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© 2015 Law Offices of Norton Tooby
Crimes & Immigration
Premium Newsletter
August, 2015
Dear Premium Subscriber,
This monthly update is a feature of our
Premium Resources Subscription. It contains
recent developments relating to all of our six
Practice Manuals, valuable articles on topical
issues of importance to criminal immigration
law, and practice advisories. For more
information on how these updates are sorted, or
to view archives of these updates, please sign in
to your account.
Andrew J. Phillips, Esq.
Editor
__________________________________________
INSIDE
Articles .............................................................. 1 Practice Advisories ........................................... 3 BIA ................................................................... 5 First Circuit ....................................................... 5 Third Circuit ..................................................... 5 Fifth Circuit ...................................................... 5 Sixth Circuit ...................................................... 6 Seventh Circuit ................................................. 6 Eighth Circuit .................................................... 6 Ninth Circuit ..................................................... 7 Tenth Circuit ................................................... 11 Eleventh Circuit .............................................. 11
RECENT DEVELOPMENTS
Articles
ARTICLE – RELIEF – WAIVERS –
HEIGHTENED 212(H) WAIVER
DISCRETIONARY HARDSHIP STANDARD
DEPENDS ON WHETHER THE
UNDERLYING OFFENSE FACTS SHOW
THE CRIME IS VIOLENT OR DANGEROUS
By Norton Tooby
Inadmissibility for a conviction of a crime
involving moral turpitude, which constitutes a
“violent or dangerous” offense, cannot be
waived under INA § 212(h) absent “exceptional
and extremely unusual hardship” or national
security reasons. 8 CFR § 1212.7(d). See
discussion of same standard in Matter of Jean,
23 I. & N. Dec. 373 (AG 2002).
See also N. TOOBY & J.J. ROLLIN,
CRIMINAL DEFENSE OF IMMIGRANTS §
24.29 (2012).
A May 27, 2003 USCIS memorandum clarified
that the applicable hardship standard under 8
C.F.R. § 212.7(d) will be the same as that
applied under INA § 240A(b) for cancellation
of removal for certain non-lawful permanent
residents. It also recognizes that, unlike §
240A(b), the regulation does not limit the
persons for whom hardship must be shown to
the noncitizen’s citizen or LPR spouse, child or
parent. Memo, Yates, Acting Director of
Operations, HQADN 70/23 (May 27, 2003),
Law Offices of Norton Tooby ~ 2831 Telegraph Avenue, Oakland, CA 94609
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nationwide law practice assists foreign nationals in avoiding adverse immigration
consequences of crimes anywhere in the country.
Immigration Lawyers
We investigate criminal histories nationwide, and analyze them to provide
(a) cutting-edge immigration-court arguments why a given conviction
does not trigger removal, and (b) post-conviction efforts to vacate criminal
convictions to avoid immigration consequences.
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We investigate criminal and immigration histories nationwide and offer
strategies for obtaining (a) immigration-safe dispositions, and (b) post-
conviction relief to eliminate immigration damage.
Individuals
We investigate your situation to (a) advise your criminal lawyer what plea
will avoid deportation, (b) advise your immigration lawyer on new
immigration-court arguments to avoid removal, and (c) erase convictions
in criminal court to avoid immigration damage.
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2
posted on AILA InfoNet at Doc. No. 03080717.
Therefore, the relief can be granted if the
applicant him- or herself suffers exceptional and
extremely unusual hardship. See Samuels v.
Chertoff, 550 F.3d 252 (2d Cir. Dec. 19, 2008)
(BIA may have misapplied 8 U.S.C. §
1212.7(d), requiring a showing of exceptional
and extremely unusual hardship by noncitizens
convicted of violent crimes, since it only
considered hardship to the petitioner’s family,
but not the petitioner himself.)
The Ninth Circuit, in Rivas-Gomez v. Gonzales,
441 F.3d 1072 (9th Cir. Apr. 3, 2006), held that
before an immigration judge may apply the
heightened hardship standard, s/he must first
determine, on the basis of the underlying facts
of the offense, whether the offense was a
“violent or dangerous” crime. In this case the
court had already determined that the offense
(statutory rape) was an aggravated felony.
Therefore, it appears that the fact the offense
was an aggravated felony was not sufficient to
show the offense was necessarily “violent or
dangerous.”
It is thus clear that the immigration authorities
can consider the underlying facts of the offense,
and are not bound by the categorical analysis of
its elements, when deciding whether the offense
is a “violent or dangerous” crime. Torres-
Valdivias v Lynch, 786 F3d 1147 (9th Cir
2015), amending and superseding 766 F3d
1106.
