These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Eighth Circuit has determined that a New York second-degree robbery conviction qualifies as a crime of violence under the federal sentencing guidelines. The court noted that the statute requires the defendant to “forcibly steal” property from the victim, and that the force must be capable of causing physical pain or injury.
The full text of US v. Williams can be found here:
http://media.ca8.uscourts.gov/opndir/18/08/171632P.pdf
The Ninth has certified to the Oregon Supreme Court the questions of whether Oregon’s first- and second-degree robbery statutes are divisible. The court found that this question was necessary to answer before it could determine if convictions under these statutes qualify as crimes of violence.
The full text of US v. Lawrence can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/17-30061.pdf
The First Appellate District has determined that section 1473.7 of the California Penal Code does not provide a mechanism by which to vacate a probation violation. In addition, the court expressed skepticism as to whether a trial court must advise a defendant of the potential immigration consequences of a probation violation.
“Appellant, furthermore, is not basing his section 1473.7 motion on the contention he did not understand the immigration consequences of a guilty plea or no contest plea. His motion challenged he did not understand the immigration consequences of his probation violation admission. This aspect of criminal proceedings is not covered by section 1473.7 and a literal reading of the statute itself. When there is no ambiguity to the statute in issue, the plain meaning governs.”
“Regarding the issue of ineffective assistance in the probation hearing, appellant maintains now that his trial attorney was ‘unaware that the new sentence on the probation violation rendered the conviction an aggravated felony’ for immigration purposes. Missing from this record is any declaration by his trial attorney confirming she lacked this information, or that appellant’s attorney did not consider alternatives in the disposition. Additionally, there is no evidence to suggest the prosecution, and/or the trial court, would approve any leniency in this revocation proceeding. The remarks by the trial court support the point the hearing judge would not have approved an alternative, less punitive option.”
“Additionally, there is no authority provided that requires a trial court in a probation hearing to remind a person again of the immigration consequences in a revocation proceeding. Nor is there authority the failure to discuss immigration consequences with a defendant previously advised falls below professional standards. Appellant was fully advised in 2014 and provides no information he was not aware of possible adversities to his immigration status when he was before the trial court on this probation violation. Under section 1016.5, admonition regarding immigration status is only necessary when the accused is entering a plea to a violation of state law. That happened here. There is no statutory duty to readvise when the subject is before the court on a probation matter.”
“An allegation that trial counsel failed to properly advise a defendant is meaningless unless there is objective corroborating evidence supporting appellant’s claimed failures. “We have no such evidence presented. There is no declaration of improper advice by trial counsel; the transcript of court proceedings reflects trial counsel and the court were aware of immigration issues during the plea process. Even the declaration by attorney Todd submitted during the hearing on the section 1473.7 hearing finds no statutory or constitutional missteps by trial counsel during the proceedings.”
The full text of People v. Cruz Lopez can be found here:
http://www.courts.ca.gov/opinions/documents/A152348.PDF
Finally, the court found that a motion under 1473.7 was not appropriate, as the defendant was still on probation for the case in which he was trying to vacate the probation violation.
The Ninth Circuit addressed the parameters of reasonable fear review before an Immigration, as well as the judge’s authority to reopen that review. A “reasonable fear review hearing is conducted by an IJ. It is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings. Either party may introduce oral or written statements, and the court provides an interpreter if necessary.” “Extensive proof is not needed; rather an IJ need only determine whether there is at least a ten percent chance that the alien would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal.” Thus, although an IJ may allow an alien to submit evidence to support his or her claim, the IJ is not required to do so. The Court found that an IJ has the sua sponte authority to reopen any proceedings in which he has made a decision, including a reasonable fear review.
The full text of Bartolome v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/15-71666.pdf
The Ninth Circuit has held that California’s robbery statute does not match the definition of a crime of violence. Because a person can commit California robbery “by accidentally using force,” it does not match the definition of a crime of violence in 18 USC 16(a), which requires the use of intentional force.
The full text of US v. Garcia Lopez can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/15-50366.pdf
The Court of Appeal for the State of California, Fifth Appellate District, has held that a denial of a 1473.7 motion to vacate is subject to de novo review. The court noted that the trial court, in giving the required 1016.5 advisements, told the defendant he would suffer immigration consequences, not that he might suffer them. “After being specifically advised by the trial court his plea would lead to his deportation and denial of readmission to the United States, Tapia did not request more time to speak with counsel or further consider the appropriateness of entering a plea. Instead, when asked by the trial court if he understood, Tapia affirmatively stated he understood this advisement from the trial court.”
