Immig Judicial Review Caselaw

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JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS CORPUS CAN BE USED TO
CHALLENGE DETENTION
The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of removal,
deportation, and exclusion and consolidate such review in the court of appeals. The REAL ID Act,
however, did not affect the ongoing availability of habeas corpus to challenge the length or conditions of
immigration detention. Since the REAL ID Act’s enactment on May 11, 2005, the courts of appeals have
uniformly upheld the right to file a habeas corpus petition to challenge the lawfulness of detention.
Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005); DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn.
2006); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604
(E.D. Va. 2006) (assuming without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App.
LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9
(6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006)
(unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443
F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v. Atty.
Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks to AILF Legal Action Center,
Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12, 2007
JUDICIAL REVIEW – QUESTIONS OF LAW

Chen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition “question of law” for purpose of
judicial review is not limited to questions of statutory construction), revising prior opinion, 434
F.3d 144 (2d Cir. 2006).
JUDICIAL REVIEW – AFTER DEPORTATION
Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006)
(court maintains jurisdiction to review order of removal even after petition has been physically
removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir.
2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf
JUDICIAL REVIEW – BIA JURISDICTION TO ORDER REMOVAL
Lazo v. Gonzales, __ F.3d __, 2006 WL 2528553 (2d Cir. Sept. 1, 2006) (where IJ found
removability, but granted relief, then BIA reverses grant of relief, BIA has jurisdiction to order
noncitizen deported without remand to IJ), following Solano-Chicas v. Gonzales, 440 F.3d 1050,
1053-54 (8th Cir.2006); Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1156 (11th Cir.2003);
Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006). Disagrees with Molina-
Camacho v. Ashcroft, 393 F.3d 937, 940-41 (9th Cir.2004).
JUDICIAL REVIEW – ISSUE EXHAUSTION
Zhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (“We are
persuaded, both on the language of § 1252(d)(1) and on these authorities, that the exhaustion of
'all administrative remedies available to [an] alien as of right' under 8 U.S.C. § 1252(d)(1) does
not require - as a statutory matter - that a petitioner for relief from removal raise to the BIA each
issue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. §
1252(d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of
subject matter jurisdiction to consider those issues.”).
JUDICIAL REVIEW – EXTREME HARDSHIP QUESTION UNDER INA 212(i)
Zhang v. Gonzales, ___ F.3d ___, 2006 WL 1901014 (2d Cir. Jul. 12, 2006) (judicial review of
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whether respondent showed extreme hardship for purposes of adjustment of status under INA §
212(i) is barred as a discretionary determination under 8 U.S.C. § 1252(a)(2)(B)(i)).
JUDICIAL REVIEW – JURISDICTION LIMITATION – DISCRETIONARY DECISIONS –
DENIAL OF 212(C) WAIVER
Avendano-Espejo v. Department of Homeland Sec., __ F.3d __ (2d Cir. May 11, 2006) (court
lacks jurisdiction to review discretionary denial of INA § 212(c) relief).
http://caselaw.lp.findlaw.com/data2/circs/2nd/0340921p.pdf
JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS
SUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT
REVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONS
OF LAW ARE RAISED
Bugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denial
of adjustment of status and INA § 212(h) waiver on discretionary basis not subject to judicial
review; REAL ID Act of 2005, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310
(codified at 8 U.S.C. § 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8
U.S.C. § 1252(a)(2)(B)(i)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf
JUDICIAL REVIEW – RELIEF – 212(C) RELIEF – CANCELLATION OF REMOVAL –
ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUS
Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (court did
not have jurisdiction to review determination that alien had abandoned her permanent resident
alien status for purposes of § 212(c) and cancellation of removal eligibility).
JUDICIAL REVIEW – JURISDICTION OF BIA TO ORDER REMOVAL
James v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006) (while the BIA has jurisdiction
to order noncitizen removed when IJ found removability, but granted relief, and the BIA then reverses
the grant of relief, the BIA does not have jurisdiction to order removal where the IJ initially found
noncitizen was not removable, and the BIA reverses; in such case, BIA must remand to IJ), distinguishing
Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), following Noriega-Lopez v. Ashcroft, 335
F.3d 874, 880-881 (9th Cir. 2003).
JUDICIAL REVIEW – RES JUDICATA

Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before
former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar
DHS from initiating removal proceeding based upon the same convictions).
http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf NOTE: The court here engaged in no
analysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), or Matter of Rainford, 20 I. & N. Dec. 598
(BIA 1992), which specifically prohibit the Government from starting removal proceedings based upon
convictions occurring prior to adjustment when the Government was aware of those convictions at the
time of adjustment and either granted a waiver (Rafipour), or no waiver was needed since the
convictions triggered deportation, but not inadmissibility (Rainford). The noncitizen in this case had 21
total convictions, and had been involved in litigating pro se for a number of years at all court levels.
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We have stated clearly and without equivocation that an individual who may be deportable for a given offense, but
whose status is adjusted is no longer deportable for that offense. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992);
Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978); cf. Matter of V-, 1I&N Dec. 273 (BIA 1942).
Medina v. United States, 993 F.2d 499, 503 Moosa v. INS, 171 F.3d
994, 1003 (5th Cir. 1999).
We have held, however, that Congress

intended to repeal § 212(c) as of April 1, 1997, and that
relief under that section is not available to aliens whose
removal proceedings were brought after that date. Lara-
Ruiz, 241 F.3d at 943-44. There are two limited exceptions
to this rule, but neither helps Montenegro. First, aliens
who pleaded guilty to an aggravated felony before AEDPA’s
enactment may apply for § 212(c) relief if they would
have been eligible for that relief at the time of their
pleas. INS v. St. Cyr, 533 U.S. 289, 326 (2001); Jideonwo
v. INS, 224 F.3d 692, 700 (7th Cir. 2000). But this excep-
tion does not apply to aliens like Montenegro who chose
to go to trial; such aliens did not abandon any rights
or admit guilt in reliance on continued eligibility for
§ 212(c) relief. Lara-Ruiz, 241 F.3d at 945; Rankine v.
Reno, 319 F.3d 93, 100-02 (2d Cir. 2003) (collecting cases).
Second, aliens who conceded deportability before AEDPA’s
enactment, with the expectation that they could seek
waivers under § 212(c), remain eligible to apply
Anselmo, ID#3105
(1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "covers
deportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions."
Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc).
(2) Although the Board of Immigration Appeals disagrees with the court's holding, the decision of the Ninth Circuit that the
EAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of the
Ninth Circuit.
(3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in
conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit. JUDICIAL REVIEW –
HABEAS CORPUS EVEN AFTER REAL ID ACT

Okeezie v. Chertoff, __ F.Supp.2d __, 2006 WL 1280962 (W.D. Tex. May 4, 2006) (noncitizen with
aggravated felony convictions was denied CAT by BIA on 2/3/05; with passage of REAL ID Act, on
5/11/05, the criminal alien bar to petition for review with the Fifth Circuit was removed, but the petition
was automatically untimely; district court held that to apply REAL ID Act denial of habeas corpus
jurisdiction in this case would be unconstitutional under INS v. St. Cyr, as noncitizen would have no
means to obtain judicial review of removal order
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JUDICIAL REVIEW – PETITION FOR REVIEW – VALIDITY OF CHANGE OF AGENCY POSITION

When an administrative agency inexplicably departs from past practices, precedents, and/or established
procedures, it abuses its discretion. Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) (BIA abused
discretion by changing its position without explanation re: § 212(c) tolling period); Gonzalez-Batoun v.
INS, 791 F.2d 681 (9th Cir. 1986) (BIA abused discretion when it gave no reason for deviation from past
practice); Salehpour v. INS, 761 F.2d 1442 (9th Cir. 1985) (abuse of discretion occurs where agency
interpretation is inconsistent with its own regulations); Ke Zhen Zhao v. U. S. DOJ, 265 F.3d 83 (2d Cir.
2000) (an abuse of discretion may be found in those circumstances where the government inexplicably
departs from established policies). In Sang Seup Shin v. INS, 750 F.2d 122, 125 (D.C. Cir. 1984), the court
noted that although agencies like INS and EOIR do have broad discretion in adjustment cases, they
cannot proceed "at whim, shedding [their] grace unevenly from case to case." An agency should explain
its departures from settled policies, and it may not unaccountably hold relevant one day considerations
it disregarded on another. The INS Operations Instruction 245.5(d) notes that the Service should strive
to achieve "more uniform decisions with respect to the exercise of discretion in Section 245 cases." This
issue is being adjudicated inconsistently within this District, and inconsistent with INS policy nationwide.
JUDICIAL REVIEW – JURISDICTION LIMITATION – QUESTION OF WHAT IJ MAY CONSIDER IN MAKING PSC
DETERMINATION IS NOT DISCRETIONARY DECISION
Morales v. Gonzales, ___ F.3d ___, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (question of what evidence IJ
may consider in making decision whether conviction constitutes PSC is not a discretionary decision,
court jdsn under INA 242 (a)2 (d)).
Motion to reopen after removal and illegal reentry is OK LIN v Gonzales.
Murray v. Ashcroft, 321 F. Supp. 2d 385 (D. Conn.

2004), argues that the doctrine of res judicata barred the government
from filing additional charges against him following
the BIA’s August 6, 2002 opinion
6Res judicata or claim preclusion bars a subsequent action “not only as
to every matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which might have
been offered for that purpose.” Cromwell v. County of Sac., 94 U.S. 351,
352 (1877); see 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE
§ 131.01 (3d ed. 2006). Claim preclusion is sometimes confused with
issue preclusion, which bars a subsequent action on an issue that was actually
and necessarily determined in the first action. See 18 JAMES WM. MOORE
ET AL., MOORE’S FEDERAL PRACTICE § 132.01[1] (3d ed. 2006). Valencia-
Alvarez asserts claim preclusion, not issue preclusion, as it is clear that the
BIA’s decision did not actually and necessarily determine whether the
underlying conviction concerned a controlled substance.
JUDICIAL REVIEW – PETITION FOR REVIEW – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN
REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily,
irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had
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been vacated, even where order vacating conviction did not specify whether the conviction was vacated
on ground of invalidity or solely for rehabilitative or immigration purposes).
JUDICIAL REVIEW – STREAMLINING

Padilla-Padilla v. Gonzales, ___ F.3d ___, 2006 WL 2614167 (9th Cir. Sept. 13, 2006) (because BIA issued
a streamlined order, it was required to affirm the entirety of the IJ's decision, including the length of the
voluntary departure period granted). http://caselaw.lp.findlaw.com/data2/circs/9th/0273627p.pdf
JUDICIAL REVIEW – MOTION TO REOPEN – BIA NOT BARRED FROM GRANTING MOTION TO REOPEN
REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL
INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED – REGULATION DOES NOT BAR
CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that
motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA
from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal
order had been vacated; it was not necessary that the conviction be the sole reason for removal).
JUDICIAL REVIEW – ABUSE OF DISCRETION – ERROR OF LAW

United States v. Almazan-Becerra, ___ F.3d ___, ___, 2006 WL 2129724 (9th Cir. August 1, 2006) ("A
district court by definition abuses its discretion when it makes an error of law."), quoting Koon v. United
States, 518 U.S. 81, 100 (1996).
JUDICIAL REVIEW – PETITION FOR REVIEW – WAIVER OF ARGUMENT BY FAILURE TO RAISE IT IN

OPENING BRIEF
United States v. Almazan-Becerra, ___ F.3d ___, 2006 WL 2129724 (9th Cir. August 1, 2006) ("The
government tried to save the enhancement at oral argument by pointing to a statement of the counsel
of Almazan-Becerra suggesting that the charged conduct involved sales. This argument is waived,
however, both for the government's failure to raise it in its opening brief, see Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir.1999) (“on appeal, arguments not raised by a party in its opening brief are deemed
waived”), and for its failure to raise it before the district court, see Monetary II Ltd. P'ship v. Comm'r, 47
F.3d 342, 347(9th Cir.1995) (“As a general rule, an appellate court will not consider arguments which
were not first raised before the district court, absent a showing of exceptional circumstances”) (internal
quotations and citation omitted)."). http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf
JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS

JURISDICTION UNDER REAL ID ACT TO REVIEW QUESTION OF LAW WHETHER
BIA APPLIED PROPER LEGAL STANDARD TO DETERMINE WHETHER CRIME WAS
PARTICULARLY SERIOUS
Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (Court of appeals has jurisdiction
under REAL ID Act to review question of law whether BIA applied proper legal standard to
determine whether conviction constituted a "particularly serious crime" for purposes of
withholding of removal).
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JUDICIAL REVIEW – PETITION FOR REVIEW – DUE PROCESS -- BIAS OF IMMIGRATION JUDGE
Reyez-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) (bias of immigration judge her from acting as a
neutral fact-finder and prevented her from considering and evaluating evidence relevant to establishing
extreme hardship
RELIEF – JUDICIAL REVIEW – LACHES DOCTRINE IS INAPPLICABLE AGAINST THE GOVERNMENT

Savoury v. U.S. Attorney General, ___ F.3d ___, ___, 2006 WL 1426950 (11th Cir. May 25, 2006)
(doctrine of laches is inapplicable against government who admitted respondent as LPR despite
knowledge of a controlled substances conviction, and later sought to exclude him when he arrived from
a trip abroad: "Neither this Court nor the Supreme Court has ever indicated that laches applies against
the government. Instead, the Supreme Court has stated that, "[a]s a general rule laches or neglect of
duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or
protect a public interest." Hibi, 414 U.S. at 8, 94 S.Ct. at 21. We have gone even further, holding that
laches "cannot be asserted against the United States in its sovereign capacity to enforce a public right or
to protect the public interest." United States v. Arrow Transp. Co., 658 F.2d 392, 394 (5th Cir. Unit B
1981).The INS does act in the public interest when it enforces the immigration laws of this country. Hibi,
414 U.S. at 8, 94 S.Ct. at 21. That is what happened in this case: after years of failing to do so, the INS
finally enforce
Koloamatangi, 23 I. & N. Dec. 548d the immigration laws against Savoury. Laches cannot be
asserted to prevent it from doing so.").
Matter of Ayala, 22 I. & N. Dec. 398 (BIA 1998),
Matter of T-, 6 I.& N. Dec. 136, 137–38 (BIA 1954
Savoury cites the decision in
Matter of G-A-, 7 I. & N. Dec. 274 (BIA
1956), where the BIA exercised its discretion to grant § 212(c) relief to an alien
who had lawfully attained permanent resident status and otherwise met the
requirements of that provision. Id. at 276. The special inquiry officer had denied §
212(c) relief because he noted that even if it were granted, the respondent would
still be subject to deportation under a different section of the INA. Id. at 275. In
reversing the denial of § 212(c) relief the BIA explained that once it had “waived”
under § 212(c) a ground of inadmissibility based on a criminal conviction, a
deportation proceeding would not be instituted based on that same criminal
conviction, unless the Attorney General revoked the previous grant of relief. Id.
That is not what happened here.
7
Deciding
Petitioner’s nationality claim, no genuine issue of material fact can exist about 7
the claim; otherwise, we must transfer the mater to the district court for resolution. 8 U.S.C. §
1252(b)(5)(A)-(B). A genuine issue of fact does exist about whether INS Officer Finnerty
actually administered a modified oath of allegiance to Sebastian during his preliminary
investigation. This fact, however, is not material: even had Petitioner taken the oath at that time,
it would not satisfy the statutory prerequisite for citizenship that Petitioner take the oath of
allegiance in “open court.”See 8 U.S.C. § 1448(a) (1988).
First Circuit’s decision in Succar, which held that 8 C.F.R. § 245.1(c)(8), the
regulation that precludes arriving aliens from seeking adjustment
of status in removal proceedings, is invalid. the rationale of Succar
v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), hold that the regulation
promulgated by the Attorney General, 8 C.F.R.
§ 245.1(c)(8), which precludes “arriving aliens” from applying
for adjustment of status in removal proceedings, is invalid
because it is in direct conflict with 8 U.S.C. § 1255(a).4The regulation shows that an alien
paroled under 8U.S.C. § 1182(d) remains an “arriving alien” regardless of her
parole status. The section also creates two exemptions from
the definition of “arriving alien”: 1) aliens paroled into the
United States before April 1, 1997, and 2) aliens granted
advance parole. However, a plain reading of the regulation
clearly shows that both exceptions only exempt these aliens
from the definition of “arriving alien” for the purpose of
excluding them from expedited removal proceedings under 8
U.S.C. § 1225(b). Accordingly, Delia, as a parolee, was properly
deemed an “arriving alien” within the meaning of section 1.1 q
JUD REVIEW applable

1252(a)(2)(D), which states:
Nothing in subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed with
an appropriate court of appeals in accordance with this section.
JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS

CORPUS CAN BE USED TO CHALLENGE DETENTION
The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of
removal, deportation, and exclusion and consolidate such review in the court of appeals. The
REAL ID Act, however, did not affect the ongoing availability of habeas corpus to challenge the
length or conditions of immigration detention. Since the REAL ID Act’s enactment on May 11,
2005, the courts of appeals have uniformly upheld the right to file a habeas corpus petition to
challenge the lawfulness of detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005);
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DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d
442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assuming
without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS 21503, *2
(5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9 (6th
Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7,
2006) (unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah
v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th
Cir. 2006); Madu v. Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006).
Thanks to AILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan.
12, 2007).
JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION – EQUITABLE TOLLING – ESTOPPEL – DUE
PROCESS
DaCosta v. Gonzales, __ F.3d __ (1st Cir. May 24, 2006) (court lacks jurisdiction to review claims where
BIA was not presented with opportunity to address legal questions raised for the first time on appeal to
the circuit court), citing Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005) (circuit courts lack authority
"to consider points not squarely raised before the BIA").
http://laws.lp.findlaw.com/1st/051438.html
RELIEF – JUDICIAL REVIEW – NO PETITION FOR REVIEW JURISDICTION TO REVIEW DISCRETIONARY

DENIAL THAT DOES NOT PRESENT QUESTIONS OF LAW
Elysee v. Gonzales, ___ F.3d ___, 2006 WL 390456 (1st Cir. Feb. 21, 2006) (court of appeals has no
petition for review jurisdiction under REAL ID Act to review discretionary denial of cancellation of
removal for LPRs, under 8 U.S.C. § 1229b(a), where petition fails to present any constitutional or legal
questions

Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006) (court
maintains jurisdiction to review order of removal even after petition has been physically removed from
the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004).
Edwards v. INS, 393 F.3d 299. Edwards held that, in cases in which
an alien accrued more than five years’ imprisonment subsequent to an INS denial of § 212(c)
relief on the erroneous ground that AEDPA’s amendment or IIRIRA’s repeal of that statute
applied retroactively, the alien was entitled to “nunc pro tunc relief” because “agency error
would otherwise result in an alien being deprived of the opportunity to seek [§ 212(c)]
relief.” Id. at 310-11.6
Hey, state practitioners, we know you regularly seek conditional discharge sentences in
all the City/Village/Town courts, especially for non-criminal violation offenses, because
of the lack of a term of imprisonment and the lack of supervision that a conditional
discharge affords. We know that conditional discharges are regularly offered by
prosecutors and imposed by state judges as a way to clear massive New York city,
town and village court dockets, and are regularly accepted as a way to quickly resolve a
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case and to avoid incarceration. And we know a conditional discharge sentence is one
of the most lenient sentences permissible under New York law.
Statistical evidence confirms that conditional discharge sentences are given in the
overwhelming majority of misdemeanor offenses prosecuted in New York State. (80,000
in the year 2000 and nearly 70,000 in 2001). And, these numbers do not even include
the greater number of defendants who received conditional discharge sentences for
violation/petty offenses! Compare these numbers to those receiving probation - less
than 10,000 in each of the years reported. See Crime and Justice Annual Report 2000
and 2001 at http://criminaljustice.state.
ny.us/crimnet/ojsa/cja_00_01/sec3.pdf (last accessed Nov. 15, 2005).
IN THIS ISSUE:
United States V. Ramirez, 421 F.3d 159 (2005) - What State Practitioners Need to
Know About the Hazards of Conditional Discharges
FPD Fall Seminar Announcement
United States Court of Appeals Second Circuit Review
JUDICIAL REVIEW – ISSUE EXHAUSTION

Zhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (“We are persuaded,
both on the language of § 1252(d)(1) and on these authorities, that the exhaustion of 'all administrative
remedies available to [an] alien as of right' under 8 U.S.C. § 1252(d)(1) does not require - as a statutory
matter - that a petitioner for relief from removal raise to the BIA each issue presented in his or her
petition for judicial review. Therefore, in the context of 8 U.S.C. § 1252(d)(1), the failure to exhaust
individual issues before the BIA does not deprive this court of subject matter jurisdiction to consider
those issues.”).
JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS SUCH AS DENIAL OF

212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT REVIEWABLE WHERE NO COLORABLE
CONSTITUTIONAL CLAIMS OR QUESTIONS OF LAW ARE RAISED
Bugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denial of
adjustment of status and INA § 212(h) waiver on discretionary basis not subject to judicial review; REAL
ID Act of 2005, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (codified at 8 U.S.C. §
1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8 U.S.C. § 1252(a)(2)(B)(i)).
8 U.S.C.
§ 1255; 8 C.F.R. § 245a.2(m)(1); Navarro-Aispura v. INS, 53
F.3d 233 (9th Cir. 1995). The IJ explained that 8 C.F.R.
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§ 245a.2(m)(1) contemplates that an alien who obtains

advance parole would be “readmitted,” rather than treated as
a newly-arriving alien applying for admission.7Matter of S-O-S-, 22 I. & N. Dec.
107 (BIA 1998); 8 C.F.R. § 245a.2(m) (2002
JUDICIAL REVIEW – PETITION FOR REVIEW -- JURISDICTION LIMITATION – STATUTE DOES NOT BAR
JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION
OF REMOVAL
Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. §
1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding
eligibility for relief for cancellation of removal under 8 U.S.C. § 1229b or for adjustment of status under
8 U.S.C. § 1255(i), because they were based on nondiscretionary grounds).
JUDICIAL REVIEW – STREAMLINING – THREE JUDGE PANEL

Purveegiin v. Gonzales, __ F.3d __ (3d Cir. Jun. 1, 2006) (court has jurisdiction to review question of
whether BIA member responsible for an appeal erred in not referring the appeal to a three-member BIA
panel). But see, Guyadin v. Gonzales, __ F.3d __ (2d Cir. May 30, 2006).
http://caselaw.lp.findlaw.com/data2/circs/3rd/043797p.pdf

JURISDICTION TO CONSIDER CLAIMS OF ABUSE OF DISCRETION AND VIOLATION
OF DUE PROCESS IN DENIAL OF REQUEST FOR CONTINUANCE OF REMOVAL
PROCEEDING
Khan v. Attorney General, ___ F.3d ___, 2006 WL 1377054 (3d Cir. May 22, 2006) (court of
appeals jurisdiction to consider arguments that BIA erred in affirming denial of request for
continuance of removal hearing as abuse of discretion and as a violation of due process).
JUDICIAL REVIEW – JURISDICTION LIMITATION – NO BAR UNLESS REMOVAL ORDER GROUNDED ON

LISTED OFFENSE
McAllister v. United States Att’y Gen., __ F.3d __ (3d Cir. Apr. 10, 2006) (for purposes of jurisdictional
bar at 8 U.S.C. section 1252(a)(2)(C), a noncitizen is not "removable for reason of having committed [an
enumerated] criminal offense" unless the final order of removal is grounded, at least in part, on one of
those enumerated offenses).
JUDICIAL REVIEW – PETITION FOR REVIEW – DEFERENCE – QUESTION WHETHER COURT OF APPEALS
OWES ANY DEFERENCE TO BIA STREAMLINING RUBBER STAMP APPROVAL OF IMMIGRATION JUDGE
DECISION
Ng v. Attorney General, ___ F.3d ___, ___ n.4 (3d Cir. Feb. 7, 2006)(open question whether court of
appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration
Judge's decision: "We have also previously questioned whether a BIA decision is entitled to deference
when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. §
1003.1(e)(4). See Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 ["[I]t would seem to be, at the very least, an
open question as to whether an IJ's decision affirmed through the streamlining process would be
11
entitled to Chevron deference . . . [D]eferring to the reasoning of an IJ from which the BIA would be free
to depart in other cases would seem highly problematic."); cf. Singh, 383 F.3d at 152 ("[T]he BIA, by
affirming without opinion, gave no considered and authoritative agency-wide interpretation of the
statute . . . .")).
JUDICIAL REVIEW -- RES JUDICATA EXCEPTION

