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CA Appeals Court Applies De Novo Review to PC 1473.7 Motion

The California Appeals Court, Second Appellate Division, has determined that it will review the denial of a motion to vacate under section 1473.7 with a de novo standard

"De novo review is the appropriate standard for a mixed question of fact and law that implicates a defendant’s constitutional right. A defendant’s claim that he or she was deprived of the constitutional right to effective assistance of counsel presents a mixed question of fact and law, and we accordingly review such question independently. We accord deference to the trial court’s factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel’s deficient performance and resulting prejudice to the defendant. We apply this standard in reviewing the trial court’s order denying Ogunmowo’s motion to vacate his conviction under section 1473.7, in which he argued his conviction was legally invalid because his trial counsel rendered ineffective assistance by incorrectly advising him about the immigration consequences of his guilty plea, and he was prejudiced as a result."

The Court further found that Ogunmowo's counsel (Kaplan) had performed deficiently under prevailing norms in 1989.  "Affirmatively misadvising a client that he will not face immigration consequences as a result of a guilty plea in a drug trafficking case—when the law states otherwise—is objectively deficient performance under prevailing professional norms." 

With respect to prejudice, the Court noted that "contemporaneous evidence—Kaplan’s account of discussions that occurred at the time of the guilty plea—supports Ogunmowo’s assertion he would have rejected the plea deal if his attorney had not misadvised him about the immigration consequences of a conviction. His immigration status was such an important factor to him that he affirmatively sought his attorney’s counsel about immigration consequences before entering his guilty plea. The fact that the court advised Ogunmowo that immigration consequences arising from the guilty plea were possible does not preclude Ogunmowo from establishing that counsel’s incorrect advice prejudiced him.  The court’s warning, given just before the plea is taken, does not afford the same time for 'mature reflection’ as a private discussion with a defendant’s own counsel that incorporates the particular circumstances of the defendant’s case."

The full text of People v. Ogunmowo can be found here:

http://www.courts.ca.gov/opinions/documents/B283427.PDF

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CA Supreme Court Finds no Authority to Dismiss under PC 1385 after Probation has Ended

The California Supreme Court has determined that a trial court has no authority to dismiss a conviction under penal code 1385 after probation has ended.  "At any time before a criminal defendant pleads guilty, receives a suspension of sentence, begins a term of probation, or, indeed, completes it, the defendant may invite the trial court to act in the interests of justice and dismiss the action against him. By the time the defendant has completed probation, however, the trial court’s power under section 1385 to grant him the relief he seeks has run out. The action against the defendant has ceased, the court may no longer impose a final judgment on him, and the court’s dismissal power under section 1385 has expired."

The full text of People v. Chavez can be found here:

http://www.courts.ca.gov/opinions/documents/S238929.PDF

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BIA Defines Prostitution-Related Aggravated Felony

The Board of Immigration Appeals (BIA) has determined that a Wisconsin conviction for keeping a place of prostitution is categorically an aggravated felony related to the owning, controlling, managing, or supervising of a prostitution business.  The BIA acknowledged that it had construed the prostitution-related inadmissibility ground to require acts of sexual intercourse, but refused to find that prostitution must have the same definition in the aggravated felony context.  "We disagree with the Immigration Judge and with the case law on which he relied because the term 'prostitution' in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D).  It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.”

Section 101(a)(43)(K)(i) of the Act is not limited to offenses involving sexual intercourse for hire. Rather, it encompasses offenses relating to the operation of a business that involves engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.  Because the respondent did not argue that the Wisconsin statute encompasses conduct under the Board's newly-formulated definition of prostitution, the Board declined to explicitly what "sexual conduct" means in the prostitution-related aggravated felony context.

The full text of Matter of Ding can be found here: 

https://www.justice.gov/eoir/page/file/1064651/download

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Ninth Circuit Addresses Competency

The Ninth Circuit has elaborated on the standard for demonstrating mental incompetency.  To demonstrate mental incompetency, a person must show some inability to comprehend or to assist and participate in the proceedings, some inability to consult with or assist their counsel or their representative if pro se, and lack of a reasonable opportunity to present evidence and examine witnesses, including cross-examination of opposing witnesses. The mere inability to recall some events, a common weakness, and other similar mental lapses, are not sufficient to show mental incompetency, if they do not show any inability to understand the nature and object of the proceeding.

The full text of Mora Salgado v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/08/14-71890.pdf

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Ninth Circuit Interprets Heightened Standard NACARA Regulations

The Ninth Circuit has determined that an applicant subject to the heightened standard for NACARA must establish ten years of continuous physical presence following the applicant's most recently incurred ground of removal.  In so holding, the Court deferred to the Board of Immigration Appeals' decision in Matter of Castro-Lopez.  Campos-Hernandez was convicted of drug-related offenses in California in 2003, 2005, and 2008.  Because ten years had not passed since the 2008 offense when the Board of Immigration Appeals denied his case, he could not meet the continuous physical presence requirement.

