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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 - January/February 2007

by Norton Tooby and Joseph Justin Rollin

BOARD OF IMMIGRATION APPEALS -- RELIEF - TPS

Matter of Barrientos, 24 I. & N. Dec. 100 (BIA Mar. 1, 2007) (INA 244(b)(5)(B) permits a noncitizen to assert his right to Temporary Protected Status in removal proceedings, even if his application has previously been denied by the Administrative Appeals Unit).

THIRD CIRCUIT -- NATURE OF CONVICTION -- MINIMUM CONDUCT

Jeune v. Attorney General, ___ F.3d ___, 2007 WL 512510 (3d Cir. Feb. 20, 2007) ('Moreover, this Court has indicated that we must assume that Jeune's conduct was only the minimum necessary to comport with the statute and record. Partyka v. Att'y Gen. of U.S., 417 F.3d 408, 411 (3d Cir.2005) ('Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute.'); Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003) ('Because the state statute under which Wilson pled guilty does not contain sale for remuneration as an element, we cannot determine from the state court judgment that Wilson's conviction necessarily entails a finding of remuneration.'); Steele v. Blackman, 236 F.3d 130, 136 (3d Cir.2001) (limiting the inquiry to what the state court must necessarily have found). To conform with these precedents, we must conclude that Jeune's conduct was the bare minimum necessary to trigger 35 Pa. Cons.Stat. Ann. 780-113(a)(30) and therefore does not constitute an aggravated felony.').

THIRD CIRCUIT -- RELIEF - WITHHOLDING - SALE OF DRUGS - REQUIRES CONSIDERATION OF UNDERLYING FACTS

Lavira v. Attorney General of U.S., ___ F.3d ___, 2007 WL 570257 (3d Cir. Feb. 26, 2007) (reversing where IJ failed to examine underlying facts of the case in determining whether conviction for attempted sale of a controlled substance was a 'particularly serious crime' for asylum/withholding purposes), following Vente v. Gonzales, 415 F.3d 296, 302-03 (3d Cir.2005) ('[I]f the BIA fails to address one of an applicant's stated grounds for relief, the case must be remanded for the BIA to consider the claim.').

THIRD CIRCUIT -- RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - CONVICTIONS OTHER THAN CONVICTION IN QUESTION ARE IRRELEVANT TO THIS DETERMINATION

Lavira v. Attorney General of U.S., ___ F.3d ___, 2007 WL 570257 (3d Cir. Feb. 26, 2007) (immigration judge erred in considering convictions of the defendant other than the conviction in question in offense was a particularly serious crime).

EIGHTH CIRCUIT -- AGGRAVATED FELONY - MANSLAUGHTER - CRIME OF VIOLENCE
United States v. Torres-Villalobos, __ F.3d __ (8th Cir. Fed. 22, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn. Stat. 609.205, was not a 'crime of violence' under 18 U.S.C. 16 because the offense can be committed with mere reckless intent). http://caselaw.lp.findlaw.com/data2/circs/8th/061876p.pdf

NINTH CIRCUIT -- AGGRAVATED FELONY - STALKING - CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, __ F.3d __ (9th Cir. Mar. 2, 2007) (California stalking conviction, in violation of Penal Code 649.9, is not an aggravated felony crime of violence for immigration purposes, since even the more serious portion of the statute does not necessarily create a risk that force may be used; the California stalking statue requires an intent to create fear, but not require intent to carry out the threat - the statute may be violated even if the defendant was incarcerated or thousands of miles away and completely unable to carry out the threat.)

http://caselaw.lp.findlaw.com/data2/circs/9th/0471140p.pdf

NINTH CIRCUIT -- INADMISSIBILITY - ADMISSIONS OF CONDUCT

RECORD OF CONVICTION - DOCUMENTS EXCLUDED - ADMISSION OF RESPONDENT IN PROCEEDINGS

Garcia-Lopez v. Ashcroft, 334 F.3d 840 n.4 (9th Cir. June 26, 2003) (respondent's representative cannot in proceedings concede a conviction that is not a conviction: 'The INS also contends that Garcia-Lopez 'admitted' that he was convicted of a felony because, in support of the initial application, Garcia-Lopez's accredited representative stated that Garcia-Lopez had received a felony sentence. As an initial matter, the representative's statement was patently inaccurate, as Garcia-Lopez was never actually sentenced. More importantly, Garcia-Lopez's belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized or what the maximum penalty was. Similarly, the statement of Garcia-Lopez's representative as to a matter of law has no legal effect. See Matter of Ramirez-Sanchez, 17 I & N Dec. 503 (BIA 1980). The INS's contention that Garcia-Lopez is bound by this statement must fail.').