In addition, his criminal defense attorney stated in his declaration he specifically advised Tapia the negotiated disposition “exposed him to deportation proceedings and other negative consequences. These would include loss of permanent resident status, preclusion from citizenship and prevention of reentry, as this was my custom and practice in situations similar to … Tapia’s.” He further stated that he advised Tapia that immigration officials “could put a hold on him any day, and although he still faced deportation out of custody, the chances of such proceedings decreased when not in jail.” “Therefore, we uphold the trial court’s finding Tapia was advised of the specific immigration consequences of his plea and the effect the plea would have on his legal resident status. “
“Tapia also contends Collins rendered deficient representation by failing to negotiate an ‘immigration safe’ plea bargain. Tapia’s claim such a disposition could have been negotiated is pure speculation without support in the record.” “Collins also believed he advised Tapia immigration might put a hold on him any day, and the sooner Tapia was released from custody, the less likely it was he would face deportation proceedings. The probation report confirms there were no holds on Tapia at the time of entry of the plea precluding a release from custody. As such, the plea bargain allowing for a quick release from custody to avoid any immigration holds also provided a better resolution for immigration purposes.”
The full text in People v. Tapia can be found here:
The Ninth Circuit has determined that making a false claim to US citizenship for the purpose of procuring private employment renders a non-citizen inadmissible. However, the court also found that the only way to make a false claim to US citizenship for the purpose of procuring private employment is through the use of an I-9 form.
The full text of Diaz-Jimenez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/15-73603.pdf
The Ninth Circuit has held that the Department of Homeland Security does not rebut the presumption of a well-founded fear of persecution raised by a petitioner who experienced past persecution when the only evidence they submit is 5-year-old country conditions reports. “Unlike fine wine, reports on country conditions do not improve with age—a reality that our colleagues on the Second Circuit have repeatedly acknowledged.” Outdated country conditions reports cannot serve to demonstrate that current country conditions are such that a petitioner is not in danger of persecution. “Common sense dictates that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party— particularly when the government is now run, as it was at the time of the IJ hearing, by the very same FMLN who persecuted the Quiroz Parada family.”
“Because the agency’s determination that the government successfully rebutted the presumption of future persecution is unsupported by substantial evidence, we hold that the presumption has not been rebutted and that Quiroz Parada is statutorily eligible for asylum and entitled to withholding of removal, and remand for the Attorney General to exercise his discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum. Particularly where, as here, the government took thirteen years to process the asylum application and then another five years to hold a hearing before an IJ—during which time the government had every opportunity to submit more up-to-date evidence of changed country conditions, but failed to do so—to provide the government with another opportunity to present evidence of changed country conditions would be exceptionally unfair.”
With respect to the petitioner’s application for protection under the Convention Against Torture, the Court found that the country conditions reports and other evidence in the record established not only that the government acquiesced in the MS gang’s violence, but also that Salvadoran security forces engaged in torture on a regular basis.
The full text of Quiroz Parada v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/29/13-73967.pdf
The Ninth Circuit has determined that California’s definition of methamphetamine is broader than the federal definition of methamphetamine because it includes geometric isomers, which are explicitly excluded from the Controlled Substances Act. As such, California convictions involving methamphetamine should no longer qualify as controlled substance violations, drug trafficking aggravated felonies, or reasons to believe that an individual has engaged in drug trafficking.
The full text of Lorenzo v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/29/15-70814.pdf
The Ninth Circuit has determined that a California conviction for receipt of stolen property constitutes a “theft offense (including receipt of stolen property)” aggravated felony. The court acknowledge that California’s theft statutes are broader than the federal definition of theft. However, the court held that the word “including” could have been used by Congress to add a theft-related crime, receipt of stolen property, into the list of qualifying offenses even though it may not otherwise technically be a generic “theft offense.” The court further noted that the elements of generic theft, “[1] the taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent,” are distinct from the elements of receipt of stolen property,” [1] possession [2] of stolen property [3] knowing it was stolen,” As such, “the difference between the generic theft definition, which requires lack of consent, and that of California law, which does not, is irrelevant to a conviction for receipt of stolen property. The offender must know (or believe) the property was ‘stolen’; he does not need to know how it was stolen to be convicted.” In so holding, the Ninth Circuit deferred to the Board of Immigration Appeals’ precedent on the definition of a receipt of stolen property aggravated felony.