This means that even if the elements of the
offense suggest that the crime is a “violent or
dangerous” offense, this is irrelevant. The
violent or dangerous trigger, for the enhanced
hardship standard, is a part of the discretionary
decision whether to grant 212(h) relief. Perez
Pimentel v. Mukasey, 530 F.3d 321 (5th Cir.
Jun. 4, 2008) (Attorney General's promulgation
of 8 C.F.R. § 212.7(d) provides a standard for
the Attorney General's exercise of discretion
under 8 U.S.C. § 1182(h)(2), where Congress
has not "directly spoken to the precise question
at issue."). The discretionary decision, guided
by this standard, thus depends on the underlying
facts of the offense. Therefore, if the actual
offense conduct is not violent or dangerous, the
higher hardship standard cannot be applied,
regardless of the elements of the offense.
The term “violent or dangerous crime” has yet
to be clearly defined. Online research shows
dictionary definitions of “violent” are as
follows:
Webster’s: using or involving the use of
physical force to cause harm or damage to
someone or something.
Oxford: Using or involving physical force
intended to hurt, damage, or kill someone or
something.
Black’s Law Dictionary: Characterized or
caused by violence; severe; assailing the person
(and metaphorically, the mind) with a great
degree of force.
Similar research shows the dictionary
definitions of “dangerous” are as follows:
Webster’s: Able or likely to inflict injury or
harm.
Oxford: Able or likely to cause harm or injury.
Legal Dictionary: unsafe, hazardous, fraught
with risk.
Counsel can therefore argue, regardless of the
elements of the offense, that the underlying
offense conduct does not constitute either (a) a
violent offense, or (b) a dangerous offense, and
the higher hardship standard is not authorized
by the regulation. From the context of the
regulation, and the pairing of dangerous with
violent, it is clear that the danger involved is the
danger of physical injury, rather than a danger
to some other value. For example, a danger to
reputation, or a danger of offending someone’s
3
sensibilities, would clearly be insufficient to
meet this standard.
If the immigration authorities do not allow
consideration of the underlying facts of the
offense, immigration counsel can petition the
circuit court of appeals for review of a removal
decision, arguing that the Board applied the
wrong standard, an argument that the court has
jurisdiction to consider. Samuels v. Chertoff,
supra, 550 F.3d 252; see Xiao Ji Chen v. U.S.
Dep't of Justice, 471 F.3d 315, 329 (2d Cir.
2006) (indicating that the court of appeals has
jurisdiction to determine whether the Board
used an erroneous standard in making a
discretionary determination).
Moreover, there is a strong argument that the
“violent or dangerous” phrase in the regulation
is unconstitutionally vague, following the
reasoning of Johnson v. United States, 135 S.
Ct. 2551 (2015), which held that a crime of
violence definition of the ACCA’s residual
clause, which closely tracks the “crime of
violence” definition of 18 U.S.C. § 16(b), is
unconstitutionally vague. The Ninth Circuit, in
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.2015),
followed Johnson’s reasoning and held that the
“crime of violence” definition in 18 U.S.C. §
16(b), is unconstitutionally vague.
Practice Advisories
PRACTICE ADVISORY – SAFE HAVEN –
DUI WITH GREAT BODILY INJURY
A conviction of driving under the influence of
alcohol, with a great bodily injury clause under
Penal Code 21022.7, should not be considered
to be an aggravated felony crime of violence,
even if a one year sentence is imposed. This is
because there is no intent required for the GBI
clause beyond the intent required to commit the
underlying offense. People v. Poroj (2010) 190
CA4th 165 (jury instructions for DUI with
12022.7 GBI enhancement do not require the
jury to find intent to cause GBI separate and
apart from intent necessary to commit
underlying crime); People v. Carter (1998) 60
Cal. App. 4th 752 (only general criminal intent
is required to find true a GBI sentence
enhancement under Penal Code 12022.7,
discussing the amendment of this statute in
which the Legislature eliminated a prior
element requiring specific intent to cause GBI).
The GBI clause therefore imposes negligent or
even strict liability (e.g., accidental) “personal
infliction” of GBI. While the GBI clause
constitutes part of the elements of the offense of
conviction for immigration purposes, these
intent elements are insufficient to constitute an
aggravated felony crime of violence. Leocal v.
