Recent Developments In Criminal Law - January 2009
RECENT CIRCUIT DECISIONS:
Second Circuit
REMOVAL PROCEEDINGS – EXISTENCE OF
CONVICTION – ADMISSION IN PROCEEDINGS OF
CONVICTION THROUGH LAWYER SUFFICIENT TO
ESTABLISH CONVICTION FOR PURPOSES OF
ESTABLISHING REMOVABILITY
Roman v. Mukasey, 553 F.3d 184 (2d Cir. Jan. 21, 2009)
(“There is no legal or constitutional error in the IJ and BIA's
determination that Roman's admission of removability-which
explicitly admitted the allegations in the NTA “and the basis
for the charge of removal”-satisfied the government's
evidentiary burden. “[W]hen an admission is made as a
tactical decision by an attorney in a deportation proceeding,
the admission is binding on his alien client and may be relied
upon as evidence of deportability.” Matter of Velasquez, 19 I.
& N. Dec. 377, 382 (B.I.A.1986); cf. Ali v. Reno, 22 F.3d 442,
446 (2d Cir.1994) (alien bound by counsel's admission that a
timely answer had not been filed).”).
CD: 15.26
Fifth Circuit
AGGRAVATED FELONY – CRIME OF VIOLENCE –
STALKING
United States v. Mohr, 554 F.3d 604 (5th Cir. Jan. 6, 2009)
(South Carolina conviction for stalking, in violation of
S.C.Code 1976 § 16-3-1700(B) is a crime of violence for
purposes of the Armed Career Criminal Act; even though the
judgment indicated that the defendant was convicted under
the “non-violent” portion of the statute; the elements of the
statute itself indicate that the offense involved a substantial
potential risk of physical injury to another).
CD: 19.44; SH: 7.54; AF: 5.26, A.14, B.16
Sixth Circuit
SAFE HAVEN – INTERFERING WITH POLICE OFFICER
United States v. Gagnon, 553 F.3d 1021 (6th Cir. Jan. 29,
2009) (federal conviction in violation of 18 U.S.C. § 111,
punishes activity less serious than simple assault; defendant
who had spit at border patrol officers and forced himself to
vomit was therefore guilty under 18 U.S.C. § 111). Note:
counsel can therefore argue that a conviction under this
statute is not necessarily a crime of violence or a crime of
moral turpitude. But see United States v. Chapman, 528
F.3d 1215, 1219 (9th Cir. 2008) (concluding that its
construction of § 111 “leaves no room for a conviction that
does not involve at least some form of assault”).
SH: 9.19
Seventh Circuit
JUDICIAL REVIEW – PETITION FOR REVIEW – NO
JURISDICTION OVER VAWA CANCELLATION EXTREME
CRUELTY DETERMINATION
Stepanovic v. Filip, 554 F.3d 673 (7th Cir. Jan. 28, 2009)
(VAWA cancellation “extreme cruelty” determination is within
the discretion of the Attorney General; therefore the court
lacks jurisdiction to review under 8 U.S.C. § 1252(a)(2);
over petition for review of BIA holding noncitizen ineligible for
VAWA cancellation of removal, under INA § 240A(b)(2), 8
U.S.C. § 1229b(b)(2), for determining he was not subjected
to extreme cruelty; BIA correctly applied the “extreme
cruelty” legal standard in requiring petitioner show
psychiatric or medical documents, or other evidence). See
also Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006);
Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir.
2005). But see Hernandez v. Ashcroft, 345 F.3d 824, 833-35
(9th Cir. 2003).
CD: 15.37, 24.26; AF: 2.19, 2.38; CMT: 3.18, 3.37
Ninth Circuit
AGGRAVATED FELONY – BURGLARY – BURGLARY
United States v. Aguila-Montes, 553 F.3d 1229 (9th Cir. Jan.
20, 2009), on rehearing withdrawing and superseding
previous opinion, 523 F.3d 1071 (California conviction for
first-degree residential burglary, in violation of Penal Code §
459, could not categorically constitute a crime of violence
(burglary of a dwelling) under USSG § 2L1.2(b)(1)(A), cmt.
n. 1(B)(iii), so as to warrant 16-level enhancement of
sentence for illegal reentry, because the California offense
encompasses a broader range of proscribed conduct than
does the generic offense of the Guidelines since it does not
require that the entry be “unlawful or unprivileged” as the
federal definition does), following United States v.
Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005).
CD: 19.30; AF: 5.10, A.10, B.36; SH: 7.37, 8.38
OVERVIEW – CONTACT WITH IMMIGRATION
AUTHORITIES – CHOICE OF LAW
RELIEF – CONSULAR PROCESSING – CHOICE OF LAW
The Secretary of State, in an unclassified Advisory Opinion
to the U.S. Embassy in Montevideo, stated that an expunged
Washington state misdemeanor "first time, minor controlled
substance offense relating only to possession" will not trigger
inadmissibility as long as the alien intends to enter the U.S.
from a port of entry in the 9th Circuit, following Lujan-
Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Thanks to
the firm of Gibbs, Houston, Pauw in Seattle.
CD: 15.12; AF: 2.7; CMT: 3.7
Eleventh Circuit
CONVICTION – JUVENILE – ADULT COURT CONVICTION
OF JUVENILE CONSTITUTES A CONVICTION FOR
IMMIGRATION PURPOSES
Singh v. U.S. Atty. Gen., 553 F.3d 1369 (11th Cir. Dec. 31,
2008) (conviction rendered in adult court constitutes a
conviction for immigration purposes, no matter how old the
noncitizen was at the time of the offense).
CD: 7.23; SH: 4.10; AF: 3.41; CMT: 2.9
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