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Recent Developments In Criminal Law - January 2009

by Norton Tooby

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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