NINTH CIRCUIT -- JUDICIAL REVIEW - PETITION FOR REVIEW - MIXED QUESTIONS OF FACT AND LAW ARE REVIEWABLE AS QUESTIONS OF LAW

Ramadan v. Gonzales, ___ F.3d ___, 2007 WL 528715 (9th Cir. Feb. 22, 2007) ('By implying a fixed dichotomy between fact and law, our brief initial opinion inadvertently failed to consider an important category of cases--those that raise mixed questions of law and fact. We join the Second Circuit in holding that 'questions of law' is broader than just statutory interpretation.'), 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').

NINTH CIRCUIT -- NATURE - CONJUNCTIVE/DISJUNCTIVE - MINIMUM CONDUCT

Malta-Espinoza v. Gonzales, __ F.3d __ (9th Cir. Mar. 2, 2007) ('It is common to charge conjunctively when an underlying statute proscribes more than one act disjunctively; such a charge permits conviction upon proof that the defendant committed either of the conjunctively charged acts. See, e.g., United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) ('Where a statute specifies to or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.'). All that we can gather from the charge and the bare record of a plea of guilty, therefore, is that Malta-Espinoza was guilty of either following or harassing or both. This fact need not affect our analysis, however, because under a categorical analysis we must determine whether the 'full range of conduct' covered by the statute falls within the definition of 'crime of violence.') (emphasis added).

NOTE: Even if a reviewing court refuses to treat a conjunctive charge as divisible, Counsel can use this case to argue that where a charge was in the conjunctive, and the statute would otherwise be divisible, the minimum conduct analysis must be applied and the court must find that the offense does not trigger removal because the minimum conduct analysis, in the case of a conjunctive charge, requires examination of the least offense conduct, which would fall under the non-removable portion of the divisible statute.

TENTH CIRCUIT -- AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION NOT DRUG TRAFFICKING AGGRAVATED FELONY UNLESS IT COULD HAVE BEEN CHARGED AS FELONY IN FEDERAL COURT - RULE RETROACTIVE

Gonzalez-Gonzalez v. Weber, ___ F.3d ___, 2006 WL 3791275 (10th Cir. Dec. 27, 2006) (state conviction of simple possession of cocaine held not to be an aggravated felony, for deportation purposes; Lopez v. Gonzales must be applied retroactively because it holds that the statute always dictated that conclusion).

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - RESTITUTION ORDER BASED ON CONDUCT NOT CHARGED, PROVEN, OR ADMITTED, AND WHICH WAS ISSUED BY THE CRIMINAL COURT UNDER A LOWER PREPONDERANCE STANDARD OF PROOF, WAS STANDING ALONE AN INSUFFICIENT BASIS TO SUPPORT AN IMMIGRATION JUDGE'S FINDING OF LOSS TO THE VICTIM IN EXCESS OF $10,000

Obasohan v. U.S. Attorney General, ___ F.3d ___, 2007 WL 548359 (11th Cir. Feb. 23, 2007) (federal conviction of conspiracy to produce, use and traffic in counterfeit access devices, in violation of 18 U.S.C. 1029(b)(2), with a restitution order for fraudulent use of other credit cards during the course of the conspiracy which had caused losses in excess of $37,000 to three financial institutions, issued pursuant to 18 U.S.C. 3663, did not constitute an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for purposes of removal, because the restitution order, standing alone, had been issued by the sentencing judge under a preponderance standard, and the immigration court was required to make a loss to the victim finding by clear, unequivocal, and convincing evidence, and the restitution order, which in this case was the only document that made reference to any loss, was based on factual findings regarding conduct and loss amounts that were not charged, proven or admitted).

