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< Back to current issue of Immigration Daily

Recent Developments In Criminal Law - October 2009

by Norton Tooby

RECENT CIRCUIT DECISIONS:

BIA

SAFE HAVEN – BANK FRAUD – ARGUMENT IT IS NOT A CMT IF BASED ON MERELY "FALSE" STATEMENT OR "FALSE OR FRAUDULENT" STATEMENT
Counsel can argue that a federal conviction of bank fraud under 18 U.S.C. § 1344(b) ("false or fraudulent" representations) might not be CMT under the reasoning of Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962). There are circumstances in which one could obtain property under the control of the bank (e.g., from one's own safe deposit box), under false, but not fraudulent pretences, (e.g., saying I lost the key, where in fact, estranged wife had taken it to prevent sale of assets before court injunction could be obtained). In Matter of Espinosa 10 I. & N. Dec. 98 (BIA 1962), the Board seemed to endorse the Hirsh line of thinking.
Thanks to Lisa Brodyaga.
SH:9.25

WAIVERS – 212(C) WAIVERS – ABEBE DOES NOT INVALIDATE REGULATION ALLOWING 212(C) WAIVERS OF GROUNDS OF DEPORTATION
Matter of Moreno-Escobosa, 25 I. & N. Dec. 114 (BIA Oct. 30, 2009) Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3, so as to preclude a person who seeks to waive a deportation ground from establishing eligibility for a waiver under former INA § 212(c)).
CD4:24.28;AF:2.44;CMT3:3.43

JUDICIAL REVIEW – BIA LACKS AUTHORITY TO REOPEN PROCEEDINGS WHERE RESPONDENT SEEKS RELIEF OVER WHICH EOIR HAS NO JURISDICTION
Matter of Yauri, 25 I. & N. Dec. 103 (BIA Oct. 28, 2009) (BIA generally lacks authority to reopen the proceedings of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially where reopening is sought simply as a mechanism to stay the final order while the collateral matter is resolved by the agency or court having jurisdiction to do so).
CD4:15.37;AF:2.19;CMT3:3.18

DETENTION – IMMIGRATION JUDGE AUTHORITY TO MODIFY DHS CONDITIONS OF RELEASE
Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009) (an Immigration Judge has authority under INA § 236(a)(2)(A), and 8 C.F.R. § 1236.1(d)(1) to review and consider whether to modify the conditions of release imposed on a noncitizen by the DHS; noncitizen must request IJ to review conditions of release within 7 days of the noncitizen’s release from custody by the DHS).
CD4:6.43

Second Circuit

CITIZENSHIP – NATURALIZATION – DISTRICT COURT
Bustamante v. Napolitano, 582 F.3d 403 (2nd Cir. Sept. 28, 2009) (where noncitizen properly invoked district court’s authority over naturalization applications upon which the USCIS has failed to act for 120 days, under INA § 336(b) of the Act, the district court had exclusive jurisdiction over naturalization application).
CD4:24.13;CMT3:3.23;AF:2.24