Duvall v. Attorney General, ___ F.3d ___, 2006 WL 278861 (3d Cir. Feb. 7, 2006) (order granting habeas
relief from an order of removal is vacated where a litigation error by the INS, resulting in an adverse
determination on the issue of alienage during deportation proceedings, did not preclude the
government from thereafter seeking to remove the alien based on subsequent criminal acts).
RES JUDICATA See Hamdan v. Gonzales, 4 6 25 F.3d 1051, 1059-60 (7th

Cir. 2005); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703-04
(6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d
(“The doctrines of res judicata and collateral estoppel are

applicable to administrative proceedings when an agency is
acting in a judicial capacity.”); cf. Cook v. Principi, 318 F.3d
1334, 1337 (Fed. Cir. 2002) (applying res judicata to
administrative proceedings); Jones v. SEC, 115 F.3d 1173, 1178
(4th Cir. 1997) (same); SEC v. First Jersey Sec., Inc., 101 F.3d
1450, 1463-64 (2d Cir. 1996) (same). But cf. Title v. INS, 322
F.2d 21, 23-24 (9th Cir. 1963) (rejecting application of doctrine
to preclude alien from relitigating issue of membership in
communist party, previously resolved in denaturalization
proceedings), rejected by Kairys, 981 F.2d at 939-41, and
distinguished by Fedorenko, 19 I. & N. Dec. at 62-64 (“[W]e do
not violate Congress’ intent if we apply collateral estoppel .
JUDICIAL REVIEW – PETITION FOR REVIEW – REAL ID ACT REPEALED ALL JURISDICTIONAL BARS TO
PETITION FOR REVIEW OF FINAL REMOVAL ORDERS EXCEPT THOSE REMAINING IN 8 U.S.C. § 1252
Papageorgiou v. Gonzales, __ F.3d __, 2005 WL 1490454 (3d Cir. June 24, 2005) (agreeing with holding
of Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2005 U.S. App. LEXIS 9912 (9th Cir. 2005)).
JUDICIAL REVIEW – IMMIGRATION JUDGE DECISION CONFLICTED WITH DOCUMENTARY EVIDENCE

Zhang v. Gonzales, __ F.3d __ (3d Cir. April 21, 2005) (petition for review granted where Immigration
Judge failed to reconcile his decision with the documentary evidence produced by noncitizen
respondent).
12

Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before
former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar
DHS from initiating removal proceeding based upon the same convictions).
http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf
JUDICIAL REVIEW – GOOD MORAL CHARACTER

Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has
good moral character for purposes of cancellation of removal is a non-discretionary factor
subject to judicial review).
CRIME OF MORAL TURPITUDE – IMMIGRATION CONSEQUENCES – JURISDICTION
RESTRICTION
Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004) (conviction of one crime of moral
turpitude precludes court of appeals from exercising petition for review jurisdiction over final
removal order).
JUDICIAL REVIEW – RES JUDICATA – COLLATERAL ESTOPPEL

United States v. Castillo-Basa, __ F.3d __, 2007 WL 570326 (9th Cir. Feb. 26, 2007) (doctrine
of collateral estoppel, applied in the criminal double jeopardy context, prevents government from
charging illegal entrant with perjury where during the initial illegal re-entry prosecution, the
government could not find the taped record of the deportation hearing, but later finds the tape
after acquittal; “The Double Jeopardy Clause does not only bar a second prosecution on the same
charge of which a defendant has been previously acquitted (or convicted). It also prevents the
government from seeking to prosecute a defendant on an issue that has been determined in the
defendant's favor in a prior prosecution, regardless of the particular offense involved in the
earlier trial.”).
In some cases, you may also be able to raise retroactivity concerns based on the length of time
that has passed since the plea. The St Cyr Court stated that there is no single test for assessing
retroactive effect. Thus, while reasonable reliance is one way of establishing a retroactive effect,
retroactivity concerns are also raised when time has passed and the affected individuals have
developed interest in repose. See, e.g., United States v. Carlton, 512 U.S. 26, 37-38 (1994)
(O'Connor, J., concurring) (describing interests of repose in curbing retroactive legislation).
Application of a rule that looks only at the length of domicile at the time of the plea would
violate these interests by allowing for mandatory deportation of persons who may have pled
guilty to an offense a few years after obtaining their lawful permanent residency, but who
attained their seven years of lawful domicile long before the enactment of 1996 laws.
ILLEGAL REMOVAL OF UNITED STATES CITIZENS

Occasionally, persons are placed in removal proceedings, and even removed, even though they
are United States citizens. E.g., Diaz v. Reno, 40 F.Supp. 2d 984 (N.D. Ill.1999) (U.S. citizen
who had been ordered summarily excluded from the United States mounts several claims related
to summary exclusion after returning to the United States)
http://209.85.165.104/search?q=cache:O5C0f5l5kxsJ:www.law.nyu.edu/alumni/laa/lecture/docu
13
ments/diaz-bivensclaim.pdf+Diaz+v.+Reno&hl=en&ct=clnk&cd=1&gl=us ; Fierro v. INS, 66

F. Supp. 2d 229 (D. Mass. 1999) (court enjoins removal of individual pend-ing resolution of
claim to United States citizenship).
JRAD:
The core notion, in Massachusetts as in many other

jurisdictions, is that a nunc pro tunc order is appropriate
primarily to correct the record at a later date to make the
record reflect what the court or other body actually intended to
do at an earlier date but did not sufficiently express or did
not get around to doing through some error or inadvertence.
Thus, a clerical mistake in a judgment might be corrected nunc
pro tunc when discovered later or a franchise sought as of
October 1 might be backdated to that date where the application
was timely made
Perkins v. Perkins, 114 N.E. 713, 713-14 (Mass. 1917). However,

it is clear that there are limits on the court's authority to
make retroactive revisions to prior orders. In Perkins itself,
the court said that "a defect in a judgment, order or decree
which expressed exactly the intention of the court at the time
when it was made cannot be remedied by a nunc pro tunc entry."
Id. at 714.(1)
CA3 Extends St. Cyr to All Individuals Convicted of a Pre-IIRAIRA Aggravated Felony
http://www.aila.org/content/default.aspx?docid=21953
The court held that IIRAIRA's repeal of §212(c) cannot be applied retroactively to preclude from
relief otherwise eligible persons convicted of a pre-IIRAIRA aggravated felony, whether by plea
or by trial, because the repeal attached new legal consequences to the conviction and resulting
sentence. (Atkinson v. Att'y Gen. of the U.S., 3/8/07). AILA Doc. No. 07032661
RELIEF – NON LPR CANCELLATION

Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has
good moral character for purposes of cancellation of removal is a non-discretionary factor
subject to judicial review
RELIEF – NON-LPR CANCELLATION OF REMOVAL – JUDICIAL REVIEW

Lopez v. Gonzales, ___ F.3d ___ (7th Cir. Oct. 26, 2005) (while calculation of continuous residence is a
statutory issue over which the court has jurisdiction, whether the respondent lacks good moral
character is a discretionary issue, over which the court lacks jurisdiction).
14
First Circuit
RELIEF – WAIVERS – 212(H) RELIEF – CANCELLATION – STOP-TIME RULE

Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an
immigrant “previously . . . admitted . . . as an alien lawfully admitted for permanent residence,” even
though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore
was “bound,” by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N.
Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for
purposes of cancellation of removal under INA § 240A(a), the phrase “lawfully admitted for permanent
residence” to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala
because of § 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307,
1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v.
Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html
RELIEF – CANCELLATION – STOP TIME RULE IMPERMISSIBLY RETORACTIVE

Mulholland v. Ashcroft, __ F.Supp.3d __ (E.D.N.Y. Oct. 25, 2004) (IIRAIRA Stop-Time rule cannot be
applied to bar cancellation of removal based upon pre-IIRAIRA conviction of a crime involving moral
turpitude).
RELIEF – 212(c) – CANCELLATION – STOP-TIME RULE IS NOT TRIGGERED RETROACTIVELY BY A

CONVICTION THAT PRECEDED ITS ENACTMENT
Gonzalez-Garcia v. Gonzales, ___ F.3d ___, 2005 WL 3047411 (5th Cir. Nov. 16, 2005) (convictions that
pre-date the April 1, 1997 effective date of 8 U.S.C. § 1229b(d)(1) [cancellation stop-time rule] do not
stop the clock for purposes of cancellation of removal [or former INA § 212(c)]).
http://caselaw.lp.findlaw.com/data2/circs/5th/0460385cv0p.pdf NOTE: This is a very strange decision,
in that it assumes that the stop-time rule for cancellation of removal applies to applications for relief
under former INA § 212(c), and seems to state that cancellation of removal is barred to any LPR
convicted of a crime of moral turpitude
DETENTION – BOND HEARING FOR "ARRIVING ALIENS" RETURNING ON ADVANCE PAROLE

Shahwan v. Certoff, ___ F.Supp.2d ___, 2005 WL 3369991 (N.D. Cal. Dec. 12, 2005) (immigration
authorities cannot deny bond hearing under 8 C.F.R. § 1003.19(h)(2)(i)(B) [no bond hearing for "arriving
aliens"], to noncitizen granted "advance parole" pending adjustment of status where the noncitizen was
not properly notified that accepting advance parole would result in denial of bond without possibility of
hearing).
DETENTION – MANDATORY – HABEAS CHALLENGE TO OVERLONG DETENTION
If the government stayed the IJ’s bond order based on 8 CFR § 1003.19(i)(2), the "automatic
stay" regulation, and has not obtained an "emergency stay" from the BIA, under 8 CFR §
1003.19(i)(1)), then counsel may be able to follow a successful habeas in the Ninth Circuit. See
Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. March 1, 2004).
15
The term "arriving alien" is not defined in the Immigration and Nationality Act [INA], but is
defined by regulation at 8 C.F.R. 1001.1(q):
The term arriving alien means an applicant for
admission coming or attempting to come into the
United States at a port-of-entry, or an alien seeking
transit through the United States at a port-of-entry,
or an alien interdicted in international or United
States waters and brought into the United States by
any means, whether or not to a designated port-of-
entry, and regardless of the means of transport. An
arriving alien remains such even if paroled pursuant
to section 212(d)(5) of the Act, except that an alien
who was paroled before April 1, 1997, or an alien
who was granted advance parole which the alien
applied for and obtained in the United States prior
to the alien's departure from and return to the
United States, shall not be considered an arriving
alien for purposes of section 235(b)(1)(A)(i) of the
Act.
DETENTION – MANDATORY DETENTION – INAPPLICABLE TO ARRIVING ALIENS

INA § 236 applies only to those who have been "arrested on a warrant" issued by the AG (or DHS). See
INA § 236(a). Arriving aliens are only "detained" under INA § 235. They are not "arrested on a
warrant." Therefore, INA § 236(c) does not apply to arriving aliens. Thanks to Lisa Brodyaga.
If a noncitizen is held past the 48 hours, or is held on the basis of an illegal "investigatory" hold, s/he can
sue the custodial facility for false imprisonment.
8 C.F.R. § 287.7(a) refers to the purpose of the detainer being ICE seeking custody to “arrest and
remove” because immediate custody by ICE is impracticable. That appears to essentially require an NTA
or ICE warrant of arrest as a basis for the detainer, i.e., just like any other detainer from counties or
states based on an outstanding warrant. In practice, however, the detainer precedes issuance of an NTA
or Warrant of Arrest.
8 C.F.R. § 287.7(b) lists officers able to issue a detainer. 8 C.F.R. § 287.7(b)(8) includes any other
immigration officer needing authority to issue a detainer under INA § 287(d)(3), who is given the
authority to issue a detainer. This seems to imply that the statutory authority for a detainer flows from
INA § 287(d), which is limited to noncitizens arrested for controlled substance violations.
8 C.F.R. § 287.7(c) requires that state and local law enforcement provide records necessary to determine
if issuing detainer/NTA is appropriate. It states “the criminal justice agency requesting such action
(issuing detainer) shall” provide said records. That is, authority flows from § INA 287(d) that a detainer
only issues when requested by the state or local agency under INA § 287(d) – not that ICE decides to
issue a detainer absent a request. 8 C.F.R. § 287.7(d) then allows issuance of the detainer, after a
determination by ICE (based on a request from a state and local agency under INA § 287(d).
16
GOOD MORAL CHARACTER

Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles:
First, the applicant cannot have a conviction on the list enumerated in INA § 101(f), 8 U.S.C. §
1101(f), during the period for which Good Moral Character must be shown, in order to avoid a
complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR §
316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction
listed on INA § 101(f) committed prior to the beginning of the period during which Good Moral
Character must be shown. This second hurdle is not a complete bar to showing Good Moral
Character. The agency must weigh positive factors against negative factors. Torres-Guzman v.
INS, 804 F.2d 531 (9th Cir. 1986).

Spina v. Department of Homeland Sec., 470 F.3d 116 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction
to review order of removal even after petition has been physically removed from the United States)
following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004).
Obioha v. Gonzales, 431 F.3d 400, 408 (4th

Cir. 2005). The Board abuses its discretion when it "fails to offer a
reasoned explanation for its decision, distorts or disregards important
aspects of the alien’s claim." Malhi v. INS, 336 F.3d 989, 993
OF REMOVAL
NATURALIZATION – U.S. "NATIONAL"

Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (registering with the Selective Service, taking
oath of allegiance, and applying for derivative citizenship, without a grant of such application, is
insufficient to confer "national" status).
CITIZENSHIP
United States citizenship of the respondent can be raised as a defense to removal. Murphy v.
INS, 54 F.3d 605, 610 (9th Cir. 1995). The government bears the heavy burden of proving
alienage through "clear, unequivocal, and convincing evidence." Scales v. INS, 232 F.3d 1159,
1163 (9th Cir. 2000) (quoting Woodby v. INS, 385 U.S. 276, 277 (1966)); see also Lopez-
Urenda v. Ashcroft, 345 F.3d 788, 795 (9th Cir. 2003) (citations omitted); 8 U.S.C. §
1229a(c)(3)(A). As the Ninth Circuit has explained, "[t]his burden of proof is ‘much more than a
mere preponderance of the evidence.’ The evidence must not leave the issue in doubt." Lim v.
17
Mitchell, 431 F.2d 197, 199 (1970) (citation omitted); see also Murphy v. INS, 54 F.3d 605, 610
(9th Cir. 1995) (noting that the clear and convincing evidence standard is a "heavier burden than
the preponderance of the evidence standard") (citation omitted). Because a United States
citizen cannot be removed from the country, reliable proof of alienage in a removal proceeding is
constitutionally required. As the Supreme Court has long recognized, "[t]o deport one who . . .
claims to be a citizen[ ] obviously deprives him of liberty, . . . [and] may result also in loss of
both property and life; or of all that makes life worth living." Agosto v. INS, 436 U.S. 748, 753
(1978) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)); cf. Bridges v. Wixon, 326
U.S. 135, 154 (1945) ("[D]eportation . . . visits a great hardship on the individual and deprives
him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be
exercised lest the procedure by which he is deprived of that liberty not meet the essential
standards of fairness."). Thanks to Jennifer C. Chang for this argument.
Tovar-Alvarez v. U.S.Attorney General, ___ F.3d ___, 2005 WL 2561503 (11th Cir. Oct. 13, 2005)
(noncitizen must participate in public citizenship ceremony in order to fully naturalize
PARTICULARLY SERIOUS CRIME

Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (IJ erred in relying on facts in a Washington
appellate court's opinion to determine whether petitioner's prior conviction was for a particularly
serious crime, but a large portion of the facts relied upon applied to offenses for which she was not
convicted). http://caselaw.lp.findlaw.com/data2/circs/9th/0570672p.pdf
RECORD OF CONVICTION – PARTICULARLY SERIOUS CRIME – LIMITED TO RECORD OF CONVICTION
Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (“only the record of conviction
and sentencing information may be considered in determining whether Morales's conviction was for a
particularly serious crime."), citing In re L-S-, 22 I. & N. Dec. 645, 651 (BIA 1999). RELIEF – 212(C)
RELIEF – DATE OF PLEA DETERMINES WHETHER IIRAIRA REPEAL OF 212(C)
RELIEF BARS RELIEF
Alvarez-Hernandez v. Acosta, ___ F.3d ___, ___ n.19, 2005 WL 375683 (5th Cir. February 17,
2005) ("We find that the date of a plea of guilty, and not the date that judgment of conviction is
ultimately entered, is determinative of whether the retroactive application of the IIRIRA bar to
an alien’s claim for § 212(c) relief is impermissible under St. Cyr. Accordingly, because he
pleaded guilty before the effective date of the IIRIRA, Alvarez is not precluded from seeking §
212(c) relief.").
RELIEF – 212(C) RELIEF – RELIANCE INTERESTS

Alvarez-Hernandez v. Acosta, ___ F.3d ___, ___ n.19, 2005 WL 375683 (5th Cir. February 17,
2005) ("Our court has recognized the importance placed by the Supreme Court upon protecting
the reliance interests of aliens who, prior to the IIRIRA, had waived their trial rights and entered
guilty pleas in exchange for an opportunity to apply for § 212(c) relief. See Ojeda-Terrazas v.
Ashcroft, 290 F.3d 292, 301 (5th Cir. 2002) (‘The [St. Cyr] Court found that aliens, like St. Cyr,
who entered plea agreements with the government before IIRIRA became effective ‘almost
certainly’ relied upon the likelihood of receiving a discretionary waiver of deportation from the
Attorney General – a possibility that the new IIRIRA provision eliminated - when deciding to
forgo their right to a trial.’). Other circuits have likewise noted the importance that protecting
reliance interests played in the Court’s St. Cyr decision. See Ponnapula v. Ashcroft, 373 F.3d
480, 492 (3d. Cir. 2004) ("St. Cyr is principally concerned with the reasonable reliance interests
18
of aliens who enter into plea agreements as a class."); Rankine v. Reno, 319 F.3d 93, 102 (2d.
Cir. 2003) ("The issue of reliance has played a central role in the Supreme Court’s and the circuit
court ‘s reasoning with respect to the retroactivity of the IIRIRA and AEDPA."); Chambers v.
Reno, 307 F.3d 284, 289 (4th Cir. 2002) ("In reaching [its] conclusion, the Court focused on an
alien’s reasonable reliance on the possibility of discretionary relief under INA § 212(c) as one of
the most important factors prompting him to forego trial and enter a plea agreement."); Domond
v. INS, 244 F.3d 81, 86 (2d. Cir. 2001) (finding that expectation interests of alien in St. Cyr were
"especially strong" when his guilty plea was entered before the effective date of the AEDPA,
"because an alien is likely to consider the immigration consequences when deciding whether and
how to plead").").
RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF
ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA
Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005)
(noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of
plea in order to be eligible for INA § 212(c) relief under INS v. St. Cyr; following rule that seven
years for domicile for 212(c) stops at time of application for 212(c)).
RELIEF – 212(C) RELIEF – NONCITIZEN ERRONEOUSLY ADMITTED AS LPR WAS
NOT ELIGIBLE TO APPLY FOR 212(C) RELIEF
Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where INS erroneously
granted LPR status to noncitizen who had prior aggravated felony conviction, noncitizen was
ineligible for 212(c) relief in removal proceedings).
RELIEF – 212(C) RELIEF – LAWFUL DOMICILE – UNREVOKED DOMICILE = LAWFUL
DOMICILE EVEN IF LPR WOULD NOT HAVE BEEN GRANTED IF CRIMINAL
HISTORY HAD BEEN KNOWN
While a noncitizen must be a lawful permanent resident to obtain a waiver under INA § 212(c),
and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen
who obtained LPR status though amnesty legalization, even though s/he was not technically
qualified because of a criminal offense committed while s/he was a temporary resident, should
still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and
therefore no fraud could have occurred), and the failure of the INS to rescind the temporary
status prior to adjustment bars the INS from denying that they are lawful permanent residents
now. But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005). If the government
mistakenly granted lawful temporary residence to your client, the government's remedy was to
terminate the LTR status. See INA sec. 245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec.
216(BIA 1990). Having failed to terminate, your client is a resident. See INA sec. 246; Matter of
Belenzo, 17 I. & N. Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status
granted under sec.245 or 249). Under the rescission cases and statute, the U.S. can rescind at any
time if a noncitizen received LPR status by fraud. After having LPR status for five years the
government can't rescind in the absence of fraud. Even if a noncitizen gets LPR status by fraud,
she or he can still apply for 212(c) if she or he gets a 237(a)(1)(H) waiver to forgive the fraud.
Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993). See also Perez-Enriquez v. Gonzales,
411 F3rd 1079 (9th Cir 2005). Thanks to Dan Kesselbrenner
http://www.ilw.com/immigdaily/cases/2005,1227-arellano.pdf
Can dismissed charges be considered,
19
http://209.85.165.104/search?q=cache:ZCl5W02BNSUJ:www.ca3.uscourts.gov/opinarch/05163
2p.pdf+Balogun+v.+Ashcroft,+270&hl=en&ct=clnk&cd=5&gl=us
In United States v. Robinson, 967 F.3d 287 (9th Cir. 1992), the Ninth Circuit
concluded that under California law a probation order is not a “judgment” when
the imposition of sentence is suspended. See id. at 293. The Ninth Circuit noted
that California law provides: “[W]hen a sentencing court grants probation after
a conviction, it may suspend the imposition of sentence, in which case no
judgment of conviction is rendered, or it may impose sentence and order its
execution to be stayed. In the latter case only, a judgment of conviction is
rendered.” Id. (citing People v.Arguello,381 P.2d 5,6 (Cal.1963)); see also
United States v.Haggerty,85 F.3d 403,406 (8th Cir. 1996) (citing Robinson for
the proposition that a probation order is not a judgment). In Stallings’s case,
there was no judgment of conviction entered and the appropriate time for
revoking his probation and entering judgment has lapsed. See Cal. Penal Code
§1203.3(a) (“The court shall have authority at any time during the term of
probation to revoke, modify, or change its order of suspension of imposition or
execution of sentence. . . .”); see also In re Perez, 418 P.2d 6, 11 (Cal. 1966) (“If
probation was timely revoked, judgment could be imposed at any time
thereafter.”);
Smith, 90 Cal. Rptr. at 814 (“It is also settled that an order revoking probation,
to be valid, must be made within the period fixed in the order of probation. If
not revoked within that period, the probation terminates automatically on the
last day.”).
Accordingly, no valid judgment has been entered against Stallings and,
therefore , the enhanced sentence imposed in reliance upon the California
conviction was improper.
RELIEF – 212(C) RELIEF – JURY TRIAL BAR
Carranza-de Salinas v. Gonzales, 477 F.3d 200 (5th Cir. Jan. 23, 2007) (noncitizen convicted after jury
trial is eligible for relief under former INA § 212(c), if the noncitizen can affirmatively establish actual,
subjective reliance, i.e., that s/he waited to apply for 212(c) defensively, before an IJ, rather than file
affirmatively with the DD); accord, Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004); Wilson v. Gonzales,
471 F.3d 111 (2d Cir. 2006) (“Restrepo reliance” – or reliance on an affirmative 212(c) possibility--
requires an “individualized showing of reliance” that includes a belief that waiting would improve the
chances of obtaining the waiver based on a stronger case of rehabilitation or other equities); see
Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) (allowing all convicted after jury trial to apply for
212(c) relief). The Carranza argument can be raised in any circuit, and may be especially promising in the
Fourth Circuit. See Olatunji v. Ashcroft, 387 F.3d 383, 389-91 (4th Cir. 2004).
20
RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF

ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA
Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005)
(noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of
plea in order to be eligible for INA § 212(c) relief under INS v. St. Cyr; following rule that seven
years for domicile for 212(c) stops at time of application for 212(c)). RELIEF – 212(c) –
LEAVING UNITED STATES WHILE 212(c) PENDING
A noncitizen LPR who leaves the United States during removal proceedings does not abandon a
request for INA § 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA
1988), LPR respondent was convicted of possession of marijuana, proceedings commenced and
LPR conceded deportability as charged in a hearing before the IJ, applied for a 212(c) waiver
and the hearing was continued for investigation. Then, the LPR departed the United States for a
temporary visit abroad during the course of the pending deportation proceeding in which he had
applied for 212(c), and returned to the United States. The IJ terminated proceedings and ruled
that the 212(c) waiver application had been abandoned. The BIA held that the IJ erred. The
LPR's departure did not interrupt the proceeding, and it could continue, assuming LPR still was
deportable on same grounds. The INS did not need to start a new proceeding, but could issue
another OSC (NTA) or amend if they chose; and the LPR had not abandoned his application for
212(c).
Thanks to Lory Rosenberg for this information. It should be noted, however, that the noncitizen
might not be admitted (or admissible) to the United States upon return. See INA § 101(a)(13)(C).
On the other hand, this could be a strategy for avoiding Matter of Blake, 23 I. & N. Dec. 722
(BIA 2005) issues.
RELIEF – 212(C) RELIEF – GETTING AROUND MATTER OF BLAKE

Matter of G-A-, 7 I. & N. Dec. 274 (BIA 1956) (noncitizen in deportation proceedings allowed
to apply for INA § 212(c) relief where noncitizen had traveled out of the United States after
conviction but before the deportation proceedings, on the theory that the INS should not have
admitted the person after the conviction without a 212(c) waiver and that an IJ can grant the
212(c) waiver nunc pro tunc to the prior post-conviction/pre-deportation proceedings entry). See
also, Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971).
RELIEF – WAIVERS – 212(H) RELIEF – CANCELLATION – STOP-TIME RULE
Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an
immigrant “previously . . . admitted . . . as an alien lawfully admitted for permanent residence,” even
though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore
was “bound,” by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N.
Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for
purposes of cancellation of removal under INA § 240A(a), the phrase “lawfully admitted for permanent
residence” to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala
because of § 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307,
1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v.
Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html
21
Rainford, ID#3191
A respondent who is convicted of criminal possession of a weapon is deportable under section 241(a)(2)(C) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. II 1990); however, such a conviction does not preclude
a finding of admissibility in connection with an application for adjustment of status under section 245(a) of the Act, 8
U.S.C. § 1255(a) (1988), and it may not serve as a ground of deportability if the respondent's status is adjusted to that of
a
lawful permanent resident. Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978), followed. Matter of V-, 1 I&N Dec. 293 (BIA
1942), distinguished.
Gabryelsky, ID#3213
(1) A waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)
(Supp. IV 1992), may be used in conjunction with an application for adjustment of status by an
alien who is deportable for both drug and weapons offenses; thus a lawful permanent resident
alien who has been convicted of a weapons violation is not ineligible to apply for adjustment of
status and may concurrently apply for section 212(c) relief to waive his deportability arising from
his drug conviction.
(2) Under the regulations at 8 C.F.R. § 245.1(e) (1993), an alien may concurrently apply for
adjustment of status and section 212(c) relief.
(3) An applicant for adjustment of status is not precluded from concurrently applying for a waiver
of inadmissibility under section 212(c) of the Act to waive another deportable offense, even
though section 212(c) of the Act would not separately and independently waive all grounds of
deportability.
An intent to deceive is not the same as an intent to defraud. In United States v.

