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Recent Developments In Criminal Law - February 2009

by Norton Tooby

RECENT CIRCUIT DECISIONS:

First Circuit
REMOVAL PROCEEDINGS – EVIDENCE – NO ERROR IN ADMISSION OF UNTRANSLATED FOREIGN DOCUMENTS– DUE PROCESS CONSIDERATIONS OF FAIRNESS AND RELIABILITY GOVERN AND WERE NOT OFFENDER HERE
Nadal-Ginard v. Holder, 558 F.3d 61 (1st Cir. Feb. 25, 2009 (no error in admitting untranslated foreign documents in removal proceedings); citing United States v. Diaz, 519 F.3d 56, 64 (1st Cir. 2008) (no plain error in a criminal case where untranslated foreign language documents, including a passport, were admitted under the Federal Rules of Evidence because the “evidentiary significance was facially apparent”); Toure v. Ashcroft, 400 F.3d 44, 48 (1st Cir. 2005) (“[T]he Federal Rules of Evidence do not apply in INS proceedings,” rather, “ ‘the less rigid constraints of due process impose outer limits based on considerations of fairness and reliability.’ ”), quoting Yongo v. INS, 355 F.3d 27, 30 (1st Cir. 2004)).
CD4:15.26.

Second Circuit
AGGRAVATED FELONY – DRUG TRAFFICKING – SECOND POSSESSION CONVICTION HELD NOT TO BE AN AGGRAVATED FELONY
United States v. Ayon-Robles, 557 F.3d 110 (2d Cir. Feb. 24, 2009) (per curiam) (California second conviction of simple possession of a controlled substance did not constitute an aggravated felony, under INA § 101(a)(43)(B), for illegal reentry sentencing purposes), following Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) (second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. § 1101(a)(43)(B), where the noncitizen did not admit the prior in being convicted a second time). CD4:19.58;SH:7.66, 8.3;AF:5.40, A.18, B.3 .

Third Circuit
JUDICIAL REVIEW – PETITION FOR REVIEW – FULL JUDICIAL REVIEW IS AVAILABLE FOR REINSTATEMENT OF REMOVAL ORDERS
Ponta-Garcia v. Attorney General of U.S., 557 F.3d 158 (3d Cir. Feb. 20, 2009) (holding full judicial review is available to a noncitizen adjudged removable following reinstatement of removal procedures, so they do not violate due process on this basis); see United States v. Charleswell, 456 F.3d 347, 353 (3d Cir. 2006); Ponta-Garc[i]a v. Ashcroft, 386 F.3d 341, 342 (1st Cir. 2004) (“An order reinstating an earlier order of deportation is subject to review....”); 8 U.S.C. § 1252 (providing for judicial review of final orders of removal); Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n. 3 (10th Cir. 2003) (finding that 8 U.S.C. § 1252 covers review of reinstatement orders). CD4:15.37, 15.40;AF:2.35, 2.19;CMT3:3.18, 3.34

Fifth Circuit
RECORD OF CONVICTION – PROBATION REPORT – PRIVACY OBJECTION TO PRESENTENCE REPORT – SEEK ORDER FROM U.S. DISTRICT COURT TO PROTECT PRIVACY OF REPORT
Arguelles-Olivares v. Mukasey, 526 F.3d 171, 180 (5th Cir. April 22, 2008), revised opinion, (5th Cir. Feb. 2009) (rejecting privacy objection to use of federal presentence report to establish loss to victim over $10,000 for fraud offense aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i): "[noncitizen] additionally asserts that the PSR is confidential and cannot be accessed without leave of court. Arguelles-Olivares made no attempt during the immigration proceedings to seek an injunction or order from the district court to maintain the confidentiality of the PSR. He did not identify any provisions of the PSR that would jeopardize his own privacy or the government's interest in maintaining the trust of third-party witnesses by keeping the PSR confidential. There was no abuse of discretion in admitting the PSR."). CD4:16.32;AF:4.31 .

Ninth Circuit
AGGRAVATED FELONY – CRIME OF VIOLENCE – AGGRAVATED ASSAULT
United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir. Feb. 25, 2009) (per curiam) (Arizona conviction for aggravated assault under Arizona Revised Statutes § 13- 1204(A)(11) (“[i]ntentionally, knowingly or recklessly causing any physical injury to another person”) was not a conviction for a “crime of violence” under USSG § 2L1.2(b)(1)(A)(ii), as an “offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another,” under U.S.S.G. § 2L1.2 n. 1(b)(iii), because "Under the categorical approach, aggravated assault requires a mens rea of at least recklessness “under circumstances manifesting extreme indifference to the value of human life.” Esparza-Herrera's statute of conviction, A.R.S. § 13-1204(A)(11), encompassed ordinary recklessness, and therefore his conviction was not a conviction for generic aggravated assault or a crime of violence."). CD4:19.40;AF:5.22, A.14, B.9;SH:7.49, 8.10 .