Ashcroft, 543 U.S. 1 (2004). Therefore, a DUI
with a GBI clause found true cannot constitute
an aggravated felony crime of violence,
regardless of sentence imposed. The minimum
prosecuted conduct under the GBI clause is
indeed accidental infliction of GBI, since it is
frequently used in conjunction with DUI
prosecutions. E.g., People v. Poroj, supra.
Thanks to Dan de Griselles.
SH:9.13
PRACTICE ADVISORY – SAFE HAVENS IN
CALIFORNIA THEFT CASES UNDER
PENAL CODE § 484
The Immigrant Legal Resource Center has
published a Practice Advisory on safe havens in
California theft cases, under new Ninth Circuit
law.
Avoid a sentence of one year or more in
custody.
If that is not possible, try to obtain one of the
following dispositions:
If one year or more will be imposed on a single
theft count, but loss to the victim(s) does not
exceed $10k, plead specifically to a fraud
offense contained in Penal Code § 484 (taking
by deceit, embezzlement) or to theft of labor;
4
If the loss to the victim(s) exceeds $10k, but no
one-year will be imposed, plead specifically to
non-fraud theft (taking by stealth, stealing);
If both a one-year sentence is imposed and a
$10k loss was suffered, plead to two counts,
and where possible follow above instructions on
each. One count with both of those might well
be an AF. See Nugent v. Ashcroft, 367 F.3d
162, 174-175 (3d Cir. 2004);
Even if you can't do that, the conviction should
not be an aggravated felony under Lopez-
Valencia v. Lynch, 798 F.3d 863 (9th
Cir. Aug.
2015). Never assume that a prior conviction is
an aggravated felony based on a one-year
sentence or $10,000 loss – regardless of what
the record of conviction says.
Law underlying instructions
Fraud and theft both are potential aggravated
felonies, under different circumstances. 8 USC
1101(a)(43)(G), (M). Fraud (taking by deceit)
becomes an AF if loss to the victim/s exceeds
$10k, but does not become an AF if a 1-yr
sentence is imposed. Thus a plea to
embezzlement or other fraud with a sentence of
a year or more imposed is not an AF, as long as
no $10k loss. Theft (taking by stealth) of
property is not an AF if loss to victim/s exceeds
$10k, but is an AF if 1 year or more is imposed
on a single count. Theft (stealing) can take a
loss exceeding $10k, as long as sentence is less
than 1 year. The Ninth Circuit and BIA have
long recognized these distinctions. See
discussion in Matter of Garcia-Madruga, 24
I&N Dec. 436, 440 (BIA 2008), citing Soliman
v. Gonzales, 419 F.3d 276, 282-284 (4th Cir.
2005); Carlos-Blaza v. Holder, 611 F.3d 583
(9th Cir. 2010); Carrillo-Jaime v. Holder, 572
F.3d 747, 752 (9th Cir. 2009); U.S. v. Rivera,
658 F.3d 1073, 1077 (9th Cir. 2011).
Previously PC 484 was considered to be
divisible between its theft and fraud offenses (as
well as theft of labor, which also is not an AF
based one sentence of 1 yr or more). Although
PC 484 was not “categorically” (automatically)
theft if a year or more was imposed, it might
have been if the record identified a theft rather
than a fraud offense. See, e.g., Garcia v.
Lynch, 786 F.3d 789, 794-795 (9th Cir.
2015) (if specific theory of theft under PC 484,
487 is not identified, a sentence of one year or
more does not make the offense an aggravated
felony; court did not reach the issue of
divisibility.) This was the reason for the advice
to make a specific plea to prevent this.
Under Descamps, however, PC 484 is not
divisible because a jury is not required to decide
unanimously between the theories of the theft in
order to find guilt. (For more on this see “How
to Use the Categorical Approach Now” at
www.ilrc.org/crimes) Therefore authorities
may not look to the record to see whether the
offense involved theft or fraud, and no
conviction is an AF based on a sentence of a
year or more. Lopez-Valencia v. Lynch,
supra. As of this writing an en banc petition
for Lopez-Valencia still could be filed. The
immigration authorities might misapply the law.
Therefore, the specific plea strategy still is
recommended.
Thanks to Katherine Brady
CCDOI 13.15, 13.18
RELIEF – DEFERRED ACTION
The Immigrant Legal Resource Center and
United We Dream has issued a new Practice
Advisory that provides information on common
issues that Deferred Action for Childhood
Arrivals (DACA) renewal applicants face after
traveling outside of the United States with
advance parole. See www.ilrc.org. DACA
recipients who traveled on advance parole
report a variety of problems when they attempt
to renew, including delayed adjudication and
denials. This advisory provides information on
how to prevent those problems and successfully
renew DACA. DACA recipients are urged not
to travel before or after the dates of their grant
5
of advance parole; and are urged to apply early
for renewal (before 150 days) if they traveled
using advance parole.