“BIA decisions define ‘receipt of stolen property’ as having the following elements: (1) receipt, possession, concealment, or retention of property, (2) knowledge or belief that the property has been stolen, and (3) intent to deprive the owner of his property. A mens rea equivalent to the presence of a reason to believe that the property had been stolen is insufficient. Intent to deprive can be inferred from knowledge that the property was stolen.” “The BIA’s reasonable interpretation of the elements of generic receipt of stolen property is a categorical match to the elements of that crime in California Penal Code section 496(a). To secure a conviction under section 496(a), the government must prove these elements: (1) stolen property; (2) knowledge that the property was stolen; and (3) possession, purchase, receipt, concealment, sale, or withholding of the stolen property. The mens rea element requires actual knowledge of or belief that the property is stolen.”
The full text of US v. Flores can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-50096.pdf
The Ninth Circuit has determined that Washington’s indecent exposure statutes are overbroad and indivisible with respect to the definition of a crime involving moral turpitude. The court noted that the Washington Supreme Court recently affirmed that nothing in the statute or these definitions of obscene and lascivious inherently requires that an exposure be committed with a sexual motive. Thus, it encompasses conduct that falls outside the Board of Immigration Appeals’ decision in Matter of Cortes Medina.
The court also found that a conviction for indecent exposure to a minor under 14, even though it involved a protected class of victims (i.e., children). “[W[e have often—although not always—concluded that crimes directed towards a protected class of victims, such as children, are categorically crimes of moral turpitude. At times, however, we will encounter a statute that is simply written too broadly to capture only depraved conduct that shocks the public conscience. This is one such statute. Wash. Rev. Code § 9A.88.010(2)(b) is unusually broad: it appears that a defendant can be convicted of indecent exposure to a person under the age of fourteen even if no one witnessed the exposure, so long as the exposure took place in the presence of a child. Nor, for that matter, need the exposure have been sexually motivated.
The full text of Barrera Lima v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/24/13-73022.pdf
The Ninth Circuit has held that the stop time rule’s reference to inadmissibility grounds are inapplicable to a lawful permanent resident who is not seeking admission to the United States. Thus, the petitioner’s admission to drug use did not trigger the stop time rule, because the inadmissibility ground for admission to the elements of a controlled substance offense had no application to him.
The full text of Nguyen v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/23/17-70251.pdf
The Ninth Circuit has again determined that a California conviction for assault with a deadly weapon, entered before the statute was amended in 2011, is a crime of violence. The court rejected the argument that the statute encompasses negligent conduct. “The essential question is whether assault in California can be committed accidently or whether it requires an intentional use of force. As defined in California, assault ‘requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.’ We conclude that this definition requires an intentional use of force.”
The full text of US v. Vasquez-Gonzalez can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/22/15-10285.pdf
The Ninth Circuit has determined that the AEDPA amendments to section 212(c) of the INA, which included barring any person convicted of an aggravated felony on or after April 24, 1996 from seeking 212(c) relief apply retroactively to criminal acts committed prior to the effective date of AEDPA, so long as the conviction was entered after the effective date. The decision included a lengthy dissent from Judge Friedland, who would have found the petitioner eligible for 212(c) relief.
The full text of Lopez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/22/15-72747.pdf
The Ninth Circuit has rejected an equal protection challenge to a statute that required the adoptive parents of children to file naturalization petitions for those children. The Court also determined that Arizona’s third degree escape statute does not require the use of violent force, and therefore, is not a crime of violence aggravated felony.
The full text of Dent v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/17/17-15662.pdf
The Ninth Circuit has determined that a Nevada conviction for battery with a deadly weapon qualifies as a crime of violence. The court noted that “even the least touching with a deadly weapon or instrument is violent in nature.” The statute at issue prohibits “any willful and unlawful use of force or violence upon the person of another . . . committed with the use of a deadly weapon . . . [that results in] [n]o substantial bodily harm to the victim.” To commit simple battery in Nevada, the “force need not be violent or severe and need not cause bodily pain or bodily harm.” As a result, simple battery in Nevada would not ordinarily be a crime of violence under Johnson’s definition of “physical force.” However, “even the least touching with a deadly weapon or instrument is violent in nature,” because it “demonstrates at a minimum the threatened use of actual force.” Thus, if Nevada law requires actual use of a truly “deadly” weapon, then it is a crime of violence.