Regent Office Supply Co., Inc.,88 the Second Circuit Court of Appeals held that "an
intent to deceive, and even to induce, may have been shown; but this does not,
without more, constitute the 'fraudulent intent' required by the statute."89 Recently,
a district court in Missouri, in a bank fraud case, noted that an intent to deceive
customers was not the same as an intent to defraud them.90
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY – RETURN TO PRE-ERROR STAGE
OF PROCEEDINGS
Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance
of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the
criminal proceeding).
POST-CONVICTION – NUNC PRO TUNC ORDER EFFECTIVE

Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas court’s nunc pro
tunc correction of internally inconsistent criminal judgment was a proper use of nunc pro tunc under
Kansas law; as a correction of record made to properly reflect the original judgement, the nunc pro tunc
judgment was properly considered by the BIA, and such consideration does not contradict Renteria-
Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) rule that vacated conviction remains a conviction for
immigration purposes).
22
Second Circuit
CRIMES OF MORAL TURPITUDE – JUDICIAL RECOMMENDATION AGAINST

DEPORTATION – REMEDY FOR IAC AT SENTENCE REQUIRES PLACING
DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT
OCCURRED, INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED PERIOD
Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc
relief by allowing noncitizen to apply for INA § 212(c) relief as if he were applying at the time
his removal order became administratively final, which was before he had served five actual
years in custody and thereby became disqualified for this relief; court did not reach question of
whether statute compelled this result or whether five-year sentence bar was analogous to a statute
of limitations which could be equitably tolled). In determining whether nunc pro tun relief
could be applied in this case, the court looked at the following issues: 1. Statutory bar: "A
court may not award equitable relief in contravention of the expressed intent of Congress. See
INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards
v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA
had granted nunc pro tunc relief in the past, and noted that Congress never amended INA §
212(c) to bar such grants. Id. 2. When nunc pro tunc relief should be afforded: The court
stated generally that "where an agency error would otherwise be irremediable, and where the
plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz ,
264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied
nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68."
Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration context, the court found that
nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was
erroneously denied the opportunity to apply the relief due to an error on the part of the agency,
and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated
that the noncitizen, outside an illegal reentry context, did not need to show that a denial of the
relief would result in a denial of due process. 3. What error may nunc pro tunc relief be used
to correct: Despite arguments that the doctrine of nunc pro tunc may only be used to correct
inadvertent errors, and not to remedy a defect in a judgment order, the court held that in the
immigration context nunc pro tunc relief was available to correct such defects in the immigration
context. Edwards v. INS, 393 F.3d, at 309 n. 12.
POST CON - TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF -
WASHINGTON STATE
Washington v. Littlefair, 112 Wash.App. 749, 51 P.3d 116 (2002) (one-year statute of limitations
to bring collateral attack equitably tolled from date of plea until defendant first discovered
immigration consequences).
TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF - OREGON
Benitez-Chacon v. State of Oregon, 178 Or. App. 352 (2001) (petition for post conviction relief
subject to two year statute of limitations running from date of final judgment).
Non-discretionary actions,
23
however, and purely legal determinations made by the agency,

remain subject to judicial review. See, e.g., Sepulveda v.
Gonzales, 407 F.3d 59, 63 (2d Cir. 2005)
(“[Section]1252(a)(2)(B) does not bar judicial review of
nondiscretionary, or purely legal, decisions. . . .”).
Determination of eligibility for adjustment of status –
unlike the granting of adjustment itself – is a purely legal
question and does not implicate agency discretion. The
determination at issue here, whether a prior conviction precludes
eligibility for adjustment of status, was also at issue in
Sepulveda. In that case, the Second Circuit held that statutory
restrictions on the jurisdiction of district courts to hear
challenges to removal orders and other discretionary actions do
not affect the district courts’ “jurisdiction to determine whether
[the statutory provision] is applicable, e.g., whether the

petitioner is in fact an alien, whether he has in fact been
convicted, and whether his offense is one that is within the
scope of [one of the enumerated sections].” Sepulveda, 407
F.3d at 63 (citing Santos-Salazar v. U.S. Dep’t of Justice, 400
F.3d 99, 104 (2d Cir. 2005)). The determination at issue here is
precisely such a determination: whether under the applicable
statutory language as interpreted by the BIA, Pinho was
“convicted” so as to render him ineligible for adjustment of
status. This is a legal question, not one committed to agency
discretion.
The agency action at issue here was final and nondiscretionary,
it adversely affected Pinho, and it has not been
made non-reviewable by statute. Under the APA, therefore,
Pinho is “entitled to judicial review” of the AAO’s decision. 13
Because the District Court had jurisdiction to review the
AAO decision, we have jurisdiction over this appeal under 28
U.S.C § 1291. We exercise plenary review of the District
Court’s statutory interpretation, but afford deference to a
reasonable interpretation adopted by the agency. See Acosta v.
Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003). It is the agency’s
burden, however, to establish the facts supporting inadmissibility “by clear, unequivocal
and convincing evidence.” See Sandoval v. INS, 240 F.3d 577, 581 (7th Cir
POST CON RELIEF – TEXAS DISTRICT COURTS DISTINGUISH RENTERIA

Toledo-Hernandez v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tx.) (Renteria-Gonzalez, 322 F.3d 804 (5th
Cir. 2003), inapplicable to convictions vacated on constitutional grounds); Hernandez-Arguello v.
Winfrey, No. SA-03-CA-0823-RF (W.D. Tx. 2004) (Same).
24
POST CONVICTION RELIEF – ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST

CONVICTION PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES
Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA §
101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions
that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for
reasons pertaining to the factual basis for, or procedural validity of, the underlyin
g judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ
of coram nobis for a constitutional defect could not serve as basis for order of deportation).
Subsequently set-aside convictions of this type fall outside the text of the new definition because, in
light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's
guilt.")
POST CONVICTION RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA –

STANDARD OF REVIEW -- ABUSE OF DISCRETION – ERROR OF LAW
United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 (9th Cir. July 15, 2004)
("This Court reviews a district court's denial of a motion to withdraw a guilty plea for an abuse
of discretion. See United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001) (en banc). A district
court abuses its discretion when it makes an error of law. See id.; see also Koon v. United States,
518 U.S. 81, 100 (1996) ("A district court by definition abuses its discretion when it makes an
error of law.")).
POST CON RELIEF – APPEAL – WAIVER OF APPEAL IN PLEA AGREEMENT DOES NOT BAR COLLATERAL
ATTACK RAISING ERRORS IN MEANS BY WHICH PLEA AGREEMENT WAS REACHED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov.
18, 2005) (waiver of appeal in plea agreement does not bar collateral attack raising errors in means by
which plea agreement was reached: "'There is no general bar to a waiver of collateral attack rights in a
plea agreement.' Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002)
(citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)). 'However, a waiver of appellate
or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver
has been produced, here, the plea agreement.' Id. (citations omitted). Where, as here, a petitioner
claims a violation of Rule 11 or the ineffectiveness of trial counsel, the Second Circuit has stated that he
is not barred under the terms of the plea agreement from bringing a petition to vacate the conviction
based on the legal shortcomings of the process in which the waiver was obtained. See id. at 196.
Accordingly, the Court will address 'the merits of [the] petition notwithstanding [the petitioner's]
general waiver of the right to collaterally attack his conviction.' Id. at 193; see also Lebron v. United
States, 267 F. Supp.2d 325, 328 (E.D.N.Y. 2003).").
HABEAS CORPUS - FEDERAL - EXHAUSTION

Baldwin v. Reese, 124 S.Ct. 1347 (March 2, 2004) (ineffective assistance of counsel claim not
"fairly presented" where petitioner did not complain that ineffective assistance violated federal
law; state supreme courts not required to read lower appellate opinions before deciding whether
25
to grant a hearing, courts should be able to rely exclusively on briefs to alert them to issues).
Use Note: The Court gave some guidance on presenting issues of federal law in state courts:
"A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim
in a state court petition or brief, for example, by citing in conjunction with the claim the federal
source of law on which he relies or a case deciding such a claim on federal grounds, or by simply
labeling the claim 'federal.'" From this statement, it appears that the Court is indicating that a
defendant can "federalize" an issue simply by making any reference to "federal law."
POST CON – TENNESSEE – CORAM NOBIS
State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A writ of error coram nobis lies
"for subsequently or newly discovered evidence relating to matters which were litigated at the trial if
the judge determines that such evidence may have resulted in a different judgment, had it been
presented at the trial." T.C.A. § 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995
CONVICTION – FINALITY OF CONVICTION – FIFTH AND SEVENTH CIRCUITS DO

NOT FOLLOW GENERAL RULE
In most circuits, convictions in criminal cases are not considered sufficiently final to permit the
initiation of deportation proceedings if an appeal is pending or they are still subject to appeal.
Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh
Circuits. See Moosa v. INS,171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d
804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).
HABEAS CORPUS - FEDERAL - NO EXHAUSTION

Galvan v. Alaska Department of Corrections, 397 F.3d 1198 (9th Cir. Feb. 9th 2005) (petitioner failed to
fairly present federal ineffective assistance of counsel claim before highest state court when her petition
to the Alaska Supreme Court made only passing mention (in distinguishing a state case) of the Sixth
Amendment and of federal cases; "Briefing a case is not like writing a poem, where the message may be
conveyed entirely through allusions and connotations. Poets may use ambiguity, but lawyers use clarity.
If a party wants a state court to decide whether she was deprived of a federal constitutional right, she
has to say so.").
POST CON RELIEF – FEDERAL – SUCCESSIVE HABEAS

Hamilton v. Newland, 374 F.3d 822 (9th Cir. July 01, 2004) (district court erred in treating defendant’s
motion as successive habeas petition rather than FRCP 60(b)(6) motion).
POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA CLAIM NOT BARRED BY FAILURE TO RAISE ON
DIRECT APPEAL
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov.
18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective
counsel grounds for misadvice concerning immigration consequences not barred by failure to raise
issues on direct appeal
26
POST CON – FEDERAL – CAUSE AND PREJUDICE FOR NOT RAISING GROUNDS ON
DIRECT APPEAL GROUNDS
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404
(E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on
involuntary plea and ineffective counsel grounds for misadvice concerning immigration
consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290
F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the
defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United
States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255
claim regarding the voluntariness of a guilty plea made when the petitioner was not properly
informed that deportation was absolute).
POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS
Isley v. Arizona Dept. of Corr., __ F.3d __ (9th Cir. Sept. 15, 2004) (petition for habeas corpus granted
where state petition for post-conviction relief was pending within the meaning of 28 U.S.C. section
2244(d)(2) and entitled defendant to toll one year statute of limitation period for filing federal post-
conviction relief).
POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS – TOLLING – FILING OF STATE POST
CONVICTION RELIEF PETITION
Chavis v. Lemarke, ___ F.3d ___ (9th Cir. Aug. 27, 2004) (district court dismissal of federal habeas corpus
petition as untimely reversed since statute of limitations was tolled due to filing of state habeas
petitions).
After unsuccessfully attempting to withdraw his plea in state court, Mr.

Broomes sought habeas relief from the federal courts pursuant to 28
U.S.C.
2241, arguing his state court conviction was obtained in violation
of his Sixth
Amendment right to effective assistance of counsel. The magistrate
judge issued
an order indicating Mr. Broomes must file a petition under 28 U.S.C.
2254 to
challenge a state court conviction. Mr. Broomes thereafter raised

the same claim
under 2254.(2) Based on a magistrate judge's recommendation and
over Mr.
Broomes' objection, the district court denied the petition because
this circuit had
previously rejected a similar argument in Varela v. Kaiser, 976 F.2d
1357 (10th
27
Cir. 1992).
POST CON RELIEF – HABEAS – MOOTNESS AFTER DEPORTATION –

DISQUALIFICATION FROM NATURALIZATION CONSTITUTES CONTINUING
DAMAGE SUFFICIENT TO PREVENT MOOTNESS EVEN AFTER DEPORTATION
State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn. App. June 7,
2005) (as a likely collateral consequence of the conviction, the noncitizen's ability to petition for
naturalization is gravely impaired, so the issue is not moot and subject matter jurisdiction is not a
bar to the defendant's present appeal from denial of a motion to withdraw the plea).
POST CONVICTION RELIEF – HABEAS – IMMIGRATION – DEPORTATION DOES NOT
MOOT HABEAS
The fact that a noncitizen has been deported does not moot his habeas petition. His future
ineligibility for readmission to the United States preserves his Article III standing. See Shittu v.
Elwood, 204 F. Supp. 2d 876, 878 (E.D. Pa. 2002); Johnson v. Department of Justice, (Not
Reported in F.Supp.2d), 2004 WL 1240695 (E.D. Pa. June 3, 2004).
VEHICLE – FEDERAL – HABEAS – MOOTNESS
Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of noncitizen while appeal of district
court dismissal of habeas petition was pending in court of appeal did not deprive district court of habeas
jurisdiction on remand, and case was not moot, but district court lacked authority to grant any relief
beyond vacating defective deportation order.
POST CON RELIEF – HABEAS CORPUS – FEDERAL – REMAND FOR EVIDENTIARY HEARING
Earp v. Ornoski, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (claim of ineffective assistance for failure to
investigate mitigating circumstances merited evidentiary hearing).
POST CON RELIEF – HABEAS – FEDERAL – REVIEW OF STATE CONVICTION PRECLUDED SINCE STATE
PETITION REJECTED BY STATE COURT AS UNTIMELY IS NOT PROPERLY FILED UNDER 28 U.S.C. §
2244(d)(2), AND THEREFORE DOES NOT TOLL THE 1-YEAR AEDPA STATUTE OF LIMITATIONS FOR FILING
A FEDERAL HABEAS CORPUS PETITION
Pace v. DiGuglielmo, ___ U.S. ___, 2005 WL 957194 (April 27, 2005) (federal habeas review of state
conviction precluded since state petition rejected by state court as untimely is not properly filed under
28 U.S.C. § 2244(d)(2), and therefore does not toll the 1-year AEDPA statute of limitations for filing a
federal habeas corpus petition).
http://laws.findlaw.com/us/000/03-9627.html
HABEAS CORPUS -- FEDERAL -- INSUFFICIENT FEDERALIZATION

Castillo v. McFadden, 370 F.3d 882 (9th Cir. June 1, 2004) (defendant must give state notice that he is
bringing federal constitutional claims by referring in appellate briefs to specific provisions of the federal
constitution or citing to federal law; raising federal arguments in trial motions insufficient). See Baldwin
v. Reese, 125 S.Ct. 1347, 1350 (2004). The court stated that the concluding sentence that stated
petitioner's rights under the Fifth, Sixth and Fourteenth Amendments were violated was a "conclusory,
scattershot citation of federal constitutional provisions, divorced from any articulated federal legal
28
theory, was the first time Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note
thoughtful and powerful dissent by Judge Hawkins, pointing out that petitioner did cite federal cases in
his argument court erred in treating defendant’s motion as successive habeas petition rather than FRCP
60(b)(6) motion).
POST CON RELIEF – FEDERAL -- CORAM NOBIS – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL –
AFFIRMATIVE MISADVICE
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (affirmative misadvice by
defense counsel concerning immigration consequences of disposition of criminal case constitutes
ineffective assistance of counsel where counsel said deportation was not a serious possibility, and in fact
it became a near certainty.
POST CON RELIEF – FEDERAL -- CORAM NOBIS – STATUTE OF LIMITATIONS –

AEDPA STATUTE OF LIMITATIONS FOR 2255 RELIEF DID NOT APPLY TO CORAM
NOBIS
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (one-year
AEDPA statute of limitations for filing a motion to vacate a judgment under 28 U.S.C. § 2255
did not apply to the filing of a petition for a writ of error coram nobis after custody had expired
in the federal criminal case).
POST CON RELIEF – CORAM NOBIS – NEED TO PETITION FOR CORAM NOBIS DIRECTLY IN FEDERAL
COURT
Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir. June 27, 2005) (district court
did not commit error in failing to consider 28 U.S.C. § 2241 habeas to be a petition for coram nobis,
because this issue had not been raised in the district court and petitioner provided no authority
suggesting that the district court might have a duty to sua sponte raise the issue), distinguishing United
States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005), in which the Ninth Circuit held
that coram nobis relief was available under similar circumstances, because here the petitioner did not
file coram nobis in the district court). The court in Resendiz rejected a claim that the district court should
have sua sponte construed the petition as a petition for coram nobis, instead of habeas corpus:
"Resendiz argues that the district court should not have construed his petition as one under § 2241, but
instead should have construed it as a writ of coram nobis, even though Resendiz never asked the court
to do so. Because Resendiz did not contend below that his petition should be construed as a writ of
coram nobis, and because he provides no authority suggesting that the district court might have a duty
to sua sponte raise the issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp., 953
F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate court will not hear an issue raised for the
first time on appeal."). In footnote 3 to this quotation, the Resendiz court stated: "Our recent decision in
United States v. Kwan, No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which we held that
coram nobis relief was available under similar circumstances, does not affect our decision. Unlike Kwan,
29
Resendiz did not petition the district court for the writ of coram nobis, but argued instead that the court
should have so construed his habeas petition sua sponte
following Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) ('We construe the intent of Congress's
restoration under the Real ID Act rubric of 'constitutional claims or questions of law' to encompass the
same types of issues that courts traditionally exercised in habeas review over Executive detentions'
DRAKES V ZIMINSKY (DRAKES 249)
The meaning of forgery” in federal law is ambiguous. Congress has never specifically
defined forgery, although it has used the term in numerous statutes outlawing various acts.
In some of these statutes, Congress did not specify the requisite culpable intent. See, e.g.,
18 U.S.C. § 485 (prohibiting forgery of coins or bars in denominations greater than five
cents). In at least twenty other statutes, however, Congress specified that an intent to
defraud is required. In four of those statutes, Congress used the term #147;forgery”
together with the phrase #147;with intent to defraud,” seemingly indicating that the two
need not be joined. See, e.g., 18 U.S.C. § 471 (prohibiting forgery of federal obligations );
18 U.S.C. § 500 (prohibiting forgery of postal service money orders #147;with intent to
defraud”). Thus, in Congress’ view, it may well be [*10] possible to commit #147;forgery”
without #147;fraud,” or at least fraud in the ordinary sense of misrepresentation for
material gain. See United States v. Cowan, 116 F.3d 1360, 1361-63 (10th Cir. 1997) (had
Congress intended to make the intent to defraud an element of 18 U.S.C. § 505, it would
have done so expressly).
POST CON RELIEF - GROUNDS - IAC - REMEDY

Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir. Jan. 30, 2004)
(UNPUBLISHED) (BIA violated due process by waiting six years, until after law had changed
to respondent’s detriment, to review Immigration Judge’s originally erroneous finding that
expunged misdemeanor weapons conviction constituted conviction for immigration purposes).
The BIA must generally apply the law in place at the time the BIA conducts its review. Ortiz
v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999). However, that rule is not absolute where the error
effectively denied the noncitizen a meaningful hearing under the law existing when the hearing
was held. See, e.g., Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001)
(BIA's failure to correct IJ's error was defect requiring application of law in effect at time of
initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural defect
resulting in the loss of an opportunity for statutory relief requires remand for a hearing under
former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th Cir. 2000) (ineffective assistance of
counsel before IJ required remand for application of law existing at the time of original
hearing). Where the BIA’s failure to timely remedy an IJ's error denies respondent the benefit of
the law in effect at the time of the original hearing, the only meaningful remedy is to give the
respondent a hearing under the law that would have applied, had the BIA not delayed his
appeal. Guadalupe-Cruz, 240 F.3d at 1212.
POST CON – NEW MEXICO CASE CITATION
State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's attorney
has "an affirmative duty to determine [the client's] immigration status and provide him with
specific advice regarding the impact a guilty plea would have on his immigration status.").
30
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS – RIGHT

TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY
CAUSING TIME LIMIT TO EXPIRE
Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right
granted him within a statutory period by unexplained or unnecessary administrative delay, or
carelessness in handling his application, or in failing to inform him of his right, he will not be
barred from asserting his rights or be deprived of the right.")
POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE
PLEA FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING
State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel ineffective
by failing to file motion in arrest of judgment to challenge guilty plea on grounds that neither
written plea of guilty nor in-court colloquy informed defendant that guilty plea might affect
immigration status; failure to move in arrest of judgment does not bar challenge to guilty plea if
failure to file motion in arrest of judgment resulted from ineffective assistance).
Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district
court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was
ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential
winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during
the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required
by Ohio Rev. Code § 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate,
required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to
decide the ineffective assistance claims on their merits, since ineffective assistance of counsel
constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of
counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to
file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact
prove that he asked his attorney to file a timely appeal and that the attorney failed to do so."). POST
CON RELIEF – GROUNDS – COUNSEL – PLEA BARGAINING IS A CRITICAL STAGE

Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (negotiations with the government are a "critical
stage" of a prosecution for Sixth Amendment purposes.
2. Misadvice vs. Failure to Advise
POST CON RELIEF – PLEA – NO CONTEST – MOTION TO WITHDRAW – USE OF NO

CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS
The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that
the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty
plea can. There is no difference between the two pleas insofar as the criminal proceedings are
concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal
proceedings, s/he is typically informed that the plea may not be used against him or her in civil
proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the
defendant is informed that the plea does not constitute an admission that may be used in civil
31
immigration proceedings. If the plea is so used, in contradiction to the representation on which

the plea was entered, the defendant can move to vacate the criminal conviction on the grounds
that the plea was involuntary since it was based on a material misrepresentation as to its effects.
In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea
bargain involves benefits to the defendant, and held that Congress would not be presumed to
have intended to deprive the defendant of a benefit (there, eligibility for INA § 212(c) relief), on
which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that
is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d
1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine
v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v.
United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through
"coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due
process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487
(1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered
with full knowledge of its direct consequences, it cannot stand if "induced by threats (or
promises to discontinue improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business . . . . " Brady v. United States, 397 U.S. at 755
(1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty
plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686
F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsel’s failure to advise
the defendant that he or she will be deported is not "ineffective assistance of counsel," and the
trial court’s failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d
1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet,
as the quoted passage in Brady suggests, and as the federal courts have consistently held over the
last three decades, this distinction between "direct" and "collateral" consequences loses all
significance when the defendant’s plea results from affirmative misadvice about its immigration
or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United
States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861
F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert.
denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir.
1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v.
Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d
Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States
v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46
F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212
(E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), aff’d,
831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th
Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the
"collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other
cases demonstrate, a plea that results from actual misinformation provided to the defendant about
its effects is not knowing and voluntary, and cannot be given force. Applying these principles,
the federal courts have consistently voided guilty pleas entered – as this one was – on the basis of
affirmative misadvice regarding considerations of consequence to the defendant. For example, in
United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea
induced by material misinformation from the prosecution, court, and defense counsel was
32
involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the
sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both
the government’s attorney and the district judge confirmed that defendant’s understanding. Id. at
1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397.
After the receipt of the pre-sentence report, the defendant moved to withdraw his guilty plea;
however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98.
The Ninth Circuit determined that the defendant had been misinformed by the court,
government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do
not believe Toothman was ‘equipped intelligently to accept the plea offer made to him.’" Id. at
1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of
Appeal accordingly found that the plea was involuntary. Id. at 1401. Thanks to Don Chairez
for the suggestion for this argument.
POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA WHERE DEFENDANT
TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS
VIRTUALLY CERTAIN TO DO SO
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist.
LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting
motion to vacate sentence pursuant to 28 U.S.C.§ 2255 on involuntary plea and
ineffective counsel grounds for misadvice concerning immigration consequences
where defendant was informed only that the conviction "could result in your
deportation," where it was certain to do so).
POST CON – GROUNDS – INEFFECTIVE ASSISTANCE – IMMIGRATION

CONSEQUENCES
Rosa v. State of Texas, __ S.W.2d __ (Tex Crim. App. Aug. 25, 2005) (ineffective
assistance of counsel for affirmatively misadvising noncitizen defendant of
immigration consequences of conviction
INEFFECTIVE ASSISTANCE OF COUNSEL -- FALURE TO ADVISE - OREGON

Lyons v. Pearce, 298 Or. 554 (1985) (defense counsel has duty to advise
defendant of possibility of deportation
United States v. Couto, 311 F.3d 179, 187 (2nd Cir. 2002).
POST CON RELIEF - NEW YORK - INEFFECTIVE ASSISTANCE - IMMIGRATION

CONSEQUENCES - AFFIRMATIVE MISADVICE - DEFENDANT’S STATEMENT HE
WOULD NOT HAVE PLEADED GUILTY IF CORRECTLY ADVISED SUFFICIENT TO
REQUIRE A HEARING
People v. McKenzie, ___ N.E.3d ___, 2004 N.Y. App. Div. LEXIS 1329 (N.Y. Feb. 9, 2004)
(allegation that defendant would not have pleaded guilty if properly advised, sufficient to require
hearing on claim of ineffective assistance based on affirmative misadvice concerning
immigration consequences).
33
did not have a clear understanding of the likelihood that by entering

into the plea bargain proposed, he would be jeopardiz-
ing his continuing ability to reside in the United States
and his ability to petition for naturalization.
Even if we presume that there was a deficiency in
counsel’s representation, the defendant has not estab-
lished the requisite prejudice. In cases in which the
conviction has resulted from a guilty plea, a defendant
must ‘‘demonstrate that he would not have pleaded
guilty, that he would have insisted on going to trial, and
that the evidence that had been undiscovered or the
defenses he claims should have been introduced were
likely to have been successful at trial.’’ Copas v. Com-
missioner of Correction, 234 Conn. 139, 151, 662 A.2d
2) The plea was involuntary, or it was entered without knowledge of
the nature of the charge or without knowledge that the sentence actually
imposed could be imposed;
‘‘(3) The sentence exceeds that specified in a plea agreement which had
been previously accepted, or in a plea agreement on which the judicial
authority had deferred its decision to accept or reject the agreement at the
time the plea of guilty was entered;
‘‘(4) The plea resulted from the denial of effective assistance of counsel;
‘‘(5) There was no factual basis for the plea
The rationale underlying that precept was succinctly stated in State v.
Ginebra, 511 So. 2d 960, 961–62 (Fla. 1987): ‘‘The focus of whether counsel
provided constitutionally effective assistance in the context of a [guilty]
plea is whether counsel provided his client with an understanding of the
law in relation to the facts, so that the accused may make an informed and
conscious choice between accepting the prosecution’s offer and going to
trial. .
Our conclusion today is in agreement with the major-
ity of jurisdictions, both federal and state, that have
considered the issue of whether the failure to advise a
client of the immigration consequences of a guilty plea
constitutes ineffective assistance of counsel. See id.,
25; United States v. Banda, 1 F.3d 354, 356 (5th Cir.
1993); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir.
1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1869, 123
L. Ed. 2d 489 (1993); United States v. Del Rosario, 902
F.2d 55, 58–59 (D.C. Cir.), cert. denied, 498 U.S. 942,
111 S. Ct. 352, 112 L. Ed. 2d 316 (1990); Santos v. Kolb,
880 F.2d 941, 944–45 (7th Cir. 1989), cert. denied, 493
U.S. 1059, 110 S. Ct. 873, 107 L. Ed. 2d 956 (1990); United
34
States v. George, supra, 869 F.2d 337–38; United States

v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989); United
States v. Yearwood, supra, 863 F.2d 7–8; United States
v. Campbell, supra, 778 F.2d 768–69; United States v.
Gavilan, 761 F.2d 226, 228–29 (5th Cir. 1985); United
States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975);
Government of Virgin Islands v. Pamphile, 604 F. Sup.
753, 756–57 (D.V.I. 1985); Oyekoya v. State, 558 So. 2d
990, 990–91 (Ala. Crim. App. 1989); Tafoya v. State, 500
P.2d 247, 252 (Alaska 1972), cert. denied, 410 U.S. 945,
93 S. Ct. 1389, 35 L. Ed. 2d 611 (1973); State v. Rosas,
183 Ariz. 421, 423, 904 P.2d 1245 (Ariz. App. 1995); Matos
v. United States, 631 A.2d 28, 31–32 (D.C. 1993); State
v. Ginebra, 511 So. 2d 960, 962 (Fla. 1987); People v.
Huante, 143 Ill. 2d 61, 73–74, 571 N.E.2d 736 (1991);
Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987); Daley
v. State, 61 Md. App. 486, 490, 487 A.2d 320 (1985);
Commonwealth v. Fraire, 55 Mass. App. 916, 917–18,
774 N.E.2d 677 (2002); Alanis v. State, 583 N.W.2d 573,
579 (Minn. 1998); State v. Chung, supra, 210 N.J. Super.
435; People v. Boodhoo, 191 App. Div. 2d 448, 449, 593
N.Y.S.2d 882 (1993); People v. Dor, 132 Misc. 2d 568,
572, 505 N.Y.S.2d 317 (1986); State v. Dalman, 520
N.W.2d 860, 863–64 (N.D. 1994); Commonwealth v. Fro-
meta, 520 Pa. 552, 556, 555 A.2d 92 (1989); State v.
Figueroa, 639 A.2d 495, 501 (R.I. 1994); State v. McFad-
den, 884 P.2d 1303, 1305 (Utah App. 1994), cert. denied,
892 P.2d 13 (Utah 1995); State v. Holley, 75 Wash. App.
191, 198, 876 P.2d 973 (1994), on appeal after remand,
86 Wash. App. 1100 (1997), review denied, 133 Wash.
2d 1032, 950 P.2d 476 (1998); State v. Santos, 136 Wis.
2d 528, 532, 401 N.W.2d 856 (Wis. App. 1987
GROUNDS – INVALID PLEA – FOR UNPRESERVED RULE 11 ERRORS, DEFENDANT MUST SHOW HE WOULD
NOT HAVE PLEADED GUILTY
United States v. Benitez, 124 S.Ct. 2333 (June 14, 2004) (to vacate plea on grounds of F.R.Crim.P. 11
errors [as distinguished from "structural errors" or fundamental constitutional errors under Boykin v.
Alabama, to vacate the plea], and no objection was raised in trial court, defendant must establish
reasonable probability that but for error, he would not have pleaded guilty).
http://laws.lp.findlaw.com/us/000/03167.html
35
INVOLUNTARY PLEA CLAIM BASED ON MISINFORMATION CONCERNING

IMMIGRATION CONSEQUENCES NOT BARRED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404
(E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. § 2255 on
involuntary plea and ineffective counsel grounds for misadvice concerning immigration
consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290
F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the
defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United
States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255
claim regarding the voluntariness of a guilty plea made when the petitioner was not properly
informed that deportation was absolute).
GUILTY PLEAS - FEDERAL - REFUSAL TO ACCEPT

In re Vasquez-Ramirez, 443 F.3d 692 (9th Cir. Apr. 6, 2006) (district judge may not reject a
guilty plea that satisfies all requirements of FRCP 11(b); but may refuse to abide by plea
agreement between defendant and the government; if plea agreement is rejected, judge
must allow defendant to withdraw the plea; if defendant maintains the plea the court "‘may
dispose of the case less favorably toward the defendant than the plea agreement
contemplated.’ Fed. R. Crim. P. 11(c)(5)(C) . . . .").
POST CON RELIEF – FEDERAL – GROUNDS – INVALID PLEA – PREJUDICE STANDARD SAME AS FOR IAC
United States v. Monzon, 429 F.3d 1268 (9th Cir. Dec. 7, 2005) (conviction and sentence for possession
of a firearm in furtherance of a drug trafficking crime reversed where the court committed plain error
when it accepted guilty plea in violation of Federal Rule of Criminal Procedure 11, because court failed
to establish a factual basis for believing that the defendant possessed the firearm at least partly for the
purpose of protecting the drugs, where the defendant factually denied that intent during the plea
colloquy, and the error affected defendant’s substantial rights, defined as a reasonable probability of a
different outcome sufficient to undermine confidence in the outcome).
POST CON – NUNC PRO TUNC ORDERS
The government will not necessarily accept nunc pro tunc orders as issued on the nunc pro
tunc date. E.g., Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000) (nunc pro tunc order that granted
custody to Fierro's father retroactively did not satisfy the custody requirement for automatic
citizenship under 8 U.S.C. § 1432(a)); Matter of Cariaga, 15 I & N Dec. 716 (1976) (no
"retroactive" adoptions for adjustment purposes). But see Allen v. Brown, 953 F. Supp. 199
(N.D. Ohio 1997) (distinguishing "retroactive" adoptions from "nunc pro tunc" adoptions).
Therefore, vacating a conviction, and entering a new plea "nunc pro tunc" will not necessarily
be accepted by the immigration authorities or courts as occurring on the nunc pro tunc date
MOTION TO REOPEN – AFTER REMOVAL

36
Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to

Reopen Filed From Outside of the U.S.
Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th

Cir. 2006). Petitioner was ordered removed in absentia and removed
from the United States. He filed a motion to reopen to rescind the in
absentia order based on lack of notice. The IJ denied the motion,
concluding that the immigration court lacked jurisdiction because
petitioner was outside of the United States. The BIA affirmed the
dismissal. The Eleventh Circuit found that petitioner’s motion was
governed by 8 C.F.R. § 1003.23(b)(4)(ii), which says that a motion
to reopen in absentia proceedings may be made at any time if the
person shows that he or she did not receive notice. This regulation
does not bar reopening when the person has been removed from the
United States. The court noted that Patel v. United States AG, 334
F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court
dismissed a petition for review of the BIA’s dismissal of a motion to
reopen because the person was outside of the United States. Patel,
however, did not involve a motion to reopen to rescind an in
absentia order. AILF Legal Action Center, Litigation Clearinghouse
Litigation Clearinghouse Newsletters are posted on AILF’s web page
at www.ailf.org/lac/litclearinghouse.shtml.
POST-CON – MOTION TO REOPEN – SUA SPONTE
De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006)
(no due process violation where BIA denied request to grant sua
sponte motion on the basis of recently vacated convictions, allowing
noncitizen to apply for relief, where BIA denied motion on the basis
that it would deny any application for relief as a matter of discretion
because noncitizen, “had previously been convicted of four criminal
offenses, and while three of these had been vacated, none had been
vacated because De Araujo was not guilty of the crimes
committed.”)
POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF

PROOF
Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug.
3, 2006) (noncitizen bears burden of showing conviction was
37
vacated on a basis of legal invalidity where the order of removal has

already become final, and the noncitizen is making a late motion to
reopen/reconsider in light of the new evidence that the conviction
has been vacated). http://laws.lp.findlaw.com/1st/051895.html
POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF

PROOF
Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug.
3, 2006) (noncitizen bears burden of showing conviction was
vacated on a basis of legal invalidity where the order of removal has
already become final, and the noncitizen is making a late motion to
reopen/reconsider in light of the new evidence that the conviction
has been vacated). http://laws.lp.findlaw.com/1st/051895.html
REMOVAL PROCEEDINGS – RES JUDICATA – INS MAY NOT REMAND

TO LODGE ADDITIONAL CHARGES
Johnson v. Ashcroft, __ F.3d __ (2d Cir. Aug. 5, 2004) (INA may not
move to remand case to Immigration Judge in order to lodge
additional grounds of removal based upon information that was
available at the time of the initial proceeding).
http://caselaw.lp.findlaw.com/data2/circs/2nd/032071p.pdf POST
CON RELIEF – VACATUR MUST BE PRESENTED TO IMMIGRATION
COURT TO BE CONSIDERED ON PETITION FOR REVIEW
Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. §
1252(b)(4)(A); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th
Cir. 2003) (en banc) (holding BIA violated noncitizen's right to due
process, in appeal of decision granting suspension of deportation,
when BIA stated it was entirely precluded from considering new
evidence bearing on hardship including evidence that, in the eight
years intervening between immigration judge's decision and
proceedings before BIA, noncitizen's daughter had been diagnosed
with serious medical condition for which treatment was likely
unavailable if noncitizen was deported).
38
Ninth Circuit
POST-CONVICTION RELIEF – REMAND – EFFECT OF VACATUR
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th

Cir. Nov. 15, 2006) (Arizona court order issued in 2004,
acknowledging that 1994 order imposing a twelve-month sentence,
for Arizona misdemeanor conviction was illegal since the state at the
time of sentence designated the conviction a misdemeanor, and
under Arizona law the maximum term of imprisonment for a
misdemeanor was then six months, see A.R.S. § 13-707, rendering
the twelve-month sentence illegal on its face, required remand to
the BIA to consider the issue in the first instance; issue could not
have been considered earlier, since Arizona court entered 2004
minute entry over six months after initial BIA decision in this case),
citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir;
2004) (remanding to BIA to consider in first instance whether
petition continues to be barred from adjustment of status); INS v.
Ventura, 537 U.S. 12, 17 (2002)(per curiam) (remanding "changed
circumstances" issue to BIA for "opportunity to address the matter
in the first instance).
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN

DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER
ORDER VACATING CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3,
2006) (BIA acted arbitrarily, irrationally, or contrary to law in
denying motion to reopen removal proceedings after conviction had
been vacated, even where order vacating conviction did not specify
whether the conviction was vacated on ground of invalidity or solely
for rehabilitative or immigration purposes).
POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF

POST-CONVICTION ATTACK
Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir.

Aug. 21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to
39
reconsider to noncitizen following physical deportation does not

apply when criminal conviction that formed a “key part” of the order
of removal has been vacated on a basis of legal invalidity),
reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir.
1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir.
1981) (order of deportation based on certain vacated convictions are
not legally valid, and thus do not bar motions to reopen).
Other
POST-CONVICTION RELIEF – AFTER CONVICTION VACATED
New AILF Practice Advisory: Return to the United States after

Prevailing on a Petition for Review (January 17, 2007). This Practice
Advisory contains practical and legal suggestions for attorneys
representing clients who have prevailed on a petition for review or
other legal action and who are outside of the United States. See
http://www.ailf.org/lac/lac_pa_index.shtml.
MOTION TO REOPEN – 180 DAY DEALINE SUBJECT TO EQUITABLE

TOLLING
Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (3d Cir. March 30,
2005) (180 day time limit filing a motion to reopen removal
proceeding following in order entered in absentia is in nature of
statute of limitations, so as to be subject to equitable tolling)
POST-CON – EFFECTIVE VACATUR – AFTER CONVICTION VACATED
Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7,
2006) (petition for review of removal order based on two crimes of
moral turpitude, followed by state court orders vacating the two
convictions, dismissed for failure to exhaust administrative remedies
where petitioner did not ask BIA to reopen case in light of the
vacated convictions, but instead petitioned the district court for
habeas and then the court of appeals for review).
40
Seventh Circuit
MOTION TO REOPEN – SUA SPONTE
Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not
need judicial permission to reopen a case sua sponte after the filing
of a petition for review).
10.24 2. Court of Appeals Jurisdiction to Order the Noncitizen

to be Readmitted After Conviction Has Been Vacated
Ninth Circuit
MOTION TO REOPEN/RECONSIDER – AFTER DEPORTATION
Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir.

Aug. 21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to
reconsider to noncitizen following physical deportation does not
apply when criminal conviction that formed a “key part” of the order
of removal has been vacated on a basis of legal invalidity),
reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir.
1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir.
1981) (order of deportation based on certain vacated convictions are
not legally valid, and thus do not bar motions to reopen).
DEPORTATION – COLLATERAL ATTACK – PROSECUTORIAL
MISCONDUCT – FAILURE TO WARN NONCITIZEN OF ELIGIBILITY
FOR RELIEF – IMMIGRATION AGENCY MUST FOLLOW OWN
PROCEDURES – ESTOPPEL
41
Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976) (the

INS was estopped from deporting the petitioner because the INS had
failed to give a warning that it was required to give by its own
regulations); see Scime v. Bowen, 822 F.2d 7, 9 (2d Cir. 1987)
(noting that opinion in Goldberg v. Weinberger, 546 F.2d 477 (2d
Cir. 1976), cert. denied, 431 U.S. 937 (1977), confined the holding of
Corniel-Rodriguez to its facts, "particularly the immigration official's
failure to provide petitioner with a warning mandated by federal
regulation."); but see: INS v. Miranda, 459 U.S. 14, 18-19 (1982)
(unexplained delay in processing does not give rise to estoppel).
ILLEGAL REENTRY – ELEMENTS – DEPORTATION –

COLLATERAL ATTACK – PROSECUTORIAL MISCONDUCT –
FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR
RELIEF – IMMIGRATION AGENCY MUST FOLLOW OWN
PROCEDURES
Matter of Garcia-Flores, 17 I. & N. Dec. 325 (BIA 1980)

("Where ‘the rights of individuals are affected, it is
incumbent upon agencies to follow their own procedures,
even where the internal procedures are possibly more
rigorous than otherwise would be required.’; Morton v.
Ruiz, 415 U.S 199, 235 (1974)."). See also United States
v. Caceres, 440 U.S. 741 (1979); Bridges v. Wixon, 326 U.S
135, 152-153 (1945).
42
Some federal courts have found "affirmative misconduct" and applied

estoppel against the Government. Fano v. O'Neill, 806 F.2d 1262 (5th Cir.
1987); Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976).
1. Equitable estoppel against the government

[9] The government in immigration cases may be subject to
equitable estoppel if it has engaged in affirmative misconduct.
See Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir. 1986)
(outlining elements of equitable estoppel claim against the
government); Santiago v. INS, 526 F.2d 488, 492 (9th Cir.
1975) (en banc) (holding in the immigration context that the
court continues “to believe that estoppel is available in such
cases where the particular facts warrant it”) (citing INS v.
Hibi, 414 U.S. 5, 8 (1973)); see also Watkins v. United States
Army, 875 F.2d 699, 706-711 (9th Cir. 1989) (en banc) (holding
that equitable estoppel could be invoked against the government
where the Army affirmatively misrepresented to defendant over a 14-year period that he was
qualified for reenlistment despite an ongoing policy that homosexuality
constituted a nonwaivable disqualification for reenlistment);
Fano v. O’Neill, 806 F.2d 1262, 1265-66 (5th Cir. 1987)
(holding that petitioner had adequately stated a claim against
the government for affirmative misconduct where he alleged
the INS “willfully, wantonly, recklessly, and negligently”
delayed in processing his application, suggesting selective
treatment). Cf. Miranda v. INS, 459 U.S. 14, 19 (1982)
(declining to estop the INS from denying permanent resident
status to petitioner who lost his eligibility because of the
INS’s delay, concluding that “[p]roof only that the Government
failed to process promptly an application falls far short
of establishing” affirmative misconduct). The person seeking
estoppel against the government also must show that the
potential injustice to him outweighs the possibility of damage
to the public interest, and must establish the traditional elements
for estoppel. See Watkins, 875 F.2d at 707 [10] We conclude that the government should be
estopped
from relying on Salgado-Diaz’s attempted re-entry to remove
him, essentially for the same reasons — and to the same
extent — that we have found his due process rights have been
violated. That is, if petitioner can, in the evidentiary hearing
to which we hold he is entitled, prove that the INS deprived
him of his right to have his immigration status determined in
the pending deportation proceeding, the government cannot
43
rely on the post-expulsion events its own misconduct set in

motion. Adding to our assessment of the equities are the
INS’s representations to this court and petitioner that he
would have the opportunity to litigate his claims at an evidentiary
hearing and, if successful, seek suspension of deportation
relief.
[11] We also conclude that estoppel against the government here would not “unduly damage the
public interest.” Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982) (holding that
defendant who was mistakenly granted parole by the government but had reintegrated into the
community was unlikely to threaten the public interest). In this instance, petitioner
already met the criteria for eligibility for suspension of deportation
at the time of his expulsion to Mexico. The public
interest would not be burdened by allowing Salgado-Diaz to
have his claim properly considered as if the events arising out
of the government’s actions had not occurred. 2. Traditional elements of equitable estoppel
[12] Salgado-Diaz also must satisfy the traditional elements
of equitable estoppel, which require a showing that (1) the
party to be estopped knows the facts; (2) the party intends that
his or her conduct will be acted on; (3) the claimant must be
ignorant of the true facts; (4) and the claimant must detrimentally
rely on the other party’s conduct. See Johnson, 682 F.2d
at 872 (holding elements met where the Parole Commission
deliberately released defendant, even though he was ineligible
for parole).
[13] These four elements are satisfied here, assuming
Salgado-Diaz’s allegations prove to be true. First, the border
agents knew that Salgado-Diaz already was in immigration
proceedings at the time he was stopped in San Diego and that
he had an upcoming deportation hearing. They also should
have known they were violating the Constitution by detaining
petitioner solely on the basis of his Hispanic appearance.
Gonzalez-Rivera, 22 F.3d at 1450 (“The fact that INS officers
receive extensive training in Fourth Amendment law . . . also
supports the inference that when an INS officer makes a stop
based solely on race, he or she has deliberately violated the
law or has acted in conscious disregard of the Constitution.”)
(emphasis added). The INS, knowing Salgado’s claims about
his San Diego arrest and expulsion and the circumstances of
his reentry, further told this court on the first appeal — nearly
three years after having instituted removal proceedings — that
petitioner would have the opportunity “to litigate his claims
regarding the legality of his departure . . . .”
1280 SALGADO-DIAZ v. ASHCROFT
Second, assuming petitioner’s claims to be true, the border
agents intended the consequences of their actions — they
physically removed Salgado-Diaz from San Diego to Mexico,
essentially deporting him without a proceeding. For its part,
44
the INS plainly intended that this court and petitioner would
act in accordance with the representations it made that
Salgado-Diaz would receive a hearing.
Third, Salgado-Diaz did not understand the basis for the
border patrol agents stopping or arresting him. He also alleges
he did not understand the significance of the documents he
was induced to sign, namely that they would lead to his
deportation rather than the INS tracking down his pending
immigration hearing status. According to Salgado-Diaz, he
did attempt to explain he was in proceedings but was arrested
and expelled anyway. As for the purported evidentiary hearing,
neither this court nor petitioner expected that fact-finding
opportunity to be illusory.
Finally, the fourth element is met here, where the INS
agents’ conduct severely disadvantaged Salgado-Diaz by
expelling him to Mexico. The act of taking him out of the
country had the effect of changing his immigration status. See
Heckler v. Cmty. Health Serv., 467 U.S. 51, 61 (1984) (analyzing
detrimental reliance by examining “the manner in
which reliance on the government’s misconduct has caused
the private citizen to change his position for the worse”). Had
he not attempted to return to the United States so he could
appear at his pending immigration hearing, he may have lost
his chance to assert his eligibility for relief from deportation.
Further, petitioner detrimentally relied on assertions by the
INS that he should and would receive a hearing on his claims.
Our own disposition in the first appeal expressly relied on
those assertions.7
7 Given the INS’s representations in the first appeal and our disposition
[14] Given the government’s role in bringing about petitioner’s

circumstance — if the petitioner proves the alleged
affirmative misconduct — the equities strongly weigh in favor
of estopping the government from seeking removal based on
petitioner’s reentry. If his story does not hold up, of course,
then the basis for his challenge to the 2001 removal order collapses
2. Prejudice
[6] Salgado-Diaz must also establish prejudice by showing
his rights were violated “in a manner so as potentially to
affect the outcome of the proceedings.” Campos-Sanchez v.
INS, 164 F.3d 448, 450 (9th Cir. 1999) (internal quotations
and citations omitted). Clearly, Salgado-Diaz’s arrest and
expulsion had a prejudicial impact on his underlying immigration
proceedings. The agents’ conduct ultimately prevented
him from seeking the type of relief from deportation for
which he was eligible before his arrest and expulsion. Had
45
petitioner been given an evidentiary hearing, he might have

established that the INS border agents’ conduct was indeed
unconstitutional either under the Fourth Amendment or as a
matter of due process.
A. Due Process Violation