CD4:24.25;AF:2.37;CD4:3.36
BIA
RELIEF – ASYLUM – FILING DATE
Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015)
(where noncitizen’s first asylum application
was filed before May 11, 2005, and a second
application was submitted after that date, the
filing date later application controls if it is
properly viewed as a new application).
CD4:24.18;AF:2.30;CMT3:3.29
First Circuit
IMMIGRATION OFFENSES – ILLEGAL
REENTRY – COLLATERAL ATTACK
United States v. Soto-Mateo, ___ F.3d ___,
2015 WL 5025222 (1st Cir. Aug. 26, 2015)
(defendant’s waiver of appeal from removal
order was knowing and intelligent, so he failed
to exhaust his administrative remedies, and so
cannot prevail on collateral attack).
CD4:CHAPT13
Third Circuit
POST CON RELIEF – GROUNDS –
INEFFECTIVE ASSISTANCE OF COUNSEL
– FAILURE TO GIVE ACCURATE
IMMIGRATION ADVICE
United States v. Fazio, 795 F.3d 421 (3d Cir.
Aug. 4, 2015) (defendant could not establish
ineffective assistance of counsel for failure to
warn of immigration consequences where
warning of potential of immigration
consequences by District Court in plea colloquy
and standard language in plea agreement cured
any possible error counsel may have made).
Note: The district court asked the defendant
“Do you understand that no one, including your
attorney or me or the government's attorney can
predict to a certainty the effect of your
conviction on your immigration status?” The
plea agreement included similar “may cause
deportation,” language, and defense counsel
admitted did no legal research at all, while later
retained immigration counsel identified
deportation as a certainty. This claim was
defeated at the district court level, due to the
possibility of someone in a similar situation
getting an “S-Visa” or Congress changing the
law. This case seems to almost entirely ignore
the holding (or underlying facts of) Padilla,
even though citing it once or twice.
PCN:6.18
Fifth Circuit
CITIZENSHIP – BIRTH ON U.S. MILITARY
BASE ABROAD DOES NOT CONFER U.S.
BIRTHRIGHT CITIZENSHIP
Thomas v. Lynch, ___ F.3d ___, 2015 WL
4745688 (5th
Cir. Aug. 7, 2015) (petitioner's
birth on military base did not render him a
birthright citizen under the Fourteenth
Amendment).
CD4:3.14;AF:3.3;CMT3:2.2;SH:4.4;PCN:3.6
POST CON RELIEF – TEXAS – GROUNDS –
INEFFECTIVE ASSISTANCE OF COUNSEL
– FAILURE TO GIVE ACCURATE
IMMIGRATION ADVICE
Ex Parte Torres, ___ Tex. Ct. Crim. App. ___,
___, 2014 WL 1168929 (Tex. Ct. App. March
21, 2014) (“Merely stating that removal
proceedings could ensue after a guilty plea to an
aggravated felony or drug offense is ineffective
in mandatory removal cases; counsel must
clearly state that pleading to the offense will
result in removal.”).
PCN:6.18
6
Sixth Circuit
RELIEF – CANCELLATION OF REMOVAL
FOR NON-LAWFUL PERMANENT
RESIDENTS – RETROACTIVITY
Velasco-Tijero v. Lynch, 796 F.3d 617 (6th
Cir.
Aug. 6, 2015) (non-LPR cancellation of
removal criminal bars, under 8 U.S.C. §
1229b(b)(1)(C), INA § 240A(b)(1)(C), apply
retroactively to noncitizens who were convicted
prior to IIRAIRA, but placed into removal
proceedings after IIRAIRA).
NOTE: This case found the noncitizen barred
because his crime would have made him
deportable under 8 U.S.C. § 1227(a)(2)(A)(i),
for a single CMT conviction punishable by at
least one year in jail. The court did not address
the issues decided in Matter of Cortez, 25 I&N
Dec. 301 (BIA 2010) (noncitizen barred from
cancellation if the offense falls under 8 U.S.C. §
1227(a)(2)(A)(i), even if the offense qualifies
for the petty offense exception to
inadmissibility).
CD4:24.3;AF:2.3;CMT3:3.3
Seventh Circuit
INVESTIGATION – FOIA
Rubmand v. USCIS, __ F.3d __ (7th
Cir. Aug.