”As early as 1870, the Nevada Supreme Court defined objects as ‘deadly weapons’ if they satisfied either the inherently dangerous or the functional test.” Under the inherently dangerous test, a deadly weapon is any instrument that “if used in the ordinary manner contemplated by its design and construction, will, or is likely to, cause a life-threatening injury or death.” Under the functional test, a deadly weapon is any instrumentality that is “used in a deadly manner.” Under these definitions, the Court concluded that any use of a deadly weapon would qualify as a crime of violence.
The Ninth Circuit rejected the argument that a defendant could be convicted for mere possession of a deadly weapon during a battery, as opposed to the actual use of a deadly weapon.
The full text of US v. Guizar-Rodriguez can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/17/16-10507.pdf
The California Supreme Court has determined that a child’s nonresident, noncustodial parent need not be joined as a party in her parentage action seeking special immigrant juvenile findings. Provided that the absent parent has received adequate notice, the action may proceed even if the parent is beyond the personal jurisdiction of the court and cannot be joined as a party. In addition, any perceived immigration-related motivations for the filing of the parentage action have on bearing on whether the action may proceed. The action may also proceed regardless of whether the court believes it was filed primarily for the purpose of obtaining the protections from abuse, neglect, or abandonment that federal immigration law provides.
“Ultimately we need not decide here whether the courts’ concerns about prejudice would justify Jorge’s joinder as a necessary party if it were feasible to join him. We instead assume, without deciding, that Jorge is a necessary party as to the SIJ finding of abandonment. Because Jorge’s joinder is not feasible, the central question under the mandatory joinder statute is whether the court can, “in equity and good conscience,” make the finding in Jorge’s absence. Under section 389, subdivision (b), the potential prejudice that may flow from a judgment rendered in Jorge’s absence must be weighed alongside other factors: whether the prejudice can be lessened by the shaping of relief; whether a judgment rendered in Jorge’s absence will be adequate; and, as particularly important here, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (Code Civ. Proc., § 389, subd. (b).)”
“To conclude that the state court finding cannot be made in Jorge’s absence is therefore effectively to say that Jorge, by failing to assert any right to custody or visitation of Bianka in this proceeding, can essentially bar Bianka from seeking relief premised on the very fact of his abandonment. While the potential prejudice to Jorge is, at this point, necessarily speculative, the prejudice to Bianka’s legal position is immediate and unavoidable. “
The full text of Bianka M. v. The Superior Court of Los Angeles County can be found here:
The Board of Immigration Appeals had determined that an “offense relating to obstruction of justice” under section 101(a)(43)(S) of the Immigration and Nationality Act,, encompasses offenses covered by chapter 73 of the Federal criminal code, 18 U.S.C. §§ 1501–1521 (2012), or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from a completed proceeding. Therefore, a conviction for accessory to a felony under section 32 of the California Penal Code that results in a term of imprisonment of at least 1 year is a conviction for an aggravated felony offense relating to obstruction of justice.
The Board specifically noted that an ongoing investigation is not necessary. For example, acts of witness intimidation before an investigation has begun designed to prevent the reporting of a crime, would still qualify under the generic definition of obstruction of justice.
The full text of Matter of Valenzuela Gallardo can be found here:
The Attorney General has imposed narrow standards on when an Immigration Judge may continue proceedings. An immigration judge may grant a motion for a continuance of removal proceedings only "for good cause shown." When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings. The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.
The Attorney General did emphasize that immigration judges need not treat as controlling DHS’s consent to, opposition to, or failure to take a position on a motion for continuance.
To assess the speculativeness of a respondent’s collateral matter, an immigration judge will generally need an evidentiary submission by the respondent, which should include copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like. Absent such evidence, the respondent generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceedings.
The immigration judge should also state his reasons for granting a continuance on the record or in a written decision. A record of the immigration judge’s evaluation and balancing of the relevant good-cause factors does not bind the Board, of course, but it does aid the Board’s review of a continuance order. The absence of any reasoned explanation for the grant of a continuance may, were the Board to entertain an interlocutory appeal, leave Cite the Board no choice but to vacate the order granting the continuance if evidence supporting good cause is not clear from the record.
The Attorney General also directed the Board of Immigration Appeals to entertain interlocutory appeals of decisions regarding continuances.
The full text of Matter of L-A-B-R-can be found here:
The Board of Immigration Appeals has determined that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived. Once the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings. Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.
The full text of Matter of J.M. Acosta can be found here:
