The core notion, in Massachusetts as in many other jurisdictions, is that a nunc pro tunc order is appropriate primarily to correct the record at a later date to make the record reflect what the court or other body actually intended to do at an earlier date but did not sufficiently express or did not get around to doing through some error or inadvertence. Thus, a clerical mistake in a judgment might be corrected nunc pro tunc when discovered later or a franchise sought as of October 1 might be backdated to that date where the application was timely made Perkins v. Perkins, 114 N.E. 713, 713-14 (Mass. 1917). However, it is clear that there are limits on the court's authority to make retroactive revisions to prior orders. In Perkins itself, the court said that "a defect in a judgment, order or decree which expressed exactly the intention of the court at the time when it was made cannot be remedied by a nunc pro tunc entry." Id. at 714.(1)

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 RELIEF – NON LPR CANCELLATION Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review

RELIEF – NON-LPR CANCELLATION OF REMOVAL – JUDICIAL REVIEW Lopez v. Gonzales, ___ F.3d ___ (7th Cir. Oct. 26, 2005) (while calculation of continuous residence is a statutory issue over which the court has jurisdiction, whether the respondent lacks good moral character is a discretionary issue, over which the court lacks jurisdiction). http://caselaw.lp.findlaw.com/data2/circs/7th/042959p.pdf

First Circuit RELIEF – WAIVERS – 212(H) RELIEF – CANCELLATION – STOP-TIME RULE Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an immigrant “previously . . . admitted . . . as an alien lawfully

15 admitted for permanent residence,” even though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore was “bound,” by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for purposes of cancellation of removal under INA § 240A(a), the phrase “lawfully admitted for permanent residence” to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala because of § 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v. Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html RELIEF – CANCELLATION – STOP TIME RULE IMPERMISSIBLY RETORACTIVE Mulholland v. Ashcroft, __ F.Supp.3d __ (E.D.N.Y. Oct. 25, 2004) (IIRAIRA Stop-Time rule cannot be applied to bar cancellation of removal based upon pre-IIRAIRA conviction of a crime involving moral turpitude). RELIEF – 212(c) – CANCELLATION – STOP-TIME RULE IS NOT TRIGGERED RETROACTIVELY BY A CONVICTION THAT PRECEDED ITS ENACTMENT Gonzalez-Garcia v. Gonzales, ___ F.3d ___, 2005 WL 3047411 (5th Cir. Nov. 16, 2005) (convictions that pre-date the April 1, 1997 effective date of 8 U.S.C. § 1229b(d)(1) [cancellation stop-time rule] do not stop the clock for purposes of cancellation of removal [or former INA § 212(c)]). http://caselaw.lp.findlaw.com/data2/circs/5th/0460385cv0p.pdf NOTE: This is a very strange decision, in that it assumes that the stop-time rule for cancellation of removal applies to applications for relief under former INA § 212(c), and seems to state that cancellation of removal is barred to any LPR convicted of a crime of moral turpitude DETENTION – BOND HEARING FOR "ARRIVING ALIENS" RETURNING ON ADVANCE PAROLE Shahwan v. Certoff, ___ F.Supp.2d ___, 2005 WL 3369991 (N.D. Cal. Dec. 12, 2005) (immigration authorities cannot deny bond hearing under 8 C.F.R. § 1003.19(h)(2)(i) (B) [no bond hearing for "arriving aliens"], to noncitizen granted "advance parole" pending adjustment of status where the noncitizen was not properly notified that accepting advance parole would result in denial of bond without possibility of hearing).

DETENTION – MANDATORY – HABEAS CHALLENGE TO OVERLONG DETENTION If the government stayed the IJ’s bond order based on 8 CFR § 1003.19(i)(2), the "automatic stay" regulation, and has not obtained an "emergency stay" from the BIA, under 8 CFR § 1003.19(i)(1)), then counsel may be able to follow a successful habeas in the Ninth Circuit. See Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. March 1, 2004).

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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-ofentry, 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. DETENTION – MANDATORY DETENTION – INAPPLICABLE TO ARRIVING ALIENS INA § 236 applies only to those who have been "arrested on a warrant" issued by the AG (or DHS). See INA § 236(a). Arriving aliens are only "detained" under INA § 235. They are not "arrested on a warrant." Therefore, INA § 236(c) does not apply to arriving aliens. Thanks to Lisa Brodyaga. If a noncitizen is held past the 48 hours, or is held on the basis of an illegal "investigatory" hold, s/he can sue the custodial facility for false imprisonment. 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(b) lists officers able to issue a detainer. 8 C.F.R. § 287.7(b)(8) includes any other immigration officer needing authority to issue a detainer under INA § 287(d)(3), who is given the authority to issue a detainer. This seems to imply that the statutory authority for a detainer flows from INA § 287(d), which is limited to noncitizens arrested for controlled substance violations. 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

17 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). JUDICIAL REVIEW – AFTER DEPORTATION Spina v. Department of Homeland Sec., 470 F.3d 116 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf

Obioha v. Gonzales, 431 F.3d 400, 408 (4th Cir. 2005). The Board abuses its discretion when it "fails to offer a reasoned explanation for its decision, distorts or disregards important aspects of the alien’s claim." Malhi v. INS, 336 F.3d 989, 993 JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION OF REMOVAL Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. § 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under 8 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 NATURALIZATION – U.S. "NATIONAL" Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (registering with the Selective Service, taking oath of allegiance, and applying for derivative citizenship, without a grant of such application, is insufficient to confer "national" status).

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,

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1163 (9th Cir. 2000) (quoting Woodby v. INS, 385 U.S. 276, 277 (1966)); see also LopezUrenda 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 PARTICULARLY SERIOUS CRIME Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (IJ erred in relying on facts in a Washington appellate court's opinion to determine whether petitioner's prior conviction was for a particularly serious crime, but a large portion of the facts relied upon applied to offenses for which she was not convicted). http://caselaw.lp.findlaw.com/data2/circs/9th/0570672p.pdf RECORD OF CONVICTION – PARTICULARLY SERIOUS CRIME – LIMITED TO RECORD OF CONVICTION Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (“only the record of conviction and sentencing information may be considered in determining whether Morales's conviction was for a particularly serious crime."), citing In re L-S-, 22 I. & N. Dec. 645, 651 (BIA 1999). RELIEF – 212(C) RELIEF – DATE OF PLEA

DETERMINES WHETHER IIRAIRA REPEAL OF 212(C) RELIEF BARS RELIEF Alvarez-Hernandez v. Acosta, ___ F.3d ___, ___ n.19, 2005 WL 375683 (5th Cir. February 17, 2005) ("We find that the date of a plea of guilty, and not the date that judgment of conviction is ultimately entered, is determinative of whether the retroactive application of the IIRIRA bar to an alien’s claim for § 212(c) relief is impermissible under St. Cyr. Accordingly, because he pleaded guilty before the effective date of the IIRIRA, Alvarez is not precluded from seeking § 212(c) relief."). RELIEF – 212(C) RELIEF – RELIANCE INTERESTS Alvarez-Hernandez v. Acosta, ___ F.3d ___, ___ n.19, 2005 WL 375683 (5th Cir. February 17, 2005) ("Our court has recognized the importance placed by the Supreme Court upon protecting the reliance interests of aliens who, prior to the IIRIRA, had waived their trial rights and entered guilty pleas in exchange for an opportunity to apply for § 212(c) relief. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 301 (5th Cir. 2002) (‘The [St. Cyr] Court found that aliens, like St. Cyr,

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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. RELIEF – 212(C) RELIEF – JURY TRIAL BAR Carranza-de Salinas v. Gonzales, 477 F.3d 200 (5th Cir. Jan. 23, 2007) (noncitizen convicted after jury trial is eligible for relief under former INA § 212(c), if the noncitizen can affirmatively establish actual, subjective reliance, i.e., that s/he waited to apply for 212(c) defensively, before an IJ, rather than file affirmatively

21 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).

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) – LEAVING UNITED STATES WHILE 212(c) PENDING A noncitizen LPR who leaves the United States during removal proceedings does not abandon a request for INA § 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988), LPR respondent was convicted of possession of marijuana, proceedings commenced and LPR conceded deportability as charged in a hearing 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) issues. RELIEF – 212(C) RELIEF – GETTING AROUND MATTER OF BLAKE Matter of G-A-, 7 I. & N. Dec. 274 (BIA 1956) (noncitizen in deportation proceedings allowed to apply for INA § 212(c) relief where noncitizen had traveled out of the United States after conviction but before the deportation proceedings, on the theory that the INS should not have admitted the person after the conviction without a 212(c) waiver and that an IJ can grant the 212(c) waiver nunc pro tunc to the prior post-conviction/pre-deportation proceedings entry). See also, Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971). RELIEF – WAIVERS – 212(H) RELIEF – CANCELLATION – STOP-TIME RULE Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006)

22 (respondent was an immigrant “previously . . . admitted . . . as an alien lawfully admitted for permanent residence,” even though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore was “bound,” by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for purposes of cancellation of removal under INA § 240A(a), the phrase “lawfully admitted for permanent residence” to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala because of § 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v. Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html 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.

An intent to deceive is not the same as an intent to defraud. In United States v. Regent Office Supply Co., Inc.,88 the Second Circuit Court of Appeals held that "an intent to deceive, and even to induce, may have been shown; but this does not, without more, constitute the 'fraudulent intent' required by the statute."89 Recently, a district court in Missouri, in a bank fraud case, noted that an intent to deceive customers was not the same as an intent to defraud them.90

23 POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY – RETURN TO PRE-ERROR STAGE OF PROCEEDINGS Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding). http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf POST-CONVICTION – NUNC PRO TUNC ORDER EFFECTIVE Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas court’s nunc pro tunc correction of internally inconsistent criminal judgment was a proper use of nunc pro tunc under Kansas law; as a correction of record made to properly reflect the original judgement, the nunc pro tunc judgment was properly considered by the BIA, and such consideration does not contradict RenteriaGonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) rule that vacated conviction remains a conviction for immigration purposes).

Second Circuit CRIMES OF MORAL TURPITUDE – JUDICIAL RECOMMENDATION AGAINST DEPORTATION – REMEDY FOR IAC AT SENTENCE REQUIRES PLACING DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT OCCURRED, INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED PERIOD Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled). In determining whether nunc pro tun relief could be applied in this case, the court looked at the following issues: 1. Statutory bar: "A court may not award equitable relief in contravention of the expressed intent of Congress. See INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA had granted nunc pro tunc relief in the past, and noted that Congress never amended INA § 212(c) to bar such grants. Id. 2. When nunc pro tunc relief should be afforded: The court stated generally that "where an agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68." Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration context, the court found that nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was erroneously denied the opportunity to apply the relief due to an error on the part of the agency, and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated that the noncitizen, outside an illegal reentry context, did not need to show that a denial of the relief would result in a denial of due process. 3. What error may nunc pro tunc relief be used

24

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 [the statutory provision] is applicable, e.g., whether the petitioner is in fact an alien, whether he has in fact been convicted, and whether his offense is one that is within the scope of [one of the enumerated sections].” Sepulveda, 407 F.3d at 63 (citing Santos-Salazar v. U.S. Dep’t of Justice, 400 F.3d 99, 104 (2d Cir. 2005)). The determination at issue here is precisely such a determination: whether under the applicable statutory language as interpreted by the BIA, Pinho was “convicted” so as to render him ineligible for adjustment of status. This is a legal question, not one committed to agency discretion. The agency action at issue here was final and nondiscretionary, it adversely affected Pinho, and it has not been

25

made non-reviewable by statute. Under the APA, therefore, Pinho is “entitled to judicial review” of the AAO’s decision.13 Because the District Court had jurisdiction to review the AAO decision, we have jurisdiction over this appeal under 28 U.S.C § 1291. We exercise plenary review of the District Court’s statutory interpretation, but afford deference to a reasonable interpretation adopted by the agency. See Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003). It is the agency’s burden, however, to establish the facts supporting inadmissibility “by clear, unequivocal and convincing evidence.” See Sandoval v. INS, 240 F.3d 577, 581 (7th Cir POST CON RELIEF – TEXAS DISTRICT COURTS DISTINGUISH RENTERIA Toledo-Hernandez v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tx.) (Renteria-Gonzalez, 322 F.3d 804 (5th Cir. 2003), inapplicable to convictions vacated on constitutional grounds); Hernandez-Arguello v. Winfrey, No. SA-03-CA-0823-RF (W.D. Tx. 2004) (Same). POST CONVICTION RELIEF – ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST CONVICTION PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlyin 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 CONVICTION RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA – STANDARD OF REVIEW -- ABUSE OF DISCRETION – ERROR OF LAW United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 (9th Cir. July 15, 2004) ("This Court reviews a district court's denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001) (en banc). A district court abuses its discretion when it makes an error of law. See id.; see also Koon v. United States, 518 U.S. 81, 100 (1996) ("A district court by definition abuses its discretion when it makes an error of law.")). 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).").

HABEAS CORPUS - FEDERAL - EXHAUSTION Baldwin v. Reese, 124 S.Ct. 1347 (March 2, 2004) (ineffective assistance of counsel claim not "fairly presented" where petitioner did not complain that ineffective assistance violated federal law; state supreme courts not required to read lower appellate opinions before deciding whether to grant a hearing, courts should be able to rely exclusively on briefs to alert them to issues). Use Note: The Court gave some guidance on presenting issues of federal law in state courts: "A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'" From this statement, it appears that the Court is indicating that a defendant can "federalize" an issue simply by making any reference to "federal law." POST CON – TENNESSEE – CORAM NOBIS State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A writ of error coram nobis lies "for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial." T.C.A. § 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995

CONVICTION – FINALITY OF CONVICTION – FIFTH AND SEVENTH CIRCUITS DO NOT FOLLOW GENERAL RULE In most circuits, convictions in criminal cases are not considered sufficiently final to permit the initiation of deportation proceedings if an appeal is pending or they are still subject to appeal. Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh Circuits. See Moosa v. INS,171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004). HABEAS CORPUS - FEDERAL - NO EXHAUSTION Galvan v. Alaska Department of Corrections, 397 F.3d 1198 (9th Cir. Feb. 9th 2005)

27 (petitioner failed to fairly present federal ineffective assistance of counsel claim before highest state court when her petition to the Alaska Supreme Court made only passing mention (in distinguishing a state case) of the Sixth Amendment and of federal cases; "Briefing a case is not like writing a poem, where the message may be conveyed entirely through allusions and connotations. Poets may use ambiguity, but lawyers use clarity. If a party wants a state court to decide whether she was deprived of a federal constitutional right, she has to say so."). http://caselaw.lp.findlaw.com/data2/circs/9th/0335083p.pdf

POST CON RELIEF – FEDERAL – SUCCESSIVE HABEAS Hamilton v. Newland, 374 F.3d 822 (9th Cir. July 01, 2004) (district court erred in treating defendant’s motion as successive habeas petition rather than FRCP 60(b) (6) motion). http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA CLAIM NOT BARRED BY FAILURE TO RAISE ON DIRECT APPEAL 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

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 POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS – TOLLING – FILING OF STATE POST CONVICTION RELIEF PETITION

28 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

After unsuccessfully attempting to withdraw his plea in state court, Mr. Broomes sought habeas relief from the federal courts pursuant to 28 U.S.C. 2241, arguing his state court conviction was obtained in violation of his Sixth Amendment right to effective assistance of counsel. The magistrate judge issued an order indicating Mr. Broomes must file a petition under 28 U.S.C. 2254 to challenge a state court conviction. Mr. Broomes thereafter raised the same claim under 2254.(2) Based on a magistrate judge's recommendation and over Mr. Broomes' objection, the district court denied the petition because this circuit had previously rejected a similar argument in Varela v. Kaiser, 976 F.2d 1357 (10th Cir. 1992).

POST CON RELIEF – HABEAS – MOOTNESS AFTER DEPORTATION – DISQUALIFICATION FROM NATURALIZATION CONSTITUTES CONTINUING DAMAGE SUFFICIENT TO PREVENT MOOTNESS EVEN AFTER DEPORTATION State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (as a likely collateral consequence of the conviction, the noncitizen's ability to petition for naturalization is gravely impaired, so the issue is not moot and subject matter jurisdiction is not a bar to the defendant's present appeal from denial of a motion to withdraw the plea). POST CONVICTION RELIEF – HABEAS – IMMIGRATION – DEPORTATION DOES NOT MOOT HABEAS The fact that a noncitizen has been deported does not moot his habeas petition. His future ineligibility for readmission to the United States preserves his Article III standing. See Shittu v. Elwood, 204 F. Supp. 2d 876, 878 (E.D. Pa. 2002); Johnson v. Department of Justice, (Not Reported in F.Supp.2d), 2004 WL 1240695 (E.D. Pa. June 3, 2004). VEHICLE – FEDERAL – HABEAS – MOOTNESS Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of noncitizen while appeal of district court dismissal of habeas petition was pending in court of appeal did not deprive district court of habeas jurisdiction on remand, and case was not moot, but district court lacked authority to grant any relief beyond vacating defective deportation order.

29 POST CON RELIEF – HABEAS CORPUS – FEDERAL – REMAND FOR EVIDENTIARY HEARING Earp v. Ornoski, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (claim of ineffective assistance for failure to investigate mitigating circumstances merited evidentiary hearing).

POST CON RELIEF – HABEAS – FEDERAL – REVIEW OF STATE CONVICTION PRECLUDED SINCE STATE PETITION REJECTED BY STATE COURT AS UNTIMELY IS NOT PROPERLY FILED UNDER 28 U.S.C. § 2244(d)(2), AND THEREFORE DOES NOT TOLL THE 1-YEAR AEDPA STATUTE OF LIMITATIONS FOR FILING A FEDERAL HABEAS CORPUS PETITION Pace v. DiGuglielmo, ___ U.S. ___, 2005 WL 957194 (April 27, 2005) (federal habeas review of state conviction precluded since state petition rejected by state court as untimely is not properly filed under 28 U.S.C. § 2244(d)(2), and therefore does not toll the 1-year AEDPA statute of limitations for filing a federal habeas corpus petition). http://laws.findlaw.com/us/000/03-9627.html HABEAS CORPUS -- FEDERAL -- INSUFFICIENT FEDERALIZATION Castillo v. McFadden, 370 F.3d 882 (9th Cir. June 1, 2004) (defendant must give state notice that he is bringing federal constitutional claims by referring in appellate briefs to specific provisions of the federal constitution or citing to federal law; raising federal arguments in trial motions insufficient). See Baldwin v. Reese, 125 S.Ct. 1347, 1350 (2004). The court stated that the concluding sentence that stated petitioner's rights under the Fifth, Sixth and Fourteenth Amendments were violated was a "conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory, was the first time Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note thoughtful and powerful dissent by Judge Hawkins, pointing out that petitioner did cite federal cases in his argument court erred in treating defendant’s motion as successive habeas petition rather than FRCP 60(b)(6) motion). http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf

POST CON RELIEF – FEDERAL -- CORAM NOBIS – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (affirmative misadvice by defense counsel concerning immigration consequences of disposition of criminal case constitutes ineffective assistance of counsel where counsel said deportation was not a serious possibility, and in fact it became a near certainty.

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POST CON RELIEF – FEDERAL -- CORAM NOBIS – STATUTE OF LIMITATIONS – AEDPA STATUTE OF LIMITATIONS FOR 2255 RELIEF DID NOT APPLY TO CORAM NOBIS United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (one-year AEDPA statute of limitations for filing a motion to vacate a judgment under 28 U.S.C. § 2255 did not apply to the filing of a petition for a writ of error coram nobis after custody had expired in the federal criminal case).

