Recent Developments In Criminal Law - July 2008
SUPREME COURT -- POST CON RELIEF - GROUNDS - VIENNA CONVENTION
Medellin v. Texas, ___ U.S. ___, 2008 WL 762533 (Mar. 25,
2008) (neither an International Court of Justice case, Case
Concerning Avena and Other Mexican Nationals (Mex. v. U.
S.), 2004 I. C. J. 12, nor a memorandum issued by the President
of the United States constitutes directly enforceable federal
law that pre-empts state limitations on the filing of successive
habeas petitions, affirming dismissal of a habeas petition
in a death penalty case raising a claim that petitioner
was not informed of his Vienna Convention right to notify
the Mexican consulate of his detention).
-- REMOVAL PROCEEDINGS - IMPARTIAL JUDGE - PROSECUTORIAL
QUESTIONING OF RESPONDENT
Cuko v. Mukasey, ___ F.3d ___ (1st Cir. Mar. 31, 2008) (petition
for review granted because IJ improperly assumed role of
a government attorney by engaging in "prosecutorial
-- RECORD OF CONVICTION - DISMISSED COUNTS -- FACTS CHARGED
IN INDICTMENT NOT PART OF RECORD OF CONVICTION
James v. Mukasey, ___ F.3d ___, 2008 WL 763158 (2d Cir.
Mar. 25, 2008) ("We reminded the District Court that
"[f]actual matters considered as a basis for sentence
must have some minimal indicium of reliability beyond mere
allegation," and that "an indictment is not meant
to serve an evidentiary function. Its primary purpose is
to acquaint the defendant with the specific crime with which
he is charged...." Id. at 701 (internal quotations
marks omitted) (alteration in original). In this case, the
IJ and BIA relied upon a factual allegation in the charging
instrument -- that James had sexual intercourse with a sixteen-year-old
when he was twenty-two -- to conclude that James was convicted
of sexual abuse of a minor. But this factual allegation
was not "actually and necessarily pleaded" to
in order to establish the elements of endangering the welfare
of a child.").
-- JUDICIAL REVIEW - REMOVAL PROCEEDINGS - DENIAL OF RIGHT
TO COUNSEL OF CHOICE IS A VIOLATION OF DUE PROCESS
Waldron v. INS, 17 F.3d 511 (2d Cir. 1993), cert. denied,
513 U.S. 1014 (1994) (Immigration Judge errs by disqualifying
respondent's chosen counsel from representing the respondent,
which is a per se violation of due process in the Second
Circuit, regardless of whether prejudice is shown), citing
Montilla v. INS, 926 F.2d 162 (2d Cir. 1991); see Matter
of Santos, 19 I. & N. Dec. 103 (BIA 1984); Reno v. Flores,
507 U.S. 292, 306 (1993) (Fifth Amendment entitles noncitizen
to due process of law in deportation proceedings).
-- AGGRAVATED FELONY - FRAUD OFFENSE - THEFT OFFENSE --
FRAUD AND THEFT HAVE DIFFERENT DEFINITIONS, SUGGESTING CONGRESS
DID NOT INTEND ANY OVERLAP
Martinez v. Mukasey, ___ F.3d ___ (5th Cir. Mar. 11, 2008)
("We must assume that, by giving separate definitions
to offenses "involving fraud and deceit" and "theft",
Congress intended them to be different. See, e.g., United
States v. Nordic Village, 503 U.S. 30, 36, 112 S.Ct. 1011,
117 L.Ed.2d 181 (1992). In this regard, we are mindful not
to construe a definition within § 101(a)(43) to be
"so broad that it is inconsistent with its accompanying
words, thus giving unintended breadth to the [INA]".
Gustafson, 513 U.S. at 575, 115 S.Ct. 1061 (quoting Jarecki
v. G.D. Searle & Co., 367 U.S. 303, 81 S.Ct. 1579, 6
L.Ed.2d 859 (1961)) (internal quotation marks omitted).").