31, 2015) (USCIS failed to conduct adequate
search in response to FOIA request, since
USCIS did not look for the type of record
(statistics) requested).
CD4:3.32;PCN:3.15;SH:5.11
Eighth Circuit
CRIMES OF MORAL TURPITUDE –
FORGERY
Miranda-Romero v. Lynch, ___ F.3d ___, 2015
WL 4746166 (8th
Cir. Aug. 12, 2015)
(California conviction of forgery, under Penal
Code § 472, categorically constitutes crime of
moral turpitude, since entire statute requires
intent to defraud).
Note: This decision is erroneous. The plain
language of the statute includes three groups of
offenses, of which only the first expressly
requires intent to defraud. The Eighth Circuit
relies on California decisions discussing the
statute as a whole, which do not consider
whether there is a different mental element for
each of the three groups of offenses stated in the
disjunctive. In particular, the third group of
offenses, penalizing one “who has in his
possession any such [fraudulently] counterfeited
seal or impression thereof, knowing it to be
counterfeited, and willfully conceals the same,
is guilty of forgery”, is innocent of an intent to
defraud under the plain language of the statute.
It is doubtful that most Ninth Circuit panels
would agree with this sloppy decision.
CD4:20.6;CMT3:8.6, 9.69, CHART
FEDERAL DEFINITION OF “FELONY”
UNDER FEDERAL CRIMINAL
SENTENCING STATUTE
United States v. Figueroa-Alvarez, ___ F.3d
___, 2015 WL 4620324 (8th
Cir. Aug. 4, 2015)
(Iowa conviction for committing third-degree
attempted burglary, an “aggravated
misdemeanor” punishable by up to two years in
prison under state law, Iowa Code §§ 713.6B,
903.1(2), constituted a “felony” under federal
criminal law, for illegal reentry sentencing
purposes).
CD4:10.87
7
AGGRAVATED FELONY – OBSTRUCTION
OF JUSTICE – OBSTRUCTION OF LEGAL
PROCESS
Ortiz v. Lynch, __ F.3d __ (8th
Cir. Aug. 6,
2015) (Minnesota conviction for violation of
Minn.Stat. § 609.50, subd. 2(2), obstruction of
legal process, is not an aggravated felony crime
of violence under 8 U.S.C. § 1101(a)(43)(F),
INA § 101(a)(43)(F), since the minimum
amount of force required to sustain a conviction
under the obstruction of legal process is not
“violent force” as required by 18 U.S.C. § 16).
CD4:19.38;AF:5.20, A.14, B.31;SH:7.47, 8.31
FALSE CLAIM TO CITIZENSHIP – I-9
FORM
Etenyi v. Lynch, __ F.3d __ (8th
Cir. Aug. 21,
2015) (noncitizen inadmissible and ineligible
for adjustment of status where evidence shows
noncitizen claimed U.S. citizenship on Form I-9
application).
CD4:CHAPT13
Ninth Circuit
JUDICIAL REVIEW – DEFERENCE –
DICTUM
BIA dicta is not “a statutory interpretation that
carries the force of law,” and thus is not entitled
to deference. Velazquez-Herrera v. Gonzales,
466 F.3d 781, 783 (9th Cir. 2006) (internal
quotation marks omitted). Cf. United States v.
Johnson, 256 F.3d 895, 914-15 (9th Cir. 2001)
(a holding, as opposed to dicta, is reached “after
reasoned consideration,” in which “the court
undeniably decided the issue,” after “argument
from both parties”).
CD4:15.37;AF:2.19;CMT3:3.18
SENTENCE – MISDEMEANOR – PENAL
CODE 18.5 -- RETROACTIVITY
SENTENCE – REDUCTION OF FELONY TO
MISDEMEANOR – RETROACTIVITY OF
NEW LEGISLATION AMELIORATING
PUNISHMENT
People v. Babylon, 39 Cal.3d 719 (1985) (where
a statute defining a criminal offense was
amended while the case was on appeal,
narrowing the scope of the offense so that the
defendants could no longer be said to have
violated the statute, and there was no savings
clause allowing prosecution under the former
statute, defendant’s case must be dismissed,
even assuming defendant’s acts did violate the
former statute).