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' DRAKES V ZIMINSKY (DRAKES 249) 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 - GROUNDS - IAC - REMEDY Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir. Jan. 30, 2004) (UNPUBLISHED) (BIA violated due process by waiting six years, until after law had changed to respondent’s detriment, to review Immigration Judge’s originally erroneous finding that expunged misdemeanor weapons conviction constituted conviction for immigration purposes). The BIA must generally apply the law in place at the time the BIA conducts its review. Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999). However, that rule is not absolute where the error effectively denied the noncitizen a meaningful hearing under the law existing when the hearing was held. See, e.g., Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (BIA's failure to correct IJ's error was defect requiring application of law in effect at time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural defect resulting in the loss of an opportunity for statutory relief requires remand for a hearing under former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th Cir. 2000) (ineffective assistance of counsel before IJ required remand for application of law existing at the time of original hearing). Where the BIA’s failure to timely remedy an IJ's error denies respondent the benefit of the law in effect at the time of the original hearing, the only meaningful remedy is to give the respondent a hearing under the law that would have applied, had the BIA not delayed his appeal. Guadalupe-Cruz, 240 F.3d at 1212. POST CON – NEW MEXICO CASE CITATION State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's attorney has "an affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status."). POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS – RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.") 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

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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 CON RELIEF – GROUNDS – COUNSEL – PLEA BARGAINING IS A CRITICAL STAGE Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (negotiations with the government are a "critical stage" of a prosecution for Sixth Amendment purposes.

2. Misadvice vs. Failure to Advise POST CON RELIEF – PLEA – NO CONTEST – MOTION TO WITHDRAW – USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA § 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v.

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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

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Appeal accordingly found that the plea was involuntary. Id. at 1401. for the suggestion for this argument.

Thanks to Don Chairez

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). POST CON – GROUNDS – INEFFECTIVE ASSISTANCE – IMMIGRATION CONSEQUENCES Rosa v. State of Texas, __ S.W.2d __ (Tex Crim. App. Aug. 25, 2005) (ineffective assistance of counsel for affirmatively misadvising noncitizen defendant of immigration consequences of conviction INEFFECTIVE ASSISTANCE OF COUNSEL -- FALURE TO ADVISE - OREGON Lyons v. Pearce, 298 Or. 554 (1985) (defense counsel has duty to advise defendant of possibility of deportation United States v. Couto, 311 F.3d 179, 187 (2nd Cir. 2002). POST CON RELIEF - NEW YORK - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES - AFFIRMATIVE MISADVICE - DEFENDANT’S STATEMENT HE WOULD NOT HAVE PLEADED GUILTY IF CORRECTLY ADVISED SUFFICIENT TO REQUIRE A HEARING People v. McKenzie, ___ N.E.3d ___, 2004 N.Y. App. Div. LEXIS 1329 (N.Y. Feb. 9, 2004) (allegation that defendant would not have pleaded guilty if properly advised, sufficient to require hearing on claim of ineffective assistance based on affirmative misadvice concerning immigration consequences).

did not have a clear understanding of the likelihood that by entering into the plea bargain proposed, he would be jeopardizing his continuing ability to reside in the United States

35 and his ability to petition for naturalization. Even if we presume that there was a deficiency in counsel’s representation, the defendant has not established the requisite prejudice. In cases in which the conviction has resulted from a guilty plea, a defendant must ‘‘demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial.’’ Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d

2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; ‘‘(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered; ‘‘(4) The plea resulted from the denial of effective assistance of counsel; ‘‘(5) There was no factual basis for the plea

The rationale underlying that precept was succinctly stated in State v. Ginebra, 511 So. 2d 960, 961–62 (Fla. 1987): ‘‘The focus of whether counsel provided constitutionally effective assistance in the context of a [guilty] plea is whether counsel provided his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution’s offer and going to trial. . Our conclusion today is in agreement with the majority of jurisdictions, both federal and state, that have considered the issue of whether the failure to advise a client of the immigration consequences of a guilty plea constitutes ineffective assistance of counsel. See id., 25; United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1869, 123 L. Ed. 2d 489 (1993); United States v. Del Rosario, 902 F.2d 55, 58–59 (D.C. Cir.), cert. denied, 498 U.S. 942, 111 S. Ct. 352, 112 L. Ed. 2d 316 (1990); Santos v. Kolb, 880 F.2d 941, 944–45 (7th Cir. 1989), cert. denied, 493

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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. Frometa, 520 Pa. 552, 556, 555 A.2d 92 (1989); State v. Figueroa, 639 A.2d 495, 501 (R.I. 1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah App. 1994), cert. denied, 892 P.2d 13 (Utah 1995); State v. Holley, 75 Wash. App. 191, 198, 876 P.2d 973 (1994), on appeal after remand, 86 Wash. App. 1100 (1997), review denied, 133 Wash. 2d 1032, 950 P.2d 476 (1998); State v. Santos, 136 Wis. 2d 528, 532, 401 N.W.2d 856 (Wis. App. 1987

37 GROUNDS – INVALID PLEA – FOR UNPRESERVED RULE 11 ERRORS, DEFENDANT MUST SHOW HE WOULD NOT HAVE PLEADED GUILTY United States v. Benitez, 124 S.Ct. 2333 (June 14, 2004) (to vacate plea on grounds of F.R.Crim.P. 11 errors [as distinguished from "structural errors" or fundamental constitutional errors under Boykin v. Alabama, to vacate the plea], and no objection was raised in trial court, defendant must establish reasonable probability that but for error, he would not have pleaded guilty). http://laws.lp.findlaw.com/us/000/03167.html

INVOLUNTARY PLEA CLAIM BASED ON MISINFORMATION CONCERNING IMMIGRATION CONSEQUENCES NOT BARRED 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). GUILTY PLEAS - FEDERAL - REFUSAL TO ACCEPT In re Vasquez-Ramirez, 443 F.3d 692 (9th Cir. Apr. 6, 2006) (district judge may not reject a guilty plea that satisfies all requirements of FRCP 11(b); but may refuse to abide by plea agreement between defendant and the government; if plea agreement is rejected, judge must allow defendant to withdraw the plea; if defendant maintains the plea the court "‘may dispose of the case less favorably toward the defendant than the plea agreement contemplated.’ Fed. R. Crim. P. 11(c)(5)(C) . . . ."). POST CON RELIEF – FEDERAL – GROUNDS – INVALID PLEA – PREJUDICE STANDARD SAME AS FOR IAC United States v. Monzon, 429 F.3d 1268 (9th Cir. Dec. 7, 2005) (conviction and sentence for possession of a firearm in furtherance of a drug trafficking crime reversed where the court committed plain error when it accepted guilty plea in violation of Federal Rule of Criminal Procedure 11, because court failed to establish a factual basis for believing that the defendant possessed the firearm at least partly for the purpose of protecting the drugs, where the defendant factually denied that intent during the plea colloquy, and the error affected defendant’s substantial rights, defined as a reasonable probability of a different outcome sufficient to undermine confidence in the outcome). http://caselaw.lp.findlaw.com/data2/circs/9th/0330497p.pdf

POST CON – NUNC PRO TUNC ORDERS

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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

MOTION TO REOPEN – AFTER REMOVAL 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. AILF Legal Action Center, Litigation Clearinghouse Litigation Clearinghouse Newsletters are posted on AILF’s web page at www.ailf.org/lac/litclearinghouse.shtml.

POST-CON – MOTION TO REOPEN – SUA SPONTE

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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.”)

POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF 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

POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF 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

REMOVAL PROCEEDINGS – RES JUDICATA – INS MAY NOT REMAND TO LODGE ADDITIONAL CHARGES 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).

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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

POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR 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).

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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).

POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POST-CONVICTION ATTACK 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).

Other

POST-CONVICTION RELIEF – AFTER CONVICTION VACATED New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml. MOTION TO REOPEN – 180 DAY DEALINE SUBJECT TO EQUITABLE TOLLING

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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) POST-CON – EFFECTIVE VACATUR – AFTER CONVICTION 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

Seventh Circuit

MOTION TO REOPEN – SUA SPONTE 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

10.24 2. Court of Appeals Jurisdiction to Order the Noncitizen to be Readmitted After Conviction Has Been Vacated

Ninth Circuit

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MOTION TO REOPEN/RECONSIDER – AFTER DEPORTATION 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). DEPORTATION – COLLATERAL ATTACK – PROSECUTORIAL MISCONDUCT – FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR RELIEF – IMMIGRATION AGENCY MUST FOLLOW OWN PROCEDURES – ESTOPPEL Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976) (the INS was estopped from deporting the petitioner because the INS had failed to give a warning that it was required to give by its own regulations); see Scime v. Bowen, 822 F.2d 7, 9 (2d Cir. 1987) (noting that opinion in Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied, 431 U.S. 937 (1977), confined the holding of Corniel-Rodriguez to its facts, "particularly the immigration official's failure to provide petitioner with a warning mandated by federal regulation."); but see: INS v. Miranda, 459 U.S. 14, 18-19 (1982) (unexplained delay in processing does not give rise to estoppel).

ILLEGAL REENTRY – ELEMENTS – DEPORTATION – COLLATERAL ATTACK – PROSECUTORIAL MISCONDUCT – FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR RELIEF – IMMIGRATION AGENCY MUST FOLLOW OWN PROCEDURES Matter of Garcia-Flores, 17 I. & N. Dec. 325 (BIA 1980) ("Where ‘the rights of individuals are affected, it is

44

incumbent upon agencies to follow their own procedures, even where the internal procedures are possibly more rigorous than otherwise would be required.’; Morton v. Ruiz, 415 U.S 199, 235 (1974)."). See also United States v. Caceres, 440 U.S. 741 (1979); Bridges v. Wixon, 326 U.S 135, 152-153 (1945).

Some federal courts have found "affirmative misconduct" and applied estoppel against the Government. Fano v. O'Neill, 806 F.2d 1262 (5th Cir. 1987); Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976).

1. Equitable estoppel against the government [9] The government in immigration cases may be subject to equitable estoppel if it has engaged in affirmative misconduct. See Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir. 1986) (outlining elements of equitable estoppel claim against the government); Santiago v. INS, 526 F.2d 488, 492 (9th Cir. 1975) (en banc) (holding in the immigration context that the court continues “to believe that estoppel is available in such cases where the particular facts warrant it”) (citing INS v. Hibi, 414 U.S. 5, 8 (1973)); see also Watkins v. United States Army, 875 F.2d 699, 706-711 (9th Cir. 1989) (en banc) (holding that equitable estoppel could be invoked against the government where the Army affirmatively misrepresented to defendant over a 14-year period that he was qualified for reenlistment despite an ongoing policy that homosexuality constituted a nonwaivable disqualification for reenlistment); Fano v. O’Neill, 806 F.2d 1262, 1265-66 (5th Cir. 1987) (holding that petitioner had adequately stated a claim against the government for affirmative misconduct where he alleged the INS “willfully, wantonly, recklessly, and negligently”

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delayed in processing his application, suggesting selective treatment). Cf. Miranda v. INS, 459 U.S. 14, 19 (1982) (declining to estop the INS from denying permanent resident status to petitioner who lost his eligibility because of the INS’s delay, concluding that “[p]roof only that the Government failed to process promptly an application falls far short of establishing” affirmative misconduct). The person seeking estoppel against the government also must show that the potential injustice to him outweighs the possibility of damage to the public interest, and must establish the traditional elements for estoppel. See Watkins, 875 F.2d at 707 [10] We conclude that the government should be estopped from relying on Salgado-Diaz’s attempted re-entry to remove him, essentially for the same reasons — and to the same extent — that we have found his due process rights have been violated. That is, if petitioner can, in the evidentiary hearing to which we hold he is entitled, prove that the INS deprived him of his right to have his immigration status determined in the pending deportation proceeding, the government cannot rely on the post-expulsion events its own misconduct set in motion. Adding to our assessment of the equities are the INS’s representations to this court and petitioner that he would have the opportunity to litigate his claims at an evidentiary hearing and, if successful, seek suspension of deportation relief. [11] We also conclude that estoppel against the government here would not “unduly damage the public interest.” Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982) (holding that defendant who was mistakenly granted parole by the govern- ment but had reintegrated into the community was unlikely to threaten the public interest). In this instance, petitioner already met the criteria for eligibility for suspension of deportation at the time of his expulsion to Mexico. The public interest would not be burdened by allowing Salgado-Diaz to have his claim properly considered as if the events arising out of the government’s actions had not occurred. 2. Traditional elements of equitable estoppel [12] Salgado-Diaz also must satisfy the traditional elements of equitable estoppel, which require a showing that (1) the party to be estopped knows the facts; (2) the party intends that his or her conduct will be acted on; (3) the claimant must be ignorant of the true facts; (4) and the claimant must detrimentally rely on the other party’s conduct. See Johnson, 682 F.2d at 872 (holding elements met where the Parole Commission deliberately released defendant, even though he was ineligible for parole). [13] These four elements are satisfied here, assuming Salgado-Diaz’s allegations prove to be true. First, the border agents knew that Salgado-Diaz already was in immigration

46

proceedings at the time he was stopped in San Diego and that he had an upcoming deportation hearing. They also should have known they were violating the Constitution by detaining petitioner solely on the basis of his Hispanic appearance. Gonzalez-Rivera, 22 F.3d at 1450 (“The fact that INS officers receive extensive training in Fourth Amendment law . . . also supports the inference that when an INS officer makes a stop based solely on race, he or she has deliberately violated the law or has acted in conscious disregard of the Constitution.”) (emphasis added). The INS, knowing Salgado’s claims about his San Diego arrest and expulsion and the circumstances of his reentry, further told this court on the first appeal — nearly three years after having instituted removal proceedings — that petitioner would have the opportunity “to litigate his claims regarding the legality of his departure . . . .” 1280 SALGADO-DIAZ v. ASHCROFT

Second, assuming petitioner’s claims to be true, the border agents intended the consequences of their actions — they physically removed Salgado-Diaz from San Diego to Mexico, essentially deporting him without a proceeding. For its part, the INS plainly intended that this court and petitioner would act in accordance with the representations it made that Salgado-Diaz would receive a hearing. Third, Salgado-Diaz did not understand the basis for the border patrol agents stopping or arresting him. He also alleges he did not understand the significance of the documents he was induced to sign, namely that they would lead to his deportation rather than the INS tracking down his pending immigration hearing status. According to Salgado-Diaz, he did attempt to explain he was in proceedings but was arrested and expelled anyway. As for the purported evidentiary hearing, neither this court nor petitioner expected that fact-finding opportunity to be illusory. Finally, the fourth element is met here, where the INS agents’ conduct severely disadvantaged Salgado-Diaz by expelling him to Mexico. The act of taking him out of the country had the effect of changing his immigration status. See Heckler v. Cmty. Health Serv., 467 U.S. 51, 61 (1984) (analyzing detrimental reliance by examining “the manner in which reliance on the government’s misconduct has caused the private citizen to change his position for the worse”). Had he not attempted to return to the United States so he could appear at his pending immigration hearing, he may have lost his chance to assert his eligibility for relief from deportation. Further, petitioner detrimentally relied on assertions by the INS that he should and would receive a hearing on his claims. Our own disposition in the first appeal expressly relied on

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those assertions.7 7

Given the INS’s representations in the first appeal and our disposition

[14] Given the government’s role in bringing about petitioner’s circumstance — if the petitioner proves the alleged affirmative misconduct — the equities strongly weigh in favor of estopping the government from seeking removal based on petitioner’s reentry. If his story does not hold up, of course, then the basis for his challenge to the 2001 removal order collapses 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.

A. Due Process Violation [1] Immigration proceedings, although not subject to the full range of constitutional protections, must conform to the Fifth Amendment’s requirement of due process. United States v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir. 1985). Salgado-Diaz can establish a due process violation by showing that he was denied “a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf.” Colmenar, 210 F.3d at 971 (holding that petitioner’s due process rights were violated when the IJ prevented a full examination of petitioner during hearing); see CastilloVillagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992) (holding that the BIA’s failure to provide petitioners an opportunity to rebut noticed facts violated 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

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possible after the date of the conviction.” 8 U.S.C. § 1252(i) (1988)

In considering Petitioner’s laches claim, it is important to make clear what Petitioner is

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 retroactive if applied to him. Unlike a laches defenses, this retroactivity argument—which is not before us and as to the validity of which we therefore express no opinion focuses on the reasonableness of a

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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 1 INS’s conduct is not particularly relevant to it. 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 Politics of American Sovereignty, 1890-1990 (2001) (documenting cycles in immigration policy 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.

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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. POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR 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). 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). Ninth Circuit

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§ 10.24 2. Court of Appeals Jurisdiction to Order the Noncitizen to be Readmitted After Conviction Has Been Vacated MOTION TO REOPEN/RECONSIDER – AFTER DEPORTATION 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 POST-CON – EFFECTIVE VACATUR – AFTER CONVICTION 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

2. After the Immigration Judge Issues a Removal Order.

Third Circuit

MOTION TO REOPEN – 180 DAY DEALINE SUBJECT TO EQUITABLE TOLLING 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).

VACATE ILLEGAL DEPORTATION ORDER

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Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of noncitizen while appeal of district court dismissal of habeas petition was pending in court of appeal did not deprive district court of habeas jurisdiction on remand, and case was not moot, but district court lacked authority to grant any relief beyond vacating defective deportation order). In civil suits a litigant must advance all available evidence and legal arguments relating to a claim or controversy in the context of a single proceeding. Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997). This is because “res judicata bars [future litigation of] all claims that could have been advanced in support of a previously adjudicated cause of action.” Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989). And it is no answer to a claim of res judicata, as distinguished from a claim of collateral estoppel, that no decision was reached previously on the newly-asserted claims. See Leather v. Ten Eyck, 180 F.3d 420, 426 (2d Cir. 1999); see also Corpus Juris Secundum Judgments §§ 758, 803. Applied strictly to immigration proceedings, this would seem to suggest that the government should lodge all known grounds for removal in support of its removability charges, or face the prospect of a future bar. Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir. 2004), that an alien’s removal from the United States does not moot a habeas challenge to the underlying order of removal Johnson v. Ashcroft, 286 F.3d 696, 700 & n.4 (3d Cir. 2002) (citing authorities in support of the proposition that the BIA must be reversed where it ignores its established holdings).

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.” GamerosHernandez 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, substantial, 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 evidence.” Cortez-Acosta v. INS, 234 F.3d 476, 481 (9th Cir. 2000) (per curiam) (internal citations and quotation marks

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omitted); see also Nakamoto v. Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004) (explaining that the court must determine “whether substantial evidence supports a finding by clear and convincing evidence”). “Where, as here, the BIA conducts a de novo review and issues its own decision, rather than adopting the IJ’s decision as its own, we review the BIA’s decision.” Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir 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 See Hughes v. Santa Fe Int'l Corp., 847 F.2d 239, 241 (5th Cir. 1988) (consent judgments ordinarily do not give rise to collateral estoppel because no issues are actually litigated, consent judgments are only given preclusive effect if the parties manifest such an intention); Restatement of Judgments (Second) 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

POST CON RELIEF – VACATING GREATER OFFENSE DOES NOT PRECLUDE RETRIAL ON GREATER OFFENSE EVEN THOUGH CONVICTION ON LESSER INCLUDED OFFENSE IS FINAL 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

POST CON RELIEF – AFTER VACATUR, CRIMINAL COURT CAN RESENTENCE ON REMAINING COUNTS 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).

