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Citations for ILW.COM's Seminar
"CLINIC Explains: I864, CSPA, Crimes"
Session 3 held on December 7, 2006, 2006

For more info, or to signup online, click here.
For more info, or to signup by fax, click here.

From Mary Holper

Crimes relating to controlled substances/aggravated felonies INA 101(a)(43)(B) (drug-related ground of aggravated felony) INA 237(a)(2)(B) (ground of removability relating to controlled substances, non-aggravated felony)

Lopez v. Gonzales, No. 05-547 (Dec. 5, 2006) (US supreme court decision stating that first simple possession state felony conviction is not an aggravated felony because it would not be a felony under federal laws)

Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006) (second state simple possession conviction is not an aggravated felony unless the prosecution in the second offense had to plead and prove the prior conviction and did so for the recidivist conviction)

AILF practice advisory on post-Leocal motions (to use for post-Lopez motions if needed):

Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) (for crime relating to a controlled substance ground of deportability, if the record of conviction does not include the drug, government has not met its burden of proving that the drug was on the federal list of controlled substances)

21 USC 802 (federal list of controlled substances)

Crimes of domestic violence INA 237(a)(2)(E) (ground of deportability relating to domestic violence)

Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) (simple battery statute which punishes de minimus force is not a crime of violence under 18 USC 16; it is possible to look outside of the record of conviction for evidence of the domestic relationship)

Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) (IJ can not look outside of the record of conviction for evidence of the domestic nature of the relationship)

Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (following the 9th Circuit, statute punishing de minimus force not necessarily a crime of violence and BIA does not allow use of police reports to prove whether crime was crime of violence)

Burden of proof/post-conviction relief Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (conviction vacated for immigration reasons only is no longer a conviction for immigration purposes)

Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) (statute expungement statute where conviction vacated after rehabilitative program is still a conviction under INA definition of conviction)

Pickering v. Gonzales, 454 F.3d 525 (6th Cir. 2006) (where Canadian conviction vacated and the record is not clear whether it was vacated solely for immigration reasons, burden of proof is on government to prove that conviction was vacated for immigration reasons only)

Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. 2005) (where conviction vacated and it is unclear whether it was vacated solely for immigration reasons, burden or proof is on government to prove that conviction was vacated for immigration reasons only)

Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005) (to determine basis for why a state court vacated a conviction, agency must look to state court judge's order first, and if not clear, look to record before court - but don't speculate on why conviction was vacated)

Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. 2006) (on motion to reopen removal case after conviction that formed basis for removability is vacated, it is respondent's burden to show that the conviction was vacated for procedural or substantive defects in the underlying criminal proceedings)

Burglary of vehicle Matter of Perez, 22 I&N Dec. 1325 (BIA 2000) (burglary of a vehicle is not a burglary aggravated felony under INA 101(a)(43)(G))

Taylor v. US, 495 US 575 (1990) (generic definition of burglary as the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime)

Sareang Ye v. INS, 214 F.3d 1128 (9th Cir. 2000) (burglary of a vehicle is not a crime of violence)

Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 2000) (burglary statute which includes burglary of a vehicle is divisible and remands to agency to look at record of conviction, but suggests that vehicle burglary can be a crime of violence because of risk of use of force against property of another)