CPCR 8.9 CPCR 8.22A
CAL POST CON – STATE
REHABILITATIVE RELIEF –
MANDATORY EXPUNGEMENT DESPITE
FAILURE TO PAY RESTITUTION
People v. Seymour, ___ Cal. App. 4th
___,
___Cal.Rptr.3d ___, 2015 WL 5097243 (6th
Dist. Aug. 31, 2015) (failure to pay restitution
in full did not authorize the trial court to deny
the relief otherwise mandated by Penal Code §
1203.4(a), which provides for mandatory
dismissal when a defendant has been
"discharged [from probation] prior to the
termination of the period of probation.").
CPCR 10. 53
RELIEF – ADJUSTMENT OF STATUS –
RELIANCE
Acosta-Olivarria v. Lynch, 799 F.3d 1271 (9th
Cir. Aug. 26, 2015) (noncitizen applying for
adjustment of immigration status reasonably
relied on Perez–Gonzalez v. Ashcroft, 379 F.3d
783 (9th Cir.2004), before the BIA Matter of
Briones, 24 I. & N. Dec. 355 (BIA 2007), a
decision directly disagreeing with Perez-
Gonzales, despite obvious tension between
Ninth Circuit and BIA prior to Briones, that
case does not apply retroactively).
CD4:24.2;AF:2.2;CMT3:3.2
8
CITIZENSHIP – DERIVATIVE
CITIZENSHIP – STEPCHILDREN
Acevedo v. Lynch, ___ F.3d ___, 2015 WL
4999292 (9th
Cir. Aug. 24, 2015) (the definition
of “child” in citizenship and naturalization
provisions of INA does not include
stepchildren).
CD4:3.13;AF:3.3;CMT3:2.2
JUDICIAL REVIEW – PETITION FOR
REVIEW – REVIEW OF MOTION TO
CONTINUE DECISION
Garcia v. Lynch, ___ F.3d ___, 2015 WL
4899018 (9th
Cir. Aug. 18, 2015) (statutory
criminal bar to judicial review at 8 U.S.C. §
1252(a)(2)(C), does not strip the circuit court of
jurisdiction to review the denial of a procedural
motion that rests on a ground independent of
the conviction that triggered the bar, such as an
appeal based upon denial of a motion to
continue).
CD4:15.37;AF:2.19;CMT3.3.18
CAL POST CON – REHABILITATIVE
RELIEF – CERTIFICATE OF
REHABILITATION – ABANDONMENT
People v. Shepard, ___ Cal. App. 4th
___, 191
Cal.Rptr.3d 429 (3d Dist. Aug. 19, 2015)
(affirming denial of petition for a certificate
rehabilitation, under to Penal Code § 4852.01,
since defendant waived his right to the hearing
and the right to counsel when he left the
courthouse without participating in his
hearing).
CPCR 10.77 [Cert of rehab]
POST CON RELIEF – GROUNDS –
INEFFECTIVE ASSISTANCE OF COUNSEL
–FAILURE TO PRESENT MORE
FAVORABLE ALTERNATIVE
Crace v. Herzog, ___ F.3d ___, 2015 WL
4773456 (9th
Cir. Aug. 14, 2015) (affirming
grant of habeas corpus relief where Washington
Supreme Court's rejection of petitioner’s claim
under Strickland v. Washington was an
unreasonable application of clearly established
federal law under the Anti-Terrorism and
Effective Death Penalty Act (AEDPA), and
petitioner's claim of ineffective assistance of
counsel warranted relief, since trial counsel was
deficient for failing to request a jury instruction
on “unlawful display of a weapon,” a lesser
included offense of second degree assault).
The court explained:
Rather, “[t]he assessment of prejudice should
proceed on the assumption that the decision
maker is reasonably, conscientiously, and
impartially applying the standards that govern
the decision.” Id.
The Washington Supreme Court's decisions in
Grier and in this case overextended the
foregoing principle. That principle forbids a
reviewing court from finding prejudice by
speculating that, if the defendant is permitted to
roll the dice again, the jury might convict on a
lesser included offense merely as a means of
jury nullification, without regard for whether
that verdict is consistent with the evidence. But
it does not require a court to presume—as the
Washington Supreme Court did—that, because
a jury convicted the defendant of a particular
offense at trial, the jury could not have
convicted the defendant on a lesser included
offense based upon evidence that was consistent
with the elements of both. To think that a jury,
if presented with the option, might have
convicted on a lesser included offense is not to
suggest that the jury would have ignored its
instructions. On the contrary, it would be
perfectly consistent with those instructions for
the jury to conclude that the evidence presented
was a better fit for the lesser included offense.
