© 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

T: 510.601.1300 F: 510.595.6772 www.NortonTooby.com

Consultations

Since 1989, the Law Offices of Norton Tooby have offered expert advice and highly

successful services to immigration attorneys, criminal attorneys, and clients. Our

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.

Criminal Lawyers

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.

Testimonials:

"If you are an immigration lawyer with a defendant who has criminal issues, you only need to

know two words: Norton Tooby." - Dan Kowalski

"Brilliant legal strategies."

-Ann Benson, Directing Attorney, Washington Defender Association’s Immigration Project

For Mr. Tooby’s biography click here.

Interested in our services? Contact our office at (510) 601-1300 or submit our Intake Form to

begin the preliminary review process. Once we receive your Intake Form, we will contact you

and let you know if we feel we can help. Consultations can be in person or by phone. Visit

www.NortonTooby.com to download the Intake Form.

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