The full text of Campos-Hernandez v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/02/14-70034.pdf

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Eighth Circuit finds that Arkansas Battery Convictions are Violent Felonies

The Eighth Circuit has determined that Arkansas convictions for third degree domestic battery and first degree battery are violent felonies because they require the use of violent force.  Given the similar definitions of violent felonies and crimes of violence in the immigration context, this decision could have persuasive value in the immigration context.

The full text of US v. Eason can be found here:

http://media.ca8.uscourts.gov/opndir/18/05/171402P.pdf

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Eighth Circuit Finds that Arkansas Conviction for Aggravated Assault on a Family Member is a Violent Felony

The Eighth Circuit has determined that an Arkansas conviction for aggravated assault on a family member is a violent felony under the Armed Career Criminal Act (ACCA) because it requires the use of violent force.  Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this case could have persuasive value in the immigration context.

The full text of US v. Pyles can be found here:

http://media.ca8.uscourts.gov/opndir/18/05/172116P.pdf

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Eighth Circuit Finds that ND Unlawful Entry Into a Vehicle is an Attempted Theft Aggravated Felony

The Eighth Circuit has determined that a North Dakota conviction for unlawful entry into a vehicle qualifies as an attempted theft aggravated felony.  "The BIA correctly affirmed the IJ’s conclusion that Ahmed’s unlawful entry into the vehicle was a substantial step toward committing a theft."

The full text of Ahmed v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/18/05/172035P.pdf

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Eighth Circuit finds that MN Criminal Sexual Conduct in Third Degree is Aggravated Felony

The Eighth Circuit has determined that a Minnesota conviction for criminal sexual conduct in the third degree is a sexual abuse of a minor aggravated felony.  The Minnesota statute at issue makes it a crime for an actor to engage in “sexual penetration” with another when the other party is “at least 13 but less than 16 years of age and the actor is more than 24 months older.”  The Minnesota statute at issue here, however, requires a victim who is younger than sixteen, and thus, it still qualifies as an aggravated felony in light of the Supreme Court's decision in Esquival-Quintana.  

The full text of Garcia-Urbano v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/18/05/161571P.pdf

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Eighth Circuit Find that Iowa Assault While Displaying a Dangerous Weapon Conviction is Crime of Violence

The Eighth circuit has determined that an Iowa conviction for assault while displaying a dangerous weapon constitutes a crime of violence under the federal sentencing guidelines because intentionally pointing a firearm at another person and displaying a dangerous weapon toward another in a threatening manner constitute a threatened use of physical force.  Given the similarity between the definition of a crime of violence in the criminal context and immigration context, this decision could have persuasive impact in the immigration context.

The full text of US v. McGee can be found here:

http://media.ca8.uscourts.gov/opndir/18/05/172080P.pdf

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Seventh Circuit Addresses CAT Regulations

The Seventh Circuit has again granted a petition for review of a denied application for protection under the Convention Against Torture (CAT) involving gang violence.  The Court observed that "an escape from torture at the hands of the state or someone who the state cannot or will not control is strong evidence supporting a prediction of torture should the target be returned to that country. Such evidence is particular to the petitioner; it indicates the methods likely to be used; it identifies who the perpetrator(s) will be; and it sheds light on the state of mind of the potential torturer."

"The fact that Perez was the target of some near-misses, however, shows that MS-13 had Perez himself in its sights and was willing to take violent action against him. The threat of imminent death is one way in which torture by means of mental pain or suffering can be inflicted."

"The Board also erred when considering Perez’s evidence that he could not relocate safely within Honduras, by too narrowly focusing on his exposure to particular MS-13 members rather than the gang as a whole."

The full text of Perez v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D05-02/C:17-1369:J:Wood:aut:T:fnOp:N:2148837:S:0

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Fifth Circuit Remands Gang Asylum Claim

The Fifth Circuit has remanded an asylum claim involving fear of gangs because the Immigration Judge erroneously required the petitioner to demonstrate past persecution in order to establish a well-founded fear of future persecution and because the Immigration Judge failed to analyze the cognizability of the particular social group put forth by the petitioner, instead evaluating (and rejecting) a social group of his own formulation.