The Washington Supreme Court thus was
wrong to assume that, because there was
sufficient evidence to support the original
verdict, the jury necessarily would have reached
the same verdict even if instructed on an
additional lesser included offense.
9
As the Supreme Court has recognized in a
related context, a jury presented with only two
options—convicting on a single charged offense
or acquitting the defendant altogether—“is
likely to resolve its doubts in favor of
conviction” even if it has reservations about one
of the elements of the charged offense, on the
thinking that “the defendant is plainly guilty of
some offense.” Keeble v. United States, 412
U.S. 205, 212–13, 93 S.Ct. 1993, 36 L.Ed.2d
844 (1973) (construing the Major Crimes Act of
1885 not to preclude lesser-included-offense
instructions, in order to avoid constitutional
concerns); see also Hopper v. Evans, 456 U.S.
605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367
(1982). It is therefore perfectly plausible that a
jury that convicted on a particular offense at
trial did so despite doubts about the proof of
that offense—doubts that, with “the availability
of a third option,” could have led it to convict
on a lesser included offense. See Keeble, 412
U.S. at 213, 93 S.Ct. 1993. Making this
observation does not require us to speculate that
the jury would have acted “lawless[ly]” if
instructed on an additional, lesser included
offense or to question the validity of the actual
verdict. Rather, it merely involves
acknowledging that the jury could “rationally”
have found conviction on a lesser included
offense to be the verdict best supported by the
evidence. See id.
(Id. at ___.)
This discussion has application when
considering whether the defendant suffered
prejudice from ineffective assistance of counsel
during plea bargaining, where defense counsel’s
deficient performance consisted in failing to
present the prosecution with an equivalent
alternative disposition that would have avoided
adverse immigration consequences. The court
may well find prejudice inheres in the loss of
the opportunity for the prosecution to conclude
that under all of the circumstances of the case,
the unpresented alternative represented a better
fit, even if the offense of conviction was
appropriate.
PCN:6.18
POST CON RELIEF – GROUNDS –
INEFFECTIVE ASSISTANCE OF COUNSEL
– FAILURE TO GIVE ACCURATE
IMMIGRATION ADVICE
United States v. Rodriguez-Vega, ___ F.3d ___,
2015 WL 4773519 (9th
Cir. Aug. 14, 2015)
(defense counsel's failure to inform defendant
of the virtual certainty of removal prior to her
guilty plea amounted to deficient performance;
but for counsel's error, defendant would have
negotiated plea bargain not requiring her
removal or would have gone to trial; statements
that she faced the possibility of removal did not
eliminate the prejudice resulting from defense
counsel's deficient performance).
PCN:6.18
AGGRAVATED FELONY – THEFT
OFFENSE
Lopez-Valencia v. Lynch, ___ F.3d ___ (9th Cir.
Aug. 17, 2015) (California theft conviction,
including any offense for which the underlying
substantive offense charged was a violation of
Penal Code § 484, is not aggravated felony
theft, since because the California definition of
theft includes theft of labor, false credit
reporting, and theft by false pretenses, which do
not fall within the definition of aggravated
felony theft).
CD4:19.94;AF:5.78, A.42, B.43;SH:7.103, 8.46
CONTROLLED SUBSTANCES –
PARAPHERNALIA – UNLISTED
SUBSTANCE
Madrigal-Barcenas v. Lynch, ___ F.3d ___,
2015 WL 4716767 (9th Cir. Aug. 10, 2015)
(Nevada drug paraphernalia conviction, under
NRSA 453.566, constitutes a controlled
substance conviction, for purposes of
inadmissibility, only if the conviction involved
a substance criminalized by federal drug laws);
10
following Mellouli v. Lynch, 135 S. Ct. 2828
(2015); holding Luu-Le v. INS, 224 F.3d 911
(9th Cir. 2000) and its progeny are no longer
good law.
CD4:19.63, 19.60, 21.22, 21.34;SH:7.143, 7.67,
8.3;AF:5.42, A.18, B.3
POST CON RELIEF – GROUNDS –
INEFFECTIVE ASSISTANCE OF COUNSEL
– FAILURE TO GIVE ACCURATE
IMMIGRATION ADVICE
Rodriguez-Vega v. Lynch, ___ F.3d ___ (9th
Cir.
Aug. 14, 2015) (where the immigration statute
or controlling case law expressly identifies the
crime of conviction as a ground for removal,
“the deportation consequence is truly clear.”;
court’s immigration warning and plea language
cannot cure attorney error; prejudice satisfied
by showing that but for counsel’s error she
would negotiated a different plea, or
alternatively, gone to trial).