[1] Immigration proceedings, although not subject to the
full range of constitutional protections, must conform to the
Fifth Amendment’s requirement of due process. United States
v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir. 1985).
Salgado-Diaz can establish a due process violation by showing
that he was denied “a full and fair hearing of his claims
and a reasonable opportunity to present evidence on his
behalf.” Colmenar, 210 F.3d at 971 (holding that petitioner’s
due process rights were violated when the IJ prevented a full
examination of petitioner during hearing); see Castillo-
Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992) (holding
that the BIA’s failure to provide petitioners an opportunity to
rebut noticed facts violated due process).
In the case of an alien who is convicted of an offense which makes the alien subject to
deportation, the Attorney General shall begin any deportation proceeding as expeditiously as
possible after the date of the conviction.” 8 U.S.C. § 1252(i) (1988)
In considering Petitioner’s laches claim, it is important to make clear what Petitioner is
not arguing. He is not, for example, asserting that the government’s conduct in this case rose to
the level of a due process violation. Cf. Singh v. Reno, 182 F.3d 504, 507 (7th Cir. 1999)
(finding that an alien had stated a substantial due process claim where the INS filed an Order to
Show Cause in 1992, but then “drag[ged] its feet,” despite the alien’s pleas for a hearing, until it
finally held a hearing in late 1996, after the AEDPA had abrogated his right to seek 212(c)
deportable crime, because, in the INS’s estimation, the alien would be a very strong candidate
for 212(c) relief. Cf. Matter of Gordon, 17 I. & N. Dec. 389, 392 (BIA 1980) (noting that an
46
INS District Director “has every right, in fact, a duty, to exercise his prosecutive judgment
whether or not to institute a deportation proceeding against an alien . . . . If, in screening the file
of, and possibly after consultation with, such an alien, it appears to him that a deportation
proceeding would surely result in a grant of section 212(c) relief . . . it would be pointless to
institute an expensive, vexatious, and needless deportation proceeding.”). Such an alien might
reasonably rely on the INS’s inaction and decide on that basis to make important commitments
to his residency in the United States (such as by marrying, establishing a business, and losing
ties with his home country) only later to find that, after Congress had eliminated 212(c) relief,
the INS seeks to deport him. Under these circumstances—and where Congress’s intent as to the
retroactivity of the elimination of 212(c) relief is unclear—an alien might argue with some force
that he has demonstrated the kind of reasonable reliance and settled expectations under
Landgraf, 511 U.S. at 270, that would render the elimination of 212(c) relief impermissibly
retroactive if applied to him.
Unlike a laches defenses, this retroactivity argument—which is not before us and as to
the validity of which we therefore express no opinion focuses on the reasonableness of a
In contrast with the various decisions on laches, it seems settled that the government may, in
the appropriate circumstances, be equitably estopped in the immigration context. See, e.g.,
Rojas-Reyes v. INS, 235 F.3d 115, 126 (2d Cir. 2000); Drozd v. INS, 155 F.3d 81, 90 (2d Cir.
1998); Corniel-Rodriguez v. INS, 532 F.2d 301, 307 (2d Cir. 1976) alien’s reliance on the
continued availability of 212(c) relief. As a result, the diligence of the
INS’s conduct is not particularly relevant to it.
Diligence is, by contrast, crucial to the defense of laches. A party claiming this defense
must establish two elements: 1) a lack of diligence by the party against whom the defense is
asserted, and 2) prejudice to the party asserting the defense. Costello, 365 U.S. at 282.
47
Petitioner cannot establish either element. We find no lack of diligence in the INS’s decision to
institute deportation proceedings three years before the expiration of Petitioner’s twenty-year
minimum sentence. If the INS had instituted deportation proceedings immediately after
Petitioner’s 1982 murder conviction, or at any time until shortly before the expiration of his
minimum term, it might well have been a colossal waste of time. Any number of events might
make his later deportation unnecessary or inappropriate. For example, Petitioner might not
survive until the end of his long prison term. Conditions in the country to which he would be
deported might preclude his immediate deportation upon release, see 8 C.F.R. § 208.17(a)
(providing for deferral of removal under the Convention Against Torture, where it is more likely
than not that the alien will be tortured if deported), thus making the INS’s resources better used
elsewhere. And, the law with respect to deportation of aliens like Petitioner might change so as
to make deportation impossible or unlikely. See generally Cheryl Shanks, Immigration and the
Politics of American Sovereignty, 1890-1990 (2001) (documenting cycles in immigration policy
over the last century). For these and other similar reasons, delay in a case like the one before us,
far from indicating a lack of diligence, suggests common sense on the part of the INS.
Moreover, it is highly unlikely that Petitioner would have received 212(c) relief, given
United States v. Scott, 394 F.3d 111 (2d Cir. January 11, 2005) (district court
erred in denying motion to dismiss indictment on ground that underlying
deportation order was invalid because defendant had been prejudiced during
deportation proceeding by his counsel's ineffective assistance in failing to move
for waiver of deportation under INA § 212(c); entry of underlying deportation
order was "fundamentally unfair" within meaning of 8 U.S.C. § 1326(d))
By analogy to the duties of a prosecutor in a criminal case, the TA has a duty of fairness, not
deportation. It is in the government's interest that a noncitizen who is eligible for relief and
deserving of relief receive relief from deportation. See Berger v. United States, 295 U.S. 78, 88
(1935); ABA Standards Relating to the Prosecution Function.
48
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona
court order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence,
for Arizona misdemeanor conviction was illegal since the state at the time of sentence designated
the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a
misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence
illegal on its face, required remand to the BIA to consider the issue in the first instance; issue
could not have been considered earlier, since Arizona court entered 2004 minute entry over six
months after initial BIA decision in this case), citing Velezmoro v. Ashcroft, 362 F.3d 1231,
1233-1234 (9th Cir; 2004) (remanding to BIA to consider in first instance whether petition
continues to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17 (2002)(per
curiam) (remanding "changed circumstances" issue to BIA for "opportunity to address the matter
in the first instance).
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING

MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING
CONVICTION
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted
arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after
conviction had been vacated, even where order vacating conviction did not specify whether the
conviction was vacated on ground of invalidity or solely for rehabilitative or immigration
purposes).
Ninth Circuit
§ 10.24 2. Court of Appeals Jurisdiction to Order the Noncitizen to be Readmitted

After Conviction Has Been Vacated
MOTION TO REOPEN/RECONSIDER – AFTER DEPORTATION
Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R.
§ 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation
does not apply when criminal conviction that formed a “key part” of the order of removal has
been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d
1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of
deportation based on certain vacated convictions are not legally valid, and thus do not bar
motions to reopen)
1. The BIA Has Jurisdiction to Reopen Proceedings After Deportation if the Conviction
Has Been Vacated
POST-CON – EFFECTIVE VACATUR – AFTER CONVICTION VACATED

49
Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7, 2006) (petition for
review of removal order based on two crimes of moral turpitude, followed by state court
orders vacating the two convictions, dismissed for failure to exhaust administrative
remedies where petitioner did not ask BIA to reopen case in light of the vacated
convictions, but instead petitioned the district court for habeas and then the court of
appeals for review). http://caselaw.lp.findlaw.com/data2/circs/7th/052697p.pdf
2. After the Immigration Judge Issues a Removal Order.
Third Circuit
MOTION TO REOPEN – 180 DAY DEALINE SUBJECT TO EQUITABLE TOLLING
Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (3d Cir. March 30, 2005) (180 day time
limit filing a motion to reopen removal proceeding following in order entered in absentia is
in nature of statute of limitations, so as to be subject to equitable tolling).
VACATE ILLEGAL DEPORTATION ORDER
Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004)

(removal of noncitizen while appeal of district court
dismissal of habeas petition was pending in court of appeal
did not deprive district court of habeas jurisdiction on
remand, and case was not moot, but district court lacked
authority to grant any relief beyond vacating defective
deportation order).
In civil suits a litigant must advance all available evidence and legal arguments relating to
a claim or controversy in the context of a single proceeding. Interoceanica Corp. v. Sound
Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997). This is because “res judicata bars [future litigation
of] all claims that could have been advanced in support of a previously adjudicated cause of
action.” Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989). And it is no
answer to a claim of res judicata, as distinguished from a claim of collateral estoppel, that no
decision was reached previously on the newly-asserted claims. See Leather v. Ten Eyck, 180
F.3d 420, 426 (2d Cir. 1999); see also Corpus Juris Secundum Judgments §§ 758, 803. Applied
50
strictly to immigration proceedings, this would seem to suggest that the government should
lodge all known grounds for removal in support of its removability charges, or face the prospect
of a future bar.
Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir. 2004), that an alien’s removal from the
United States does not moot a habeas challenge to the underlying order of removal
Johnson v. Ashcroft, 286

F.3d 696, 700 & n.4 (3d Cir. 2002) (citing authorities in support of the proposition that the BIA
must be reversed where it ignores its established holdings).
As the Supreme Court declared in Woodby, the ties that legal residents develop to the American
communities in which they live and work, should not be lightly severed:
This Court has not closed its eyes to the drastic deprivations that may follow when a resident of
this country is compelled by our Government to forsake all the bonds formed here and go to a
foreign land
by clear, unequivocal, and convincing evidence that the facts
alleged as grounds for deportation are true.” Gameros-
Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989) (citing
Woodby v. INS, 385 U.S. 276, 286 (1966)); see also 8 U.S.C.
§ 1229a(c)(3)(A). “Although we review for reasonable, sub-
stantial, and probative evidence in the record as a whole,” we
affirm only if “the [agency] has successfully carried this
heavy burden of clear, unequivocal, and convincing evi-
dence.” Cortez-Acosta v. INS, 234 F.3d 476, 481 (9th Cir.
2000) (per curiam) (internal citations and quotation marks
omitted); see also Nakamoto v. Ashcroft, 363 F.3d 874, 882
(9th Cir. 2004) (explaining that the court must determine
“whether substantial evidence supports a finding by clear and
convincing evidence”). “Where, as here, the BIA conducts a
de novo review and issues its own decision, rather than adopt-
ing the IJ’s decision as its own, we review the BIA’s deci-
sion.” Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir
RES JUD :
The United States Supreme Court has defined the doctrine of collateral estoppel as providing
that “once an issue is actually and necessarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits based on a different cause of action
involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153 (1979).
The Court has applied the doctrine of collateral estoppel in the context of “an administrative
agency…acting in a judicial capacity” as well. United States v. Utah Constr. & Mining Co., 384
U.S. 394, 422 (1966).
Accordingly, circuit courts have given preclusive effect to determinations made by immigration
judges in immigration hearings. See Medina v. INS, 993 F.2d 499, 504 (5th Cir. 1993)
(concluding that a prior determination that petitioner was a citizen precluded subsequent
51
deportation proceedings, even where the first decision was based on an erroneous factual finding
and understanding of the law); Ramon-Sepulveda v. INS, 824 F.2d 749, 750-51 (9th Cir. 1987)
(holding that the INS was precluded from seeking deportation of petitioner when it failed to
prove that he was an alien in a prior hearing). The fundamental purpose underlying the doctrine
is “that one full opportunity to litigate an issue is sufficient.” Hammer, 195 F.3d at 840
“Laches requires proof of (1) lack of diligence by the party against whom the defense is
asserted, and (2) prejudice to the party asserting the defense.” Id. at 282. Dang has not shown a
lack of diligence on the part of the government
See Hughes v. Santa Fe Int'l Corp., 847 F.2d 239, 241

(5th Cir. 1988) (consent judgments ordinarily do not give rise
to collateral estoppel because no issues are actually litigated,
consent judgments are only given preclusive effect if the
parties manifest such an intention); Restatement of Judgments
(Second)
When rule providing for relief from void judgments is applicable, relief is not
discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo.
1994
Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need judicial permission to reopen a
case sua sponte after the filing of a petition for review).
POST CON RELIEF – VACATING GREATER OFFENSE DOES NOT PRECLUDE

RETRIAL ON GREATER OFFENSE EVEN THOUGH CONVICTION ON LESSER
INCLUDED OFFENSE IS FINAL
United States v. Jose, ___ F.3d ___ (9th Cir. October 19, 2005) (reversal of a conviction
on a greater offense, coupled with a final conviction on a lesser included offense, does
not preclude retrial of the greater offense when the offenses were charged in the same
indictment and tried together in the same original trial).
POST CON RELIEF – AFTER VACATUR, CRIMINAL COURT CAN

RESENTENCE ON REMAINING COUNTS
United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of
conviction, the trial court has jurisdiction to resentence the defendant on all remaining
52
counts of conviction). Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997);
United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d
531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate
double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v.
United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States v. Morris, 116
F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997);
United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106
F.3d 1170 (4th Cir. 1997).
POST CON RELIEF – AFTER VACATUR, DISMISSED COUNTS ARE

REINSTATED
Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed
counts are not reinstated since defendant did not breach plea agreement), with United
States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (No. 97-5066) (dismissed counts are
reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add
dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106
F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section
2255 petition, the defendant may be placed in exactly the same position in which he
would have been had there been no error in the first instance."), quoting United States
v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir.
2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006)
V. Reopening Removal Proceedings

Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the
U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was
ordered removed in absentia and removed from the United States. He filed a motion to reopen to rescind
the in absentia order based on lack of notice. The IJ denied the motion, concluding that the immigration
court lacked jurisdiction because petitioner was outside of the United States. The BIA affirmed the
dismissal. The Eleventh Circuit found that petitioner’s motion was governed by 8 C.F.R. §
1003.23(b)(4)(ii), which says that a motion to reopen in absentia proceedings may be made at any time if
the person shows that he or she did not receive notice. This regulation does not bar reopening when the
person has been removed from the United States. The court noted that Patel v. United States AG, 334
F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the BIA’s
dismissal of a motion to reopen because the person was outside of the United States. Patel, however, did
not involve a motion to reopen to rescind an in absentia order.
53
De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA
denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing
noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application
for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal
offenses, and while three of these had been vacated, none had been vacated because De Araujo was not
guilty of the crimes committed.”)
4th Amnd.
The stop constituted an egregious violation of his Fourth Amendment rights because race was
the motivating factor. According to Hernandez, the other reasons given by the agents to
justify the stop were insufficient to establish reasonable suspicion under the law.
Abandonment
Alaka claims that the conclusion that she abandoned her permanent
legal resident status is based on legal error, and the Government
argues it is a factual question that we do not have jurisdiction to
review. In this particular context, we agree with the Government.
The basic test for evaluating whether a lawful permanent resident
has abandoned that status by virtue of traveling abroad is “whether
[the petitioner’s] extended trips outside the United States]constitute
‘temporary visits abroad.’”
Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); see also Moin v.
Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003); Ahmed v.Ashcroft, 286
F.3d 611, 612-13 (2d Cir. 2002). A trip is “temporary” if it is (1)
“relatively short,” or (2) if not short, the petitioner had “a
continuous, uninterrupted intention to return to the United States
during the entirety of his visit.” Singh, 113 F.3d at 1514 (internal
quotation marks and citations omitted). As to intent, “[t]he issue is
not whether the petitioner had the intent to return ultimately, but
the intent to return to the United States within a relatively short
period.” Id.
APPEAL:
We review the decision of the IJ, see Soadjede v. Ashcroft , 324

F.3d 830, 832 (5th Cir. 2003), and will reverse only if the decision is
54
not supported by substantial evidence. See Moin v. Ashcroft , 335

F.3d 415, 418 (5th Cir. 2003). Moin v. Ashcroft , 335 F.3d 415, 417
(5th Cir. 2003). “[T]his Court must affirm the decision if there is no
error of law and if reasonable, substantial, and probative evidence
on the record, considered as a whole, supports the decision’s factual
findings.” Id. Under this standard, “the alien must show that the
evidence is so compelling that no reasonable factfinder could
conclude against it.” Chun v. INS , 40 F.3d 76, 78 (5th Cir. 1994
EAJA:
Anselmo, 20 I&N Dec. 25 (1989) Board must follow circuit court

precedent in cases arising in the circuit Abdulai v. INS, 239 F.3d 542
(3d Cir. 2001) - generally cited
Alternatively, he argues that the statute violates the substantive and due process provisions of the
Fifth Amendment of the United States Constitution.
Under the immigration laws, exhaustion of administrative remedies is statutorily required only
on appeals of final orders of removal. 8 U.S.C. § 1252(d)(1).
Exhaustion is not required when a petitioner challenges decisions concerning bond.
Further guidance is found in the case law considering whether the IIRIRA retroactively
eliminated 212(c) discretionary relief.4 “‘Several courts have concluded that ‘the operative event
for determining whether . . . IIRIRA amendments should apply is the actual commission of the
crime for which the petitioners now face deportation.’” Santos-Gonzalez v. Reno, 93 F. Supp. 2d
286 295 (E.D. N.Y. 2000) (quoting Dunbar v. INS, 64 F. Supp. 2d 47, 54 (D. Conn.1999)); see
also Maria v. McElroy, 68 F. Supp. 2d 206 (E.D. N.Y. 1999).
The Supreme Court has set forth the basic framework for addressing
whether a statute has retroactive application:
When a case implicates a federal statute enacted after the events in suit, the
court’s first task is to determine whether Congress has expressly prescribed
the statute’s proper reach. If Congress has done so, of course, there is no need
to resort to judicial default rules. When, however, the statute contains no such
express command, the court must determine whether the new statute would
have retroactive effect, i.e., whether it would impair rights a party possessed
when he acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions alreadycompleted. If the statute would
operate retroactively, our traditional presumption teaches that it does not
governabsent clear congressional intent favoring such a result.
55
Matter of Abosi, 24 I&N Dec. 204, Int. Dec. No. 3568 (BIA 2007)
Matter of Abosi, 24 I&N Dec. 204, Int. Dec. No. 3568 (BIA 2007), June 19, 2007: "A returning lawful
permanent resident seeking to overcome a ground of inadmissibility is not required to apply for
adjustment of status in conjunction with a waiver of inadmissibility under section 212(h) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000)."
There are two waivers available under INA §212(h)(1). A waiver is

available under INA §212(h)(1)(A) if the immigrant
establishes that:
the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a
visa, entry or adjustment of status (unless the alien is excludable for prostitution under INA §212(a)(2)(D)(i) or INA
§212(a)(2)(D)(ii), in which case the 15 year time period is not required),
1. the admission to the United States of such alien would not be contrary to the national welfare, safety or
security of the United States, and
2. the alien has been rehabilitated.
FALSE See IMPERSONATION

PERSONATION
FALSE See also FRAUD
STATEMENT
FALSE Calvo-Ahumada v. 18 U.S.C. § 1546 MT
STATEMENT Rinaldi, 435 F.2d 544
(3d Cir. 1970)
FALSE Matter of Acosta, 14 I. & 18 U.S.C. § 922(a)(6) MT
STATEMENT N. Dec. 338, 1973 WL
29443 (BIA 1973)
FALSE Hirsch v. INS, 308 F.2d 18 U.S.C. § 80M, now 18 NMT
STATEMENT 562 (9th Cir. 1962) U.S.C. § 1001
FALSE Matter of N & B, 2 I. & 18 U.S.C. § 231 NMT
STATEMENT N. Dec. 206, 1944 WL
5182 (BIA 1944)
FALSE Matter of B, 1 I. & N. NMT
STATEMENT Dec. 121, 1941 WL 7927
(BIA, AG 1941)
FALSE White v. INS, 6 F.3d 18 U.S.C. § 911 MT
STATEMENT— 1312 (8th Cir. 1993)
CLAIM TO UNITED
STATES
56
CITIZENSHIP
FALSE Matter of I, 4 I. & N. 18 U.S.C. § 911; 8 U.S.C. NMT
STATEMENT— Dec 159 (BIA 1950) § 746(18)
CLAIM TO UNITED
STATES
CITIZENSHIP
FALSE Matter of K, 3 I. & N. 18 U.S.C. § 911 NMT
STATEMENT— Dec. 69, 71 (BIA 1947)
CLAIM TO UNITED
STATES
CITIZENSHIP
FALSE Matter of S, 2 I. & N. 18 U. S. C § 80 MT
STATEMENT— Dec. 225, 1944 WL 5185
CONSPIRACY TO (BIA 1944)
MAKE FALSE
STATEMENTS
FALSE Zaitona v. INS, 9 F.3d Mich. Comp. Laws Ann. MT
STATEMENT— 432 (6th Cir. 1993) § 257.324(1)(e)
DMV
APPLICATION
FALSE Matter of G, 8 I. & N. 18 U.S.C. § 1001 NMT
STATEMENT— Dec. 315, 1959 WL
MATERIALITY 11574 (BIA 1959)
NOT AN ELEMENT
FALSE Matter of Correa-Garces, MT
STATEMENT— 20 I. & N. Dec. 451
PASSPORT (BIA 1992)
APPLICATION
FALSE Matter of B, 7 I. & N. 18 U.S.C. § 1542 MT
STATEMENT— Dec. 342, 1956 WL
PASSPORT 10292 (BIA 1956)
APPLICATION
FALSE Kabongo v. INS, 837 18 U.S.C. § 1001 MT
STATEMENT—TO F.2d 753, 758 (6th Cir.
FEDERAL 1988)
OFFICER
FALSE Matter of Marchena, 12 18 U.S.C. § 1001 NMT
STATEMENT—TO I. & N. Dec. 355, 1967
FEDERAL WL 14033 (BIA 1967)
OFFICER
FALSE Matter of Espinosa, 10 I. 18 U.S.C. § 1001 NMT
STATEMENT—TO & N. Dec. 98, 1962 WL
FEDERAL 12937 (BIA 1962)
57
OFFICER
FALSE Matter of Jurado- Pennsylvania MT
STATEMENT TO Delgado, 24 I. & N. Dec. Consoldated Statutes Title
GOVERNMENT 29 (BIA Sept. 28, 2006) 18 § 4904(a)
AGENT
FALSE Matter of BM, 6 I. & N. 18 U.S.C. § 1001 MT
STATEMENT—TO Dec. 806, 1955 WL 8757
UNITED STATES (BIA 1955)
OFFICIAL
FALSE Matter of P, 6 I. & N. 18 U.S.C. § 1001 MT
STATEMENT—TO Dec. 193, 1954 WL 7841
UNITED STATES (BIA 1954)
OFFICIAL
FALSE Matter of IL, 7 I. & N. 18 U.S.C. § 1001 MT
STATEMENT—TO Dec. 233, 234, 1956 WL
UNITED STATES 10262 (BIA 1956)
OFFICIAL
FALSE Matter of Di Filippo, 10 Unemployment Insurance NMT
STATEMENT— I. & N. Dec. 76, 1962 Act of Canada § 106 A(a)
UNEMPLOYMENT WL 12907 (BIA 1962)
FRAUD
LOG
FORGERY Matter of Jensen, 10 Canadian Crim. Code MT OUT
I. & N. Dec. 747, 1964 §§ 309(1) and 311
WL 12130 (BIA 1964)
FORGERY Matter of M, 9 I. & N. Italian Crim. Code §§ MT

Dec. 132, 1960 WL 275, 278, and 284 and
12076 (BIA 1960) Crim. Code of 1930 §§
476 and 482
FORGERY Matter of SC, 3 I. & N. Guanajuato, Mexico MT

Dec. 350, 1948 WL Pen. Code article 203
6283 (BIA 1948)
FORGERY— See also FRAUD—DOCUMENT FRAUD—PASSPORT