CD:19.73, 19.94;AF:5.55, 5.78
-- STATUTORY INTERPRETATION -- RULE OF LENITY - APPLIES
TO EXCLUSION QUESTION
Martinez v. Mukasey, ___ F.3d ___ (5th Cir. Mar. 11, 2008)
("Here, defining "admitted", as used in §
212(h), to exclude adjustment to LPR status subsequent to
entry, as was done by Martinez, is bolstered by the "longstanding
principle of construing any lingering ambiguities in deportation
statutes in favor of the alien". Cardoza-Fonseca, 480
U.S. at 449, 107 S.Ct. 1207 (citations omitted). This canon
of construction, comparable to the rule of lenity in criminal
cases, is based on the drastic nature of removal. "We
will not assume that Congress meant to trench on [the alien's]
freedom beyond that which is required by the narrowest of
several possible meanings of the words used." Fong
Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed.
433 (1948). Therefore, this rule of narrow construction
provides an additional basis to construe § 212(h) in
favor of Martinez being able to seek a waiver of inadmissibility.").
-- RELIEF - 212(H) WAIVER - 30 GRAM MARIJUANA EXCEPTION
- DRUG PARAPHERNALIA
Escobar-Barraza v. Mukasey, ___ F.3d ___, 2008 WL 656897
(7th Cir. Mar. 13, 2008) (noncitizen qualified for a waiver
of inadmissibility, under INA § 212(h), 8 U.S.C. §
1182(h), on account of a controlled substances conviction,
since his conviction for possession of drug paraphernalia
related to a single offense of simple possession of 30 grams
or less of marijuana). CD:24.29, 21.35;AF:2.45;CMT:3.44;SH:7.144
REMOVAL PROCEEDINGS - MENTAL COMPETENCY
Mohamed v. Tebrake, 371 F.Supp.2d 1043 (D. Minn. 2005) (IJ
must inquire as to respondent's mental competency, or 8
CFR § 1240.4 would be a nullity, and it was an abuse
of discretion not to inquire where person was in a mental
hospital and hearing was held via circuit television).
-- IMMIGRATION OFFENSES - SOCIAL SECURITY CARD IS NOT AN
United States v. Murillo, ___ F.Supp.2d ___, 2008 U.S. Dist.
LEXIS 19568 (N.D. Iowa Mar. 13, 2008) (a "social security
card" does not constitute a "means of identification"
within the meaning of 18 U.S.C. § 1546(b) and 8 U.S.C.
§ 1324a(b), so the court grants defendant's motion
to dismiss Count 3); United States v. Tyson Foods, Inc.,
258 F. Supp. 2d 809 (E.D. Tenn. 2003) (a "social security
card" is not a "means of identification"
within the meaning of 18 U.S.C. § 1546(b), even if
this creates a "loophole" or appears inconsistent
with 18 U.S.C. § 1546(a)).
-- CD:20.6;CMT:8.6, 9.26, 9.39, 9.66, CHART
CRIME OF MORAL TURPITUDE - FALSE STATEMENT - FALSE IDENTIFICATION
TO POLICE OFFICER
Blanco v. Mukasey, 518 F.3d 714 (9th Cir. Mar. 3, 2008)
(California conviction of providing false identification
to a police officer, in violation of Penal Code § 148.9(a),
is not categorically a crime involving moral turpitude,
under INA § 212(a)(2), 8 U.S.C. § 1182(a)(2),
because the offense does not require fraudulent intent under
-- RELIEF - WAIVERS - 212(C) RELIEF - NINTH CIRCUIT TO REHEAR
ABEBE ON MATTER OF BLAKE ISSUE
The Ninth Circuit ordered that Abebe v. Gonzales, 493 F.3d
1092 (9th Cir. 2007) be reheard en banc. In Abebe, a panel
of the Ninth Circuit upheld the BIA's decision in Matter
of Blake, 23 I. & N. Dec. 722 (BIA 2005) (finding a
person convicted of sexual abuse of a minor is ineligible
for a 212(c) waiver). The BIA had reasoned that the aggravated
felony ground of removal had no statutory counterpart in
the INA § 212(a) grounds of inadmissibility, so INA
§ 212(c) could not waive deportation on account of
the conviction. CD:24.28;AF:2.44;CMT:2.43
-- AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Rodriguez-Enriquez, __ F.3d __, 2008 WL
624433 (10th Cir. Mar. 10, 2008) (Colorado conviction for
assault two (drugging a victim), in violation of Colo.Rev.Stat.
