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Recent Developments In Criminal Law - July 2008

by Norton Tooby and Joseph Justin Rollin

Recent Developments

UNITED STATES 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).

FIRST CIRCUIT -- 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 questioning").See CD:15.25.

SECOND CIRCUIT -- 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.").

SECOND CIRCUIT -- 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).

FIFTH CIRCUIT -- 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

FIFTH CIRCUIT -- 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."). CD:16.38;AF:4.41;CMT:6.7;SH:5.25

SEVENTH CIRCUIT -- 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

EIGHTH CIRCUIT
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).

EIGHTH CIRCUIT -- IMMIGRATION OFFENSES - SOCIAL SECURITY CARD IS NOT AN IDENTIFICATION CARD
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)).

NINTH CIRCUIT -- 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 California law).

NINTH CIRCUIT -- 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

TENTH CIRCUIT -- 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

STATUTES -- 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).

CD:6.11
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 were deported.

RESOURCES - 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 BEFORE DHS
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.

http://www.ailf.org/lac/pa/Acosta_Hidalgo_lac_pa_031808.pdf


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