APPLICATION FOR FRAUD; FALSE STATEMENT—PASSPORT APPLICATION
58
PASSPORT
FORGERY— Matter of MYC, 3 I. & NMT

APPLICATION FOR N. Dec. 76, 1947 WL
PASSPORT 7055 (BIA 1947)
FORGERY— Matter of LR, 7 I. & N. Texas Pen. Code §§ MT

ATTEMPT TO PASS Dec. 318, 1956 WL 979, 996
FORGED 10286 (BIA 1956)
INSTRUMENT
FORGERY— Matter of Jimenez, 14 MT

POSSESSION OF I. & N. Dec. 442, 1973
FORGERY DEVICES WL 29475 (BIA 1973)
WITH INTENT TO
COMMIT FORGERY
FORGERY— Matter of O’B, 6 I. & Cal. Health and Safety MT

PRESCRIPTION N. Dec. 280, 1954 WL Code § 11715
DRUGS 7865 (BIA 1954)
FORGERY— U.S. ex rel. Giglio v. 18 U.S.C. §§ 88, 265 MT

UTTERING Neelly, 208 F.2d 337,
FORGED UNITED 338 (7th Cir. 1954)
STATES
OBLIGATIONS
FRAUD See also BAD CHECKS; CREDIT CARD OFFENSES; FALSE

STATEMENT; TAX OFFENSES
FRAUD Palmer v. INS, 4 F.3d MT

482 (7th Cir. 1993)
FRAUD Matter of Adetiba, 20 18 U.S.C. § 1341 MT

I. & N. 506 (BIA 1992)
FRAUD Matter of Martinez, 18 U.S.C. § 473 MT

16 I. & N. Dec. 336,
1977 WL 39288 (BIA
1977)
59
FRAUD Matter of Delagadillo, Chihuahua Code of NMT

15 I. & N. Dec. 395, Social Defense Article
1975 WL 31528 (BIA 367
1975)
FRAUD Matter of Katsanis, Greek Pen. Code of MT

14 I. & N. Dec. 266, 1950 Article 386
1973 WL 29429 (BIA (Fraud)
1973)
FRAUD Jordan v. De George, 18 U.S.C. § 88 (now 18 MT

341 U.S. 223, 71 S.Ct. U.S.C. § 371), 26
703, 95 L.Ed. 886 U.S.C. §§ 1155(f),
(1951) 1440, 1441 (now 26
U.S.C. §§ 2806(f),
3320, 3321)
FRAUD— Chanan Din Khan v. MT

ATTEMPTED Barber, 253 F.2d 547
(9th Cir. 1958)
FRAUD— Matter of B, 1 I. & N. German Reich Crim. NMT

ATTEMPTED Dec. 47, 1941 WL Code § 263
7911 (BIA, AG 1941)
FRAUD—BANK Matter of Robinson, 18 U.S.C. § 657 MT

— 16 I. & N. Dec. 762,
MISAPPLICATION 1979 WL 44445 (BIA
OF BANK FUNDS 1979)
FRAUD—CHECK Matter of B, 4 I. & N. Ind. Stats. § 10-2105 MT

FRAUD Dec. 297, 1951 WL
7003 (BIA 1951)
FRAUD— Matter of P, 3 I. & N. Canadian Crim. Code § MT

CONSPIRACY TO Dec. 56, 1947 WL 444
DEFRAUD 7051 (BIA 1947)
FRAUD— Matter of G, 7 I. & N. 18 U.S.C. § 88 MT

CONSPIRACY TO Dec. 114, 1956 WL
DEFRAUD UNITED
60
STATES 10234 (BIA 1956)
FRAUD— Matter of M, 8 I. & N. 18 U.S.C. § 88 (now 18 MT

CONSPIRACY TO Dec. 535, 1960 WL U.S.C. § 371)
AVOID TAXES 12115 (BIA 1960)
FRAUD— Matter of Flores, 17 I. MT

CONSPIRACY & N. Dec. 225, 1980
—INTENT TO WL 121870 (BIA
DEFRAUD 1980)
FRAUD—CREDIT Matter of Chouinard, Mich. Ann. Stats. § MT

CARD 11 I. & N. Dec. 839, 28.416(1)
1966 WL 14376 (BIA
1966)
FRAUD—CREDIT Balogun v. Ashcroft, Ala. Crim. Code § 13A- MT

CARD FRAUD AND 270 F.3d 274 (5th Cir. 9-14
FORGERY 2001)
FRAUD— White v. INS, 92 F.3d MT

CRIMINAL FRAUD 1195 (Table) (9th Cir.
1996) (unpublished)
FRAUD— Omagah v. Ashcroft, 18 U.S.C. § 371 MT

DOCUMENT 288 F.3d 254 (5th Cir.
FRAUD— April 22, 2002)
CONSPIRACY TO
USE FALSE INS
DOCUMENTS
FRAUD— Matter of C, 1 I. & N. Alien Registration Act NMT

DOCUMENT Dec. 14 (AG 1941) of 1940
FRAUD—FALSE
ALIEN
REGISTRATION
STATEMENT
FRAUD— Beltran-Tirado v. INS, 18 U.S.C. § 1546(b)(3) NMT

DOCUMENT 213 F.3d 1179 (9th
FRAUD—FALSE
61
EMPLOYMENT Cir. 2000)

DOCUMENT
FRAUD— Matter of Adetiba, 20 42 U.S.C. § 408 MT

DOCUMENT I. & N. Dec. 506 (BIA
FRAUD—FALSE 1992)
REPRESENTATION
OF SOCIAL
SECURITY
NUMBER, USE OF
FRAUD— Beltran-Tirado v. INS, 42 U.S.C. § NMT

DOCUMENT 213 F.3d 1179 (9th 408(a)(7)(B)
FRAUD—FALSE Cir. 2000)
SOCIAL SECURITY
NUMBER
FRAUD— Matter of A, 4 I. & N. Philippine Islands of MT

DOCUMENT Dec. 378, 1951 WL 1911 Pen. Code
FRAUD— 7021 (BIA 1951) articles 301 and 300
FALSIFICATION OF
COMMERCIAL
DOCUMENT
FRAUD— Stevenson v. INS, 246 18 U.S.C. § 1028(a)(2) MT

DOCUMENT F.3d 676 (Table) (9th
FRAUD— Cir. 2000)
IDENTIFICATION (unpublished)
DOCUMENT
FRAUD
FRAUD— See also FALSE STATEMENT—PASSPORT; FORGERY OF

DOCUMENT APPLICATION FOR PASSPORT
FRAUD—
PASSPORT
FRAUD— Matter of H, 3 I. & N. 18 U.S.C. § 80 MT

DOCUMENT Dec. 236, 1948 WL
FRAUD— 6263 (BIA 1948)
PASSPORT
62
FRAUD— Bisaillon v. Hogan, 18 U.S.C. § 1542 MT

DOCUMENT 257 F.2d 435 (9th Cir.
FRAUD— 1958), cert. denied,
PASSPORT—FALSE 358 U.S. 872 (1958)
STATEMENT IN
PASSPORT
APPLICATION
FRAUD— Matter of G, 1 I. & N. MT

DOCUMENT Dec. 73 (BIA 1941)
FRAUD—
PASSPORT—USE
OF ANOTHER’S
PASSPORT
FRAUD— Montero-Ubri v. INS, Mass. Gen. Laws, c. 90 NMT

DOCUMENT 229 F.3d 319 (1st Cir. § 24B
FRAUD— 2000)
POSSESSION OF
FALSE DRIVER’S
LICENSE
FRAUD— Matter of Serna, 20 I. NMT

DOCUMENT & N. Dec. 579, 581
FRAUD— (BIA 1992)
POSSESSION OF
FRAUDULENT
IMMIGRATION
DOCUMENTS
FRAUD— Babafunmi v. United 18 U.S.C. § 1028(a)(5) MT

DOCUMENT States, 210 F.3d 360
FRAUD— (Table) (4th Cir. 2000)
POSSESSION OF
IMPLEMENTS
WITH INTENT TO
PRODUCE FALSE
DOCUMENTS
FRAUD— Matter of Flores, 17 I. 18 U.S.C. § 1426(b) MT

DOCUMENT & N. Dec. 225, 1980
63
FRAUD—SALE OF WL 121870 (BIA

FALSE ALIEN 1980)
REGISTRATION
DOCUMENTS
FRAUD— Montero-Ubri v. INS, Mass. Gen. Laws, Ch. MT

DOCUMENT 229 F.3d 319 (1st Cir. 90, § 24B
FRAUD—USE OF 2000)
FALSE DRIVER’S
LICENSE
FRAUD—FALSE Squires v. INS, 689 Canadian Crim. Code § MT

PRETENSES F.2d 1276, 1278 n.5 319(1)
(6th Cir. 1982)
FRAUD—FALSE Ramirez v. INS, 413 Canadian Crim. Code § MT

PRETENSES F2d 405 (D.C. Cir.), 451; 22 D.C. Code §
cert. den., 396 U.S. 1301
929 (1969)
FRAUD—FALSE Matter of P, 3 I. & N. Canadian Crim. Code § MT

PRETENSES WITH Dec. 56, 1947 WL 573
INTENT TO 7051 (BIA 1947)
DEFRAUD
FRAUD—FOOD Abdelqadar v. 720 ILCS 5/17B-5 MT

STAMPS—ILLEGAL Gonzalez,
PURCHASE ___F.3d___, 2005 WL
1540245 (7th Cir. July
1, 2005)
FRAUD— Matter of Marino, 15 Italian Pen. Code Art. MT

FRAUDULENT I. & N. Dec. 284, 1975 642
DESTRUCTION OF WL 31498 (BIA 1975)
OWN PROPERTY
FRAUD— United States ex rel. MT

IMMIGRATION Popoff v. Reimer, 79
—ASSISTING F.2d 513 (2d Cir.
ALIEN FALSELY TO 1935)
OBTAIN
64
NATURALIZATION
FRAUD— Amouzadeh v. 18 U.S.C. § 1425(a) MT

IMMIGRATION— Winfrey, ___ F.3d
NATURALIZATION ___,2006 WL
2831020 (5th Cir.
Oct. 5, 2006)
FRAUD—MAIL Matter of Alarcon, 20 18 U.S.C. § 1341 MT

I. & N. 557 (BIA 1992)
FRAUD—MAIL Nason v. INS, 394 18 U.S.C. § 1341 MT

F.2d 223 (2d Cir.
1968)
FRAUD—SALE OF Matter of P, 6 I. & N. 21 U.S.C. §§ 331, 333 MT

MISLABELLED Dec. 795, 1955 WL (b)
OLEO WITH 8755 (BIA 1955)
INTENT TO
DEFRAUD
FRAUD— Matter of Canadian Crim. Code, MT

SECURITIES McNaughton, 16 I. & § 338(2); 15 U.S.C. §§
N. Dec. 569, 1978 WL 77q(a), 78j(b)
36469 (BIA 1978)
FRAUD— McNaughten v. INS, MT

SECURITIES 612 F.2d 457 (9th Cir.
—CONSPIRACY TO 1980)
AFFECT STOCK
PRICE BY FRAUD
FRAUD— Matter of Lethbridge, 18 U.S.C. § 474 NMT

SECURITIES 11 I. & N. Dec. 444,
—POSSESSION OF 445, 1965 WL 12321
COUNTERFEIT (BIA 1965)
SECURITIES
FRAUD— Matter of Acosta, 14 18 U.S.C. § 2314 MT

SECURITIES I. & N. Dec. 338, 1973
—
65
TRANSPORTATION WL 29443 (BIA 1973)

OF FORGED
SECURITY
FRAUD—STUDENT Izedonmwen v. INS, Higher Education Act MT

LOAN 37 F.3d 416 (8th Cir. of 1965, § 490(a), 20
1994) U.S.C. § 1097(a)
FRAUD—STUDENT Kabongo v. INS, 837 20 U.S.C. § 1097(a) MT

LOAN F.2d 753, 758 n.8 (6th
Cir. 1988)
FRAUD— Matter of M, 9 I. & N. Italian Crim. Code of MT

SWINDLING Dec. 132, 1960 WL 1889 § 413 and Italian
12076 (BIA 1960) Crim. Code of 1930 §
640
FRAUD— Matter of Afzal, A73- 18 U.S.C. § 2701(a)(1) NMT

TELEPHONE 042-981 (BIA 2000)
(unpublished)
FRAUD— Matter of DG, 6 I. & Ariz. Employment MT

UNEMPLOYMENT N. Dec. 488, 1955 WL Security Act of 1941
8686 (BIA 1955)
FRAUD— Matter of D, 2 I. & N. Canadian MT

UNEMPLOYMENT Dec. 836, 1947 WL Unemployment
7030 (BIA 1947) Insurance Act of 1945
§ 67
FRAUD— Matter of LT, 5 I. & N. Cal. Unemployment MT

UNEMPLOYMENT Dec. 705, 1954 WL Insurance Act § 101(a)
INSURANCE 7953 (BIA 1954)
FRAUD—WELFARE Flores v. INS, 66 F.3d MT

1069 (9th Cir. 1995),
opinion withdrawn,
73 F.3d 258 (9th Cir.
1996)
66
FRAUD—WELFARE Miller v. United MT

States INS, 762 F.2d
21 (3d
C. 8 U.S.C. 1252(g) Does Not Bar Jurisdiction

The Defendants also argue that Section 1252(g)
precludes jurisdiction. While Defendants are correct in that Section 1252(g)
does remove certain matters from the ambit of judicial review, the section is
only applicable in three narrow instances. The matter before the Court does not
fit within one of the three instances, Section 1252(g) does not bar jurisdiction.
Defendants rely on Gomez-Chavez v. Perryman, 308 F.3d 796 (7th Cir. 2002)
in arguing that Section 1252(g) precludes jurisdiction. In Gomez-Chavez, the
Seventh Circuit affirmed the decision of the district court, finding that 8 U.S.C.
§ 1252(g) bars a plaintiff from obtaining an order commanding the INS to
adjust his status.
Significantly, as Defendants mention, the Seventh Circuit noted that Section
1252(g) applies not only to affirmative actions, but to refusals to act as well.
Thus, "an alien attempting to achieve judicial [*12] review of such
discretionary measures may not avoid the § 1252(g) bar by...recharacterizing a
claim as one challenging a refusal to act." Id. at 800.
However, Section 1252(g) only applies to situations

"arising from all past, pending, or future exclusion,
deportation, or removal proceedings." Reno v.American-Arab Anti-
Discrimination Committee, 525 U.S.471, 943 (1999). Thus, although the
language of Section 1252(g) which states "...no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising from the decision
or action by the Attorney General...to adjudicate cases..." appears broad, this is
not
the case. "Instead this section is to be read narrowly and precisely." Sabhari v.
Reno, 197 F.3d 938, 942 (8th Cir. 1999). Section 1252(g) cannot be used to bar
jurisdiction because Plaintiffs' adjustment of status application has nothing to
do with the deportation process
[*1] Appeal from a judgment of the United States District Court for the
Eastern District of New York (Jack B. Weinstein, Judge) granting a writ of
habeas corpus to the petitioner, who had been ordered deported on the basis of
a drug conviction and a conviction for attempted weapons possession. The
District Court held (i) that petitioner is entitled to pursue § 212(c) relief from
deportation because the Immigration and Nationality Technical Corrections Act
of 1994 ("INTCA") § 203(c), Pub. L. No. 103-416, 108 Stat. 4305, 4311 (Oct.
25, 1994), codified at 8 U.S.C. §§ 1182, 1251 (1994), does not operate
retroactively to bar such relief, and (ii) that the Immigration Judge at
petitioner's immigration hearing did not err by failing to recognize that a
67
combined form of § 212(c) relief from deportation and § 245(a) adjustment of

status known as "Gabryelsky relief" was available. We hold (i) that relief from
deportation under § 212(c) is foreclosed by retroactive application of the
INTCA, and (ii) that petitioner should be afforded the opportunity to pursue
Gabryelsky relief because the Immigration Judge erred by failing to recognize
that such relief was possible. Accordingly, [*2] we grant the writ of habeas
corpus and remand to the District Court with instructions to permit the
petitioner to pursue Gabryelsky relief before an Immigration Judge. Drax v.
Ashcroft, 178 F. Supp. 2d 296, 2001 U.S. Dist. LEXIS 18855 (E.D.N.Y.,
2001).
DISPOSITION: Affirmed on alternative grounds.
Natz Appl
The District Court had jurisdiction under 8 U.S.C. § 1421(c) and 28 U.S.C. §
1331. This Court has jurisdiction of the appeal under 28 U.S.C. § 1291. The
scope of our review of a grant of summary judgment is plenary. Fed. Home
Loan Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003).
Defendants contend that we lack jurisdiction to decide this appeal, inasmuch as

the case has been mooted by the naturalization of the named plaintiffs, none of
whom are alleging past or present injury from the INS's purported illegal
action. Plaintiffs offer a number of arguments in response, some of which seek
to preserve jurisdiction so that Plaintiffs can pursue class certification.
Because there is no evidence that the INS ever granted Avendano's application
as required by 8 U.S.C. § 1446(d) or that Avendano took an oath of allegiance
in a public ceremony as required by 8 U.S.C. § 1448, he does not qualify as a
naturalized citizen.
Section 1429 of Title 8 did not divest the district court of its jurisdiction.
Jurisdiction stripping statutes are interpreted narrowly.
Bellajaro asked the district court to grant his application for naturalization on
the merits, or alternatively, to declare that he is eligible to naturalize but for the
pendency of removal proceedings.
Title 8 U.S.C. § 1252(g) provides that "no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders." That provision does not bar the injunction proceeding
68
here, however, because the gravamen of Hovsepian's claim does not arise from
the Attorney General's decision or action [*26] to commence proceedings,
adjudicate cases, or execute removal orders.
In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471,

482, 142 L. Ed. 2d 940, 119 S. Ct. 936 (1999), the Supreme Court emphasized
that the provision applies only to the discrete listed actions. As the Court noted,
"Section 1252(g) was directed against a particular evil: attempts to impose
judicial constraints upon prosecutorial discretion." Id. at 485 n.9. In other
contexts, we have followed the Court's instruction to interpret § 1252(g)
narrowly. See, e.g., Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th
Cir. 2001) (holding that § 1252(g) did not bar issuance of a preliminary
injunction restricting the implementation of a directive that had halted the grant
of suspensions of deportation); Catholic Soc. Servs., Inc. v. INS, 232 F.3d
1139, 1149-50 (9th Cir. 2000) (en banc) (rejecting claim that statute deprived
the district court of jurisdiction to enter a preliminary injunction); Barapind v.
Reno, 225 F.3d 1100, 1109-10 (9th Cir. 2000) (holding that statute does not
preclude jurisdiction over habeas petition for stay of asylum [*27]
proceedings).
Most recently, we held that the consideration of a purely legal question, which
does not challenge the Attorney General's discretionary authority, supports
jurisdiction. Ali v. Ashcroft, 346 F.3d 873, 878-79 (9th Cir. 2003). Although
that holding arose in the context of a habeas petition, while this one does not,
the same principle applies here. The district court may consider a purely legal
question that does not challenge the Attorney General's discretionary authority,
even if the answer to that legal question -- a description of the relevant law --
forms the backdrop against which the Attorney General later will exercise
discretionary authority. Cf. Spencer Enters., Inc. v. United States, 345 F.3d
683, 689-90 (9th Cir. 2003) (holding that the jurisdictional bar in §
1252(a)(2)(B)(ii) applies only to acts over which a statute gives the Attorney
General pure discretion unguided by legal standards or statutory guidelines).
adequate opportunity to cross-examine some of the INS's witnesses.
Whether a district court possesses the authority to issue an injunction is a

question of law that we review de novo. Avery Dennison Corp. v. Sumpton,
189 F.3d 868, 874 (9th Cir. 1999
Section 1252(g) gives the Attorney General exclusive jurisdiction to decide

whether to commence deportation proceedings. Reno v. Arab-American Anti-
Discrimination Comm., 525 U.S. 471, 482, 142 L. Ed. 2d 940, 119 S. Ct. 936
(1999); Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir. 2001).
It states, "No court shall have jurisdiction to hear any … claim … by any alien
69
arising from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders …." § 1252(g). n8
The statute's purpose is "to limit any judicial influence on the Attorney
General's decisions regarding the commencement of removal proceedings."
Chapinski v. Ziglar, 278 F.3d 718, 720 (7th Cir. 2002); see also AADC, 525
U.S. at 485 (discussing congressional intent in passing § 1252(g)).
In Reno v. American-Arab Anti-Discrimination Commission, 525 U.S.

471, 119 S. Ct. 936, 142 L. Ed. 2d 940 (1999), the Supreme Court explained
that § 1252(g) was not a general bar, but rather limited judicial review only to a
narrow class of discretionary executive decrees, decisions or actions to
commence proceedings, adjudicate cases, or execute removal orders. See id.
119 S. Ct. at 943.
[*10] 6For this reason, and because they say that habeas [*17] review, if still
available after IIRIRA, n7 will come too late to remedy this First Amendment
injury, respondents contend that we must construe § 1252(g) not to bar
constitutional claims.)
See also Magana-Pizano v. INS, 152 F.3d 1213, 1220 (CA9 1998) (elimination of
habeas unconstitutional); Ramallo v. Reno, 325 U.S. App. D.C. 2, 114 F.3d 1210, 1214
(CADC 1997) ( § 1252(g) removes statutory habeas but leaves "constitutional" habeas
05-3384 2 circ colaianni v. INS

The IJ 19 stated that he did not have authority to decide Colaianni’s citizenship
claim and was bound by the INS’s determination that Colaianni was not a
citizen. Because the BIA affirmed the decision of the IJ without issuing an
opinion, we review the IJ’s decision directly. Alrefae v. Chertoff, 471 F.3d
353, 357 (2d Cir. 2006). An alien must exhaust all available administrative
remedies before this Court may review a final order of removal. 8 U.S.C. §
1252(d)(1). However, “a party cannot be required to exhaust a procedure
from which there is no possibility of receiving any type of relief.”
Theodoropoulos v. INS, 358 17 F.3d 162, 173 (2d Cir. 2004), cert. denied, 543
U.S. 823 (2004). This Court has subject matter jurisdiction over Colaianni’s
substantive equal protection claim because the BIA lacked the 19 authority to
adjudicate it. See United States v. Gonzales-Roque, 301 F.3d 39, 48 (2d Cir.
2002) (explaining that “constitutional claims lie outside the BIA’s
jurisdiction”) jurisdiction over Colaianni’s claim that he is a United States
citizen. See 8 U.S.C. § 2 1252(b)(5)(A) (“If the petitioner claims to be a
national of the United States and the court of appeals finds from the pleadings
and affidavits that no genuine issue of material fact about the petitioner’s
nationality is presented, the court shall decide the nationality claim.” (emphasis
5 added)).
70
Forteau v. Attny Gen 3rd circ 07 BIA abused rules
We have previously held that § 1252(a)(2)(B)(I) only deprives courts of

jurisdiction to review the BIA’s exercise of discretion regarding its
decision to deny cancellation of removal. Menendez-Morachel v.
Ashcroft, 338 F.3d 176, 178 (3d Cir.2003)(holding that courts lack
jurisdiction to review the BIA’s determination that an alien
failed to satisfy the “exceptional and extremely unusual hardship”
requirement for cancellation of removal because the hardship
determination is discretionary.) This Court retains jurisdiction to review
non-discretionary aspects relating to a decision denying cancellation of
removal. Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir.
2005)(reviewing whether voluntary departure constitutes a break in
continual physical presence making petitioner ineligible for cancellation
of removal). Further, under the Real ID Act of 2005, Pub.L. No. 109-13,
119 Stat. 231, our jurisdiction has beenexpanded to consider
“constitutional claims or questions of law raised upon a petition for
review” notwithstanding the jurisdictional limitations of § 1252(a)(2)(B).
8 U.S.C.§ 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 357-
58 (3d Cir.2005). Thus,we have jurisdiction to review any issues of law
relating to the non-discretionary aspects of the BIA’s decision.
The IJ’s “findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
The doctrine of constitutional doubt does not require that