Third Circuit

CRIMES OF MORAL TURPITUDE – SILVA-TREVINO REJECTED
Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. Oct. 6, 2009) (rejecting the Attorney General’s novel approach to CMT analysis announced in Matter of Silva-Trevino, and finding that case is not subject to Chevron or Brand-X deference; following the established methodology for adjudicating CIMT as set forth in Partyka v. Att'y Gen., 417 F.3d 408 (3d Cir. 2005)). The most important aspect of this decision is the Third Circuit's rejection of Matter of Silva-Treviño. The Third Circuit “conclude[d] that deference is not owed to Silva-Trevino’s novel approach.” Jean-Louis, No. 07-3311, slip op. at 18. Thus, the Third Circuit refused to apply Matter of Silva-Treviño and instead applied the modified categorical approach only. Jean-Louis, No. 07-3311, slip op. at 18. The Third Circuit identified several reasons for its rejection of Matter of Silva-Treviño. First, the Third Circuit determined that “Silva-Treviño alters the focus of the categorical analysis” as required by Supreme Court and Third Circuit precedent. Jean-Louis, No. 07-3311, slip op. at 20. As the Third Circuit explained, “Under our precedents, the possibility of conviction for non-turpitudinous conduct, however remote, is sufficient to avoid removal; proof of actual application of the statute of conviction to the conduct asserted is unnecessary.” Jean-Louis, No. 07-3311, slip op. at 20. In contrast, Matter of Silva-Treviño requires a “realistic probability” test. Jean-Louis, No. 07-3311, slip op. at 21 (discussing Matter of Silva-Treviño, 24 I&N Dec. Dec. at 697). The Third Circuit described the realistic probability test as “wrong-headed.” Jean-Louis, No. 07-3311, slip op. at 45. After acknowledging that the realistic probability test originated in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), the Third Circuit explained that it “seriously doubt[s] that the logic of the Supreme Court in Duenas-Alvarez is transferable to the CIMT context.” Jean-Louis, No. 07-3311, slip op. at 46. Second, the Third Circuit concluded that “Silva-Treviño renders the strict 'categorical' approach not 'categorical.'” Jean-Louis, No. 07-3311, slip op. at 22. Under the modified categorical approach, the Third Circuit reminded, an IJ may examine the record of conviction only “to ascertain the particular variation of the statute under which the defendant was convicted.” Jean-Louis, No. 07-3311, slip op. at 22. Matter of Silva-Treviño, the Third Circuit held, abandons this limited analysis in favor of a wide examination of the facts underlying the conviction. Jean-Louis, No. 07-3311, slip op. at 23. “Silva-Treviño sets no limitations on the kinds of evidence adjudicators may consider.” Jean-Louis, No. 07-3311, slip op. at 23. This is “an impermissible reading of the statute,” the Third Circuit concluded, referring to the INA. Jean-Louis, No. 07-3311, slip op. at 25. “It could not be clearer from the text of the statute – which defines 'conviction' as a 'formal judgment of guilt,' and which explicitly limits the inquiry to the record of conviction or comparable judicial record evidence—that the CIMT determination focuses on the crime of which the alien was convicted—not the specific acts that the alien may have committed.” Jean-Louis, No. 07-3311, slip op. at 27-30 (internal citations omitted). “Because the INA requires the conviction of a crime—not the commission of an act—involving moral turpitude, the central inquiry is whether moral depravity inheres in the crime or its elements—not the alien's underlying conduct.” Jean- Louis, No. 07-3311, slip op. at 37. The Third Circuit explained that its holding “is grounded in history.” Jean-Louis, No. 07-3311, slip op. at 33. As the Court explained, “the INA premises removability not on what an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally convicted of in a court of law . . . .” Jean-Louis, No. 07-3311, slip op. at 33. Rather than accept the Attorney General's conclusion in Matter of Silva-Treviño that the phrase “involving moral turpitude” modifies the term “crime,” thus expanding the CIMT analysis to include crimes that are committed in a manner that involves moral turpitude, the Third Circuit noted that the phrase “crime involving moral turpitude” is a term of art that precedes the INA. Jean-Louis, No. 07-3311, slip op. at 36. As such, the phrase “crime involving moral turpitude” cannot be divided into its component parts. Jean-Louis, No. 07-3311, slip op. at 36-37.
CD4:16.7;CMT3:6.2

CRIMES OF MORAL TURPITUDE – SIMPLE ASSAULT ON CHILD
Jean-Louis v. Att'y Gen., __ F.3d __ (3d Cir. Oct. 6, 2009) (Pennsylvania conviction for simple assault on a child under 12, in violation of 18 Pa. Cons. Stat. § 2701(b)(2), is not a crime of moral turpitude, since the offense includes, at a minimum causing reckless in jury to a child, but without knowledge of the child’s age).CD4:20.7;CMT3:7.8, 19.15, CHART JUDICIAL REVIEW – DEFERENCE – BRAND-X Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. Oct. 6, 2009) (Brand-X deference is not due where the attorney general’s reasoning is based on an impermissible reading of the statute).
CD4:15.37;AF:2.19;CMT3:3.18

Fifth Circuit

CONTROLLED SUBSTANCES – LARGE QUANTITY
United States v. Betancourt, __ F.3d __ (5th Cir. Oct. 9, 2009) (federal conviction under 21 U.S.C.A. § 841(a)(1), (b)(1)(B), for possession of more than 100 kilograms of marijuana does not require proof beyond a reasonable doubt that defendant knew the type and quantity of drugs in his possession).
CD4:21.17;SH:7.66;AF:19.58

Seventh Circuit

CRIMES OF MORAL TURPITUDE – FRAUD – FALSE DOCUMENTS – TRANSFER
Lagunas-Salgado v. Holder, 584 F.3d 707 (7th Cir. Oct. 13, 2009) (federal conviction for violation of 18 U.S.C. § 1028(a)(2) (“knowingly transfers an identification document or a false identification document knowing that such document was stolen or produced without lawful authority”), categorically constituted a crime of moral turpitude, for purposes of triggering inadmissibility; the BIA reasonably concluded that knowingly selling false official identification documents involves inherently deceptive conduct and is, therefore, a crime involving moral turpitude), distinguishing Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992) (possession of altered documents, without use, is not categorically a CMT).
CD4:20.6;CMT3:8.6, 9.67, CHART