The full text of Cabrera v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/15/15-60711-CV0.pdf

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Fifth Circuit Finds that Online Solicitation of a Minor is not an Aggravated Felony

The Fifth Circuit has determined that a Texas conviction for online solicitation of a minor is not categorically an aggravated felony in light of the Supreme Court's decision in Esquival Quintana.  "Given the structure of the Court’s reasoning regarding the age of consent and especially egregious crimes, Esquivel-Quintana’s generic definition of a minor as one under sixteen applies in the context of online solicitation of a minor."

The full text of Shroff v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60042-CV0.pdf

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Fourth Circuit find that TN Drug Conviction is CIMT and Aggravated Felony

The Fourth Circuit has determined that a Tennessee conviction for manufacturing, delivering, selling, or possessing with intent to manufacture, deliver, or sell a controlled substance is both a crime involving moral turpitude and a drug trafficking aggravated felony.  With respect to the aggravated felony ground, the Court found the statute to be overbroad because it criminalizes possession with intent to deliver one half-ounce, or approximately 14 grams, of marijuana and does not include any reference to remuneration.  Such conduct is punishable as a misdemeanor under federal law.  

However, the Court found the statute to be divisible because each subsection provides for a different punishment depending on the quantity and type of drug involved.  Examining the record of conviction, the Court determined that the petitioner was convicted of possession with intent to sell more than 4,000 grams of marijuana.  

In addition, because the statute requires a mens rea (knowingly) and involves reprehensible conduct (drug trafficking), it also qualifies as a crime involving moral turpitude (CIMT).

Finally, the Court deferred to the Board of Immigration Appeals (BIA) in Matter of Balderas.  In Balderas, the BIA considered whether a CIMT that has been used as part of the basis for a "two or more CIMTs” charge of removability in an immigration proceeding that terminated with a § 212(c) waiver may later be used as part of the basis for a “two or more CIMTs” charge of removability if the petitioner in question commits another CIMT after the first immigration proceeding was terminated. The BIA held that such a previously found CIMT could be used with a new CIMT to support a charge of removability because a grant of section 212(c) relief waives the finding of excludability or deportability rather than the basis of the excludability itself."  Thus, because the petitioner was also convicted of a CIMT in 2000, a waiver of the 1995 CIMT under 212c would not prevent a finding that the petitioner was removable for two CIMTs.

The full text of Guevara-Solorazano v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/162434.P.pdf

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Second Circuit finds that NY Bail Jumping is an Aggravated Felony

The Second Circuit has determined that a New York conviction for bail jumping is a failure to appear related aggravated felony.  

"To determine whether a conviction for failure to appear is an aggravated felony, we must consider whether the statute of conviction satisfies the elements listed in § 1101(a)(43)(T), which requires (1) a “failure to appear” (2) “before a court” (3) “pursuant to a court order” (4) “to answer to or dispose of a charge of a felony” (5) “for which a sentence of 2 years’ imprisonment or more may be imposed.  Perez’s conviction, under N.Y.P.L. § 215.57, satisfies the first four elements of § 1101(a)(43)(T) on its face.     The fifth element is also satisfied.    Considering the statutory scheme as a whole, we conclude that subsection (T)’s sentence requirement relates to the failure to appear and not, as the government suggests, to the sentence imposed on a petitioner’s underlying felony."  Because NY bail jumping can be punished by 7 years of incarceration, it qualifies as an aggravated felony.

The full text of Perez Henriquez v. Sessions can be found here: 

http://www.ca2.uscourts.gov/decisions/isysquery/092aee45-a488-46dc-ab31-64b70ff44892/13/doc/15-3285_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/092aee45-a488-46dc-ab31-64b70ff44892/13/hilite/

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Second Circuit Addresses Bond Jurisdiction for Petitioner Seeking Federal Court Review

The Second Circuit has determined that a petitioner seeking federal judicial review of a removal order, who has obtained a stay of removal from the federal court, is detained under section 236(c) of the INA, not section 241 of the INA.  Recognizing that the state of prolonged detention bond case law is in flux since the Supreme Court's decision in Jennings v. Rodriguez, the Court remanded the case to determine if the Constitution mandates providing the petitioner with a bond hearing.

The full text of Hechavarria v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/092aee45-a488-46dc-ab31-64b70ff44892/2/doc/16-1380_amd_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/092aee45-a488-46dc-ab31-64b70ff44892/2/hilite/

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Second Circuit Construes Credibility Standards

In a pair of adverse credibility cases, the Second Circuit has determined that trivial inconsistencies or omissions cannot sustain an adverse credibility determination.  Omissions, in particular, are less probative of credibility.  This is especially true because applicants are not required to include every detail in their applications and written statements.  

The full text of Gao v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/092aee45-a488-46dc-ab31-64b70ff44892/1/doc/16-2262_16-2493_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/092aee45-a488-46dc-ab31-64b70ff44892/1/hilite/

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