§1252(g) be interpreted in such fashion as to permit immediate
review of respondents’ selective-enforcement claims. An alien
unlawfully in this country has no constitutional right to assert such
a claim as a defense against his deportation
AADC
71
7. The court of appeals affirmed both the jurisdictional and merits

rulings of the district court. Pet. App. 1a-21a (AADC III).
a. The court held that IIRIRA did not bar the district court from
exercising jurisdiction over respondents' claims. It agreed with the
government that the new Section 1252(g) applied to the instant
case.
Pet. App. 7a-8a. The court stated, however, that IIRIRA "would
present serious constitutional problems" if it were construed to
divest the court of jurisdiction over respondents' suit. Id. at 12a. It
explained that the availability of other avenues of review was
uncertain (see id. at 12a-15a), and specifically held that transfer to a
district court under 28 U.S.C. 2347(b)(3) for resolution of factual
issues would not be available in a deportation case. Pet. App. 12a-
14a. The court also stated that in any event "prompt judicial review
of [respondents'] claims was required because violation of
[respondents'] First Amendment interests would amount to
irreparable injury
Dismissal deprived pet of a judicial forum for his claims

Generally, a crime involves “moral turpitude” if it is “inherently base,
vile, or depraved, and contrary to accepted rules of morality and the
duties owed between persons or to society in general.” Matter of Olquin,
23 I&N Dec. 896, 896 (BIA 2006) (citing Matter of Torres-Varela, 23
I&N Dec. 78 (BIA 2001)).
In determining whether a crime is one involving moral turpitude, we
must look to the elements of the statute. See Matter of Torres-Varela,
supra, at 84-85. Our determination is necessarily driven “‘by the
statutory definition or by the nature of the crime not by the specific
conduct that resulted in the conviction.’” Id. at 84 (quoting McNaughton
v. INS, 612 F.2d 457, 459 (9th Cir. 1980)). If necessary, we also seek
guidance from court decisions in the convicting jurisdiction. See Matter
of Sanudo, 23 I&N Dec. 968, 970-71 (BIA 2006).
Neither the seriousness of a criminal offense, nor the severity of the
sentence imposed is determinative of whether a crime involves moral
turpitude. Matter of Serna, 20 I&N Dec. 579, 581 (BIA 1992). Although
as a general rule, a simple assault and battery offense does not involve
moral turpitude, an aggravating factor can alter our determination. See,
e.g., Yousefi v. U.S. INS, 260 F.3d 318, 326-27 (4th Cir. 2001); Matter of
72
Fualaau, 21 I&N Dec. 475 (BIA 1996); Matter of Danesh, 19 I&N Dec.
669 (BIA 1988).
Assault and battery offenses requiring the “intentional infliction of
serious
bodily injury on another have been held to involve moral turpitude
because such intentionally injurious conduct reflects a level of
immorality that is greater than that associated with a simple offensive
touching.” Matter of Sanudo, supra, at 971.
73
The record of conviction in this case,

which includes a certified copy of the
warrant of arrest, the plea, and the
judgment, does not offer any specific
facts regarding the conviction.
Consulting the conviction documents
could therefore provide no
information that would lead us to
conclude that the respondent was
convicted under elements of the
Virginia statute that would constitute
a crime involving moral turpitude.
For this reason, we need not decide
whether the statute is divisible or
whether we should employ the
modified categorical approach,
because the result would be the same.
See Matter of Ajami, 22 I&N Dec.
949, 950 (BIA 1999); Matter of
Short, 20 I&N Dec. 136, 137-38
(BIA 1989).
The specific provision under which an alien was convicted may or may not
be discernible from the record. See Matter of Torres-Varela, supra, at 84-85
(stating that a determination whether a violation of a particular statute is a
crime involving moral turpitude requires an objective analysis of the elements
necessary to secure a conviction under that statute). In such cases, the
conviction will be found to be for a crime involving moral turpitude only if the
full range of the conduct prohibited in the statute supports such a finding. See
Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses
both acts that do and do not involve moral turpitude, a deportability finding
based on that statute cannot be sustained.
In previous cases we have held that neither the offender’s state of mind nor
the resulting level of harm, alone, is determinative of moral turpitude. For
example, in Matter of Sanudo, supra, at 972-73, we found that the alien’s
California domestic battery offense was not a crime involving moral turpitude
because, despite the intent element of the offense, a conviction required only
Crimes committed intentionally or knowingly have historically been found

to involve moral turpitude. See Michel v. INS, 206 F.3d 253, 263 (2d Cir.
74
2000); Matter of Perez-Contreras, supra. Moral turpitude may also inhere in

criminally reckless conduct, i.e., conduct that reflects a conscious disregard for
a substantial and unjustifiable risk. See, e.g., Matter of Franklin, 20 I&N Dec.
867 (BIA 1994) (involuntary manslaughter); Matter of Wojtkow, 18 I&N Dec.
111 (BIA 1981) (second-degree manslaughter); Matter of Medina, 15 I&N
Dec. 611 (BIA 1976) (aggravated assault). Fraud is categorized as a crime
involving moral turpitude, as are certain other offenses involving acts of baseness and
depravity, even though they have no element of fraud or, in some cases, no explicit
element of evil intent. See Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA 2001)
(noting that such crimes include murder, rape, statutory rape, robbery, kidnaping,
voluntary manslaughter, some involuntary manslaughter offenses, mayhem, theft
offenses, spousal abuse, child abuse.
The specific provision under which an alien was convicted may or may not
be discernible from the record. See Matter of Torres-Varela, supra, at 84-85
(stating that a determination whether a violation of a particular statute is a
crime involving moral turpitude requires an objective analysis of the elements
necessary to secure a conviction under that statute). In such cases, the
conviction will be found to be for a crime involving moral turpitude only if the
full range of the conduct prohibited in the statute supports such a finding. See
Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses
both acts that do and do not involve moral turpitude, a deportability finding
based on that statute cannot be sustained).
CA2 Expands on "Question of Law" Under INA §242(a)(2)(D)

The court held that for purposes of jurisdiction under INA §242(a)(2)(D), a "question of law" includes a
claim that the IJ applied an erroneous legal standard in making a discretionary determination, as well as a
claim that the IJ based his decision on an unambiguous misstatement of pertinent facts in the record.
(Khan v. Gonzales
“In due process challenges, there must be a showing

of prejudice.” Colindres-Aguilar v. INS, 819 F.2d 259, 261-62
(9th Cir. 1987) (citing Mosseni Behbahani v. INS, 796 F.2d
249, 251 (9th Cir. 1986) and United States v. Nicholas-
Armenta, 763 F.2d 1089 (9th Cir. 1985)). To establish prejudice, Hernandez-Gil must show that
the denial of his right to counsel “potentially [affected] the
outcome of the proceedings.” Baltazar-Alcazar, 386 F.3d at
947 (quoting Colmenar v. INS, 210 F.3d 967, 972 (9th Cir.
2000) (alteration in original)
Second Circuit on Stay of Voluntary Departure

"We hold that we have the authority under 28 U.S.C. § 2349(b), as incorporated by reference in 8 U.S.C. §
1252(a)(1), to stay an agency order pending our consideration of a petition for review on the merits, and
that nothing in the Immigration and Nationality Act or its implementing regulations strips us of this
authority with respect to orders of voluntary departure.We also hold that a BIA order granting voluntary
departure with an alternate order of removal is a final order of removal subject to judicial review under 8
75
U.S.C. § 1252. Because, under the customary framework for a stay, the balance of hardships tips decidedly
in Thapa's favor, a stay of his voluntary departure order is warranted here." Thapa v. Gonzales, Aug. 16,
2006.
CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A Person Is
Removed William v. Gonzales (4th Cir. Sept. 6, 2007)
Holding: The regulation barring motions to reopen filed after a person departs or is
removed, 8 C.F.R. § 1003.2(d), is invalid because it conflicts with the motion to reopen
statute. The Board of Immigration Appeals has jurisdiction to adjudicate a motion to reopen
filed post-departure
The doctrine of equitable estoppel applies against the

government only if it engages in affirmative misconduct
going beyond mere negligence. [7] Neither the failure
to inform an individual of his or her legal rights, nor
the negligent provision of misinformation constitutes
affirmative misconduct. In any event, estoppel against
the government is unavailable when petitioners have not
lost any rights to which they were entitled.
The district court also had jurisdiction over the

Sulits'equitable estoppel claim under 28 U.S.C. S
2241.2 Section 2241 makes habeas review available to
petitioners who are in custody only "in violation of
the Constitution or laws or treaties of the United
States." Because "the INS is the agency primarily
charged by Congress to implement the public policy
underlying" the immigration laws, see INS v. Miranda,
459 U.S. 14, 19 (1982), and equitable estoppel is an
element of federal common law, see Greany v. Western
Farm Bureau Life Ins. Co., 973 F.2d 812, 821 (9th Cir.
1992), the Sulits' equitable estoppel claim is based on
a violation of the "laws" of the United States. See
Johnson v. Williford , 682 F.2d 868,871 (9th Cir. 1982)
(federal prisoners filing S 2255 habeas petitions may
obtain relief under the doctrine of equitable
estoppel); see also Weaver v. Maass , 53 F.3d 956, 961
(9th Cir. 1995) (relief under doctrine of equitable
estoppel not
_______________________________________________________
__________
2 The Sulits offer a litany of provisions based on
76
which the district court could have exercised its

jurisdiction: 28 U.S.C.SS 1131, 1331, 1343, and 2241; 8
U.S.C. SS 1105a and 1329; and the Administrative
Procedure Act ("APA"), 5 U.S.C. S 701 et seq. Because
we find that we may assert juris-diction pursuant to S
2241, we do not address the numerous other jurisdic-
tional theories asserted. However, we note that 8
U.S.C. S 1329, as amended by IIRIRA, no longer provides
the district court with jurisdiction to consider the
Sulits' equitable estoppel claim. Cf. Baria v. Reno, 94
F.3d 1335, 1339 (9th Cir. 1996); Jaa v. INS, 779 F.2d
569 (9th Cir. 1986). As amended by IIRIRA, section 1329
only allows the district courts to exercise
jurisdiction over all civil actions brought by the
United States that arise under the provisions of
subchapter 12 of the INA. See IIRIRA S 381(b)
(providing that amendment to S 1329 "shall apply to
actions filed after the date of the enactment of this
Act [Sept. 30, 1996]"). However, nothing in the
language of S 1329 forecloses the operation of other
jurisdictional mechanisms such as S 2241. See Sabhari
v. Reno, 197 F.3d 938,941-42 (8th Cir. 1999).
available to state prisoners filing federal habeas

petitions);O'Bremski v. Maass, 915 F.2d 418, 423 (9th
Cir. 1990).
III
[4] The Sulits maintain that the INS violated their due
process rights by seizing their "green cards" without
providing a rescission hearing pursuant to 8 U.S.C. S
1256 and issuing a warrant of deportation despite their
adjustment of status.3 "It is well established that the
Fifth Amendment entitles aliens to due process of law
in deportation proceedings." Reno v. Flores, 507 U.S.
292, 306 (1993).
The INS failed to properly notify the Sulits of its
intent to rescind their adjustment of status, see 8
U.S.C. S 1256, or to conduct a hearing as required by
77
the INS regulations, see 8 C.F.R. S 246.1, prior to

seizing their "green cards." The INS therefore clearly
failed to follow its own procedural rules to the extent
that it sought to "seize"the Sulits' green cards.
Aliens who obtain adjusted status have a legitimate expectation that their
immigration will be permanent. In Fulgencio v. INS, 573 F.2d 596, 598 (9th
Cir. 1978) They should not remain constantly at risk for deportation because
of preconceived intent, a discretionary factor considered during the
adjustment proceeding.
http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0256.resp.html
The Third Circuit concluded in Bamidele v. INS, 99 F.3d 557 (1996),
that the INS was barred from initiating deportation proceedings
against an alien after the lapse of Section 246(a)'s five-year limitations
period where the grounds for deporting the alien relate solely to the
erroneous grant of an adjustment of status.
As an initial matter, the question of the applicability of the five-year limitations

period for rescissions in Section 246(a) to the context of removal proceedings
has not recurred with frequency. The issue arises only where: (i) there has been
an erroneous adjustment of status, (ii) the sole grounds for removal relate to
the erroneous adjustment of status, and (iii) the removal is sought beyond the
five-year limitations period for rescinding the adjustment of status. The issue
has been squarely implicated in four courts of appeals' opinions -the decision
below, the Third Circuit's decision in Bamidele, and the Ninth Circuit's decisions
in Monet, 791 F.2d at 754, and Biggs v. INS, 55 F.3d 1398, 1401 & n.3 (1995). In
the government's experience, the issue has not arisen with frequency in
administrative proceedings. Two reported administrative rulings squarely raise
the issue. See In re S-, 9 I. & N. Dec. at 548; In re Belenzo, 17 I & N. Dec. at 374.
the INS was required (until the IIRIRA's amendments to Section 246(a) became
effective in 1997, see pp. 11-12, infra) to rescind the alien's status before
commencing deportation proceedings. See Choe v. INS, 11 F.3d 925, 928-929 n.4
(9th Cir. 1993); In re Saunders, 16 I. & N. Dec. 326 (BIA 1977).
Can the denial of eligibility for discretionary relief at the removal/deportation

hearing amount to a denial of due process? Yes, but several Circuits have
inexplicably held otherwise. Compare United States v. Perez, 330 F.3d 97, 104 (2d
Cir. 2003) (immigration hearing was fundamentally unfair where counsel
ineffective assistance was responsible for alien's failure to apply for discretionary
78
relief); United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001)
("[f]ailure to ... inform the alien [of eligbility for discretionary relief] is a denial of
due process that invalidates the underlying deportation proceeding") with United
States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004) (en banc) (holding
The line of cases represented by Aguirre-Tello is fundamentally flawed: it is
inconsistent with both United States ex rel. Accardi v. Shaughnessy, 347
U.S. 260 (1954), and United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
The premise underlying Aguirre-Tello is that there is no right to
discretionary relief. See 353 F.3d at 1205. Aguirre-Tello overlooks the fact
that aliens who are eligible for relief have an enforceable right to be
considered for that relief: they can compel the Attorney General to exercise
his discretion. See Accardi, 347 U.S. at 268. Accord Arevalo v. Ashcroft,
344 F.3d 1, 15 (1st Cir. 2003) (holding an alien’s right to seek discretionary
adjustment of status is a "vested" right). See also Jideonwo v. INS, 224 F.3d
692, 696-97 (7th Cir. 2000) (retroactive denial of a vested right to the
exercise of discretion “is a cognizable claim under the Due Process
Clause”). More fundamentally, Mendoza-Lopez affirmed the dismissal of
the indictment because the denial of access to discretionary relief resulted in
“a complete deprivation of judicial review” of the hearing. Id. at 840;
accord id. at 842. Aguirre-Tello and Mendoza-Lopez cannot be reconciled.
See United States v. Lepore, __ F. Supp.2d __, 2004 WL 292483, *12-13
(D. Mass. Feb. 12, 2004) (agreeing Ag tello is incosistentv with Mendoza) - See United States v.
Arrieta, 224 F.3d 1076, 1080 (9th 2000) 212 h undocumented.
The Immigration
Judge's factual findings serve both as a basis and a boundary for our scope of review. See 8 C.F.R.
§ 1003. I(d)(3)(i) (2006) (requiring the Board not to engage in de novo review of facts determined
by an immigration Judge, but to review whether the findings of an Immigration Judge are "clearly
erroneous."). Thus, while our review of the final judgment of an Immigration Judge is under a de
novo standard, the degree to which we may disturb an Immigration Judge's decision is affected
where an Immigration Judge's factual findings are not "clearly erroneous." If an Immigration Judge
has come to factual conclusions which, on the face of the record, are not clearly erroneous, those
factual conclusions serve as a boundary under which we operate in our capacity as an appellate
reviewing body. Thus, a trier's findings of fact establish a foundation under which we then review
legal conclusions at de novo standard. This principle is illustrated in the instant case I do not find
clear error with the Immigration Judge's findings that the respondents' visit would be considered a
temporary visit abroad and that respondent did not intend to abandon her status as a legal perma
anent resident.
Patricia A.
returning lawful permanent resident immigrant is charged with inadmissibility

based on a criminal conviction prior to April 1, 1997 (IIRIRA general effective
date), the person may be able to argue that he or she is not subject to
inadmissibility review based on the law in effect prior to IIRIRA. Cf. Olatunji
v. Ashcroft, 387 F.3d 383 (4th Cir. 2004).
79
Lewis v. Commonwealth
93-CA"000941-MR, 5/6/94
The defendant was charged and convicted of two counts of fraudulent use of a credit card in
violation of KRS 434.650 as a result of purchasing tennis shoes from the shoe department and
clothes from the men’s department at J. C. Penney’s with an allegedly stolen credit card. Prior
to trial and at the close of all the evidence, the defendant argued he could only be charged with
one count of fraudulent use of a credit card because KRS434.650 and KRS 434.690 consolidate
all fraudulent credit card transactions which occur during a six month period into one offense.
The circuit court disagreed. The Count of Appeals agreed with the defendant that the terms of
the abovementioned statutes "prohibit and punish a course of conduct over a six-month period,
rather than individual acts." After examining the statutes and case law from other states with
similar statutes, the Court of Appeals held the defendant "was incorrectly indicted and convicted
of two felony counts of fraudulently using a credit card and should have been convicted of[only
one count." The defendant’s conviction for the second count of fraudulent use of a credit card
was reversed and the case was remanded for resentencing.
INADMISSIBILITY BASED UPON AN ADMISSION – ADMISSIONS INSUFFICIENT PRE-

1990
Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (government failed to
show noncitizen deportable for being inadmissible at entry or adjustment, under INA §
237(a)(1)(A), on the basis that he admitted commission of a controlled substances offense, under
current INA § 212(a)(2)(A)(i)(II), since this ground of inadmissibility was not triggered by an
admission of commission of the offense until IMMACT 1990, effective November 29, 1990, and
noncitizen adjusted status prior to that date).
ADMISSION – LPR SEEKING ADMISSION – BURDEN OF PROOF
Sandoval-Loffredo v. Gonzales, ___ F.3d ___ (8th Cir. July 13, 2005) (petitioner claimed that DHS must
show, by clear and convincing evidence that returning lawful permanent falls within exception to INA §
101(a)(13)(C); court found that IJ had put burden on DHS in finding petitioner had engaged in alien
smuggling, and denied review; court refused to decide whether IJ was correct in placing burden on DHS).
ADMISSIBILITY – RETURNING LAWFUL PERMANENT RESIDENT –

RETROACTIVITY – IIRAIRA DEFINITION OF "SEEKING ADMISSION" DOES NOT
APPLY RETROACTIVELY TO GUILTY PLEA PREDATING APRIL 1, 1997
Camins v. Gonzales, ___ F.3d ___, 2007 WL 2421466 (9th Cir. Aug. 28, 2007) (Fleuti
[Rosenberg v. Fleuti, 374 U.S. 449 (1963)] doctrine, holding noncitizen is not subject to grounds
of inadmissibility on return from a trip abroad that is "innocent, casual, and brief" continues to
apply where conviction resulted from plea entered prior to April 1, 1997, despite new INA §
101(a)(13)(C)(v), as amended by IIRAIRA § 301(a)(13): "We hold that IIRIRA § 301(a)(13) did
abrogate the old INA § 101(a)(13) and the Fleuti doctrine, but that the new law cannot be applied
retroactively to LPRs who acted in reasonable reliance on the old law prior to IIRIRA’s effective
date."), following INS v St. Cyr, 533 U.S. 289 (2001).
80
ADMISSIBILITY – ARRIVING ALIEN – BURDEN OF PROOF – BURDEN ON GOVERNMENT WHERE

APPLICANT HAS COLORABLE CLAIM TO LPR STATUS
Matter of Huang, 19 I. & N. Dec. 749, 754 (BIA 1988) ("While the burden of proving admissibility is
generally on the applicant in exclusion proceedings, see section 291 of the Act, 8 U.S.C. § 1361 (1982),
where an applicant for admission has a colorable claim to returning resident status, the burden is on the
Service to show that the applicant should be deprived of his or her status as a lawful permanent
resident. Matter of Salazar, 17 I & N Dec. 167 (BIA 1979); Matter of Kane, [15 I & N Dec 258 (BIA
1975)]").
INADMISSIBILITY – RETURNING LPR – BURDEN OF PROOF ON GOVERNMENT WHERE APPLICANT FOR

ADMISSION HAS COLORABLE CLAIM TO LPR STATUS
An exception to the noncitizen bearing the burden of proof in inadmissibility proceedings occurs when
the applicant for admission has a colorable claim to status as a returning lawful permanent resident. In
that case, the burden of proof to establish excludability is on the INS. Matter of Kane, 15 I. & N. Dec. 258
(BIA 1975). The government's burden is then to show by clear and convincing evidence that the
applicant should be deprived of lawful permanent resident status. See Matter of Huang, 19 I. & N. Dec.
749 (BIA 1988). See also, Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. Aug. 30, 2004)
ARRIVING ALIEN – NOT DEPORTABLE = UNSTATED EXCEPTION TO "SEEKING ADMISSION STATUTE"

Where LPR who is not deportable briefly leaves the United States, it would arguably violate Substantive
Due Process and Equal Protection to consider him or her an arriving alien, and thus inadmissible, and the
court must seek a construction of INA § 101(a)(13)(C)(v) which avoids these constitutional problems.
Note that INA § 101(a)(13)(C)(v) contains no exceptions for people granted waivers under INA §§ 212(c),
212(i), or former suspension of deportation under § 244. This strengthens the argument that this
provision is not all-inclusive, and that another exception is someone who was not removable when s/he
left the country. An equal protection claim may be brought to challenge the distinction between LPRs,
who committed offenses falling under INA § 212(a)(2) but not under INA § 237(a)(2), who made brief,
innocent departures, and those who, on the other hand, committed such offenses, but never departed
(or who did depart, but were not stopped at the border upon their return).
The Supreme Court on several occasions has noted the longstanding principle that
ambiguities in deportation laws should be construed in favor of the alien. See, e.g., INS v.
St. Cyr, 533 U.S. 289, 320 (2001); INS v.Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
DEPORTATION – ADVERSE INFERENCE FROM ASSERTION OF THE FIFTH

AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
An immigration court can draw an adverse inference from a noncitizen's assertion of the Fifth
Amendment privilege against self-incrimination. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923);
United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997). However, where
government offers no evidence except respondent's silence, it is insufficient to meet its burden of
81
proof by clear, unequivocal and convincing evidence, and the burden does not shift to
respondent. Matter of Guevara, 20 I. & N. Dec. 238 (BIA 1991).
First Circuit
MOTION TO REOPEN – VOLUNTARY DEPARTURE NOT STAYED

Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007) (BIA grant of a timely motion to
reopen did not vacate the original IJ’s decision finding removability and granting voluntary departure,
and did not stay the voluntary departure period, even though it is highly unlike that BIA would reach
decision on merits of motion to reopen before voluntary departure period expires; “We read §§
1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of
voluntary departure available only to aliens who agree to give up the fight and leave the country
willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v.
Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005);
Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following Dekoladenu v. Gonzales, 459 F.3d
500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006).
POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER
VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD
LEFT THE UNITED STATES
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal
proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. §
1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the
alien ... has departed from the United States after the issuance of the order.”) did not invalidate the
regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on
behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to
his or her departure from the United States.”).
POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL
PROCEEDINGS
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon
which deportability was premised is an appropriate basis for reopening administrative proceedings); De
Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.
2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005).