ELEVENTH CIRCUIT -- AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - RECORD OF OFFENSE OF CONVICTION DID NOT ESTABLISH LOSS REQUIRED TO BE SHOWN RESULTING FROM OFFENSE OF CONVICTION

Obasohan v. U.S. Attorney General, ___ F.3d ___, 2007 WL 548359 (11th Cir. Feb. 23, 2007)(federal conviction of conspiracy to produce, use and traffic in counterfeit access devices, in violation of 18 U.S.C. 1029(b)(2), with a $37,000 restitution order for uncharged conduct, did not constitute an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for purposes of removal, on the basis of the record of the offense of conviction: 'In this case, the elements of the conspiracy with which Obasohan was charged did not require that any loss amount be proved. Neither the indictment nor the plea agreement specified any loss amount. Indeed, Obasohan was not charged with any loss, and did not admit to any loss by pleading guilty as charged. Moreover, there was no loss attributable to the only overt acts charged in the indictment, to which Obasohan admitted by pleading guilty. Contrary to the IJ's conclusion on remand, there was no evidence that the conspiracy with which Obasohan was charged 'alleged other losses.' (emphasis added). In fact, the prosecutor indicated that there was no loss charged at the plea colloquy. The IJ therefore could not have relied on the statutory elements of the offense, the indictment, the plea or the plea colloquy to conclude that Obasohan was convicted of an aggravated felony, as defined in the INA.').

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - LOSS TO THE VICTIM MUST RESULT FROM OFFENSE OF WHICH DEFENDANT WAS CONVICTED, AS DISTINGUISHED FROM FAR BROADER TEST ALLOWING CRIMINAL COURT TO ORDER RESTITUTION FOR UNCHARGED OR ACQUITTED CONDUCT

Obasohan v. U.S. Attorney General, ___ F.3d ___, 2007 WL 548359 (11th Cir. Feb. 23, 2007) ('Relevant conduct for sentencing purposes . . . may include criminal conduct that was not charged. See United States v. Ignancio Munio, 909 F.2d 436, 438-39 (11th Cir.1990). Relevant conduct may also include acquitted conduct. United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); United States v. Averi, 922 F.2d 765, 766 (11th Cir.1991). Indeed, we have held that relevant conduct for sentencing purposes may even include losses caused by criminal conduct that cannot be prosecuted because those acts fall outside the statute of limitations. See United States v. Behr, 93 F.3d 764, 765-66 (11th Cir.1996). See also United States v. Dickerson, 370 F.3d 1330, 1342-43 (11th Cir.2004).'), citing Knutsen v. Gonzales, 429 F.3d 733, 739-40 (7th Cir.2005) (vacating removal order based on admission of loss caused by relevant conduct and contained in restitution order; holding that inquiry should focus narrowly on losses 'particularly tethered to convicted counts alone.').

PRACTICE AIDS -- SAFE HAVEN - CONTRABAND CIGARETTES

A conviction of possession of contraband cigarettes, in violation of 18 U.S.C. 2342, should not constitute a crime involving moral turpitude. The statute provides:

(a) It shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes.

(b) It shall be unlawful for any person knowingly to make any false statement or representation with respect to the information required by this chapter to be kept in the records of any person who ships, sells, or distributes any quantity of cigarettes in excess of 60,000 in a single transaction.

The first subsection should not be a CMT, since no fraudulent intent is required, merely possession, and all the verbs are in the disjunctive. Contraband does not mean stolen, but out of compliance with a basically regulatory requirement. See N. Tooby & J. Rollin, Crimes of Moral Turpitude 9.44 (2005). The second subsection is closer but also should not be a CMT if  courts have not found that fraudulent intent is an essential element of the offense.

PRACTICE AIDS -- 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.

PRACTICE AIDS -- AGGRAVATED FELONY - DRUG TRAFFICKING - IDENTITY OF DRUG

CONTROLLED SUBSTANCES - IDENTITY OF DRUG

More Drugs Apparently Not Listed on Federal Schedules:  Difenoxin (CA- Schedule I; 11054(b)(15)), Propiram (CA-Schedule I; 11054(b)(41)), Tilidine (CA-Schedule I; 11054(b)(43)), Drotebanol (CA-Schedule I; 11054(c)(9)), Alfentany (CA-Schedule II; 11055(c)(1)), Bulk dextropropoxyphene (CA- Schedule II; 11055(c)(5)), and Sufentanyl (CA-Schedule II; 11055(c)(25)).

Thanks to Lisa Weissman-Ward.

Copyright (c) 2007 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.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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