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CA Supreme Court Discusses Prejudice Prong of Motion to Vacate

The California Supreme Court has published guidance on how to establish prejudice for a motion to vacate under section 1473.7 of the California Penal Code.

The Court started by evaluating whether Espinoza Espinoza lacked a meaningful understanding of the consequences of his plea, and looked to the fact that he traveled abroad as evidence that he did. “[H]e took an international commercial flight to the United States, which predictably required subjecting himself to the scrutiny of United States immigration officials, which is not consistent with the behavior of a person who understood that his convictions effectively ended his lawful resident status.”

Turning to prejudice, the Court noted that a totality of the circumstances analysis must be applied. “Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. Also relevant are the defendant’s probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. These factors are not exhaustive, and no single type of evidence is a prerequisite to relief. A defendant must provide ‘objective evidence’ to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.”

The Court acknowledged that ties to the United States are probative evidence of a defendant’s immigration priorities. Long-standing residency and strong family ties demonstrate that the prospect of deportation may be an integral (or even the most important) part of the calculus when accepting a plea. “Community ties may be established by length of residence; immigration status; lack of connection to the country of origin; connections to family, friends, or the community; work history or financial ties; or other forms of attachment. Objective evidence of a defendant’s community ties includes facts provided by a defendant’s declaration or declarations from family members, friends, colleagues, community members, or other acquaintances.”

“After Espinoza accepted the plea and served jail time, he returned home to care for his family and community. He became the caregiver for his elderly parents who suffer from severe medical conditions. He ran his own business to provide for his family. He volunteered, went to church, and took part in numerous community organizations. These facts lend credence to Espinoza’s assertion that his community ties were important to him at the time of his plea.”

“Another consideration is whether alternative, immigration-safe dispositions were available at the time of the defendant’s plea. Factors relevant to this inquiry include the defendant’s criminal record, the strength of the prosecution’s case, the seriousness of the charges or whether the crimes involved sophistication, the district attorney’s charging policies with respect to immigration consequences, and the existence of comparable offenses without immigration consequences.”

“Espinoza had no prior criminal history at the time of his plea. This fact is relevant because a defendant without an extensive criminal record may persuasively contend that the prosecutor might have been willing to offer an alternative plea without immigration consequences. Additionally, Espinoza presented evidence from an immigration attorney that there were alternatives the prosecution could have offered that would not have resulted in mandatory deportation.” “Espinoza’s lack of a criminal record, combined with the declaration of the immigration attorney, support his assertion that he had reason to expect or hope for a plea bargain without immigration consequences.”

The Court made several other valuable observations. First, a defendant is not required to have expressed contemporaneous confusion about immigration consequences at the time of the plea. Second, a defendant is not required to obtain a statement from defense counsel.

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

http://sos.metnews.com/sos.cgi?0123//S269647

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Ninth Circuit Remands for Agency to Determine if Imputed Sexual Orientation Qualifies as a PSG

The Ninth Circuit has remanded an asylum claim for the agency to address if women perceived to be lesbians qualify as a particular social group, noting that neither the Board of Immigration Appeals nor the Ninth Circuit have addressed imputed sexual orientation as a particular social group in a precedential decision.

The full text of Antonio v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/26/21-70624.pdf

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Seventh Circuit Finds Jurisdiction to Review Good Moral Character Determination Based on Undisputed Facts

The Seventh Circuit has determined that the Supreme Court’s decision in Patel v. Garland does not strip it of jurisdiction to review the agency’s negative good moral character determination in connection with an application for cancellation of removal when the determination is based on undisputed facts.

The full text of Cruz-Velasco v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D01-24/C:21-1642:J:Wood:aut:T:fnOp:N:2992048:S:0

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Second Circuit Finds that NY Conviction for Second Degree Sexual Abuse is an Aggravated Felony

The Second Circuit has determined that a New York conviction for second degree sexual abuse qualifies as a sexual abuse of a minor aggravated felony. The opinion included a concurrence calling on the Second Circuit to reexamine its case law on the definition of sexual abuse of a minor in light of more recent Supreme Court case law.

The full text of Debique v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/2/doc/21-6208_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/2/hilite/

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Second Circuit Finds NY Conviction for Attempted First-Degree Assault is a Crime of Violence

The Second Circuit has determined that New York’s first-degree assault statute is divisible, but the prongs that require intent to cause physical injury and use of a deadly weapon or dangerous instrument match the definition of a crime of violence.

The full text of Singh v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/10/doc/19-2910_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/10/hilite/

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BIA Addresses MTRs for Cancellation of Removal

The Board of Immigration Appeals has determined that a respondent who moves to reopen proceedings to seek cancellation of removal for non-lawful permanent residents must make a prima facie showing of exceptional and extremely unusual hardship to his qualifying relatives. In addition, the issuance of administratively final removal order does not stop the accrual of physical presence for cancellation purposes. Finally, the BIA declined to determined if the decision in Niz Chavez represents a fundamental change in law warranting sua sponte reopening.

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

https://www.justice.gov/eoir/page/file/1561876/download

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Eleventh Circuit Upholds Retroactive Application of Matter of Thomas & Thompson

The Eleventh Circuit has determined that Matter of Thomas and Thompson is a reasonable interpretation of the INA and that it can be retroactively applied to sentencing modifications that pre-date the decision.

The full text of Edwards v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201915077.pdf

Am amended decision can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201915077.op2.pdf

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Ninth Circuit Analyzes Federal Solicitation Offense

The Ninth Circuit has determined that solicitation of transportation of an explosive in interstate commerce with intent that the explosive kill, injure, or intimidate another person or damage property constitutes the attempted use of violent force.