POST CON RELIEF – AFTER VACATUR, DISMISSED COUNTS ARE REINSTATED 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

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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) V. Reopening Removal Proceedings MOTION TO REOPEN – AFTER REMOVAL 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.

POST-CON – MOTION TO REOPEN – SUA SPONTE 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.

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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: We review the decision of the IJ, see Soadjede v. Ashcroft , 324 F.3d 830, 832 (5th Cir. 2003), and will reverse only if the decision is not supported by substantial evidence. See Moin v. Ashcroft , 335 F.3d 415, 418 (5th Cir. 2003). Moin v. Ashcroft , 335 F.3d 415, 417 (5th Cir. 2003). “[T]his Court must affirm the decision if there is no error of law and if reasonable, substantial, and probative evidence on the record, considered as a whole, supports the decision’s factual findings.” Id. Under this standard, “the alien must show that the evidence is so compelling that no reasonable factfinder could conclude against it.” Chun v. INS , 40 F.3d 76, 78 (5th Cir. 1994 EAJA: Anselmo, 20 I&N Dec. 25 (1989) Board must follow circuit court precedent in cases arising in the circuit Abdulai v. INS, 239 F.3d 542 (3d Cir. 2001) - generally cited

57

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: When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions alreadycompleted. If the statute would operate retroactively, our traditional presumption teaches that it does not governabsent clear congressional intent favoring such a result. 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

There are two waivers available under INA §212(h)(1). A waiver is available under INA §212(h)(1)(A) if the immigrant

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.

FALSE PERSONATION FALSE STATEMENT FALSE STATEMENT FALSE STATEMENT FALSE STATEMENT FALSE STATEMENT FALSE STATEMENT

the alien has been rehabilitated.

See IMPERSONATION See also FRAUD Calvo-Ahumada v. 18 U.S.C. § 1546 Rinaldi, 435 F.2d 544 (3d Cir. 1970) Matter of Acosta, 14 I. & 18 U.S.C. § 922(a)(6) N. Dec. 338, 1973 WL 29443 (BIA 1973) Hirsch v. INS, 308 F.2d 18 U.S.C. § 80M, now 18 562 (9th Cir. 1962) U.S.C. § 1001 Matter of N & B, 2 I. & 18 U.S.C. § 231 N. Dec. 206, 1944 WL 5182 (BIA 1944) Matter of B, 1 I. & N. Dec. 121, 1941 WL 7927 (BIA, AG 1941) White v. INS, 6 F.3d 18 U.S.C. § 911 1312 (8th Cir. 1993)

MT

MT

NMT NMT

NMT

FALSE MT STATEMENT— CLAIM TO UNITED STATES CITIZENSHIP FALSE Matter of I, 4 I. & N. Dec 18 U.S.C. § 911; 8 U.S.C. NMT STATEMENT— 159 (BIA 1950) § 746(18) CLAIM TO UNITED STATES

59

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 JuradoPennsylvania 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

FALSE STATEMENT—TO UNITED STATES OFFICIAL FALSE STATEMENT—TO UNITED STATES OFFICIAL FALSE STATEMENT— UNEMPLOYMENT FRAUD

Matter of P, 6 I. & N. 18 U.S.C. § 1001 Dec. 193, 1954 WL 7841 (BIA 1954)

MT

Matter of IL, 7 I. & N. 18 U.S.C. § 1001 Dec. 233, 234, 1956 WL 10262 (BIA 1956)

MT

Matter of Di Filippo, 10 I. Unemployment Insurance NMT & N. Dec. 76, 1962 WL Act of Canada § 106 A(a) 12907 (BIA 1962)

61 FORGERY Matter of Canadian Crim. Jensen, 10 I. & Code §§ 309(1) N. Dec. 747, and 311 1964 WL 12130 (BIA 1964)

LOG OUT

MT

FORGERY

Matter of M, 9 I. & Italian Crim. Code MT N. Dec. 132, 1960 §§ 275, 278, and WL 12076 (BIA 284 and Crim. 1960) Code of 1930 §§ 476 and 482

FORGERY

Matter of SC, 3 I. Guanajuato, MT & N. Dec. 350, Mexico Pen. Code 1948 WL 6283 article 203 (BIA 1948)

FORGERY— See also FRAUD—DOCUMENT FRAUD— APPLICATION PASSPORT FRAUD; FALSE STATEMENT— FOR PASSPORT PASSPORT APPLICATION FORGERY— Matter of MYC, 3 APPLICATION I. & N. Dec. 76, FOR PASSPORT 1947 WL 7055 (BIA 1947)

NMT

FORGERY— ATTEMPT TO PASS FORGED INSTRUMENT

Matter of LR, 7 I. Texas Pen. Code & N. Dec. 318, §§ 979, 996 1956 WL 10286 (BIA 1956)

MT

FORGERY— POSSESSION OF FORGERY DEVICES WITH INTENT TO COMMIT FORGERY

Matter of Jimenez, 14 I. & N. Dec. 442, 1973 WL 29475 (BIA 1973)

MT

FORGERY— Matter of O’B, 6 I. Cal. Health and PRESCRIPTION & N. Dec. 280, Safety Code § DRUGS 1954 WL 7865 11715 (BIA 1954)

MT

FORGERY—

MT

U.S. ex rel. Giglio 18 U.S.C. §§ 88,

62

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 Crimes committed intentionally or knowingly have historically been found to involve moral turpitude. See Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000); Matter of Perez-Contreras, supra. Moral turpitude may also inhere in criminally reckless conduct, i.e., conduct that reflects a conscious disregard for a substantial and unjustifiable risk. See, e.g., Matter of Franklin, 20 I&N Dec. 867 (BIA 1994) (involuntary manslaughter); Matter of Wojtkow, 18 I&N Dec. 111 (BIA 1981) (second-degree manslaughter); Matter of Medina, 15 I&N Dec. 611 (BIA 1976) (aggravated assault). Fraud is categorized as a crime involving moral turpitude, as are certain other offenses involving acts of baseness and depravity, even though they have no element of fraud or, in some cases, no explicit element of evil intent. See Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA 2001) (noting that such crimes include murder, rape, statutory rape, robbery, kidnaping, voluntary manslaughter, some involuntary manslaughter offenses, mayhem, theft offenses, spousal abuse, child abuse. 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).

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CA2 Expands on "Question of Law" Under INA §242(a)(2)(D) http://www.aila.org/content/default.aspx?docid=23000 The court held that for purposes of jurisdiction under INA §242(a)(2)(D), a "question of law" includes a claim that the IJ applied an erroneous legal standard in making a discretionary determination, as well as a claim that the IJ based his decision on an unambiguous misstatement of pertinent facts in the record. (Khan v. Gonzales

“In due process challenges, there must be a showing of prejudice.” Colindres-Aguilar v. INS, 819 F.2d 259, 261-62 (9th Cir. 1987) (citing Mosseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986) and United States v. NicholasArmenta, 763 F.2d 1089 (9th Cir. 1985)). To establish prejudice, Hernandez-Gil must show that the denial of his right to counsel “potentially [affected] the outcome of the proceedings.” Baltazar-Alcazar, 386 F.3d at 947 (quoting Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000) (alteration in original) Second Circuit on Stay of Voluntary Departure

"We hold that we have the authority under 28 U.S.C. § 2349(b), as incorporated by reference in 8 U.S.C. § 1252(a)(1), to stay an agency order pending our consideration of a petition for review on the merits, and that nothing in the Immigration and Nationality Act or its implementing regulations strips us of this authority with respect to orders of voluntary departure.We also hold that a BIA order granting voluntary departure with an alternate order of removal is a final order of removal subject to judicial review under 8 U.S.C. § 1252. Because, under the customary framework for a stay, the balance of hardships tips decidedly in Thapa's favor, a stay of his voluntary departure order is warranted here." Thapa v. Gonzales, Aug. 16, 2006. 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

The doctrine of equitable estoppel applies against the government only if it engages in affirmative misconduct going beyond mere negligence. [7] Neither the failure to inform an individual of his or her legal rights, nor the negligent provision of misinformation constitutes affirmative misconduct. In any event, estoppel against the government is unavailable when petitioners have not lost any rights to which they were entitled. The district court also had jurisdiction over the Sulits'equitable estoppel claim under 28 U.S.C. S 2241.2 Section 2241 makes habeas review available to

64

petitioners who are in custody only "in violation of the Constitution or laws or treaties of the United States." Because "the INS is the agency primarily charged by Congress to implement the public policy underlying" the immigration laws, see INS v. Miranda, 459 U.S. 14, 19 (1982), and equitable estoppel is an element of federal common law, see Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812, 821 (9th Cir. 1992), the Sulits' equitable estoppel claim is based on a violation of the "laws" of the United States. See Johnson v. Williford , 682 F.2d 868,871 (9th Cir. 1982) (federal prisoners filing S 2255 habeas petitions may obtain relief under the doctrine of equitable estoppel); see also Weaver v. Maass , 53 F.3d 956, 961 (9th Cir. 1995) (relief under doctrine of equitable estoppel not _______________________________________________________ __________ 2 The Sulits offer a litany of provisions based on which the district court could have exercised its jurisdiction: 28 U.S.C.SS 1131, 1331, 1343, and 2241; 8 U.S.C. SS 1105a and 1329; and the Administrative Procedure Act ("APA"), 5 U.S.C. S 701 et seq. Because we find that we may assert juris-diction pursuant to S 2241, we do not address the numerous other jurisdictional theories asserted. However, we note that 8 U.S.C. S 1329, as amended by IIRIRA, no longer provides the district court with jurisdiction to consider the Sulits' equitable estoppel claim. Cf. Baria v. Reno, 94 F.3d 1335, 1339 (9th Cir. 1996); Jaa v. INS, 779 F.2d 569 (9th Cir. 1986). As amended by IIRIRA, section 1329 only allows the district courts to exercise jurisdiction over all civil actions brought by the United States that arise under the provisions of subchapter 12 of the INA. See IIRIRA S 381(b) (providing that amendment to S 1329 "shall apply to actions filed after the date of the enactment of this Act [Sept. 30, 1996]"). However, nothing in the language of S 1329 forecloses the operation of other jurisdictional mechanisms such as S 2241. See Sabhari

65

v. Reno, 197 F.3d 938,941-42 (8th Cir. 1999). available to state prisoners filing federal habeas petitions);O'Bremski v. Maass, 915 F.2d 418, 423 (9th Cir. 1990). 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. As an initial matter, the question of the applicability of the five-year limitations period for rescissions in Section

66

246(a) to the context of removal proceedings has not recurred with frequency. The issue arises only where: (i) there has been an erroneous adjustment of status, (ii) the sole grounds for removal relate to the erroneous adjustment of status, and (iii) the removal is sought beyond the five-year limitations period for rescinding the adjustment of status. The issue has been squarely implicated in four courts of appeals' opinions -the decision below, the Third Circuit's decision in Bamidele, and the Ninth Circuit's decisions in Monet, 791 F.2d at 754, and Biggs v. INS, 55 F.3d 1398, 1401 & n.3 (1995). In the government's experience, the issue has not arisen with frequency in administrative proceedings. Two reported administrative rulings squarely raise the issue. See In re S-, 9 I. & N. Dec. at 548; In re Belenzo, 17 I & N. Dec. at 374. the INS was required (until the IIRIRA's amendments to Section 246(a) became effective in 1997, see pp. 11-12, infra) to rescind the alien's status before commencing deportation proceedings. See Choe v. INS, 11 F.3d 925, 928-929 n.4 (9th Cir. 1993); In re Saunders, 16 I. & N. Dec. 326 (BIA 1977). Can the denial of eligibility for discretionary relief at the removal/deportation hearing amount to a denial of due process? Yes, but several Circuits have inexplicably held otherwise. Compare United States v. Perez, 330 F.3d 97, 104 (2d Cir. 2003) (immigration hearing was fundamentally unfair where counsel ineffective assistance was responsible for alien's failure to apply for discretionary relief); United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001) ("[f]ailure to ... inform the alien [of eligbility for discretionary relief] is a denial of due process that invalidates the underlying deportation proceeding") with United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004) (en banc) (holding The line of cases represented by Aguirre-Tello is fundamentally flawed: it is inconsistent with both United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), and United States v. Mendoza-Lopez, 481 U.S. 828 (1987). The premise underlying Aguirre-Tello is that there is no right to discretionary relief. See 353 F.3d at 1205. Aguirre-Tello overlooks the fact that aliens who are eligible for relief have an enforceable right to be considered for that relief: they can compel the Attorney General to exercise his discretion. See Accardi, 347 U.S. at 268. Accord Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003) (holding an alien’s right to seek discretionary adjustment of status is a "vested" right). See also Jideonwo v. INS, 224 F.3d

67

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.

returning lawful permanent resident immigrant is charged with inadmissibility based on a criminal conviction prior to April 1, 1997 (IIRIRA general effective date), the person may be able to argue that he or she is not subject to inadmissibility review based on the law in effect prior to IIRIRA. Cf. Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004). 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.

INADMISSIBILITY BASED UPON AN ADMISSION – ADMISSIONS INSUFFICIENT PRE1990 Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (government failed to show noncitizen deportable for being inadmissible at entry or adjustment, under INA § 237(a)(1) (A), on the basis that he admitted commission of a controlled substances offense, under current INA § 212(a)(2)(A)(i)(II), since this ground of inadmissibility was not triggered by an admission of commission of the offense until IMMACT 1990, effective November 29, 1990, and noncitizen adjusted status prior to that date). ADMISSION – LPR SEEKING ADMISSION – BURDEN OF PROOF Sandoval-Loffredo v. Gonzales, ___ F.3d ___ (8th Cir. July 13, 2005) (petitioner claimed that DHS must show, by clear and convincing evidence that returning lawful permanent falls within exception to INA § 101(a)(13)(C); court found that IJ had put burden on DHS in finding petitioner had engaged in alien smuggling, and denied review; court refused to decide whether IJ was correct in placing burden on DHS). http://caselaw.lp.findlaw.com/data2/circs/8th/041977p.pdf

ADMISSIBILITY – RETURNING LAWFUL PERMANENT RESIDENT – RETROACTIVITY – IIRAIRA DEFINITION OF "SEEKING ADMISSION" DOES NOT APPLY RETROACTIVELY TO GUILTY PLEA PREDATING APRIL 1, 1997 Camins v. Gonzales, ___ F.3d ___, 2007 WL 2421466 (9th Cir. Aug. 28, 2007) (Fleuti [Rosenberg v. Fleuti, 374 U.S. 449 (1963)] doctrine, holding noncitizen is not subject to grounds of inadmissibility on return from a trip abroad that is "innocent, casual, and brief" continues to apply where conviction resulted from plea entered prior to April 1, 1997, despite new INA § 101(a)(13)(C)(v), as amended by IIRAIRA § 301(a)(13): "We hold that IIRIRA § 301(a)(13) did abrogate the old INA § 101(a)(13) and the Fleuti doctrine, but that the new law cannot be applied retroactively to LPRs who acted in reasonable reliance on the old law prior to IIRIRA’s effective date."), following INS v St. Cyr, 533 U.S. 289 (2001). ADMISSIBILITY – ARRIVING ALIEN – BURDEN OF PROOF – BURDEN ON GOVERNMENT WHERE APPLICANT HAS COLORABLE CLAIM TO LPR STATUS Matter of Huang, 19 I. & N. Dec. 749, 754 (BIA 1988) ("While the burden of proving admissibility is generally on the applicant in exclusion proceedings, see section 291 of the Act, 8 U.S.C. § 1361 (1982), where an applicant for admission has a colorable claim to returning resident status, the burden is on the Service to show that the applicant should be deprived of his or her status as a lawful permanent resident. Matter of Salazar, 17 I & N Dec. 167 (BIA 1979); Matter of Kane, [15 I & N Dec 258 (BIA 1975)]").

69

INADMISSIBILITY – RETURNING LPR – BURDEN OF PROOF ON GOVERNMENT WHERE APPLICANT FOR ADMISSION HAS COLORABLE CLAIM TO LPR STATUS An exception to the noncitizen bearing the burden of proof in inadmissibility proceedings occurs when the applicant for admission has a colorable claim to status as a returning lawful permanent resident. In that case, the burden of proof to establish excludability is on the INS. Matter of Kane, 15 I. & N. Dec. 258 (BIA 1975). The government's burden is then to show by clear and convincing evidence that the applicant should be deprived of lawful permanent resident status. See Matter of Huang, 19 I. & N. Dec. 749 (BIA 1988). See also, Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. Aug. 30, 2004) ARRIVING ALIEN – NOT DEPORTABLE = UNSTATED EXCEPTION TO "SEEKING ADMISSION STATUTE" Where LPR who is not deportable briefly leaves the United States, it would arguably violate Substantive Due Process and Equal Protection to consider him or her an arriving alien, and thus inadmissible, and the court must seek a construction of INA § 101(a)(13)(C)(v) which avoids these constitutional problems. Note that INA § 101(a)(13)(C)(v) contains no exceptions for people granted waivers under INA §§ 212(c), 212(i), or former suspension of deportation under § 244. This strengthens the argument that this provision is not all-inclusive, and that another exception is someone who was not removable when s/he left the country. An equal protection claim may be brought to challenge the distinction between LPRs, who committed offenses falling under INA § 212(a)(2) but not under INA § 237(a)(2), who made brief, innocent departures, and those who, on the other hand, committed such offenses, but never departed (or who did depart, but were not stopped at the border upon their return).

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). DEPORTATION – ADVERSE INFERENCE FROM ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION An immigration court can draw an adverse inference from a noncitizen's assertion of the Fifth Amendment privilege against self-incrimination. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923); United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997). However, where government offers no evidence except respondent's silence, it is insufficient to meet its burden of proof by clear, unequivocal and convincing evidence, and the burden does not shift to respondent. Matter of Guevara, 20 I. & N. Dec. 238 (BIA 1991).

First Circuit

70 MOTION TO REOPEN – VOLUNTARY DEPARTURE NOT STAYED Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007) (BIA grant of a timely motion to reopen did not vacate the original IJ’s decision finding removability and granting voluntary departure, and did not stay the voluntary departure period, even though it is highly unlike that BIA would reach decision on merits of motion to reopen before voluntary departure period expires; “We read §§ 1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of voluntary departure available only to aliens who agree to give up the fight and leave the country willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006). POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD LEFT THE UNITED STATES Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. § 1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.”) did not invalidate the regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”). POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL PROCEEDINGS Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); CruzGarza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005). POST-CON – MOTION TO REOPEN – SUA SPONTE 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.”)

71 POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF 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 POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF 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 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 BOARD OF IMMIGRATION APPEALS – MOTION TO RECONSIDER – DEFINITION AND STANDARD Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has defined a motion to reconsider as ‘"a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked."’ In re Cerna, 20 I. & N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations establish that a motion to reconsider must specify errors of fact or law in the BIA decision and be supported by relevant authority.") citing 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

Seventh Circuit MOTION TO REOPEN – SUA SPONTE 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

Eighth Circuit MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL

72 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-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR 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). 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). POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POSTCONVICTION ATTACK 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).

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BIA MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion. The Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings; where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is 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).

Other POST-CONVICTION RELIEF – AFTER CONVICTION VACATED New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml. REMOVAL – RETURN OF THE WRONGFULLY REMOVED One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal" under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks to Beryl B. Farris, Atlanta.

JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION DOCTRINE – FAILURE TO EXHAUST IS EXCUSED IF RESPONDENT CAN SHOW MISCARRIAGE OF JUSTICE,

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SUCH AS WHERE CONVICTION ON WHICH DEPORTATION IS BASED DOES NOT CONSTITUTE AN AGGRAVATED FELONY Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (court of appeal can reach claim that controlled substances conviction does not constitute an aggravated felony, under Lopez, even though respondent failed to exhaust before the IJ or BIA because the law was clear against him, under the miscarriage of justice exception to the exhaustion doctrine of 8 U.S.C. § 1252(d)(1)), following Marrero Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004); see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001) (habeas petitioner's failure to exhaust may be excused “when administrative remedies are inadequate” but not where administrative procedures exist to reopen petitioner's case) (internal quotation marks omitted); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (“Even where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction, carved out exceptions.”); Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999) (finding that an exception exists to address “certain constitutional due process claims”).

JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may not take administrative notice of facts without affording other party to rebut the inferences drawn from those facts).

INADMISSIBILITY – TIME OF EVALUATION – CRIME OF MORAL TURPITUDE – PETTY OFFENSE EXCEPTION – TIME OF DECISION Admissibility is normally evaluated under the law at the time of the application to enter or adjust status, but if the law has changed between the date of application, and the date of decision, the decision maker will apply law as it exists at the time of the decision. See, e.g., Matter of Alarcon, 20 I. & N. Dec. 557 (BIA 1992) (BIA assesses application for INA § 212(h) waiver of inadmissibility under law at time of decision, not the statute as it existed when the application for the waiver was made); Matter of Alarcon, 20 I. & N. 557 (BIA 1991) (amended statute governs waiver application first filed under earlier version of INA § 212(h)); Matter of Kazemi, 19 I. & N. Dec. 49 (BIA 1984) (intervening regulatory change regarding jurisdiction to review INA § 212(d)(4) waiver application overrides prior BIA precedent to the contrary); Squires v. INS, 689 F.2d 1276, 1280 (6th Cir. 1982) (noncitizen no longer eligible for petty offense exception to inadmissibility, since Canadian Parliament increased maximum punishment for the offense to more than one year); Matter of Farias. Int. Dec. 3269

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(BIA 1996) (evaluating eligibility for INA § 212(d)(11) smuggling waiver at time of adjudication). This can work either for or against the applicant. An applicant who was ineligible for a benefit when s/he applied for it may become eligible under new law at the time the fact finder makes her or his decision. On the other hand, if a foreign legislature increases the punishment for an offense, the Board will determine if the applicant qualifies for the petty offense exception by examining the maximum criminal penalty at the time of the application for entry, not the maximum penalty at the time the offense was committed

FRAUD – DIFFERS FROM THEFT Soliman v. Gonzales, __ F.3d __ (4th Cir. Aug. 22, 2005) (fraudulent use of a credit card," in violation of Virginia Code § 18.2-195, with intent to obtain $200.00 in property, is not an aggravated felony theft offense; the BIA erred in finding that fraud offenses necessarily included theft; theft is distinguishable from fraud, in that theft requires the taking of property without consent, while fraud requires an intent to deprive through consent obtained through misrepresentation). http://caselaw.lp.findlaw.com/data2/circs/4th/041990p.pdf THEFT – FRAUD – DIVISIBILITY – NUGENT ARGUMENT California Penal Code § 484(a) is a divisible statute covering both fraud and theft offenses, which are nearly mutually exclusive. If a fraud victim’s loss did not exceed $10,000, but a sentence of a year or more was imposed, the government might charge a fraud offense as an aggravated felony under the theft category. The government should be required to prove that the record clearly establishes the elements of theft, the definition of which includes a taking of property without consent. For a useful discussion of the difference between the elements of fraud and theft, see Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005). There the Court observed that: 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.

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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. Possible alternative dispositions include a plea to a violation of 26 U.S.C. § 7203 (willful failure to file return supply information, or pay tax), a misdemeanor, and 26 U.S.C. § 7202 (willful failure to collect or pay over tax), a felony. A plea to multiple violations of INA § 274A(a)(1)(A), would constitute a "pattern or practice" violation of INA § 274A(f), 8 U.S.C. 1324a (f), a misdemeanor punishable by a fine of not more than $3,000 for each alien with respect to whom such a violation occurs, imprisonment for not more than six months for the entire pattern or practice, or both.

ADJUSTMENT OF STATUS – ADMISSION Aremu v. DHS, ___ F.3d ___, 2006 WL 1668778 (4th Cir. Jun. 19, 2006) (for noncitizen previously admitted to the United States, the date of adjustment of status does not constitute a new “admission” for purposes of determining whether the noncitizen is deportable for having committed a CMT within five years of admission, under INA § 237(a)(2)(A)(i)), overruling Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005). Note: The court cited Abdelqadar v. Gonzalez, 413 F.3d F.3d 668 (7th Cir. 2005), and Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004) as making the same holding, although Shivaraman concerned a noncitizen who (unlike Shanu), had never fallen out of status, and Abdelqadar was arguably dica. The Fourth Circuit explicitly stated that the decision did not reach the issue of whether adjustment of status qualified as an “admission” for a noncitizen who entered the United States illegally, and was therefore never previously

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admitted. See, e.g., Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001); Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999). DEPORTABLE BECAUSE INADMISSIBLE AT TIME OF ENTRY OR ADJUSTMENT – COURT MUST LOOK AT LAW AS IT EXISTED AT TIME OF ENTRY/ADJUSTMENT Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (to determine whether a noncitizen is deportable for being inadmissible at entry or adjustment under INA § 237(a)(1)(A), the court must look to the law as it existed at the time of entry or adjustment, not current law 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

Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002), is a particularly relevant authority for the primacy of the conduct date. There, the Eighth Circuit held that an immigrant whose illegal conduct pre-dated IIRIRA remained eligible to apply for a discretionary adjustment of status notwithstanding that the same had been eliminated by IIRIRA.

Under BIA precedent, a motion premised on a claim of ineffective assistance of counsel must satisfy three procedural requirements in order to be considered on the merits: (1) it must be supported by an affidavit by the petitioner attesting to the relevant facts; (2) the petitioner must inform counsel

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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

What matters is whether the individual has an expectation of receiving some measure of relief. Here he does not. However broadly and amorphously the concept of constitutionally protected liberty interests has been defined within proceduraldue-process jurisprudence, it does not include statutorily created relief that is subject to the unfettered discretion of a governmental authority. The failure to receive discretionary adjustment-of-status relief does not constitute the deprivation of a constitutionally-protected liberty interest. For this reason, Nativi-Gomez cannot establish that he had a right to due process in his proceedings to obtain this relief. Accordingly, the BIA did not abuse its discretion in affirming the Immigration Judge's dismissal of Nativi-Gomez's motion to reopen,. ______________________________

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LO G IN

Hibbert v. INS, 554 F.2d 17, 20 (2d Cir. 1977) Digrado v. Ashcroft, No. 9:01-CV-1359 (N.D.N.Y., Feb. 8, 2002)

(finding deportation order res judicata)

As the Medina Court noted in applying the doctrine of res judicata to the immigration case before it: res judicata precludes a second suit on the same issue between the same parties when there has been a valid and final judgment on that issue; and it makes no difference that the final, valid judgment may have been based on an erroneous factual finding or an erroneous understanding of law, or both. The only considerations for purposes of res judicata is [sic] whether the judgment was final and valid, and there was an opportunity to reach the merits. Here, these requirements were met. 993 F.2d at 504 (emphasis added). The reasoning of United States v. Hernandez-Rodriguez, 170 F. Supp. 2d 700 (N.D. Tex. 2001) is persuasive in considering respondent's res judicata argument. In that case, the petitioner was admitted to the United States as a lawful and permanent resident in 1990. Id. at 701-02. In 1994 he was convicted of sexual assault. Id. at 702. This offense qualified petitioner as an "aggravated felon" for purposes of the immigration law. Id. Over petitioner's objection, the Immigration Judge retroactively applied the amendments to the immigration laws to petitioner's case and ordered him deported. Id. He was deported in 1999. Id.

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July 27, 2004 Final BIA Decision Overturning Removal Order Based on One Theory Precludes New NTA Based on Different Ground of Removal. Contents: 1. Introduction: Final BIA Decision Overturning Removal Order Based on One Theory Precludes New NTA Based on Different Ground of Removal. 2. Online Resources Related to Drug Offenses 3. Article Part 1: Res Judicata in Immigration Proceedings 4. Article Part 2: Implications

[1] INTRODUCTION: Final BIA Decision Overturning Removal Order Based on One Theory Precludes New NTA Based on Different Ground of Removal. By: Norton Tooby and Joseph Justin Rollin In Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391 (D. Conn. June 9, 2004), the United States District Court granted federal habeas corpus, holding a second removal order was unlawful, and directed the BIA to vacate the second removal order and terminate removal proceedings against a noncitizen. Although two circuit court decisions have applied the doctrine of res judicata to determinations of citizenship, this is possibly the first published federal decision to apply the doctrine to charges of deportation or inadmissibility in removal proceedings.

[2] ONLINE RESOURCES: Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391 (D. Conn. June 9, 2004), may be viewed without charge at: http://www.ctd.uscourts.gov/Opinions/060904.wwe.murray.pdf 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 BIA decisions may be viewed without charge at:

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CONVICTION – REQUIREMENTS – CONVICTION DOES NOT EXIST WITHOUT SENTENCE POST CON – AFTER CONVICTION VACATED – IF THERE IS NO NEW SENTENCE, THERE IS NO CONVICTION FOR IMMIGRATION PURPOSES 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,

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CIMT CATG Analysis A categorical analysis requires us to compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition. Id. In doing so, we “cannot examine the underlying facts of the prior offense, but ‘look only to the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Corona-Sanchez, 291 F.3d 1201, 1203, 1212-13 (9th Cir. 2002) (enbanc) (quoting Taylor, 495 U.S. at 602). If the statute of conviction criminalizes conduct that would not satisfy the federal definition of the crime at issue, then the conviction does not qualify as a predicate offense under the categorical approach. Id. at 1203. In short, under the categorical approach, the issue is whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude. See United States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir. 2001). “[T]o satisfy the categorical test, even the least egregious conduct . . . must qualify.” United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006). 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).

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[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. (a) was categorically an "aggravated felony," as defined in 8 U.S.C. §

1101(a)(43)(B), because all behavior prohibited by section 11366.5(a) would also have constituted a violation of 21 U.S.C. § 856(a)(2). 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, in People v. Sanchez, 33 Cal. Rptr. 2d 155, 158 (Ct. App. 1994), a California court recognized that the lack of a specific intent requirement in section 11366.5(a) differentiated it from another, more general, state drug law. ... Accordingly, Eudave- Mendez's California conviction does not fall categorically within 21 U.S.C. § 856(a)(2), and thus cannot constitute an "aggravated felony" on the basis of being a "drug trafficking crime," 18 U.S.C. § 924

CA2 Finds BIA Must Give Opportunity to Rebut Administratively Noticed Facts http://www.aila.org/content/default.aspx?docid=23542 The court held that the BIA erred when it failed to give Petitioner notice of its intention to consider the fact that the Mislosevic regime had been dismantled. The court also held that the BIA erred in failing to give Petitioner the opportunity to rebut this administratively noticed fact before issuing its decision. (Burger v. Gonzales, 8/17/07). AILA Doc. No. 07101262

TUESDAY, AUGUST 01, 2006

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Cabrera-Perez: IJ May Not Order Deportation For Arriving In Court Slightly Late Cabrera-Perez v. Gonzales No. 05-3896 Precedential August 1, 2006 http://www.ca3.uscourts.gov/opinarch/053896p.pdf Immigration judges must remember they are appointed, not anointed. 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).

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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."

Beltran-Tirado, 213 F.3d at 1183. The Ninth Circuit disagreed, holding that the use of another’s social security card to work and establish credit in the United States, as Beltran had done, did not constitute a CIMT. Id. at 1184. The court relied heavily on the legislative history of 42U.S.C. § 408(d), now recodified at § 408(e), which was added by amendment in 1990. Id. at 1183. That section provides that aliens who have been granted permanent resident status under amnesty or registry statutes are exempted from prosecution for certain past misuses of false social security numbers. 42 U.S.C. § 408(e); see Beltran-Tirado, 213 F.3d at 1183. As the Ninth Circuit noted, Congress’s conference committee report states, The Conferees intend that this exemption apply only to those individuals who use a false social security number to engage in otherwise lawful conduct . . . The Conferees believe that individuals who are provided exemption from prosecution under this proposal should not be considered to have exhibited moral turpitude with respect to the exempted acts for purposes of determinations made by the Immigration and Naturalization Service

Monjaraz-Munoz v. INS, 327 F.3d 892, 896 (9th Cir. 2003). Under similar circumstances in MonjarazMunoz, 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.”).

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). 5

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

The scope of review of a removal order entered in absentia is limited by 8 U.S.C. § 1229a(b)(5)(D) to: (1) the validity of the notice provided to the alien, (2) the reasons for the alien’s not attending the proceeding, and (3) whether or not the alien is removable. The first and third issues have been conceded by Lin, confining this review to her reasons for failing to attend the second hearing Aliens facing removal are entitled to Due Process under the United States Constitution. Abdulai, 239 F.3d at 549. Due Process requires: (1) fact finding based on a record produced before the decision maker and disclosed to the alien, (2) the opportunity to make arguments on her own behalf, and (3) the right to an individualized determination of her interests. Id. at 549. The denial of Lin’s motion to reopen did not implicate any of

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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). PETITIONERS ARE NOT ELIGIBLE FOR NUNC PRO TUNC RELIEF. 1. Standard of Review Although, this Court reviews the BIA’s legal conclusions de novo, it must defer to the BIA’s reasonable interpretations of the INA. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). When the BIA has adopted and affirmed an IJ’s decision, this Court reviews the IJ’s decision directly. Selami v. Gonzales, 423 F.3d 621, 624-25 (6th Cir. 2005) (citing Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003)). This Court need not defer, however, to an IJ’s interpretation of the INA that conflicts with BIA precedent. See Rodriguez-Roman v. INS, 98 F.3d 416, 427 (9th Cir. 1996) (declining to defer to an IJ’s interpretation of the INA adopted by the BIA in a per curiam opinion that conflicted with BIA precedent). 2. Analysis 1

The IJ incorrectly determined that she did not have the authority to issue a nunc pro tunc order granting Petitioners a waiver pursuant to the 1993 version of § 212(i). The IJ’s interpretation of the 1996 amendments to the INA as abolishing her authority to issue nunc pro tunc orders for waivers of inadmissibility was unreasonable in light of BIA case law on nunc pro tunc orders. Nonetheless, we deny the petition for review because Petitioners are not eligible for a nunc pro tunc order granting a waiver of removability pursuant to the 1993 version of § 212(i). a. Nunc Pro Tunc Relief A nunc pro tunc order is an order that has retroactive legal effect. Black’s Law Dictionary 1097 (7th ed. 1999). The BIA has long used nunc pro tunc orders to remedy the harshness of United States immigration laws. Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004) (citing Matter of L, 1 I. & N. Dec. 1 (A.G. 1940); Matter of T, 6 I. & N. Dec. 410, 413 (BIA 1954); Matter of A, 3 I. &

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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 41314; Matter of A, 3 I. & N. Dec. at 171-72.

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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

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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. JUDICIAL REVIEW – BIA APPEAL – ADMINISTRATIVE NOTICE Burger v. Gonzales, __ F.3d __, 2007 WL 2331944 (2d Cir. Aug. 17, 2007) ("This Court recently held that if the Board of Immigration Appeals (“BIA”) intends to take administrative notice of potentially dispositive facts, it must warn a petitioner and provide the petitioner with an opportunity to respond before it denies a motion to reopen on the basis of those facts. See Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court declined to resolve the related question whether due process requires this same result before the BIA enters a final order of removal on the basis of administratively noticed facts. We now address this question and hold that it does.") JUDICIAL REVIEW – EVIDENCE – FACT FINDING BY BIA Forteau v. U.S. Atty. Gen'l., __ F.3d __ (3d Cir. Jul. 20, 2007) ("The BIA simply ignored [the IJ's factual] findings and replaced them with its own version of the facts. ... Because the BIA did not defer to the IJ’s factual findings and review them for clear error, and because the BIA engaged in its own independent factfinding, we ... summarily grant the petition for review and remand for further proceedings

MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion. The Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings; where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is

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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). JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS – ABUSE OF DISCRETION Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("An abuse of discretion may be found where the BIA's decision 'provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.'"), quoting Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted). To challenge a removal, an alien must show: (1) the removal hearing was fundamentally unfair; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review; and (3) the procedural deficiencies caused the alien actual prejudice.Lopez-Ortiz,313F.3d at 229.Demonstration of prejudice requires the alien to show a reasonable likelihood that, but for the errors complained of, he would not have been removed. United States v. BenitezVillafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999). Petitioners argue the district court erred in characterizing Nguyen’s claim as one for a due process right to discretionary relief from a removal order, when to the contrary he claims a due process right to a hearing on whether he warrants the

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discretionary § 212(c) 1, 15 1st circ Nguyen claims that his violation of his Fifth Government’s action in

waiver. See Arevalo v. Ashcroft, 344 F.3d liberty is restrained, in Amendment right to due process, by the denying his claim to relief from removal

When determining whether a statute of limitations is jurisdictional or merely a time limitation subject to equitable tolling, the Supreme Court has recognized that, while several factors must be examined, the main purpose of the inquiry is to discover congressional intent behind the statute. See Shendock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (“[A]ttachment of the label ‘jurisdiction’ to a statute’s filing requirements without examination of its language and structure, as well as the congressional policy underlying it, would be an abdication of our duty to interpret the language of a statute in accordance with Congress’s intent in passing it.”); Ramadan v. Chase Manhattan Corp.,156 F.3d 499, 501 (3d Cir. 1998)

CRIMES OF MORAL TURPITUDE – JUDICIAL RECOMMENDATION AGAINST DEPORTATION – REMEDY FOR IAC AT SENTENCE REQUIRES PLACING DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT OCCURRED, INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED PERIOD Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether fiveyear sentence bar was analogous to a statute of limitations which could be equitably tolled). In determining whether nunc pro tun relief could be applied in this case, the court looked at the following issues: 1. Statutory bar: "A court may not award equitable relief in contravention of the expressed intent of Congress. See INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA had granted nunc pro tunc relief in the past, and noted that Congress never amended INA § 212(c) to bar such grants. Id. 2. When nunc pro tunc relief should be afforded: The court

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stated generally that "where an agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68." Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration context, the court found that nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was erroneously denied the opportunity to apply the relief due to an error on the part of the agency, and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated that the noncitizen, outside an illegal reentry context, did not need to show that a denial of the relief would result in a denial of due process. 3. What error may nunc pro tunc relief be used 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.