Ann. § 18-3-203(1)(e) (2001), is not a crime of violence
for illegal re-entry sentencing purposes, since drugging
by surreptitious means does not involve the use of physical
force). CD:19.38;SH:7.46, 8.10;AF:5.19, A.14, B.9, B.5
POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES
As of March, 2008, 28 states have adopted court rules or
statutes that require the court, at plea, to advise the
defendant concerning possible immigration consequences.
Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule
17.2(f) (2004); Ark. Rules of Court, rule 17.2(f)(2004);
Cal. Penal Code § 1016.5 (West 1995); Conn. Gen. Stat.
Ann. § 54-1j (West 1994); D.C. Code Ann. § 16-713
(West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga.
Code Ann. § 17-7-93 (1997); Haw. Hawaii Stat. Ann.
§§ 802E(1), (2), (3) (West 1994); Id. Crim. Rule.
11(d)(1); Ill. Comp. Stat. 5/113-8 (2006); Iowa R. Crim.
Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002);
Md. R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch.
278, §29D (West 1994); Minn. Rule Crim. Proc. 15.01(10)(c)
(2000); Mont. Code Ann. § 46-12-210(1)(f) (1997); Neb.
Rev. St. §29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P.
5-303(E)(5) (1992); N.Y. Crim. Proc. Law § 220.50 (7)
(McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. §
15A-1022 (a)(7) (West 1994); Ohio Rev. Code Ann. §
2943.031 (West 1989); Ore. Rev. Stat. § 135.385 (2)(d)
(1997); R.I. Gen. Laws § 12-12-22 (West 2003); Tex.
Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); 13 S.A.
§ 6565; Wash. Rev. Code Ann. § 10.40.200 (West
1995); Wis. Stat. §§ 971.08(1)(c), (2) (West 1994).
STATISTICS - IMMIGRATION HOLDS
Mar. 28, 2008
The head of Imigration and Customs Enforcement, Julie L.
Myers, announced to the House Appropriations Committee that
at least 304,000 immigrant criminals eligible for deportation
are behind bars nationwide. The annual number of deportable
immigrant inmates was expected to vary from 300,000 to 455,000,
or 10 percent of the overall inmate population, for the
next few years. She said DHS intended to speed the deportation
of immigrants convicted of the most serious crimes by linking
state prisons and county jails into federal databases that
combine FBI fingerprint files with DHS immigration, border
and antiterrorism records. In fiscal 2007, ICE statistics
indicate 164,000 immigrant inmates were charged in removal
proceedings with immigration violations to prepare the way
for deportation, and 95,000 immigrants with criminal histories
IMMIGRATION ADVOCATES NETWORK - LEGAL INFORMATION
For a wonderful new website, with valuable resources on
criminal immigration law, among other topics, see http://www.immigrationadvocates.org/
RELIEF - NATURALIZATION
- TERMINATING REMOVAL PROCEEDINGS TO PURSUE NATURALIZATION
AILF Practice Advisory sets out arguments to challenge Matter
of Acosta Hidalgo, a recent BIA decision holding that IJs
and the BIA lack jurisdiction to determine prima facie eligibility
for naturalization in order to terminate removal proceedings.