“In this case, we conclude that someone who solicits a violation of § 844(d) categorically solicits the attempted use of physical force: transporting or receiving an explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any person, or damage property, is categorically a substantial step toward the use of violent force.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/22/21-50206.pdf

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Ninth Circuit Remands Motion to Reopen

The Ninth Circuit has remanded a motion to reopen filed by a pro se applicant who missed her first hearing, and contacted the immigration court within a week to inquire about her in absentia hearing. The court found that the applicant’s statements of non-receipt of the hearing notice were entitled to credibility in the absence of contrary evidence.

The full text of Perez-Portillo v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/30/20-73486.pdf

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Eighth Circuit finds Missouri Definition of Cocaine Overbroad

The Eighth Circuit has determined that in 2003, Missouri’s definition of cocaine included isomers not encompassed by the current federal definition. “Because Missouri’s definition of cocaine included positional isomers while the federal definition does not, the Missouri definition is unambiguously broader than its federal counterpart. Moreover, Missouri courts have interpreted the Missouri drug schedule as making all isomers of cocaine illegal.”

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

https://ecf.ca8.uscourts.gov/opndir/22/12/213443P.pdf

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CA Court of Appeals Applies Collateral Estoppel to Second Motion to Vacate

The California Court of Appeals, Fourth District has applied the doctrine of collateral estoppel to a second motion to vacate under Penal Code section 1473.7. The court noted that the appeal of the first motion applied the newer 2019 standard for relief, and the petitioner did not appeal that determination further.

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

https://www.courts.ca.gov/opinions/documents/D079532.PDF

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BIA Finds No Egregious Fourth Amendment Violation

The Board of Immigration Appeals has determined that “[t]he respondent’s resemblance to the person the officers were seeking to arrest, and his presence in the same location where this person resided, are reasonable, articulable, objective facts justifying a brief, investigatory stop of the respondent to determine if he was the subject for whom they were searching.” “After the officers asked for identification and the respondent’s son produced a foreign identification document and the respondent stated he had no identification, the facts supported the ICE officers’ continued suspicion and justified reasonably extending the length of the stop.”

The full text of Matter of Mariscal-Hernandez can be found here:

https://www.justice.gov/eoir/page/file/1556836/download

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Ninth Circuit Confirms that District Court has no Authority to Enjoin Removal

The Ninth Circuit has determined that a District Court has no jurisdiction to stay removal of a non-citizen who has a motion to reopen pending with the Board of Immigration Appeals.

“Matias asserts that applying the plain text of § 1252(g) and refusing to enter a stay of removal pending the resolution of his motion to reopen would deprive a noncitizen [of] his statutory right to file a motion to reopen. But that’s not true. Matias’s motion to reopen has already been filed, and is currently pending before the BIA. Once the BIA decides that motion, Matias will be able to file a petition for our court to review that final agency action—including review of the BIA’s denial of his request for a stay of removal pending its decision. Matias has taken full advantage of his statutory rights and will continue to have access to the process guaranteed to him under the statute even if he is removed.”

The court further determined that “the Suspension Clause does not preserve judicial review in this case because only an extreme and unwarranted expansion of the habeas writ would encompass Matias’s requested relief.”

The full text of Matias Rauda v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/12/21-16062.pdf

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Ninth Circuit Determines that CA Conviction for Child Neglect is Deportable Offense

The Ninth Circuit, sitting en banc has determined that that the terms “child abuse” and “child neglect” are ambiguous. The Court deferred to the e Board of Immigration Appeals’ (BIA) interpretation that the phrase “crime of child abuse, child neglect, or child abandonment” can include offenses that involve a mens rea of criminal negligence and acts or circumstances that create a substantial risk of harm to a child’s health or welfare, rather than causing an actual injury to the child. The Court also deferred to the BIA’s treatment of this phrase as a unitary category of crimes against children.

The court then proceeded to analyze the elements of Penal Code 273a(a). The least of the acts criminalized by the fourth branch of the statute requires proof that a defendant (1) had care of custody of a child, whether or not a parent or legal guardian; and (2) with criminal negligence, meaning in a manner that a reasonable person would have known creates a high risk of death or great bodily injury; (3) purposely put the child into an abusive situation in which the probability of serious injury was great.

The BIA defines the generic federal offense of “child abuse, child neglect, or child abandonment” to include the element of a mens rea of criminal negligence (a match to the second element of a section 273a(a) conviction), and the element of allowing a child to be placed in a situation that create a substantial risk of harm to a child’s health or welfare (a match to the third element of a section 273a(a) conviction).

The full text of Diaz Rodriguez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/08/13-73719.pdf

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BIA Allows IJ to Examine Approvability of Previously-Approved 245(i) Petition

The Board of Immigration Appeals has determined that an Immigration Judge may revisit whether a 245(i) grandfathering petition was actually approvable when filed, even if USCIS approved the petition. in this case, the respondent’s wife had been the beneficiary of an F2B petition filed by her father. Her father failed to disclose she was married, and the petition was approved. The respondent then tried to claim grandfathering eligibility through the petition, even though F2B petitions are only valid if the beneficiary is unmarried. “We conclude that a visa petition that is not “meritorious in fact” at the time of filing will not be considered “approvable when filed,” even if the visa petition was, in fact, approved and never revoked.”

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

https://www.justice.gov/eoir/page/file/1555006/download

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