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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Recent Developments In Criminal Immigration Law - November 2006

by Norton Tooby and Joseph Justin Rollin

FEDERAL OFFENSES -- SAFE HAVEN - THEFT OF GOVERNMENT PROPERTY - DIVISIBLE STATUTE

The federal offence of theft of government property, in violation of 18 U.S.C. § 641, is defined as follows:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted...

Under this divisible statute, it would be possible to dispose of government property or records without authorization but without fraudulent intent. This arguably would not constitute either aggravated felony theft or a crime of moral turpitude.

REGULATIONS -- 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).

THIRD CIRCUIT -- AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES

Joseph v. United States Att'y Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. §§ 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA § 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require 'trafficking' in firearms; the offense may be committed by bringing one's own firearm across state lines).

FIFTH CIRCUIT -- CONVICTION - FINALITY - DRUG OFFENSES

POST-CONVICTION RELIEF - LUJAN EXPUNGEMENT - EXPUNGEMENT OF SECOND CONVICTION EFFECTIVE WHERE FIRST CONVICTION NOT FINAL AT TIME OF SECOND CONVICTION

Smith v. Gonzales, ___ F.3d ___, 2006 WL 3012856 (5th Cir. Oct. 24, 2006) (for purposes of the Controlled Substances Act, a conviction does not become final until time for direct appeal and time for discretionary review have elapsed).

FIFTH CIRCUIT -- AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT

AGGRAVATED FELONY - CRIME OF VIOLENCE - USE OF FORCE

United States v. Villegas-Hernandez, __ F.3d __ (5th Cir. Oct. 31, 2006) (Texas conviction for violation of Penal Code § 22.01(a), assault, is not an aggravated felony crime of violence for illegal re-entry sentencing purposes since the statute may be violated without the perpetrator using force against the victim).

FIFTH CIRCUIT -- RECORD OF CONVICTION - NATURE OF OFFENSE - SENTENCING CANNOT DETERMINE NATURE OF OFFENSE

Sentencing is a post-guilt-or-innocence stage procedure, and particularly where a guilty plea is involved, cannot be used to determine the offense under which the person was convicted. See Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006). See also Apprendi v. New Jersey, 530 U.S. 466 (2000). Thanks to Lisa Brodyaga.

FIFTH CIRCUIT -- CATEGORICAL ANALYSIS - NO REFERENCE TO FACTS

United States v. Villegas-Hernandez, __ F.3d __ (5th Cir. Oct. 31, 2006) (in determining whether offense trigger ground of removal, no reference may be made to the facts alleged in an indictment or information; analysis is limited to the set of statutory elements of which the noncitizen was found guilty), following United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004).

FIFTH CIRCUIT -- RECORD OF CONVICTION - ABSTRACT OF JUDGMENT NOT CONCLUSIVE ON NATURE OF OFFENSE OF CONVICTION FOR IMMIGRATION PURPOSES

United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005) (California conviction of sale or transportation under Penal Code § 11352(a) did not qualify as a drug trafficking conviction for purposes of enhancing a sentence for illegal reentry, where the sole basis for determining whether the conviction fell under the drug trafficking portion of this divisible statute was the abstract of judgment, which is not a source upon which the court can 'rely to conclude that this short phrase manifests a 'conscious judicial narrowing of the charging document' rather than a shorthand abbreviation of the statute of conviction. We therefore agree with the Ninth Circuit that courts cannot exclusively rely on such shorthand descriptions to justify sentence enhancements under the Guidelines.'), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).

SEVENTH CIRCUIT -- JUDICIAL REVIEW - PETITION FOR REVIEW - REVIEW OF DISCRETIONARY DECISION ALLOWED WHERE BIA'S DECISION WOULD PREVENT NONCITIZEN FROM PURSUING STATUTORY RIGHTS WITHOUT STATED REASONS CONSISTENT WITH IMMIGRATION AND NATIONALITY ACT

Ahmed v. Gonzales, ___ F.3d ___ (7th Cir. Oct. 16, 2006) (IJ's decision that did not address a family-based visa petition that had been filed in petitioner's case, and that petitioner alleged grandfathered him under INA § 245(i); where the court has jurisdiction to review a discretionary decision that would, without stated reasons consistent with the statute, operate to prevent a noncitizen from pursuing statutory rights).

SEVENTH CIRCUIT -- ADJUSTMENT OF STATUS - CONTINUANCE TO ALLOW NONCITIZEN ENTITLED TO APPLY BECOME ELIGIBLE TO APPLY.

Ahmed v. Gonzales, ___ F.3d ___ (7th Cir. Oct. 16, 2006) (fact that noncitizen was not currently eligible to apply for adjustment of status because he did not have a visa immediately available to him did not mean noncitizen was not entitled to apply for adjustment due to visa petition filed on his behalf; fact that visa was not yet current was not sufficient, in itself, to form basis of denial of a continuance to allow noncitizen to apply for adjustment once visa became available).

NINTH CIRCUIT -- CONDUCT-BASED GROUNDS OF DEPORTATION - COMMISSION OF OFFENSE - NOLO CONTENDERE PLEA - CONVICTION BASED ON NOLO CONTENDERE PLEA DOES NOT ESTABLISH THAT THE DEFENDANT COMMITTED ANY OFFENSE

RELIEF - CANCELLATION OF REMOVAL - STOP-TIME RULE - COMMISSION OF OFFENSE - NOLO CONTENDERE PLEA - CONVICTION BASED ON NOLO CONTENDERE PLEA DOES NOT ESTABLISH THAT THE DEFENDANT COMMITTED ANY OFFENSE

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, ___ F.3d ___ (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).


NINTH CIRCUIT -- DOMESTIC VIOLENCE - DOMESTIC BATTERY - CALIFORNIA CONVICTION OF SIMPLE BATTERY DID NOT QUALIFY AS DOMESTIC VIOLENCE CONVICTION WHERE RECORD OF CONVICTION DID NOT ESTABLISH NECESSARY DOMESTIC RELATIONSHIP

Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. June 26, 2006) (California conviction of simple battery, in violation of Penal Code § 242, did not qualify as deportable domestic violence conviction, under INA § 237(a)(2)(E)(i, 8 U.S.C. § 1227(a)(2)(E)(i), where record of conviction did not establish necessary domestic relationship), opinion amended on denial of rehearing, ___ F.3d ___, 2006 WL 2819961 (9th Cir. Oct. 4, 2006) (amendment deleted the following sentence: 'Where, as here, there are statutes directly addressing domestic violence, such as California Penal Code sections 243(e)(1) and 273.5, only the most convincing proof of the nature of a conviction for a more general crime will suffice to establish a crime of domestic violence.' 451 F.3d at 1059-60 [emphasis in original]).

Copyright (c) 2006 by Norton Tooby. All rights reserved.


About The Author

Norton Tooby is a criminal defense attorney with offices in Oakland, California. After graduating from Harvard University in 1967, he attended Stanford Law School where he served as President of the Stanford Law Review in 1969-1970. Since 1986, he has specialized in criminal defense of non-citizens, and his career has been devoted almost entirely to criminal defense work, culminating in the successful appeal of a death penalty case before the California Supreme Court under Chief Justice Malcolm Lucas in 1988 in which all convictions were reversed and his client was set at liberty. Since that time, he has increasingly specialized in criminal representation of immigrants.

Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.

For more information about Norton Tooby's Practice Manuals and CD's, see here. For information about upcoming seminars, see here.


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