PCN:6.18
CONVICTION – DEFINITION –
ADMISSION OF FACTS
Morales v. Gonzales, 472 F.3d 689 (9th Cir.
Jan. 3, 2007) (agreement to allow state appellate
court to assume the truth of the State’s evidence
for the purpose of defendant’s challenge to the
sufficiently of the evidence on appeal is not an
“admission of facts” sufficient to determine the
nature of a conviction for immigration
purposes, since “[N]o factual findings are
actually made, and no admissions are entered
into by the defendant. Instead, for the sole
purpose of determining the sufficiency of the
evidence, the evidence is presumed true. . . .
This is far different from relying on a charging
document read in conjunction with a valid plea
agreement, where a defendant admits the
alleged facts in a way that is binding for the
purposes of conviction and subsequent
proceedings. See Lara-Chacon v. Ashcroft, 345
F.3d 1148, 1152 (9th Cir.2003).”).
CD4:7.19;AF:3.32;CMT3:2.4;SH:4.14
CAL CRIM DEF – AGGRAVATED FELONY
– CRIMES OF VIOLENCE
CRIMES OF MORAL TURPITUDE –
BATTERY CAUSING SERIOUS BODILY
INJURY – MINIMUM FORCE CASES
See, e.g., People v. Hayes, 142 Cal. App. 4th
175 (Cal. App. 2d Dist. 2006) (defendant
kicked a large ashtray, which fell over and hit
an officer’s leg causing a cut and bruising);
People v. Finta, 2012 Cal. App. Unpub. LEXIS
7488 (Cal. App. 1st Dist. Oct. 17, 2012)
(defendant “shoved” a man on his bicycle when
he thought that the cyclist had stolen his
personal property; cyclist fell and was injured);
People v. Myers, (1998) 61 Cal. App. 4th 328
(victim yelled and poked at defendant and
defendant pushed victim away defensively;
victim slipped and fell on wet pavement and
was injured).
CCDOI 6.18 [AF-COV]
CCDOI 6.18 [CMT]
ILLEGAL RE-ENTRY – SENTENCEING –
DRUG TRAFFICKING
United States v. Rivera-Constantino, __ F.3d __
(9th
Cir. Aug. 19, 2015) (federal conviction for
conspiracy to possess marijuana with intent to
distribute, in violation of 21 USC §§ 846,
841(a)(1) is a drug trafficking conspiracy
offense for illegal re-entry sentencing purposes,
under USSG § 2L1.2(b)(1), triggering a 16 level
enhancement).
CD4:CHAPT13
MOTION TO REOPEN – INEFFECTIVE
ASSISTANCE
Salazar-Gonzales v. Lynch, 798 F.3d 917 (9th
Cir. Aug. 20, 2015) (noncitizen entitled to
equitable tolling on untimely motion to reopen
due to prior counsel’s advice to pursue a form
of immigration relief for which the noncitizen
was statutorily ineligible; counsel’s incorrect
advice that client could pursue consular
processing caused noncitizen to forego right to
appeal).
CD4:15.34;PCN:10.15;AF:6.30;CMT3:10.31
11
Tenth Circuit
CRIME OF MORAL TURPTIUDE –
CRIMINAL IMPERSONATION – SSN
Veloz-Luvevano v. Lynch, __ F.3d __ (10th
Cir.
Aug. 31, 2015) (Colorado conviction for
criminal impersonation, in violation of
Col.Rev.Stat. § 18–5–113(1)(d), for possession
of a forged social security card to allow him to
work, is a categorical crime of moral turpitude
for immigration purposes).
NOTE: The judge in this case had clear distain
for the noncitizen, and dismissed out of hand,
what were likely legitimate minimum conduct
arguments. The court also made no mention of
Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir.
2000).
CD4:20.6;CMT3:8.6, 9.69, CHART
Eleventh Circuit
POST CON RELIEF – FEDERAL –
PETITIONER FAILED TO USE 2255 OR
DEMONSTRATE THAT 2255 WAS
UNADEQUATE
Zelaya v. Secretary, Florida Dept. of
Corrections, ___ F.3d ___, 2015 WL 4998431
(11th
Cir. Aug. 24, 2015) (district court
committed no error in declining to sua sponte
re-characterize pro se inmate's § 2241 habeas
petition as § 2255 motion to vacate, over his
objection; and inmate failed to establish that §
2255 motion to vacate was inadequate or
ineffective to test legality of his detention).
PCN:5.28