Due Process /switch of IJ Our reading of the administrative record leaves us convinced that the IJ cared little about the evidence and instead applied whatever rationale he could muster to justify a predetermined outcome. See Kerciku, 314 F.3dat 918 (finding violation of procedural due process where IJ first made up his mind about alien’s claims and refused to listen to testimony). The flaws in the IJ’s opinion call into question the fairness of the proceedings,and since we cannot be confident that Bosede’s hearing comported with statutory requirements or met minimum standards of due process, Bosede is entitled to a new one. See Floroiu v. Gonzales, 481 F.3d 970, 976 (7th Cir. 2007).And to avoid repetition of the same mistakes the third time around, we urge the agency to refer this case to a different immigration judge. See Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004). RELIEF – LPR CANCELLATION – CONTINUOUS PRESENCE – NEW PERIOD STARTS WITH ADMISSION AFTER COMMISSION OF OFFENSE Okeke v. Gonzales, ___ F.3d ___ (3d Cir. May 18, 2005) (new period of continuous physical presence in the United States begins with lawful reentry to the United

94 States after commission of an offense). http://caselaw.lp.findlaw.com/data2/circs/3rd/031831p.pdf

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). To determine whether application of part B of § 1229b(d)(1) to the seven-year continuous residence requirement of § 1229b(a)(2) would be impermissibly retroactive in Sinotes-Cruz’s case, we look to the two-part analysis of Landgraf v. USI Film Products, 511 U.S. 244 (1994). The first step is to determine whether Congress has given a clear indication that the law is to be applied retroactively. St. Cyr, 533 U.S. at 316. The standard for finding such a clear indication is a “demanding one.” Id. The statutory language must be so clear that it “could sustain only one interpretation.” Id. at 317 (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)); see also Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2428 (2006). “Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, Landgraf, 511 U.S., at 264, . . . there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve.” St. Cyr, 533 U.S. at 320 n.45. If the language is “ambiguous with respect to retroactive application,” we proceed to the second step of Landgraf. See id. at 320. [10] At the second step, we determine whether the statute would have an impermissible retroactive effect. “A retroactive effect, as defined in Landgraf, is one that ‘would impair rights a party possessed when he acted, increase a party’s liability SINOTES-CRUZ v. GONZALES 18727 for past conduct, or impose new duties with respect to transactions already completed.’ ” Jimenez-Angeles, 291 F.3d at 601 (quoting Landgraf, 511 U.S. at 280). “The inquiry into whether a statute operates retroactively demands a commonsense, functional judgment about ‘whether the new provision attaches new legal consequences to events completed before its enactment.’ ” St. Cyr, 533 U.S. at 321 (quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (quoting Landgraf, 511 U.S. at 270)) (internal quotation marks omitted). [11] Applying Landgraf’s first step, we hold that part B of § 1229b(d)(1) is ambiguous with respect to its retroactivity. As the Court pointed out in St. Cyr, numerous other provisions of IIRIRA expressly state that they have retroactive application. 533 U.S. at 318-20, 320 n.43. For example, IIRIRA § 321(b), 8 U.S.C. § 1101(a)(43), states that IIRIRA’s new definition of “aggravated felony” applies to “conviction[s] . . . entered before, on, or after” the enactment of IIRIRA. Id. at 319-20. By contrast, the text of § 1229b(d)(1)(including part B) says nothing whatsoever about retroactive application. Basing our analysis solely on the text of § 1229b(d)(1), we would have no trouble concluding that it is ambiguous with respect to its retroactive application

JUDICIAL REVIEW – HARDSHIP AS DISCRETIONARY ISSUE Barnaby-King v. US Dep't of Homeland Sec., 485 F.3d 684 (2d Cir. May 10, 2007) (prior case

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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). 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, 442 F.3d 67 (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 jurisdictiondenying provision of 8 U.S.C. § 1252(a)(2)(B)(i)). http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf

JUDICIAL REVIEW – STREAMLINING – BIA & IJ OPINION CONSIDERED TOGETHER Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (“When the BIA issues a short opinion adopting an IJ’s decision, we review the two decisions together, including the portions [of the IJ’s decision] not explicitly discussed by the BIA.”). 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), distinguishing Simmonds v. INS, 326 F.3d 351 (2d Cir. 2003)(holding immigration claims not yet ripe where petitioner would not be released from criminal custody for 10 years, because the law governing the immigration consequences of the criminal disposition might well change in the meantime. JUDICIAL REVIEW – EVIDENCE – FACT FINDING BY BIA Forteau v. U.S. Atty. Gen'l., __ F.3d __ (3d Cir. Jul. 20, 2007) ("The BIA simply ignored [the IJ's factual] findings and replaced them with its own version of the facts. ... Because the BIA did not defer to the IJ’s factual findings and review them for clear error, and because the BIA engaged in its own independent factfinding, we ... summarily grant the petition for review and remand for further proceedings.").

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

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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). JUDICIAL REVIEW – RES JUDICATA Andrade v. Gonzales, 459 F.3d 538 (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf 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.

JUDICIAL REVIEW – PETITION FOR REVIEW – STANDARD FOR REVIEW OF DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, 467 F.3d 1185 (9th Cir. November 3, 2006)(court of appeals standard of review of denial of motion to reopen removal proceedings after conviction has been vacated: "We review the BIA's ruling on the motion to reopen for an abuse of discretion and will reverse the denial of the motion to reopen only if the BIA acted “ ‘arbitrarily, irrationally, or contrary to law.’ “ Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000))."). JUDICIAL REVIEW – MOTION TO REOPEN – BIA NOT BARRED FROM GRANTING MOTION TO REOPEN REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED – REGULATION DOES NOT BAR CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal

U.S.C. § 1252(g) states: [N]otwithstanding . . . section 2241 of title 28, United States Code, or any other habeas corpus provision . . . no court shall have jurisdiction to hear any cause or claim by or on

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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 RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY OF VOLUNTARY DEPARTURE PERIOD Thapa v. Gonzales, __ F.3d __, 2006 U.S. App. LEXIS 21046 (2d Cir. Aug. 16, 2006) (courts may stay voluntary departure period);

Third Circuit RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY OF VOLUNTARY DEPARTURE PERIOD Obale v. Attorney General, 453 F.3d 151 (3d Cir. 2006) (courts may stay voluntary departure period). RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY OF VOLUNTARY DEPARTURE PERIOD For more information about stays of voluntary departure during court of appeals review and an overview of the case law in other courts, see AILF’s Practice Advisory, Protecting Voluntary Departure Period During Court of Appeals Review (October 25, 2005) available at http://www.ailf.org/lac/lac_pa_chrono.shtml. RELIEF – VOLUNTARY DEPARTURE – FAILURE TO DEPART Matter of Bozena Zmijewska, 24 I. & N. Dec. 87 (BIA 2007) (BIA lacks authority to apply an “exceptional circumstances” or other general equitable exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure under INA § 240B(d)(1), 8 U.S.C.A. § 1229c(d)(1); noncitizen has not voluntarily failed to depart the United States under INA § 240B(d)(1) when the

98 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). RELIEF – VOLUNTARY DEPARTURE Matter of Diaz-Ruacho, 24 I. & N. Dec. 47 (BIA 2006) (noncitizen granted voluntary departure, who subsequently fails to leave and fails to post the voluntary departure bond required by INA § 240B(b)(3), 8 U.S.C. § 1229c(b)(3), is not subject to penalties for failure to depart within the time period specified for voluntary departure, since “posting of a voluntary departure bond is a condition precedent to permission to depart voluntarily. . .”). http://www.usdoj.gov/eoir/vll/intdec/vol24/3546.pdf

RELIEF – WAIVER – 212(C) WAIVER – POST-CONVICTION RELIEF Lawrence v. Gonzales, 446 F.3d 221 (1st Cir. May 5, 2006) (where pre-IIRAIRA conviction was vacated on a basis of legal invalidity, but replaced with a new plea after IIRAIRA that also triggers removal, a waiver under INA § 212(c) is unavailable where the new plea was not entered nunc pro tunc). RELIEF – 212(C) WAIVER – NONCITIZEN WHO PROCURED LPR STATUS BY FRAUD OR MISTAKE HELD INELIGIBLE TO APPLY FOR 212(C) RELIEF SINCE NOT "LAWFULLY ADMITTED FOR PERMANENT RESIDENCE" De La Rosa v. Dep't of Homeland Sec., 489 F.3d 551 (2d Cir. Jun. 13, 2007) (a lawful permanent resident who has procured her status by fraud or mistake has not been "lawfully admitted for permanent residence" for purposes of section 212(c)). 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 – 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,

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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, 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 1. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003)

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 SosaHernandez, 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).

NON published BIA=NON precedent=NON binding 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);

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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).

RELIEF – 212(c) – LEAVING UNITED STATES WHILE 212(c) PENDING A noncitizen LPR who leaves the United States during removal proceedings does not abandon a request for INA § 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988), LPR respondent was convicted of possession of marijuana, proceedings commenced and LPR conceded deportability as charged in a hearing

101 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 citizenship); 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)

Because the court lacks jurisdiction over plaintiff’s claims, the court will not inquire into defendants motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). As opposed to DISMISSED for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

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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. Grewal v. Ashcroft, 301 F.Supp.2d 692, 696 (N.D.Ohio 2004) (noting that to divest district courts of jurisdiction is particularly problematic when the removal proceeding was initiated after the alien's application for naturalization was denied and he had filed a petition for review in the district court); Ngwana v. Attorney Gen. of the United States, 40 F.Supp.2d 319, 321 (D.Md.1999) (recognizing district court jurisdiction to review a merits-based denial of an application); Gatcliffe v. Reno, 23 F.Supp.2d 581, 582-83 (D.Vi.1998) (same)

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.” •

•

CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A Person Is Removed (9/7/2007) The court held that the regulation barring motions to reopen filed after a person departs or is removed 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. AILF appeared as amicus curiae in support of the petitioner. (William v. Gonzales, 9/6/07) AILA Doc. No. 07090771. CA4 Finds Exclusive District Court Jurisdiction Over Natz Applications Under INA §336(b) (8/7/2007) The court held that the timely filing of a request for a district

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court hearing on a naturalization application under INA §336(b) vests the district court with exclusive jurisdiction over the matter and deprives CIS of jurisdiction to adjudicate an application unless instructed to do so by the court. (Etape v. Chertoff, 8/2/07). AILA Doc. No. 07080767. CA2 Discusses “Formal Judgment of Guilt” Under INA §101(a)(48) (A) (1/29/2008) The court held that under the plain meaning of “conviction” in INA §101(a)(48)(A), the entry of a “formal judgment of guilt…by a court” occurs when judgment is entered on the docket, not when a defendant pleads guilty. Moreover, the IMMACT90 amendments were not impermissibly retroactive as applied to Petitioner. (Puello v. BCIS, 12/20/07). AILA Doc. No. 08012966 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 : Adopting the approach to statutory interpretation urged upon it by the government — an approach pioneered by the Supreme Court in Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) — the district court elected to follow what it saw as the true intent of Congress without necessarily adhering to the letter of the statutory language. The petition for review was dismissed without prejudice, as we have said, and Ms. Zayed has filed a timely appeal 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)

Baez-Fernandez EXHAUSTION NOT REQUIRED IF INJUSTICE manifested v. I.N.S., 385 F. Supp.2d 292, 295 (S.D.N.Y. 2005), which recognized an exception to the exhaustion requirement “where denial of jurisdiction would work a manifest injustice.” The decision in Baez-Fernandez relied on the Second Circuit’s decision in Marrero Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir. 2004), which involved a challenge to an order of removal where a subsequent judicial decision had eliminated the legal basis for the removal order. Although the petitioner had not appealed his deportation order to the Bureau of Immigration Appeals before filing a habeas petition,the Second Circuit concluded, on the unique facts of that case,that failure to consider the petitioner’s claim would work a manifest injustice. Id. at 54. In Baez-Fernandez, which involved an alien whose application for naturalization had been denied because a removal action was pending, the court distinguished Marrero Pichardo on the basis that the plaintiff had not been ordered removed and he appeared to be eligible for a waiver of the grounds of inadmissibility under former § 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c).

HAPEUS / Questions of LAW It is at least arguable that there is jurisdiction for this claim under 28 U.S.C. § 2241, as neither AEDPA nor IIRIRA abolished the writ of habeas corpus for aliens seeking to challenge certain legal determinations of the BIA. In order for this type of jurisdiction to exist, however, there must be a claim cognizable under 28 U.S.C. § 2241, which limits the writ to claims that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). In addition, as discussed above, “judicial review of final orders of removal is available where the review is limited to pure questions of law and does not touch upon decisions that are under the discretion of the Attorney General.” Moussa, 389 F.3d at 554.

106

8 C.F.R. § 334.5(b) (1992). Under these regulations, the INS appears not to have discretion simply to revoke an application once granted, or to refuse to schedule a successful applicatnt for the taking of the oath, even though information comes to light indicating the application should not have been granted. See Patel v. INS, No. 98CV1937 JCH, 2000 WL 298921 (E.D. Mo. Jan. 20, 2000).

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

POST CON RELIEF – SENTENCE – VACATION OR REDUCTION OF SENTENCE IS EFFECTIVE FOR IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S REASONS FOR GRANTING IT Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to modify or reduce a criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). http://www.usdoj.gov/eoir/vll/intdec/vol23/3522.pdf

10.31

A. Reopening Removal Proceedings

MOTION TO REOPEN – AFTER REMOVAL 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. AILF Legal Action Center, Litigation Clearinghouse Litigation Clearinghouse Newsletters are posted on AILF’s web page at www.ailf.org/lac/litclearinghouse.shtml.

First Circuit MOTION TO REOPEN – APPLICATION FOR RELIEF Palma-Mazariegos v. Gonzales, 504 F.3d 144 (1st Cir. Oct. 2, 2007) (motion to reopen removal proceedings for purpose of applying for relief must be accompanied by application for requested relief).

108 MOTION TO REOPEN – VOLUNTARY DEPARTURE NOT STAYED Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007) (BIA grant of a timely motion to reopen did not vacate the original IJ’s decision finding removability and granting voluntary departure, and did not stay the voluntary departure period, even though it is highly unlike that BIA would reach decision on merits of motion to reopen before voluntary departure period expires; “We read §§ 1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of voluntary departure available only to aliens who agree to give up the fight and leave the country willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006). POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD LEFT THE UNITED STATES Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. § 1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.”) did not invalidate the regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”). POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL PROCEEDINGS Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); CruzGarza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005). POST-CON – MOTION TO REOPEN – SUA SPONTE 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.”)

109 POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF 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 POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF 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 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 MOTION TO REOPEN – SUA SPONTE Cyrus v. Keisler, 505 F.3d 197 (2d Cir. Oct. 19, 2007) (court lacks jurisdiction to review denial of discretionary request for sua sponte motion to reopen). BOARD OF IMMIGRATION APPEALS – MOTION TO RECONSIDER – DEFINITION AND STANDARD Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has defined a motion to reconsider as ‘"a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked."’ In re Cerna, 20 I. & N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations establish that a motion to reconsider must specify errors of fact or law in the BIA decision and be supported by relevant authority.") citing 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

Fourth Circuit MOTIONS TO REOPEN – DEPORTED NONCITIZENS William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8 U.S.C.] § 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. ... it is evident that 8 C.F.R. § 1003.2(d), containing the post-departure bar on motions to reopen,

110 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 MOTION TO REOPEN – SUA SPONTE 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

Eighth Circuit MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL 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-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR 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). 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). POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POSTCONVICTION ATTACK 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).

Eleventh Circuit MOTION TO REOPEN – BIA Cisneros v. U.S. Attorney Gen., __ F.3d __, 2008 WL 217364 (11th Cir. Jan. 28, 2008) (BIA abused its discretion in failing to examine exceptional circumstances in denying the motion to reopen).

BIA MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion. The Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings; where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is vacated, he or she has a right to file a

112 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 POST-CONVICTION RELIEF – AFTER CONVICTION VACATED New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml. REMOVAL – RETURN OF THE WRONGFULLY REMOVED One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal" under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks to Beryl B. Farris, Atlanta. MOTION TO REOPEN – AFTER DEPARTURE FROM UNITED STATES The regulations provide that departure from the United States under an order of deportation, or while a removal order is on appeal to the BIA, shall render the immigration judge’s decision final and bar any motion to reopen or reconsider. 8 C.F.R. §§ 1003.2(d), 1003.4. However, many circuits have challenged the validity of these regulations. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (first sentence of 8 C.F.R. § 1003.2(d) is ultra vires to statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase “is the subject of”); Contreras-Rodriguez v. United States Att’y Gen., 462 F.3d 1314 (11th Cir. 2006) (departure regulation does not apply to in absentia motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) ("Under 8 C.F.R. § 1003.4, any voluntary departure from the United States following entry of an order of deportation will be deemed to withdraw a pending appeal and to render the order of deportation final."). Thanks to Rachel E. Rosenbloom; Beth Werlin POST CON RELIEF – STATE REHABILITATIVE RELIEF – WYOMING DEFERRED ENTRY OF PLEA AND SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301 (“Without entering a judgment of guilt or conviction, [the court may] defer further proceedings and place the person on probation for a term not to exceed five (5) years.”), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48) (A) for immigration purposes.

113

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.

Departing while appeal is pending : Delagadillo The respondent, through counsel, argues that his departure from the United States to Cuba renders moot the Service’s appeal of the Immigration Judge’s order terminating deportation proceedings. The respondent maintains that “there is no issue in regard to [his] deportation as he has departed the United States.” According to the respondent, because he is not the appealing party, “his departure cannot be construed as a withdrawal of his appeal under 8 C.F.R. § 3.4. nor can it be construed as self-deportation because he [prevailed in] this case [before the Immigration Judge] and was not ordered deported.”

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

Matter of Luis, 22 I&N Dec. 3395, at 8 (BIA 1999). Furthermore, we decided that the Board has, as a matter of prudence, reserved the discretion to dismiss appeals and deny motions as moot. Id. at 9. We find, as we did in Matter of Luis, that the instant case is not moot because a resolution of the Service’s appeal that is adverse to the respondent would have significant legal consequences were the respondent to seek admission to the United States in the future. Furthermore, because the respondent is a lawful permanent resident, the question whether he is entitled to retain that status is not mooted by his mere departure from this country.