Eight Circuit

AGGRAVATED FELONY – FRAUD OFFENSES – UNAUTHORIZED ACCESS TO COMPUTER
Tian v. Holder, 576 F.3d 890, 895 (8th Cir. Aug. 19, 2009) (federal conviction of unauthorized access to a computer, in violation of 18 U.S.C. § 1030(a)(4), qualifies as a fraud or deceit aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), because respondent conceded as much; thus, the question whether this conviction qualified as such was not presented to the court of appeal).
CD4:19.74;AF:5.56, A.24, B.44

AGGRAVATED FELONY – FRAUD OFFENSES – LOSS AMOUNT INCLUDES INVESTIGATIVE COSTS
Tian v. Holder, 576 F.3d 890, 895-896 (8th Cir. Aug. 19, 2009) (“Both the IJ and the BIA made clear that their findings concerning the amount of the loss were premised on the investigative costs incurred by Parametric. The IJ specifically noted that ‘at a minimum, the investigative costs incurred by [Parametric], in the amount of $29,800, are properly considered a loss to the victim[ ].’ And the BIA reasoned that because ‘the investigative costs alone, incurred by [Parametric], are more than $10,000, and these costs were incurred because of [Tian's] unauthorized computer use, ... [Tian's] crime constitutes an aggravated felony.’”).
CD4:19.74;AF:5.56

Ninth Circuit

AGGRAVATED FELONY – CRIME OF VIOLENCE – ASSAULT WITH A DEADLY WEAPON
United States v. Estrada-Eliverio, 583 F.3d 669 (9th Cir. Oct. 5, 2009) (California conviction of assault with a deadly weapon or by means likely to produce great bodily injury, under Penal Code § 245(a)(1), constituted a “crime of violence” for illegal re-entry sentencing purposes), following United States v. Grajeda, 581 F.3d 1186 (9th Cir. Sept. 21, 2009).
CD4:19.36;AF:5.18, 8.14, B.9

AGGRAVATED FELONIES – DRUG TRAFFICKING – UNLISTED DRUGS CONTROLLED SUBSTANCES OFFENSES – UNLISTED DRUGS
A number of controlled substances are listed on the California controlled substances lists governed by Health & Safety Code §§ 11350, 11351, and 11352, but not proscribed by the federal Controlled Substances Acts: e.g., acetylfentanyl (N-(1-phenethyl- 4-piperidinyl) acetanilide), evomethadyl acetate, lophophora williamsii lemaire, sodium oxybutyrate, and thiophene analog of acetylfentanyl (N-(1-(2-(2-thienyl)ethyl)-4-piperidinyl) acetanilide).
Thanks to Joseph Justin Rollin.
CD4:21.34;SH:7.143;AF:19.60

Tenth Circuit

CRIME OF MORAL TURPITUDE – ASSAULT
Garcia v. Holder, 584 F.3d 1288 (10th Cir. Oct. 27, 2009) (Colorado conviction for third degree assault in violation of Colo.Rev.Stat. § 18-3-204(1)(a) (knowingly or recklessly cause bodily injury) is not necessarily a CMT), following Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007).
CMT3:9.14, CHART

REMOVAL PROCEEDINGS – POST-REMOVAL MOTION TO REOPEN
Mendiola v. Holder, 585 F.3d 1303 (10th Cir. Oct. 28, 2009) (post-departure bar contained in 8 C.F.R. § 1003.2(d) divested BIA of jurisdiction to review a motion to reopen, even though it was filed within 90 days of the order of deportation).
CD4:15.34;PCN:10.15;AF:6.30;CMT3:10.31

Copyright © 2010 by Norton Tooby. All rights reserved


About The Author

Norton Tooby is a criminal defense attorney with offices in Oakland, California. After graduating from Harvard University in 1967, he attended Stanford Law School where he served as President of the Stanford Law Review in 1969-1970. Since 1986, he has specialized in criminal defense of non-citizens, and his career has been devoted almost entirely to criminal defense work, culminating in the successful appeal of a death penalty case before the California Supreme Court under Chief Justice Malcolm Lucas in 1988 in which all convictions were reversed and his client was set at liberty. Since that time, he has increasingly specialized in criminal representation of immigrants.


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