JUDICIAL REVIEW – PETITION FOR REVIEW – FUGITIVE DISENTITLEMENT DOCTRINE NOT APPLICABLE WHERE PETITIONER’S WHEREABOUTS KNOWN DURING PETITION FOR REVIEW
Wenqin Sun v. Mukasey, 555 F.3d 802 (9th Cir. Feb. 9, 2009) (fugitive disentitlement doctrine, which developed in the criminal context to limit a person’s ability to appeal as long as s/he remained a “fugitive,” has also been applied in the immigration context, but could not preclude the court's consideration of a petition for review on the grounds that the petitioner did not report for removal, as ordered by the government, several years prior to filing a petition for review: “the critical question” is “whether the appellant is a fugitive at the time the appeal is pending.” Because the petitioner’s whereabouts were known to her counsel, DHS, and the court while the petition for review was pending, it would be inappropriate to dismiss the case).

See generally AILF's practice advisory at
http://www.ailf.org/lac/pa/lac_pa_fugdis.pdf;
AILF Legal Action Center Litigation Clearinghouse Newsletter, Vol. 4, No. 3 (Feb. 24, 2009). CD4:15.37;AF:2.19;CMT3:3.18

ASYLUM PARTICULARLY SERIOUS CRIME DUI
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (The BIA determined that Anaya's testimony establishes that the respondent, after drinking alcohol to the point where he was intoxicated, began driving a motor vehicle in reckless disregard for persons or property whereupon he drove his car into the home of his victim causing property damage and bodily injury. The BIA also noted that Anaya was confined for his criminal actions. We therefore conclude that the BIA properly considered the nature of the conviction, the circumstances and underlying facts of the conviction, [and] the type of sentence imposed when reaching its conclusion that Anaya's drunk driving constituted a particularly serious crime.). CD4:24.19;AF:2.31;CMT3:3.30 .

AGGRAVATED FELONY FIREARMS OFFENSES FELON IN POSSESSION OF FIREARM ARGUMENT THAT STATE OFFENSE LACKS INTERSTATE COMMERCE ELEMENT NECESSARY TO CORRESPOND TO FEDERAL OFFENSE
In United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001), the Ninth Circuit has already determined that the interstate commerce element under 922 should not be a requisite of the criminal state statute at issue when conducting the categorical matching process. The Ninth Circuit stated that the wording of INA 101(a)(43) makes evident that Congress clearly intended state crimes to serve as predicate offenses for the purpose of defining what constitutes an aggravated felony. Ibid. The Court noted that INA 101(a)(43)(E) defines aggravated felony as "an offense described in" several federal statutory provisions, including 18 U.S.C. 922(g)(1). Ibid. The Court reasoned:

[I]nterpreting the jurisdictional element of 922(g) to be necessary in order for a state firearms conviction to constitute an aggravated felony under 1101(a)(43)(E)(ii) would reduce the number of state firearms offenses that qualify to no more than a negligible number. Rarely, if ever, would a state firearms conviction specify whether a commerce nexus exists. If we were to construe the jurisdictional nexus of the federal felon in possession provision to be a necessary element for a state crime to qualify as an aggravated felony, we would undermine the language of the aggravated felony statute and the evident intent of Congress. Ibid.

However, Castillo-Rivera has arguably been overruled by Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. October 20, 2008) (en banc), in which the Ninth Circuit sitting en banc visited the same quandary and came to the opposite conclusion.

This principle was reiterated in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (finding California accessory after the fact missing an entire element of the generic definition of a crime involving moral turpitude), and Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) (finding the state fraud statute missing an entire element – the $10,000 loss to the victim – of aggravated felony fraud offenses).

Because the Ninth Circuit has now clarified en banc in two cases that there must be a categorical match to each element of the state statute to the federal immigration statute or generic definition, Castillo-Rivera has arguably been overruled and the case circumvents this requirement. Because the California felony in possession of a firearm statute has no interstate commerce element, it is a categorical mismatch to the federal definition and the noncitizen cannot be considered an aggravated felon. Thanks to Holly S. Cooper.

Counsel can also argue that the Ninth Circuit did not fully consider the issue of the federal element in that case. The original BIA opinion in Matter of Vasquez-Muniz, 22 I. & N. Dec. 1415 (BIA Dec. 1, 2000), ruled for the immigrant, noting that Congress knows how to say "no federal jurisdictional element is required" when it wants to, and citing other legislation in which Congress did just that. Castillo- Rivera did not discuss that argument. CD4:19.8, 19.70;AF:4.35, 5.52 .

Tenth Circuit
AGGRAVATED FELONY – CRIME OF VIOLENCE – SEXUAL ASSAULT
United States v. Yanez-Rodriguez, 555 F.3d 931 (10th Cir. Feb. 10, 2009) (Kansas conviction for violation of Kan. Stat. Ann. § 21-3517 (1988) (“unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another”) is a “forcible sex offense” for illegal re-entry sentencing purposes, even though the statute does not require that the actor used force), disagreeing with United States v. Meraz-Enriquez, 442 F.3d 331 (5th Cir.2006).
CD4:19.22, 19.38;AF:4.40, 5.20, A.14, B.77

Other
SAFE HAVEN – TRAVEL ACT
18 U.S.C. § 1952 (“travels. . . or uses the mail or any facility in interstate or foreign commerce, within intent do (1) distribute the proceeds of any unlawful activity.”), by it minimum conduct is arguably not controlled substances offense or a crime involving moral turpitude (the funds may have been obtained through non-CMT activity and be distributed for non-CMT purposes). Thanks to Jonathan Moore.
SH:9.47


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