KRS 506.120 V KRS 506.080 KRS 506.120 clearly requires proof of a number of facts not required by KRS 506.080. For example, KRS 506.120(1) requires a person to have “the purpose to establish or maintain a criminal syndicate or to facilitate any of its activities,” a requirement not contained within KRS 506.080. According to KRS 506.080(1), if a person engages in conduct to provide someone with the means or the opportunity to commit a crime, his conduct must actually aid that party in committing the crime. In other words, the crime allegedly being facilitated must actually be consummated and committed. See KRS 506.080 (LRC Commentary). No consummation requirement is contained within any of the prohibited acts contained within KRS 506.120(1)(a)-(c). Thus, “each statute requires proof of a fact the other does not.” However, there was testimony that Layton also bought ingredients that were used by the group in the manufacturing of methamphetamine. That conduct alone of providing materials supported a criminal syndicate conviction. Therefore, Layton’s double jeopardy argument must fail. 506.080 Criminal facilitation. (1) A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime. (2) Criminal facilitation is a: (a) Class D felony when the crime facilitated is a Class A or Class B felony or capital offense; (b) Class A misdemeanor when the crime facilitated is a Class C or Class D felony; (c) Class B misdemeanor when the crime facilitated is a misdemeanor. . Facilitation of Aggravated Burglary

115 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. A person is a party to a crime in Tennessee "if the offense is committed by the person's own conduct, by the conduct of another for which the person is criminally responsible, or by both." TENN. CODE ANN. § 39-11-401(a). The comments to this section make clear that Tennessee law provides "equal liability for principals, accessories before the fact, and aiders and abettors." Id. § 39-11-401(a) cmt. More specifically, a person is criminally responsible for an offense committed by another so long as he has the appropriate mental state-i.e., an "intent to [*11] promote or assist the commission of the offense, or to benefit in the proceeds"-and solicits, directs, aids, or attempts to aid the person who commits the crime. Id. § 39-11402(2). "Facilitation of a felony is a lesser-included offense when a defendant is charged with criminal responsibility for the conduct of another." State v. Fowler, 23 S.W.3d 285, 288 (Tenn.2000). "A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility [for the offense,] . . . the person knowingly furnishes substantial assistance in the commission of the felony." TENN. CODE ANN. § 39-11-403(a). Here, Sawyers pled guilty to facilitation of aggravated burglary. "Aggravated burglary occurs when an individual enters a habitation 'without the effective consent of the property owner' and, . . . intends to commit a felony . . . ." State v. Langford, 994 S.W.2d 126, 127 (Tenn.1999)(citing TENN. CODE ANN. §§ 3914-402 and 39-14-403). Facilitation of aggravated burglary satisfies [*12] the "felony" requirement because it is punishable by more than one year. Specifically, as a class D felony, the crime carries a minimum two year sentence. TENN. CODE ANN. § 40-35-111(b) (4). n2 It is therefore necessary to determine if the crime meets the second requirement under the ACCA. Facilitation of aggravated burglary clearly does not involve the use of explosives or contain an element of force. Thus, it is a "violent felony" only if it is specifically enumerated or falls within the otherwise clause. 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 1956(a)(3)(A); 18 U.S.C. § 1956(h). Roy's principal appellate argument is that the district court committed reversible error in informing the jury that Roy could be convicted if he engaged in the actus reus with an intent to promote "or facilitate" the already [*3] referenced marijuana sales. As Roy correctly points out, the statute makes no mention of an intent to "facilitate"; an intent to "promote" is required. Promotion and facilitation are not the same, Roy posits, because one can facilitate something simply by doing nothing, whereas one must engage in affirmative conduct in order to engage in "promotion." Thus, Roy contends, the instruction impermissibly and prejudicially diminished the government's burden of proof. The government's principal response is that, contrary to Roy's protestations, the words "promote" and "facilitate" are synonymous and have been used interchangeably by a number of appellate courts, including this court, in describing the mens rea required by 18 U.S.C. § 1956(c)(3)(A). See United States v. LeBlanc, 24 F.3d 340, 346 (1st Cir. 1994); see also United States v. Panaro, 266 F.3d 939, 949-50 (9th Cir. 2001); United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999); United States v. Paramo, 998 F.2d 1212, 1215-16 (3d Cir. 1993); United States v. Skinner, 946 F.2d 176, 177-78 (2d Cir. 1991). 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 narcoticsrelated 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." PARKS v. Commonwealth page 10 http://apps.kycourts.net/supreme/sc_opinions.shtm

Complicity liability under KRS 502 .020 is not an inchoate offense, such as the offenses described in KRS Chapter 506, e.g_, criminal facilitation, KRS 506.080, the offense to which Blakeman and Morris pled guilty. Inchoate offenses carry reduced penalties because the underlying offense was never actually committed. However, unlike an inchoate offense, "KRS 502.020 does not create a new offense known as complicity ." Commonwealth v. Caswell , 614 S.W.2d 253, 254 (Ky. App. 1981). "[O]ne who is found

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guilty of complicity to a crime occupies the same status as one being guilty of the principal offense." Wilson v.Commonwealth , 601 S.W.2d 280,286 (Ky. 1980) . Smalley attempts to rebut the government’s assertion that his crime was inherently fraudulent by noting that fraud is not part of the language of either § 1952(a) or § 1956(a)(3)(B). The Ninth Circuit has aptly noted, however, that “[e]ven if intent to defraud is not explicit in the statutory definition, a crime nevertheless may involve moral turpitude if such intent is ‘implicit in the nature of the crime.’” Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993) (quoting Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978)); accord In re Flores, 17 I. & N. Dec. 225, 228 (BIA 1980). Smalley stridently disagrees that his offense is implicitly fraudulent and therefore turpitudinous, however, because he analogizes money laundering to the regulatory crime of structuring financial transactions to evade reporting requirements under 31 U.S.C. § 5324, which both the BIA and the Ninth Circuit have held is neither fraudulent nor a CIMT. See Goldeshtein, 8 F.3d at 648; In re L-V-C-, 22 I. & N. Dec. 594,602 (BIA 1999) (following Goldeshtein). our categorical analysis of whether a crime involves moral turpitude, the answer depends upon our analysis of the elements of the crime that the government must prove before 0btaining a conviction www.probono.net/nationalareasearch/attachment.109695 www.opinions.kycourts.net/sc/2005-SC-000307-MR.pdf

KY Complicity v Facilitation: STRATTON v Comm of KY supreme court The relevant part of the statute criminalizing complicity, KRS KRS 502 .020(1), reads: A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he : (a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or (b) Aids, counsels, or attempts to aid such person in planning or committing the offense; In slight contrast, the statute criminalizing facilitation, KRS 506 .080(1), reads: A person is guilty of criminal facilitation when, acting with

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knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime. The distinction between the applicability of the two statutes depends on the defendant's mental state. See White v. Commonwealth, 178 S.W .3d 470, 489 (Ky. 2005) . Under either statute, the defendant acts with knowledge that the principal actor is committing or intends to commit a crime. Under the complicity statute, the defendant must intend that the crime be committed ; under the facilitation statute, the defendant acts without such intent. Facilitation only requires provision of the means or opportunity to commit a crime, while complicity requires solicitation, conspiracy, or some form of assistance. "Facilitation reflects the mental state of one who is `wholly indifferent' to the actual completion of the crime." Thompkins v. Commonwealth, 54 S.W .3d 147,150-51 (Ky. 2001) (citing Skinner v. Commonwealth, 864 S.W .2d 290, 298 (Ky. 1993) and quoting Perdue v. Commonwealth, 916 S .W.2d 148,160 (Ky. 1995), cert. denied , 519 U .S . 855,117 S . Ct. 151, 136 L. Ed . 2d 96 (1996)). An instruction on facilitation (as a lesser-included offense of complicity) "is appropriate if and only if on the given evidence a reasonable juror could entertain reasonable doubt of the defendant's guilt on the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense." Skinner, 864 S.W .2d at 298. An instruction on a lesser included offense requiring a different mental state from the primary offense is unwarranted, however, unless there is evidence supporting the existence of both mental states . See Taylor v. Commonwealth, 995 S .W.2d 355, 362 (Ky. 1999). Duran, ID#3101 (1) An immigration judge in deportation proceedings properly denied the respondent's motion to subpoena government records where the respondent failed to comply with the requirements of 8 C.F.R. § 287.4(a)(2) (1984) by not specifically stating what he expected to prove by such documentary evidence and by not affirmatively showing a diligent effort to obtain the records. (2) While a subpoena is not required in the instant proceedings and access should generally be given to a person in immigration proceedings concerning records maintained about himself, the respondent failed to show compliance with the requirements of 8 C.F.R. § 103.21 (1984) which permit such access Matter of Morales 21 / 130 1995

(5) An interlocutory appeal will ordinarily be considered moot upon the alien’s departure under an order of exclusion and deportation, but such an appeal need not be considered moot in each and every circumstance, particularly where the order of exclusion was erroneous and the issue raised has continuing importance to the proper administration of the immigration laws. Matter of Okoh, 20 I&N Dec. 864 (BIA 1994), distinguished. Matter of Brown, 18 I&N Dec. 324, 325(BIA 1982) (holding that an alien may not defeat a Service appealand nullify deportation proceedings by effecting a departure from and subsequent reentry to the United States). We therefore

120 hold that the respondent’s departure from the United States did not serve as a constructive withdrawal of the Service’s appeal.

One of the principal distinctions between facilitation and complicity is that "facilitation requires knowledge that another intends to commit a crime, while complicity requires an intention to promote or facilitate commission of the offense ." Skinner v. Commonwealth , 864 S.W.2d 290, 298 (Ky. 1993). Explained another way, "[f]acilitation reflects the mental state of one who is 'wholly indifferent' to the actual completion of the crime ." Perdue v. Commonwealth, 916 S.W.2d 148, 160 (Ky. 1995). http://64.233.169.104/search? q=cache:GNCBYewEWuoJ:162.114.92.72/Opinions/2003-SC-000220MR.pdf+krs+506.080&hl=en&ct=clnk&cd=8&gl=us CIMT STATUTe PARTYKA v. AG http://www.ca3.uscourts.gov/opinarch/042804p.pdf.

Whether an alien’s crime involves moral turpitude is determined by the criminal statute and the record of conviction, not the alien’s conduct. Knapik, 384 F.3d at 88,90-91; De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3dCir. 2002). Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute. Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996); Matter of Marchena, 12 I. & N. Dec. 355, 357 (BIA 1967). As a general rule, a criminal statute defines a crime involving “moral turpitude only if all of the conduct it prohibits is turpitudinous JUV . ADJ and Immigration The United States continues to attract immigrants from many foreign lands, and lawyers in criminal practice must increasingly be conscious of the immigration status of parties and deportation consequences of criminal proceedings involving alien residents. So far, juvenile delinquency adjudications have not been deemed criminal "convictions" that have negative immigration consequences. (Matter of Ramirez-Rivero, 18 I&N 135 (BIA 1981); Matter of C.M., 5 I&N 327 (BIA 1953).) But the conviction of a juvenile as an adult in a criminal court does meet the law’s requirement and may result in deportation. (Matter of C.M., supra; Morasch v. INS, 363 F.2d 30 (9th Cir. 1966).) One major consequence of the transfer of a youth to trial in adult court is exposure to the likelihood of deportation, depending on the gravity of the offense charged or nature of the sentence imposed. 18 U.S.C. §§ 5031-5042

4.1.C Finality of conviction

Before Congress codified the definition of conviction in 1996, the Supreme Court had required that a conviction be final before it could be used in to support a conviction-based ground of deportability.13 Although the BIA has not addressed the issue in a precedent decision since 1996, the Fifth Circuit14 and Seventh Circuit15 have held that the statutory definition of conviction eliminated the finality requirement. In those circuits that still require finality, a late appeal that is accepted as a direct appeal is not a final conviction for immigration purposes.16 IJ REQ An U is required to inform eligible aliens about the availability of discretionary relief,

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including voluntary departure; failure to do so is a basis for a remand by the BlA. In re Julio Antonio Cordova, 22 I. & N. Dec. 966, 970-72, 1999 WL 590719 (BlA 1999). Under 8 C.F.R. § 240.11(a)(2) (now 8 C.P.R. § 1240(a)(2)), "[t]he Immigration Judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing." Voluntary departure is one of the "benefits enumerated in this chapter." See 8 C.P.R. §240.26 (now 8 C.F.R. § 1240.26) Moreover, the Board of Immigration Appeals (hereafter "the BIA") requires a remand when an U misinforms or fails to inform an eligible alien about voluntary departure rights, even when the alien is represented by an attorney. Cordova, 22 I. & N. at 966.6 In short, as with § 212(c) relief, the "right to be informed of the possibility" of voluntary departure relief, although the relief itself is not "constitutionally mandated, ... [is] an established right." Copeland, 376 F.3d at 72 Argument against the Wobbler KY statute of Facilitation: (CIMT TEST) 1-KRS 506.080 is violated without any requirement that the def. have a specific intent to cause any liability to the victim being defrauded.The statute requires the existance of no state of mind or criminal intent beyond that plainly expressed on the face of the statute. “ The legistlator thought to deter ALL acts by a facilitator that may or may not result in a liability,“whether or not such a consequence was intended or even forseen” Moral turpitude generally requires an evil motive, one doesnot violate …. by merely ………, Rather,one must intentionally engage in a deception or fraud that might fairly be described as noninnocent behavior, even if, in some instances,it might not stem from an evil motive. 2- the crime of facilitation was complete at the time the offense to defraud began. 3- Penalty for Facilitation of a class A is a class B Misd punishable by a max of 90 days in Jail.

4- CIMT is not defined by the INA or in any US code. 5- Intent to defraud shall be focused on the person who commits the actual offense not the facilitator. (min. conduct required should be discussed) http://www.plol.org/Pages/Secure/Document.aspx?d=4mBXPcT15pNzBDKeBxG %2bSw%3d%3d&l=Cases&rp=4 5 cir case of viol facilitation ( immig is a driver of the car in which the pass. Is the drive by shooter) Nguyen V Ashcroft.

Mizrahi v Gonzales Ca2 Solicitation of CS NY penal:

Because every solicitation conviction in New York depends on two statutes to define the minimum conduct proscribed -- the generic statute which defines the actus reus element and the object statute which defines the mens rea element -- when, as in Mizrahi's case, the intent element is supplied by a statute defining the defendant's objective to be a drug crime, the solicitation conviction categorically constitutes "a violation of . . . any law . . relating to a controlled substance." 8 U.S.C. § 182(a)(2) (A)(i)(II). http://www.lexisone.com/lx1/caselaw/freecaselaw? action=FCLRetrieveCaseDetail&caseID=5&format=FULL&resultHandle=12fbb1fe83 a385acefd7112611619fda&pageLimit=10&xmlgTotalCount=16&combinedSearchTe rm=facilitation+and+deportation&juriName=Combined%20Federal %20Cases&sourceFile=GENFED;COURTS

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2) Criminal and related grounds (A) Conviction of certain crimes (i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of— (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

PRO SE In Ca2 we construe the briefs of pro se petitioners as raising the strongest arguments that they suggest, Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002);Mcintoch CIMT test Cliché: 3Because the term “moral turpitude” is undefined by statute, this court has been inclined to defer to the Board of Immigration Appeal’s (“BIA’s”) construction. See Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006) (“The BIA has explained that the term ‘moral turpitude’ generally encompasses: ‘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.’” (quoting Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996))). The conduct that Nguyen pleaded guilty to falls within this definition.

By these standards, we conclude that the crime of malicious mischief as defined by the Washington statute does not rise to the level of either depravity or fraud that would qualify it as necessarily involving moral turpitude. In contrast to the bulk of other nonfraud crimes necessarily involving moral turpitude, malicious mischief is a relatively minor offense. Indeed, one can be convicted of malicious mischief for destroying as little as $250.00 of another's property with an evil wish to annoy. Moreover, malice can be inferred if the act is merely "wrongfully done without just cause or excuse." RCW Sec. 9A.04.110(12). The Washington statute's reach thus extends to include pranksters with

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poor judgment. Consequently, unlike the crimes of spousal abuse, child abuse, firstdegree incest, and carnal knowledge of a fifteen year old, malicious mischief does not necessarily involve an "act of baseness or depravity contrary to accepted moral standards." Grageda 12 F.3d at 921; cf. Matter of N--, 8 I & N Dec. 466, 468 (BIA 1959) (Delaware malicious mischief statute not a crime necessarily involving moral turpitude).5 As for fraudulent intent, it is undisputed that Washington's malicious mischief statute includes no such element. We therefore conclude that malicious mischief, as defined by RCW Sec. 9A.48.080, is not a crime necessarily involving moral turpitude. 16 The INS resists this conclusion, arguing that if a statute requires an "evil intent, wish, or design to vex, annoy, or injure another person," then the crime necessarily involves moral turpitude. We cannot accept this proposition. It is true that in the fraud context we have placed a great deal of weight on the requirement of an evil intent. But even in this context, we have not held that if a statute requires evil intent, it necessarily involves moral turpitude. We have held only that without an evil intent, a statute does not necessarily involve moral turpitude. See Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.1962) ("A crime that does not necessarily involve evil intent, such as an intent to defraud, is not necessarily a crime involving moral turpitude."). To state the proposition positively, we have held that in the fraud context an evil intent is necessary, but not sufficient, for a crime inevitably to involve moral turpitude. Cf. Gonzalez-Alvarado, 39 F.3d at 246 (holding that "[a] crime involving the willful commission of a base or depraved act is a crime involving moral turpitude, whether or not the statute requires proof of evil intent."). 17 While mental state is an important factor, we reject the contention that all crimes requiring some degree of evil intent are necessarily crimes involving moral turpitude. Here, for example, the Washington statute permits malice (which imports an evil intent) to "be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty." RCW Sec. 9A.04.110(12). Under this definition, evil intent may become much too attenuated to imbue the crime with the character of fraud

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or depravity that we have associated with moral turpitude. At least outside of the fraud context,6 the bare presence of some degree of evil intent is not enough to convert a crime that is not serious into one of moral turpitude leading to deportation under section 241(a)(4) of the Immigration and Nationality Act. (Rodriguez-herrera, Petitioner, v.INS) http://cases.justia.com/us-court-of-appeals/F3/52/238/573134/ PREJUIDICED IN proceedings: DUE PROCESS See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (reversal of a BIA decision on due process grounds is available where the petitioner suffered prejudice, and the proceeding was “so fundamentally unfair that the alien was prevented from reasonably presenting his case.”) Petitioner argues she was prejudiced by the introduction of the evidence because it provided the basis for her removal. Clearly the evidence hurt Petitioner’s case. But Garcia-Flores does not bar evidence that prejudices a petitioner; the rule bars evidence that prejudices protected interests held by that petitioner Shin v Mukasey: 1252 g/ Equitable estoppel Petitioner argues the government should be estopped from removing her due to Sustaire’s actions. Under 8 U.S.C.§ 1252(g), we have no “jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders . . . .” See also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). However, we have jurisdiction over petitioner’s equitable estoppel claim because it arises from actions taken by a corrupt government employee prior to any decision made by the Attorney General to commence proceedings against her. See Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004) (holding that “§ 1252(g) does not bar review of actions that occurred prior to any decision to ‘commence proceedings’ ”). SHIN v. MUKASEY 2033

WONG v U S: 1252 (a) (2) (B): (ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General.... 8 U.S.C. § 1252(a)(2)(B). The government maintains that this provision precludes jurisdiction in this Bivens action over Wong's challenges to the decisions regarding adjustment of status, advance parole or permission to depart without advance parole, and revocation of parole. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (AADC), the Supreme Court interpreted § 1252(g). In the course of doing so, the Court cautioned that we must be careful not to read broadly language in the INA affecting court jurisdiction that is subject to a "much narrower" interpretation. See id. at 478-82, 119 S.Ct. 936. Consistent with that admonition, we have recognized that the § 1252(a)(2)(B) jurisdictional bar is not to be expanded beyond its precise language. For example, decisions made on a purely legal basis may be reviewed, as they do not turn on discretionary judgment. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir.2003) (decision that alien was statutorily barred from petitioning for adjustment of status was not discretionary and could be reviewed notwithstanding § 1252(a)(2)(B)); Montero-Martinez, 277

125 F.3d at 1143-44 (§ 1252(a)(2)(B) does not preclude jurisdiction over purely legal, and hence nondiscretionary, questions). Moreover, decisions that violate the Constitution cannot be "discretionary," so claims of constitutional violations are not barred by § 1252(a)(2)(B). See Torres-Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir.2001); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). In addition, § 1252(a)(2)(B)(ii) precludes jurisdiction only over decisions as to which discretionary authority is "specified" by statute, not all discretionary decisions. See Spencer Enterprises, Inc., 345 F.3d at 689-90.)

(B) does not preclude the district court from entertaining such claims. B. Section 1252(g) — Review of Decisions or Actions by the Attorney General to Commence Proceedings, Adjudicate Cases, or Execute Removal Orders Section 1252(g) limits judicial review of certain decisions or actions of the Attorney General regarding removal.15 That provision states: Exclusive Jurisdiction. — Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on 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 Act. 8 U.S.C. § 1252(g). AADC held that § 1252(g) "applies only to three discrete actions that the Attorney General may take: her `decision or action' to `commence proceedings, adjudicate cases, or execute removal orders.'" 525 U.S. at 482, 119 S.Ct. 936. Section 1252(g), consequently, does not bar "all claims relating in any way to deportation proceedings." Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir.2000) (en banc). As AADC noted, "[t]here are of course many other decisions or actions that may be part of the deportation process — such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final deportation order ..., and to refuse reconsideration of that order." AADC, 525 U.S. at 482, 119 S.Ct. 936. 46

Following AADC, we have narrowly construed § 1252(g). For example, we 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." Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir.2002) (citations omitted). Similarly, in Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001), we held that § 1252(g) does not bar judicial review of decisions or actions that occur during the formal adjudicatory process, because they are separate from the "decision to adjudicate." Sulit v. Schiltgen, 213 F.3d 449 (9th Cir.2000), determined that § 1252(g) does not bar the due process claims of aliens alleging that their green cards were improperly seized without a hearing, that the INS failed to provide them with notice

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requiring them to surrender for deportation, and that their counsel failed to notify them of the issuance of the court's decision. See id. at 452-53 & n. 1; see also Catholic Soc. Servs., 232 F.3d at 1150 (concluding that § 1252(g) does not limit jurisdiction to grant injunctive relief in a class action challenging the INS's advance parole policy). But see Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir.2002) (holding that § 1252(g)'s bar to judicial review of decision whether to commence proceedings precludes review of the decision when to commence proceedings). Characterizing Wong's claims primarily as removal-based, the government urges that they are for the most part barred by § 1252(g). Although her complaint could be read to challenge the constitutionality of the removal itself, Wong has renounced such a broad reading of her ambiguous allegations, stating in her brief that: Plaintiffs' claims [do] not amount to a challenge of the decision of the INS to `commence proceedings,' `adjudicate cases,' or `execute removal orders.' Rather, ... Plaintiffs' claims arise from the discriminatory animus that motivated and underlay the actions of the individual defendants which resulted in the INS's decision to commence removal proceedings and ultimately to remove Plaintiff Wong from the United States. The instant case ... involves claims arising prior to any INS decision `to commence proceedings against Wong, as well as claims that the Defendants placed Wong in a detention situation where she suffered constitutional injury at the hands of third parties. (emphasis added). Wong thus disclaims any challenge to the execution of the removal itself, but rather asserts that her claims implicate only actions other than that removal, or the commencement of proceedings, if any, leading to that removal.16 Wong is correct that § 1252(g) does not bar review of the actions that occurred prior to any decision to "commence proceedings," if any, against her or to execute the removal order, such as the INS officials' allegedly discriminatory decisions regarding advance parole, adjustment of status, and revocation of parole. See Humphries v. Various Fed. USINS Employees, 164 F.3d 936, 944 (5th Cir.1999) ("[W]e would defy logic by holding that a claim for relief somehow `aris[es] from' decisions and actions accomplished only after the injury allegedly occurred.") (second alteration in original). None of these decisions involves the discrete actions enumerated in § 1252(g). C. Section 1252(a)(2)(A) — Jurisdiction to Review Any Cause or Claim Arising From or Relating to Implementation or Operation of an Expedited Removal Order Similarly, the government asserts that § 1252(a)(2)(A), which deals directly with the expedited removal procedure under which Wong was removed, may also be implicated by Wong's claims. Section 1252(a)(2)(A) reads in relevant part: Notwithstanding any other provision of law, no court shall have jurisdiction to review — (i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an

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order of removal pursuant to section 235(b)(1) [setting forth procedures for expedited removal], (ii) except as provided in subsection (e), a decision by the Attorney `General to invoke the provisions of such section, [or] (iii) the application of such section to individual aliens, including the determination made [as to eligibility for asylum]. 8 U.S.C. § 1252(a)(2)(A). Subsection (e) provides that no court may "enter declaratory, injunctive, or other equitable relief in any action pertaining to an [expedited removal order]," unless certain exceptions not applicable here apply. 8 U.S.C. § 1252(e)(1)(A). Like § 1252(g), § 1252(a)(2)(A) does not preclude Wong's claims concerning events that occurred prior to the decision to initiate her expedited removal — namely, the claims challenging the adjustment of status, advance parole, and revocation of parole decisions. None of these claims implicates actions covered by § 1252(a)(2)(A). And, as we explained above, Wong has expressly disclaimed interpreting her complaint to include a challenge to her expedited removal, maintaining instead that the complaint challenges only the decisions described above, which preceded her removal.17 We conclude that the district court properly exercised jurisdiction over Wong's claims regarding advance parole, adjustment of status, and parole revocation, as well as over her detention-related claims We are not precluded, for example, from ruling on constitutional challenges to deportation procedures. See Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir.1998) ("By its terms, [§ 1252(g)] does not prevent the district court from exercising jurisdiction over the plaintiffs' due process claims [because such claims] constitute `general collateral challenges to unconstitutional practices and policies used by the agency.'") (quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991)); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1121 (9th Cir.2001) (holding § 1252(g) did not bar aliens' challenge to INS deportation procedures); Catholic Social Servs. v. INS, 232 F.3d 1139, 1150 (9th Cir.2000) (en banc) (same).

Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007) (noting that “unpublished BIA decisions do not constitute agency interpretations of law warranting Chevron deference”) Aggravated felony Forgery A conviction under this statute is an aggravated felony as a crime related to forgery under 8 U.S.C. § 1101(a)(43)(R) if the sentence is at least one year. In the aggravated felony definition, forgery is not defined. Nor is the there a federal definition of forgery to use as a benchmark. Therefore, courts have reasoned that the common law definition of forgery should be used to determine whether a particular offense is an aggravated felony. The three elements of the common law definition of forgery are: (1)

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the false making or material alteration (2) with intent to defraud (3) of a writing that, if genuine, might be of legal efficacy). Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005). The common law definition of forgery exactly mirrors the Virginia definition of forgery and therefore, a conviction under this statute is an aggravated felony if the sentence imposed is at least one year 18.2-193 Credit card forgery Elements (1)(a) - with intent to defraud a purported issuer, a person or organization providing money, goods or services or anything else of value, or any other person - falsely makes or falsely embosses a purported credit card or utters such a credit card (1)(b) - not being the cardholding or the person authorized by him - with intent to defraud the issuer, or a person or organization providing money, goods or services or anything else of value, or any other person - signs a credit card (1)(c) - not being the cardholder or the person authorized by him - with intent to defraud the issuer, or a person or organization providing money, goods or services or anything else of value, or any other person - forges a sales draft or cash advance/withdrawal draft - or uses a credit card number of a card of which he is not the cardholder, - or utters, or attempts to employ as true, such forged draft knowing it to be forged Crime involving moral turpitude A conviction under this statute is a crime involving moral turpitude because any conviction under this statute requires fraud as an essential element. See Jordan v. DeGeorge, 341 U.S. 223 (1951). Aggravated felony Forgery A conviction under this statute is a forgery offense and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(R) if the sentence imposed is at least one year. The Virginia definition of credit card forgery matches the common law definition of forgery, which has been used to define the forgery offense in 8 U.S.C. § 101(a)(43)(R). See Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005) (three elements of common law forgery are (1) the false making or material alteration (2) with intent to defraud (3) of a writing that, if genuine, might be of legal efficacy). Fraud offense A conviction under this statute is a fraud offense and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) if the loss to the victim is over $10,000. 8 CFR 3.3 (e) (e) Effect of departure from the United States. Departure from the United States of a person who is the subject of deportation proceedings, prior to the taking of an appeal from a decision in his or her case, shall constitute a

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waiver of his or her right to appeal. [61 FR 18906, Apr. 29, 1996, as amended at 66 FR 6445, Jan. 22, 2001] Withdrawal of Appeal

Departure from the United States of a person who is the subject of deportation proceedings subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken. Departure from the United States of a person who is the subject of deportation or removal proceedings, except for arriving aliens as defined in § 1.1(q) of this chapter, subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.[61 FR 18907, Apr. 29, 1996, as amended at 62 FR 10331, Mar. 6, 1997

Third Circuit on statute of limitations "In this immigration case, the Department of Homeland Security seeks to deport an alien based on misrepresentations she made in applying for an adjustment of status more than five years previously. We conclude that a subsequent amendment to the statute did not negate our earlier precedent that the government was required to rescind and begin deportation within five years. Accordingly, we will grant the petition for review." Garcia v. Atty. Gen., Oct. 28, 2008 http://www.ca3.uscourts.gov/opinarch/072164p.pdf We review the IJ's factual determinations for substantial evidence. n2 See Francis v. Gonzales, 442 F.3d 131, 137 (2d. Cir. 2006). When the Government bears the burden of proof below, the substantial evidence standard is more demanding than in asylum and withholding of removal cases. See id. at 137-39. In order to grant Yuhter's petition for review, we "are not required to find that any rational trier of fact would be compelled to conclude that" Yuhter's transcript was authentic, but "we must find that any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and convincing evidence." Id. at 138-39.

Asika v Ashcroft Third Circuit, Asika contends that the "practical effect" of reading section 246(a) not to apply to deportation in this set of cases would be to "construe it out of existence." See Bamidele v. INS, 99 F.3d 557, 562-65 (3d Cir. 1996). He also argues the Attorney General's contrary interpretation is not due deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), both because the statute is clear and because "a statute of limitations is not a matter within the particular expertise of the INS," see Bamidele, 99 F.3d at 561.

AGG. Felony. And 1 yr Sentence: we have already [*17] concluded that "Congress was sufficiently clear in its intent to include certain crimes with one-year sentences in the definition of 'aggravated felony.'" United States v. Graham, 169 F.3d 787, 788 (3d Cir. 1999), cert. denied 528 U.S. 845, 145 L. Ed. 2d 99, 120 S. Ct. 116 (rejecting the argument that a one-year sentence does not implicate 8 U.S.C. § 1101(a)(43)(G)).

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Alford Plea : As the lnunigration Judge determined,in http://www.bibdaily.com/pdfs/BIAu%208-25-08%20Dennis.pdf Mathew Dennis however, neither offense categorically satisfies the requirements ofits respective aggravated felony category, andthus the charges ofdeportability cannot be sustained absent proof that the respondent's convictions were based on proof of (or admissions to) facts identifying his offenses as aggravated felonies. Where an alien was convicted by means of a plea, as here, an hnmigration Judge conducting such a "modified categorical" inquiry is "generally limited to examining the statutory definition, charging document~ written plea agreement, transcript ofplea colloquy, and any explicit factual finding by the trial judge to which the defendant assented" or which was"confirmed by the defendant." Shepard v. United States, 544 U.S. 13, 16, 26 (2005) (emphasis added Immigration Judge' determined that because the respondent had entered an Alford plea-thereby neither "assent[ingJ" to nor "confirm[ing]" any factual basis for his plea-it was simply not possible to "pare down" his offenses ofconviction to ones encompassed by the elements oftheir respective aggravated felony categories. This result appears to be consistent with-and dictated by-eontroIling Supreme Court precedent.l Thus, we will dismiss the appeal. The appeal is dismissed.

REMOVABILITY UNDER THE INA (2nd Circ ALSOL, http://www.bibdaily.com/pdfs/Alsol %202%2011-14-08.pdf As we recently emphasized, “the INA premises removability not on what an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally

convicted of in a court of law.” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 145 (2d Cir. 2008); see also Rashid v. Mukasey, 531 F.3d 438, 445 (6th Cir. 2008); Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 125 (2d Cir. 2007) (The INA renders “removable an alien who has been convicted of an aggravated felony, not one who has committed an aggravated felony.”) (emphases added) The requirement that an alien be convicted of a removable offense before suffering the consequences under immigration law is precisely what Lopez requires. Under Lopez, an offense that could have been prosecuted -- not necessarily resulting in conviction -- as a recidivist offense is not an offense punishable as a federal felony. The INA and Lopez require an actual conviction for an offense that proscribes conduct that is punishable as a federal felony, not a conviction that could have been obtained if it had been prosecuted. See 8 U.S.C. § 1227(a)(2)(A)(iii) (rendering deportable an alien who has been “convicted of an aggravated felony”); 8 U.S.C. § 1229b(a)(3) (stating that the Attorney General may cancel removal if, inter alia, the alien “has not been convicted of any aggravated felony”). Sentence as defined pre 1996:

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The enactment of section 101(a)(48)(B) of the Act overrules our previous holding, set forth in Matter of Esposito, 21 I&N Dec. 1 (BIA 1995), wherein we had held that a sentence, for excludability purposes under section 212(a)(10) of the Act, is not “actually imposed” if the sentencing court suspends the imposition of an alien’s sentence. See also Matter of Castro, 19 I&N Dec. 692 (BIA 1988) (holding that when a court suspends the imposition of a sentence, there is no “sentence actually imposed” for purposes of section 212(a)(9) of the Act.) (The panel will retain jurisdiction in the event review subsequent to the Lavira's administrative proceedings is required.) lavira v AG http://legal.rights.com/F.3d/478/478.F3d.158.05-3334.html Solicitation v Facilitation NY:

Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992). The BIA found that a non-citizen convicted in Arizona of solicitation to possess narcotics was convicted of a CSO. The individual was convicted under a statute which provided that a person is guilty of the offense if he “ ‘commands, encourages, requests or solicits’ another person to engage in criminal activity with the intent to promote or facilitate the commission of the crime.” Under Arizona law solicitation is classified as a preparatory offense (inchoate crime) and the BIA found that the crime is more closely related to attempt, conspiracy and aiding and abetting than it is to misprision of a felony. The BIA noted that under federal law, one who commands, encourages or requests a crime is deemed to be an accomplice and guilty of the substantive offense. The BIA also based its decision of the similarity of the penalties in Arizona for solicitation and for the underlying offense. BUT CONSIDER:

Coronado-Durazo v. I.N.S., 123 F.3d 1322 (9th Cir. 1997). A conviction of solicitation to sell narcotics in Arizona was not a CSO where the solicitation statute specifies a general offense not limited to controlled substance violations. ALSO CONSIDER: United States v. Liranzo, 944 F.2d 73 (2nd Cir. 1991). A New York conviction of criminal solicitation of a narcotics offense was not a “controlled substance offense” for purposes of sentencing as a career offender. The career offender statute defines “controlled substance offense” as “an offense under federal or state law prohibiting the manufacture, import, export, or distribution of a controlled substance . . . or the possession of a controlled substance with the intent to

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manufacture, import, export, or distribute.” U.S.S.G. 4B1.2(2). United States v. Dolt, 27 F. 3d 235 (6th Cir. 1994). The Sixth Circuit held that a Florida conviction for solicitation to traffic in cocaine was not a “controlled substance offense” for career offender purposes. The solicitation statute at issue did not require completion or commission of an offense or overt act to complete the crime. The court distinguished solicitation from attempt and also did not accept the government’s contention that solicitation was similar to aiding and abetting. MOTIVE!!! LIMITED PARTICIPATION? (which was specifically mentioned in offender statute).

http://64.233.169.104/search? q=cache:nMZZxR4n3B8J:www.pubdef.maricopa.gov/newsletter /vol13/ftd0503.pdf+facilitation+and+moral+turpitude&hl=en&c t=clnk&cd=66&gl=us Current BIA case law on facilitation to commit a drug offense in Arizona holds it is a violation “relating to” a controlled substance. See Matter of Del Risco, 20 I. & N. 109, 109 (BIA 1989). However, this opinion predates Coronado- Durazo and might be overruled if the issue came before the BIA again. State case law defines it as an offense of its own (not a lesser

included). See State v. Harris, 134 Ariz. 287, 288, 655 P.2d 1339, 1340 (App.1982) (holding crime of facilitation was not a lesser-included offense of burglary or theft). So, facilitation might also be a good plea. Attempt and conspiracy to commit deportable offenses, on the other hand, are specifically included in the immigration laws.

ARS § 13-2002 Forgery Every subsection of this statute includes the element “intent to defraud” and is a CIMT. Solicitation to commit forgery or possession of a forgery device, first subsection, are possible class 6 plea deals that avoid being CIMTs. Forgery with an imposed sentence of at least one year is also an aggravated felony. See In re Aldabesheh, 22 I.&.N. 983 (BIA 1999

IJ prejuidice/Due Process: Zolotukhin, 417 F.3d at 1075 (“The IJ’s prejudgment of the merits of petitioner’s case led her to deny [petitioner] a full and fair opportunity to present evidence on his behalf, including that the IJ excluded the testimony of several key witnesses.”). The IJ violated Hassani’s due process rights, requiring that we remand this case for a new hearing—one in which Hassani would be given a “full and fair opportunity” to present his case, Lopez-Umanzor, 405 F.3d at 1059, and to assert any other grounds that may warrant relief from removal. Summary JUDGMENT NATZ: Donaldson v Acosta

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We review a district court's grant of summary judgment de novo , applying the same standard as the district court. Shepherd v. Comptroller of Pub. Accounts , 168 F.3d 871, 873 (5th Cir. 1999). Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett , 477 U.S.317, 322-23 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,251-52 (1986). When making its determination, the court must draw all justifiable inferences in favor of the nonmoving party. Anderson , 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-88 (1986); Bodenheimer v. PPG Indus. Inc. , 5 F.3d 955, 956 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. Anderson , 477 U.S. at 251. Rather, a factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Merritt- Campbell, Inc. v. RxP Prods., Inc. , 164 F.3d 957, 961 (5th Cir. 1999). http://altlaw.org/v1/cases/104968

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Crimes of Moral Turpitude - Chapter 10 News updated 6/12/08

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by Norton Tooby

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Chapter 10: Post-Conviction Relief § 10.1 I. Introduction Other CRIMINAL DEFENSE – POST-CONVICTION RELIEF – POST CON RELIEF – APPEALS T. O'Toole, Appeal and Post Conviction Review, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 663 (2d ed. 2007).

§ 10.2 II. Elimination of a Conviction First Circuit POST-CON – EFFECTIVE ORDER – NUNC PRO TUNC Lawrence v. Gonzales, ___ F.3d ___, 2006 WL 1195679 (1st Cir. May 5, 2006) (where pre-IIRAIRA conviction was vacated on a basis of legal invalidity, but replaced with a new plea after IIRAIRA that also triggers removal, a waiver under INA § 212(c) is unavailable where the new plea was not entered nunc pro tunc).

Third Circuit

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CRIMES OF MORAL TURPITUDE – INTENT REQUIREMENT Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) (a criminal offense must have at least a willfullness requirement to constitute a crime of moral turpitude: "Such crimes “ ‘must be done willfully’ or with ‘evil intent.’ “ QuinteroSalazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007) (quoting Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir. 2006)). The requirement of a “willful” or “evil” state of mind has long been recognized by this Court, Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993), Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962), and by other courts of appeals, see Fernandez-Ruiz, 468 F.3d at 1166 (collecting cases). The Second Circuit has observed that a “corrupt scienter is the touchstone of moral turpitude.” Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000)."). CRIMES OF MORAL TURPITUDE – INTENT REQUIREMENT – KNOWLEDGE Mei v. Ashcroft, 393 F.3d 737 (7th Cir. Dec. 29, 2004) (A requirement of willfulness found to be inherent in the aggravated form of evading a police officer, under 625 ILCS 5/11-204, where willfulness is an element of the unaggravated form of the offense, "because the legislature might think that the requirement for the aggravated offense that the defendant has exceeded the speed limit by at least 21 m.p.h. was a proxy for willfulness as well as evidence of increased dangerousness warranting a heavier penalty," and by reference to the jury instructions given in aggravated evading cases; any person who violates this statute "may not want to endanger anyone, but he has to know that he is greatly increasing the risk of an accident (and for the further reason that a fleeing driver is dividing his attention between the road ahead and his pursuer); and he is doing so as a consequence of his deliberate and improper decision to ignore a lawful order of the police."). DETENTION – MANDATORY DETENTION – "WHEN RELEASED" Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA § 101(f)(8), 8 U.S.C. § 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of “conviction” in 8 U.S.C. § 1101(a)(48) (A), the entry of a “formal judgment of guilt . . . by a court” occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that “Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt”); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant “entered a plea of guilty, and the court entered a formal judgment of guilt”).

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RELIEF – MANDATORY DETENTION – RETROACTIVITY Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004) (habeas petition, seeking review of his continued detention pursuant to a final order of removal, is granted where IIRAIRA had an impermissible retroactive effect on plaintiff's 1994 guilty plea). DETENTION – JUDICIAL REVIEW – HABEAS – CUSTODIAN Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. Apr. 17, 2006) (petitioner should have named the warden of the prison in which he was detained as defendant instead of naming DHS officials, the Secretary of Homeland Security and the Attorney General). http://caselaw.lp.findlaw.com/data2/circs/7th/052893p.pdf

DETENTION – ASSIGNING OF DETENTION DISTRICTS Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (DHS may, without following APA requirements of notice and comment, redetermine detention boundaries, even to the extend that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit), reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007), to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006). DETENTION – NONCITIZEN’S ARRESTED IN IDAHO AND MONTANA SUBJECT TO TENTH CIRCUIT LAW Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (noting that DHS has redrawn detention boundaries to subject noncitizens arrested in Idaho and Montana, within the Ninth Circuit, will be placed in removal proceedings in Colorado, in the Tenth Circuit, and therefore subject to Tenth Circuit law), reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007), to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006 DETENTION – BOND – AUTOMATIC STAY Effective Nov. 1, 2006, 8 C.F.R. § 1003.19(i)(2) is a final version of the interim rule first published in 2001 that allows an officer of the DHS to request an automatic stay of release from detention of a noncitizen an immigration judge has found is eligible for release on bond in a Matter of Joseph, 22 I. & N. Dec. 660 (BIA 1999) hearing. The new rule requires the DHS file a form EOIR-43 notice of intent to file appeal within one day of the IJ’s bond decision. The stay will lapse within 10 days unless the DHS actually files an appeal of the bond decision to the BIA. Even if an appeal is filed, the stay will lapse within 90 days from the day the notice of appeal is filed unless the BIA grants a discretionary stay extending the period. 71 Fed. Reg. 57873 (Oct. 2, 2006). DETENTION - CONDITIONS Detention Report: Behind Bars "Between March and July 2006, in response to

140 numerous complaints about conditions of detention, the ACLU-NJ undertook a series of interviews with detainees in the county jails in an effort to shed light on the conditions of confinement. The project resulted in a [May 2007] report, Behind Bars: The Failure of the Department of Homeland Security to Ensure Adequate Treatment of Immigration Detainees." http://www.aclunj.org/downloads/051507DetentionReport.pdf 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 DETENTION – NEW WEBSITE www.detentionwatchnetwork.org DETENTION – ARRIVING ALIEN – DOES REGULATION DEPRIVE IMMIGRATION JUDGE OF JURISDICTION TO DECIDE CONDITIONS OF CUSTODY FOR ARRIVING ALIENS IN REMOVAL PROCEEDINGS The Department of Homeland Security argues that its regulation 8 C.F.R. §1003.19(h) denies to the Immigration Judge jurisdiction to redetermine conditions of custody with respect to [subparagraph (2)(B)] "[a]rriving aliens in removal proceedings, including persons paroled after arrival pursuant to section 212(d)(5) of the Act." 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): DETENTION – MANDATORY DETENTION – INAPPLICABLE TO ARRIVING ALIENS INA § 236 applies only to those who have been "arrested on a warrant" issued by the AG (or DHS). See INA § 236(a). Arriving aliens are only "detained" under INA § 235. They are not "arrested on a warrant." Therefore, INA § 236(c) does not apply to arriving aliens. Thanks to Lisa Brodyaga

DETENTION – REMOVAL – ARRIVING ALIENS – REGULATIONS PROVIDE IJ HAS NO JURISDICTION TO SET BOND The regulations divest the Immigration Judges of jurisdiction over bond applications by arriving aliens. 8 C.F.R. §§ 3.19(h)(2)(i)(B), 236.1(c)(11). GOOD MORAL CHARACTER – 180-DAY BAR – PRETRIAL CONFINEMENT LATER CREDITED AGAINST SENTENCE COUNTS AS CONFINEMENT AS A RESULT OF CONVICTION Arreguin-Moreno v. Mukasey, 511 F.3d 1229 (9th Cir. Jan. 14, 2008) (pre-sentence time in custody in a criminal case, which is credited as time served in a sentence imposed after conviction, is considered to be confinement as a result of a conviction for purposes of the 180day Good Moral Character bar of INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).). GOOD MORAL CHARACTER – UNDERPAYMENT OF INCOME TAXES Matter of Locicero, 11 I&N Dec. 805 (BIA 1966) (an individual who had knowingly

141 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

STATUTORY CONSTRUCTION – DECLARES WHAT HAS ALWAYS BEEN THE LAW A judicial decision interpreting a statute does not announce a new rule. For example, INS v. St. Cyr, 533 U.S. 289 (2001) was a case of statutory interpretation. 121 S.Ct. at 2278. As such, its holding did not change the law. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). Rather, St. Cyr “finally decided what [IIRAIRA] had always meant and explained why the [BIA and the] Courts of Appeals had misinterpreted the will of the enacting Congress.” 511 U.S. at 313 n. 12, 114 S.Ct. 1510. 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

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

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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). JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS JURISDICTION TO CONSIDER ARGUMENT THAT IJ'S DENIAL OF CONTINUANCE CONSTITUTED ABUSE OF DISCRETION DESPITE 8 U.S.C. § 1252(a)(2)(C) Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (rejecting argument that 8 U.S.C. § 1252(a)(2)(C) bars judicial review of argument that IJ abused discretion to deny continuance of removal proceedings: "This argument fails for the simple reason that the denial of a continuance is wholly separate and distinct from a “final order of removal” and thus does not lie within the scope of § 1252(a)(2)(C)."). JUDICIAL REVIEW – PETITION FOR REVIEW – DENIAL OF CONTINUANCE – STANDARD OF REVIEW Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (“An IJ would, however, abuse his discretion in denying a continuance if (1) his decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding or (2) his decision-though not necessarily the product of a legal error or a clearly erroneous factual findingcannot be located within the range of permissible decisions.”), quoting Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir. 2006) (internal quotation marks and alterations omitted). JUDICIAL REVIEW – REAL ID ACT – SUSPENSION CLAUSE -- JUDICIAL REVIEW – PETITION FOR REVIEW – 30-DAY DEADLINE – EXTRA 30-DAY GRACE PERIODRuiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. Feb. 14, 2008) (in immigration cases where habeas corpus relief in the U.S. district courts has been eliminated by the REAL ID Act of 2005 for aliens seeking to challenge orders of removal entered against them, the Suspension Clause of the U.S. Constitution is not violated by the REAL ID Act, but a grace period of 30 days from the effective date of the Act should be afforded to those whose petitions were rendered untimely by the provisions of the Act). JUDICIAL REVIEW – DISCRETION Yang v. Mukasey, __ F.3d __, 2008 WL 248542 (2d Cir. Jan. 31, 2008) (court lacks jurisdiction to review question of whether criminal conviction is a crime of moral turpitude where the Immigration Judge also found, independently from the crime of moral turpitude, that the noncitizen was additionally ineligible for qualifying relief as a matter of discretion

143 JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION REQUIREMENT – JURISDICTIONAL AND CANNOT BE EXCUSED FOR MANIFEST INJUSTICE Valenzuela Grullon v. Mukasey, ___ F.3d ___ (2d Cir. Jan. 7, 2008) (exhaustion requirement is statutory and jurisdictional, and the jurisdictional defect cannot be excused on a ground of manifest injustice).

JUDICIAL REVIEW – STATUTORY INTERPRETATION – STATUTE MUST BE CONSTRUED TO GIVE MEANING TO EACH PART Puello v. BCIS, 511 F.3d 324, ___, (2d Cir. Dec. 20, 2007) (a statute must be construed to give meaning to each part and not render any part superfluous); see Griffiths v. INS, 243 F.3d 45, 53 (1st Cir. 2001) (holding that a notation of “guilty-filed” on the criminal docket could not constitute a conviction under the first prong of the INA conviction definition because “a formal judgment of guilt under the first prong of the definition entails a showing of something beyond a simple finding of guilt . . . . Otherwise the reference in the second prong of the statute to deferred adjudications where either a judge or a jury has ‘found the alien guilty’ would be rendered superfluous.”); Tablie v. Gonzales, 471 F.3d 60, 64 (2d Cir. 2006)(“[A] statute must, if reasonably possible, be construed in a way that will give force and effect to each of its provisions rather than render some of them meaningless.”; Allen Oil Co., Inc. v. Comm’r of Internal Revenue, 614 F.2d 336, 339 (2d Cir. 1980); N.W. Forest Res. Council v. Glickman, 82 F.3d 825, 834 (9th Cir. 1996) (A "statute must be interpreted to give significance to all of its parts. . . . Courts have long followed the principle that statutes should not be construed to make surplusage of any provision."). JUDICIAL REVIEW – DEFERENCE – CRIMES OF MORAL TURPITUDE Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) ("We accord Chevron deference to the BIA's construction of ambiguous statutory terms in immigration law, such as “moral turpitude.” See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Michel v. INS, 206 F.3d 253, 262-65 (2d Cir. 2000) (deferring to the BIA's rule that crimes for which knowledge is an element are generally CIMTs). “However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing ... state criminal statutes, and so we review de novo the BIA's finding that a petitioner's crime of conviction contains those elements which have been properly found to constitute a CIMT.” Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005). Thus, in this case, we defer to the BIA's view that larceny involving a permanent taking amounts to a CIMT, but we review de novo whether Wala's conviction for third-degree burglary under Connecticut law falls within this category. ").

JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS HAS NO AUTHORITY TO ISSUE REMOVAL ORDER IN FIRST INSTANCE Rhodes-Bradford v. Keisler, 507 F.3d 77 (2d Cir. Nov. 7, 2007) (BIA has no authority to issue a removal order in the first instance, after IJ had ordered termination of proceedings). JUDICIAL REVIEW – BIA APPEAL – ADMINISTRATIVE NOTICE Burger v. Gonzales, __ F.3d __, 2007 WL 2331944 (2d Cir. Aug. 17, 2007) ("This Court recently held that if the Board of Immigration Appeals (“BIA”) intends to take administrative notice of potentially dispositive facts, it must warn a petitioner and

144 provide the petitioner with an opportunity to respond before it denies a motion to reopen on the basis of those facts. See Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court declined to resolve the related question whether due process requires this same result before the BIA enters a final order of removal on the basis of administratively noticed facts. We now address this question and hold that it does.") JUDICIAL REVIEW – HARDSHIP AS DISCRETIONARY ISSUE Barnaby-King v. US Dep't of Homeland Sec., 485 F.3d 684 (2d Cir. May 10, 2007) (prior case 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). JUDICIAL REVIEW – PETITION FOR REVIEW – NONPRECEDENTIAL BIA DECISION NOT ACCORDED CHEVRON DEFERENCE Rotimi v. Gonzales, 473 F.3d 55, 2007 WL 10771 (2d Cir. Jan. 3, 2007) ("[N]onprecedential decision by a single member of the BIA should not be accorded Chevron deference, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), we remand petitioner's case to provide the BIA with the opportunity to construe the “lawfully resided continuously” provisions of § 212(h) in a precedential opinion").

JUDICIAL REVIEW – QUESTIONS OF LAW Chen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition “question of law” for purpose of judicial review is not limited to questions of statutory construction), revising prior opinion, 434 F.3d 144 (2d Cir. 2006).

JUDICIAL REVIEW – AFTER DEPORTATION Spina v. Department of Homeland Sec., 470 F.3d 116 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf JUDICIAL REVIEW – JURISDICTION LIMITATION – DISCRETIONARY DECISIONS – DENIAL OF 212(C) WAIVER Avendano-Espejo v. Department of Homeland Sec., 448 F.3d 503 (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 -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION OF REMOVAL Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. § 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under 8

145 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),

AGGRAVATED FELONY – FRAUD OFFENSE – TAX OFFENSE NOT LISTED IN (M)(ii) CAN CONSTITUTE FRAUD OFFENSE AGGRAVATED FELONY UNDER (M)(i) Kawashima v. Gonzales, ___ F.3d ___, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1), qualifies as an “aggravated felony” under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a) (43)(M)(i), despite argument that (M)(i) is inapplicable in this case, reasoning that (M)(ii)'s specific reference to § 7201 indicates Congress's intent to exclude all federal tax offenses from the definition of aggravated felonies under the more general subsection (M)(i)). AGGRAVATED FELONIES – TAX OFFENSES – CONVICTIONS OF VIOLATING STATUTES OTHER THAN 26 U.S.C. § 7201 CANNOT CONSTITUTE TAX OFFENSE AGGRAVATED FELONIES UNDER INA § 101(a)(43)(M)(ii) Kawashima v. Gonzales, ___ F.3d ___, ___, n.3, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal convictions for subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1), and aiding and abetting in the preparation of a false tax return, in violation of 26 U.S.C. § 7206(2), cannot qualify as an “aggravated felony” under INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii), because that provision is limited to tax offenses in violation of § 7201); following United States v. Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).

Lower Courts of Ninth Circuit AGGRAVATED FELONY – FRAUD OFFENSES – LOSS – CALIFORNIA RESTITUTION CANNOT COMPENSATE VICTIM FOR PAIN AND SUFFERING In re Imran Q., 57 Cal.Rptr.3d 233, Previously published at: 149 Cal.App.4th 581, (April 9, 2007) No. B188613 (reversing order that defendant pay close to $18,000 in restitution for injuring the victim in a hit and run, where trial court failed to recognize that some portion of the victim's civil settlement with defendant likely included compensation for the victim's pain and suffering, and the record does not show the parties or court attempted to allocate the settlement between economic damages supporting restitution and pain and suffering, which do not support restitution CRIMES OF MORAL TURPITUDE – FEDERAL FRAUD OFFENSES Ted Cassman and Raphael Goldman, The Federal Mail and Wire Fraud Statutes – Must There be an Intent to Obtain Property, or Merely Deprive? 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,

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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

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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

DEPORTABLE BECAUSE INADMISSIBLE AT TIME OF ENTRY OR ADJUSTMENT – COURT MUST LOOK AT LAW AS IT EXISTED AT TIME OF ENTRY/ADJUSTMENT Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (to determine whether a noncitizen is deportable for being inadmissible at entry or adjustment under INA § 237(a)(1)(A), the court must look to the law as it existed at the time of entry or adjustment, not current law).

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Post-Conviction Relief for Immigrants - Chapter 5 News updated 6/12/08

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Chapter 5: Vehicles for Vacating a Conviction § 5.1 I. Introduction: 3 Requirements for Successful PostConviction Relief § 5.2

A. Practical Requirements

§ 5.3

1. Matching the Vehicle to the Immigration Effect

§ 5.4 Invalidity

2. Matching the Vehicle to the Ground of Legal

§ 5.5

3. Choosing a Vehicle that Works

Ninth Circuit POST CONVICTION RELIEF – FEDERAL – EXPUNGEMENT NOT AVAILABLE AS A VEHICLE FOR POST CON RELIEF United States v. Crowell, ___ F.3d ___ (9th Cir. June 30, 2004) (federal proceedings for expungement of federal convictions are unavailable for the purpose of collaterally attacking the validity of the conviction). http://caselaw.lp.findlaw.com/data2/circs/9th/0330041p.pdf

§ 5.6

4. Timing of Post-Conviction Relief

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Chapter 1 : Introduction and Overview § 1.1

I. Origins of the Problem

§ 1.4

IV. Overview of Post-Conviction Relief

Chapter 2 : Evaluating the Chances of Obtaining Post-Conviction Relief § 2.27 § 2.28

c. Attacking State Convictions 2. Time Limits Within Which Actions for State

Chapter 3 : Investigating the Case § 3.3

A. Special Considerations

§ 3.6

A. Check for Unknown U.S. Citizenship

§ 3.8

IV. Obtaining Information on “Equities” or Reasons Client Should be Allowed to Remain in the U.S

§ 3.9

V. Obtaining Information About the Criminal Case

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Chapter 6: Grounds for Vacating the Conviction § 6.1 I. Geography of the Field DC Circuit POST CON RELIEF – GUILTY PLEA WAIVES CLAIMS United States v. Delgado-Garcia, ___ F.3d ___ (D.C. Cir. July 23, 2004) (defendants’ alien smuggling convictions affirmed on appeal; initial, unconditional pleading of guilty to charged crimes acted as waiver of defendants' subsequent due process and maritime law claims). http://caselaw.lp.findlaw.com/data2/circs/dc/033060a.pdf

§ 6.2 II. Violations of the Right to Counsel Lower Courts of Second Circuit POST CON RELIEF – GROUNDS – DIRECT CONSEQUENCES – IMMIGRATION CONSEQUENCES HELD NOT TO BE DIRECT CONSEQUENCES – CONNECTICUT State v. Irala, 68 Conn. App. 520 (Conn. App. May 5, 2002) ("the impact of a plea's immigration consequences on a defendant, while potentially great, is not of constitutional magnitude and cannot transform this collateral consequence into a direct consequence of the plea." (Internal quotation marks omitted)).

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Post-Conviction Relief for Immigrants - Chapter 7 News updated 6/12/08

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Chapter 7: Vacating or Reducing the Sentence § 7.1 I. Introduction § 7.2 II. Immigration Consequences of Sentence Lower Courts of Ninth Circuit CRIMINAL DEFENSE – SENTENCE – SENTENCING COURT CAN CONSIDER ILLEGAL IMMIGRATION STATUS IN IMPOSING SENTENCE IN CRIMINAL CASE Alire v. State, ___ Ariz. App.2d ___, 2005 WL 189682 (Jan. 28, 2005) (criminal sentencing court is free to consider defendant's illegal immigration status as a factor in determining appropriate sentence for criminal conviction for driving under influence of alcohol). http://www.apltwo.ct.state.az.us/Decisions/CR20040044Opinion.pdf

Other CRIMINAL DEFENSE – SENTENCE Daniel M. Kowalski, Sentencing Options for the Deportable NonCitizen, 8 fed. Sentencing Rep. 286 (1996).

§ 7.3

A. Definition of "Sentence Imposed"

POST CON – AFTER CONVICTION VACATED – IF THERE IS NO NEW

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Post-Conviction Relief for Immigrants - Chapter 8 News updated 6/12/08

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Chapter 8: State Rehabilitative Relief § 8.1 I. Introduction First Circuit CONVICTION – PUERTO RICO TREATED LIKE A STATE Puerto Rico is considered equivalent to a state, for purposes of determining whether a noncitizen was convicted of a crime for deportation purposes, giving the same effect to its judicial decrees as if they were orders of a state court and the same effect to its legislative enactments as it would to state statutes. Herrera-Inirio v. INS, 208 F.3d 299, 304 n.1 (1st Cir. 2000) (citing 28 U.S.C. § 1738 (extending full faith and credit doctrine to Puerto Rico); 48 U.S.C. § 734 (providing that, unless otherwise specified, federal statutes applicable to states apply to Puerto Rico)); see also Cruz v. Melecio, 204 F.3d 14 (1st Cir. 2000). Persons born in Puerto Rico are United States citizens, although there are some issues if the birth date was prior to 1941. INA § 302, 8 U.S.C. § 1402.

Ninth Circuit POST CON RELIEF – STATE REHABILITATIVE RELIEF – DEFERRED ENTRY OF JUDGMENT

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