82
POST-CONVICTION RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF

Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of
showing conviction was vacated on a basis of legal invalidity where the order of removal has already
become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new
evidence that the conviction has been vacated). http://laws.lp.findlaw.com/1st/051895.html

NOTE: Under the particular facts of this case, it appears that the deportation order may not have
actually been final (see dissent). However, assuming (as the majority did), that the deportation order
was final and therefore the holding of the case does not apply outside the context of late motions to
reopen/reconsider will limit the reach of this otherwise unfortunate decision.
Second Circuit
BOARD OF IMMIGRATION APPEALS – MOTION TO RECONSIDER – DEFINITION AND STANDARD

Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has defined a motion to
reconsider as ‘"a request that the Board reexamine its decision in light of additional legal arguments, a
change of law, or perhaps an argument or aspect of the case which was overlooked."’ In re Cerna, 20 I.
& N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations establish that a motion to
reconsider must specify errors of fact or law in the BIA decision and be supported by relevant
authority.") citing 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir.
2001).
Seventh Circuit

Eighth Circuit
MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT
UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL PROCEEDINGS
Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by granting DHS motion to
reopen pursuant to 8 C.F.R. § 1003.23(b)(3) because DHS failed to establish that the evidence submitted
83
with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to
the conclusion of removal proceedings).
Ninth Circuit

Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court
order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence, for Arizona
misdemeanor conviction was illegal since the state at the time of sentence designated the conviction a
misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then
six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, required
remand to the BIA to consider the issue in the first instance; issue could not have been considered
earlier, since Arizona court entered 2004 minute entry over six months after initial BIA decision in this
case), citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir; 2004) (remanding to BIA to
consider in first instance whether petition continues to be barred from adjustment of status); INS v.
Ventura, 537 U.S. 12, 17 (2002)(per curiam) (remanding "changed circumstances" issue to BIA for
"opportunity to address the matter in the first instance).
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN
POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POST-CONVICTION ATTACK

Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2(d)
barring granting of motion to reconsider to noncitizen following physical deportation does not apply
when criminal conviction that formed a “key part” of the order of removal has been vacated on a basis
of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-
Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated
convictions are not legally valid, and thus do not bar motions to reopen).
BIA
MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES

The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack
jurisdiction to review motions filed by people who have been deported or have departed and that any
departure from the United States constitutes the withdrawal of a pending motion. The Ninth and
Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v.
Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its
terms applies only to a person who departs the United States while he or she ‘is the subject of removal
…proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings;
84
where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been
completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462
F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders,
INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a
motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales,
412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in
absentia order where the noncitizen had departed the United States before the commencement of
proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is
vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction
was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But
see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua
sponte authority to reopen and reconsider a case at any time).
Other

New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review
(January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys
representing clients who have prevailed on a petition for review or other legal action and who are
outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml.
REMOVAL – RETURN OF THE WRONGFULLY REMOVED

One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal"
under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows
the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks
to Beryl B. Farris, Atlanta.
JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION DOCTRINE – FAILURE

TO EXHAUST IS EXCUSED IF RESPONDENT CAN SHOW MISCARRIAGE OF JUSTICE,
SUCH AS WHERE CONVICTION ON WHICH DEPORTATION IS BASED DOES NOT
CONSTITUTE AN AGGRAVATED FELONY
Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (court of appeal can reach
claim that controlled substances conviction does not constitute an aggravated felony, under
Lopez, even though respondent failed to exhaust before the IJ or BIA because the law was clear
against him, under the miscarriage of justice exception to the exhaustion doctrine of 8 U.S.C. §
1252(d)(1)), following Marrero Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004); see
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Goonsuwan v. Ashcroft, 252 F.3d 383, 389
(5th Cir. 2001) (habeas petitioner's failure to exhaust may be excused “when administrative
remedies are inadequate” but not where administrative procedures exist to reopen petitioner's
case) (internal quotation marks omitted); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (“Even
where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of
jurisdiction, carved out exceptions.”); Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999) (finding
that an exception exists to address “certain constitutional due process claims”).
85
JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS

Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may not take
administrative notice of facts without affording other party to rebut the inferences drawn from
those facts).
INADMISSIBILITY – TIME OF EVALUATION – CRIME OF MORAL TURPITUDE – PETTY

OFFENSE EXCEPTION – TIME OF DECISION
Admissibility is normally evaluated under the law at the time of the application to
enter or adjust status, but if the law has changed between the date of application,
and the date of decision, the decision maker will apply law as it exists at the time
of the decision. See, e.g., Matter of Alarcon, 20 I. & N. Dec. 557 (BIA 1992) (BIA
assesses application for INA § 212(h) waiver of inadmissibility under law at time of
decision, not the statute as it existed when the application for the waiver was
made); Matter of Alarcon, 20 I. & N. 557 (BIA 1991) (amended statute governs
waiver application first filed under earlier version of INA § 212(h)); Matter of
Kazemi, 19 I. & N. Dec. 49 (BIA 1984) (intervening regulatory change regarding
jurisdiction to review INA § 212(d)(4) waiver application overrides prior BIA
precedent to the contrary); Squires v. INS, 689 F.2d 1276, 1280 (6th Cir. 1982)
(noncitizen no longer eligible for petty offense exception to inadmissibility, since
Canadian Parliament increased maximum punishment for the offense to more
than one year); Matter of Farias. Int. Dec. 3269 (BIA 1996) (evaluating eligibility
for INA § 212(d)(11) smuggling waiver at time of adjudication). This can work
either for or against the applicant. An applicant who was ineligible for a benefit
when s/he applied for it may become eligible under new law at the time the fact
finder makes her or his decision. On the other hand, if a foreign legislature
increases the punishment for an offense, the Board will determine if the applicant
qualifies for the petty offense exception by examining the maximum criminal
penalty at the time of the application for entry, not the maximum penalty at the
time the offense was committed
FRAUD – DIFFERS FROM THEFT

Soliman v. Gonzales, __ F.3d __ (4th Cir. Aug. 22, 2005) (fraudulent use of a credit
card," in violation of Virginia Code § 18.2-195, with intent to obtain $200.00 in
property, is not an aggravated felony theft offense; the BIA erred in finding that
86
fraud offenses necessarily included theft; theft is distinguishable from fraud, in

that theft requires the taking of property without consent, while fraud requires an
intent to deprive through consent obtained through misrepresentation).
http://caselaw.lp.findlaw.com/data2/circs/4th/041990p.pdf THEFT – FRAUD –
DIVISIBILITY – NUGENT ARGUMENT
California Penal Code § 484(a) is a divisible statute covering both fraud and theft offenses,
which are nearly mutually exclusive. If a fraud victim’s loss did not exceed $10,000, but a
sentence of a year or more was imposed, the government might charge a fraud offense as an
aggravated felony under the theft category. The government should be required to prove that the
record clearly establishes the elements of theft, the definition of which includes a taking of
property without consent. For a useful discussion of the difference between the elements of fraud
and theft, see Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005). There the Court
observed that:
When a theft offense has occurred, property has been obtained from its
owner "without consent"; in a fraud scheme, the owner has voluntarily
"surrendered" his property, because of an "intentional perversion of truth,"
or otherwise "acted upon" a false representation to his injury. The key and
controlling distinction between these two crimes is therefore the "consent"
element -- theft occurs without consent, while fraud occurs with consent
that has been unlawfully obtained.
Id. at 282. Under this definition Cal. P.C. §484(a) would be held divisible, since it includes
both fraud and theft offenses. The Third Circuit held that where an offense constitutes both
theft and fraud, it must meet both requirements in order to be an aggravated felony: a year’s
sentence must be imposed and loss to the victim must be greater than $10,000. Nugent v
Ashcroft, 367 F.3d 162 (3rd Cir. 2004
TAX FRAUD
A plea to a violation of 26 U.S.C. 7206(2) does not constitute an aggravated felony. INA §
101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) ["is described in section 7201 of the Internal Revenue
Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000"]).
See Evangelista v. Ashcroft, 359 F.3d 145, 149-53 (2004); Lee v. Ashcroft, 368 F.3d 218 (2004) (federal
conviction of violating § 7206(a) is not an aggravated felony, since Congress specified only one tax crime
(Section 7201) as an aggravated felony). It may be a crime involving moral turpitude.
Possible alternative dispositions include a plea to a violation of 26 U.S.C. § 7203 (willful failure to file
return supply information, or pay tax), a misdemeanor, and 26 U.S.C. § 7202 (willful failure to collect or
pay over tax), a felony.
A plea to multiple violations of INA § 274A(a)(1)(A), would constitute a "pattern or practice" violation of
INA § 274A(f), 8 U.S.C. 1324a (f), a misdemeanor punishable by a fine of not more than $3,000 for each
alien with respect to whom such a violation occurs, imprisonment for not more than six months for the
entire pattern or practice, or both.
87
ADJUSTMENT OF STATUS – ADMISSION

Aremu v. DHS, ___ F.3d ___, 2006 WL 1668778 (4th Cir. Jun. 19, 2006) (for
noncitizen previously admitted to the United States, the date of adjustment of
status does not constitute a new “admission” for purposes of determining
whether the noncitizen is deportable for having committed a CMT within five
years of admission, under INA § 237(a)(2)(A)(i)), overruling Matter of Shanu, 23 I.
& N. Dec. 754 (BIA 2005). Note: The court cited Abdelqadar v. Gonzalez, 413 F.3d
F.3d 668 (7th Cir. 2005), and Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004)
as making the same holding, although Shivaraman concerned a noncitizen who
(unlike Shanu), had never fallen out of status, and Abdelqadar was arguably dica.
The Fourth Circuit explicitly stated that the decision did not reach the issue of
whether adjustment of status qualified as an “admission” for a noncitizen who
entered the United States illegally, and was therefore never previously admitted.
See, e.g., Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001); Rosas-
Ramirez, 22 I. & N. Dec. 616 (BIA 1999).
DEPORTABLE BECAUSE INADMISSIBLE AT TIME OF ENTRY OR ADJUSTMENT – COURT MUST LOOK AT
LAW AS IT EXISTED AT TIME OF ENTRY/ADJUSTMENT
Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (to determine whether a
noncitizen is deportable for being inadmissible at entry or adjustment under INA § 237(a)(1)(A), the
court must look to the law as it existed at the time of entry or adjustment, not current law
Jurisdiction We begin by noting that, although the IJ found Kelava removable for being convicted of an
aggravated felony, we are not deprived of jurisdiction to hear his appeal under 8 U.S.C. § 1252(a)(2)(C),
because the BIA chose not to address the aggravated felony conviction in its decision, basing its decision
solely on the terrorist activity charge. We addressed a similar situation in Toro-Romero v. Ashcroft, 382
F.3d 930 (9th Cir. 2004). There, the IJ found Toro Romero removable for having been convicted of a
crime involving moral turpitude and for falsely representing himself as a United States citizen. While §
1252(a)(2)(C) would have prohibited this court's jurisdiction over the moral turpitude removal, the BIA
affirmed Toro-Romero's removal only on the false representation ground, expressly declining to decide
any other issues raised by Toro-Romero on appeal. Id. at 93233. We explained that our review is limited
to the BIA's decision, and the sole ground for the final order of removal was therefore Toro-Romero's
false representation.
The Court then determined whether the application of the statute would result in a retroactive effect.
Id. at 320. The Court noted that a statute has retroactive effect when it "takes away or impairs vested
rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already past." Id. at 321 (internal quotation marks
omitted
88
Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002), is a particularly relevant
authority for the primacy of the conduct date. There, the Eighth Circuit held that an immigrant
whose illegal conduct pre-dated IIRIRA remained eligible to apply for a discretionary
adjustment of status notwithstanding that the same had been eliminated by IIRIRA.
Under BIA precedent, a motion premised on a claim of ineffective

assistance of counsel must satisfy three procedural requirements in order to be
considered on the merits: (1) it must be supported by an affidavit by the
petitioner attesting to the relevant facts; (2) the petitioner must inform counsel
of the allegations and allow counsel the chance to respond before the petitioner
files the motion; and (3) the motion must state whether a complaint has been
filed with the appropriate disciplinary authorities and, if it has not been filed, an
explanation as to why it has not been filed. Matter of Lozada, 19 I. & N. Dec.
637, 639 (BIA 1988
Nativi-Gomez points out that one court has recognized a due process violation
where an alien sought discretionary relief. See Rabiu v. INS, 41 F.3d 879, 883
(2d Cir. 1994). But Rabiu does not discuss Dumschat or consider whether a
constitutionally protected liberty interest is implicated where an alien seeks
discretionary relief. As this issue was not before the court in Rabiu, we believe
Rabiu is of limited utility to our analysis. Nativi-Gomez points out that Rabiu
involved a request for statutorily-created relief, the same type of relief, in broad
terms, that Nativi-Gomez seeks, but the source of relief sought by an alien is
irrelevant.
2
What matters is whether the individual has an expectation of receiving some

measure of relief. Here he does not. However broadly and amorphously the
concept of
constitutionally protected liberty interests has been defined within procedural-

due-process jurisprudence, it does not include statutorily created relief that is
subject to the unfettered discretion of a governmental authority.
The failure to receive discretionary adjustment-of-status relief does not
constitute the deprivation of a constitutionally-protected liberty interest. For this
reason, Nativi-Gomez cannot establish that he had a right to due process in his
proceedings to obtain this relief. Accordingly, the BIA did not abuse its
discretion in affirming the Immigration Judge's dismissal of Nativi-Gomez's
motion to reopen,.
89
______________________________
LOG
IN
Hibbert v. INS, 554 F.2d 17, 20 (2d Cir. 1977)
Digrado v. Ashcroft, No. 9:01-CV-1359 (N.D.N.Y., Feb. 8, 2002)

(finding deportation order res judicata)
As the Medina Court noted in applying the doctrine of res

judicata to the immigration case before it:
res judicata precludes a second suit on the same issue

between the same parties when there has been a valid and
final judgment on that issue; and it makes no difference that
the final, valid judgment may have been based on an
erroneous factual finding or an erroneous understanding of
law, or both. The only considerations for purposes of
res judicata is [sic] whether the judgment was final and
valid, and there was an opportunity to reach the merits.
Here, these requirements were met.
993 F.2d at 504 (emphasis added).
The reasoning of United States v. Hernandez-Rodriguez,

170 F. Supp. 2d 700 (N.D. Tex. 2001) is persuasive in
considering respondent's res judicata argument. In that
case, the petitioner was admitted to the United States as a
lawful and permanent resident in 1990. Id. at 701-02. In
1994 he was convicted of sexual assault. Id. at 702. This
offense qualified petitioner as an "aggravated felon" for
purposes of the immigration law. Id. Over petitioner's
objection, the Immigration Judge retroactively applied the
amendments to the immigration laws to petitioner's case
and ordered him deported. Id.
He was deported in 1999. Id.
90
July 27, 2004

Final BIA Decision Overturning Removal Order
Based on One Theory Precludes New NTA Based
on Different Ground of Removal.
Contents:
1. Introduction: Final BIA Decision Overturning

Removal Order Based on One Theory Precludes New NTA Based on
Different Ground of Removal.
2. Online Resources Related to Drug Offenses
3. Article Part 1: Res Judicata in Immigration Proceedings
4. Article Part 2: Implications
[1] INTRODUCTION: Final BIA Decision Overturning Removal Order

Based on One Theory Precludes New NTA Based on Different Ground
of Removal.
By: Norton Tooby and Joseph Justin Rollin
In Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL

1368391 (D. Conn. June 9, 2004), the United States District
Court granted federal habeas corpus, holding a second removal
order was unlawful, and directed the BIA to vacate the second
removal order and terminate removal proceedings against a
noncitizen. Although two circuit court decisions have applied
the doctrine of res judicata to determinations of citizenship,
this is possibly the first published federal decision to apply
the doctrine to charges of deportation or inadmissibility in
removal proceedings.
[2] ONLINE RESOURCES:
Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391 (D.

Conn. June 9, 2004), may be viewed without charge at:
http://www.ctd.uscourts.gov/Opinions/060904.wwe.murray.pdf
Medina v. INS, 1 F.3d 312, denying reh'g of 993 F.2d 499 (5th
Cir. 1993), may be viewed without charge at:
91
http://www.ca5.uscourts.gov/opinions/pub/92/92-5305.CV0.wpd.pdf
BIA decisions may be viewed without charge at:

http://www.usdoj.gov/eoir/vll/intdec/lib_indecitnet.html
[3] ARTICLE PART I: Res Judicata in Immigration Proceedings
Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391

(D. Conn. June 9, 2004), holds that the doctrine of res judicata
applies to charges filed on a Notice to Appear (NTA) or Order
to Show Cause. The INS initiated removal proceedings against
Murray by charging him as an aggravated felon, under INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), on the basis
of two marijuana convictions. The BIA sustained the
noncitizen's appeal from a removal order, and terminated
proceedings, finding the convictions did not constitute an
aggravated felony. The INS then filed a new NTA on the ground
that Murray was deportable as a noncitizen convicted of
controlled substance offenses. The new NTA was based upon the
two previously charged marijuana convictions, and a third
conviction that was in the record at the time of the initial
proceedings. The respondent filed a motion to terminate on the
basis of a claim that res judicata barred the second NTA. The
Immigration Judge denied the motion. The BIA affirmed.
The doctrine of res judicata embraces two distinct preclusion

concepts: claim preclusion and issue preclusion. See United
States v. Shanbaum, 10 F.3d 305 (5th Cir. 1994); see also Robi
v. Five Platters, Inc., 838 F.2d 318 (9th Cir. 1988). In
either case, the issues may rest on a factual determination, a
pure legal issue or a combination of fact and law. See Medina
v. INS, 993 F.2d 499 (5th Cir. 1993).
Claim preclusion (or "pure res judicata") applies when: 1)

the parties in a later action are identical to or in privity with
the parties in a prior action; 2) the judgment in the prior
action was rendered by a court of competent jurisdiction; 3)
the prior action concluded with a final judgment on the merits;
and 4) the same claim or cause of action is involved in both
suits. Included in the doctrine of claim preclusion is the
idea of waiver. "If a party does not raise a claim or a
defense in the prior action, that party thereby waives its
right to raise that claim or defense in the subsequent action .
. . . [T]he effect of a judgment extends to the litigation of
all issues relevant to the same claim between the same parties,
whether or not raised at trial." United States v. Shaunbaum,
92
10 F.3d at 311 (internal quotation marks and citation omitted).

Claim preclusion therefore applies to claims that "were or
could have been" raised in the prior action. Allen v. McCurry,
449 U.S. 90, 94 (1980).
Issue preclusion (or "collateral estoppel") treats specific

issues of fact or law that are validly and necessarily
determined between two parties as finally and conclusively
decided. Issue preclusion is appropriate where: 1) the issue
under consideration in a subsequent action is identical to the
issue litigated in a prior action; 2) the issue was fully and
vigorously litigated in the prior action; 3) the resolution of
the issue was necessary to support the judgment in the prior
case; and 4) there are no special circumstances that would
render preclusion inappropriate or unfair. Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 326-32 (1979). If these conditions
are satisfied, issue preclusion prohibits a party from seeking
another determination of the litigated issue in the subsequent
action. Id.
On petition for habeas corpus, in Murray, the district court

applied the doctrine of claim preclusion, or pure res judicata,
and held that the immigration authorities were precluded from
filing a new NTA charging a different ground of removal that
was based upon convictions that were part of the record in the
initial proceedings. The court relied upon Medina v. INS, 993
F.2d 499, 503-4, reh'g denied, 1 F.3d 312 (5th Cir. 1993)
(precluding INS from bringing a second challenge to finding of
United States citizenship), to find that the doctrine of res
judicata applied to administrative immigration decisions. The
court rejected the INS argument that Medina was distinguishable
because that case dealt with a challenge to a finding of
citizenship, rather than charges of removal. See also
Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir. 1987) (applying
res judicata to finding of alienage and denying INS motion to
reopen since the basis for the motion was not in fact new
evidence).
The district court stated:
The doctrine [of res judicata] applies equally in the

context of immigration proceedings. Medina v. INS, 993 F.2d
499, 503-4 (5th Cir. 1993) (applying res judicata to final,
valid judgments of the BIA). As the Fifth Circuit stated:
Few legal doctrines are more intrinsic or necessary in our

93
system than res judicata. That doctrine, which provides that a

valid and final judgment precludes a second suit between the
same parties on the same claim or any part thereof, ensures
that litigation will come to an end.
Medina v. INS, 1 F.3d 312, 313 (5th Cir. 1993).
Respondents argue that res judicata should not apply to

immigration removal proceedings involving a criminal alien.
However, as Medina warns, carving out a large exception to the
res judicata doctrine "would allow the agency to eschew direct
appeal -- either inadvertently, through error, or consciously
as a strategic decision - then years later, collaterally attack
decisions of immigration judges."
The Court finds that no exception to the res judicata

doctrine is warranted in this context. Res judicata applies to
immigration removal proceedings. Here, the second charge is
based on same nucleus of operative facts that were known or
should have been known when the removal charge based on
conviction of an aggravated felony was brought at the first
proceeding. All of the facts concerning his drug convictions
are related in time, origin and motivation. These underlying
facts form a convenient unit for adjudication. Further, it
conforms to party expectations that all of the charges against
petitioner based on these underlying facts should be resolved
in one adjudication.
Accordingly, the second charge of removability, which

could have been brought in the prior proceeding, was barred by
res judicata. Thus, the order of removal is invalid. The Court
will grant the petition for habeas corpus relief.
Murray v. Ashcroft, ___ F. Supp. 2d ___, 2004 WL 1368391

at *2. The court therefore found that the second removal order
was contrary to law, and directed the BIA to vacate petitioner's
final order of removal and issue an order terminating
proceedings.
The nearest to a doctrine of res judicata in immigration

proceedings thus far comes from the line of cases culminating
in Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), and
including Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978),
Matter of Sanchez, 16 I. & N. Dec. 363 (BIA 1977), and Matter
of R-G-, 8 I. & N. Dec. 128 (BIA 1958). The BIA has found that
Congress allowed for the possibility that noncitizens deported
94
on some basis could be allowed to apply for, and obtain,

subsequent readmission to the United States in the future,
without having to face a charge of deportation on the same
basis as the original charge. Matter of S-, 7 I. & N. Dec.
Dec. 536 (BIA 1957). See INA § 212(a)(9) (allowing for
admission of certain removed noncitizens after a statutory
period). On this basis, the BIA has found in these cases that
the INS cannot place a noncitizen in removal proceedings,
following the noncitizen's successful [re]adjustment of status
after having already been found removable, by charging the
noncitizen under the same ground, or a different ground of
removal on the basis of the same acts, upon which the initial
finding was based.
Although the Rainford line of cases may have created a

pseudo res judicata doctrine based upon an apparent intent by
Congress, this line of cases has so far only dealt with
noncitizens seeking adjustment of status following a finding of
deportability, and only goes so far as to cover subsequent
charges of deportation that are identical to the initial
charges, or are based on the same activity.
[4] ARTICLE PART II: Implications
There are a number of potential implications of Murray,

Medina, and Ramon-Sepulveda:
(1) Pure Res Judicata v. Collateral Estoppel: Murray

appears to be the first federal published decision to apply the
doctrine of claim preclusion (pure res judicata) to immigration
proceedings, rather than merely issue preclusion (collateral
estoppel). Both Medina and Ramon-Sepulveda were collateral
estoppel cases.
(2) Implied Waivers: By applying claim preclusion,

including the idea of issue waiver, to immigration proceedings,
the INS should be required to charge all available removal
grounds simultaneously, so as not to harass the noncitizen with
piecemeal, successive litigation.
(3) Express Waivers: In Medina, the INS argued that

res judicata did not apply, as the INS had conceded the
respondent's citizenship in the initial proceeding, and
therefore the INS did not have an opportunity to litigate the
95
issue during the first proceedings. The court rejected this

argument, finding that there was an opportunity to litigate the
issue, but the opportunity was waived by the INS. 993 F.2d at
504, n. 18. Given this aspect of res judicata, concessions of
legal issues should not be taken lightly.
(4) Pre & Post IIRAIRA: Res Judicata may not be applicable
in a case where a respondent's initial proceedings were
terminated prior to the passage of IIRAIRA, and the INS served
a second NTA after IIRAIRA, on the basis of legislative additions
to the aggravated felony definition. Unlike the case in Medina,
the INS would not have had an opportunity to charge the
respondent as an aggravated felon in the first instance.
(5) Uncharged Convictions: Murray did not limit its holding

to only the two charges that were included in the initial NTA,
but also applied claim preclusion res judicata to a third
conviction, that was included in the second NTA, but not the
first. This means that if the INS charges less than all
convictions in a respondent's pre-existing criminal history as
finding a basis for an initial charge of removal, the INS loses
the opportunity to base a charge on the uncharged convictions
after the immigration proceedings have terminated. But see 8
C.F.R. § 1003.30 (INS may file additional charges at any time
during proceedings).
(6) Multiple CIMTs: This does not mean, however, that the
INS cannot use a previously charged conviction in combination
with a new conviction to charge a respondent in a subsequent
NTA with deportability as a noncitizen convicted of multiple
CIMTs. Cf. Matter of Gordon, 20 I. & N. Dec. 52, 56 (BIA 1989)
(CIMT conviction previously waived by 212(c) can be used in
charging respondent with deportability for multiple CIMTs in
combination with subsequent conviction).
(7) Errors of Fact or Law: Medina stated that "it makes no

difference that the final, valid judgment may be been based on
an erroneous factual finding or an erroneous understanding of
the law or both. The only considerations for purposes of res
judicata is whether the judgment was final, valid, and there
was an opportunity to reach the merits." 993 F.2d at 504.
Therefore, even if the decision of the immigration judge was
based upon some sort of error, res judicata still bars
relitigation of the issues presented, or the issues that could
have been presented.
96
(8) There may be an argument that the INS cannot charge a

respondent with inadmissibility on basis of a conviction, then,
after proceedings are terminated and the noncitizen is admitted
to the United States, file a second NTA charging the noncitizen
with deportation on the basis of the same conviction. As
former "exclusion" and "deportation" proceedings have been
consolidated into unitary "removal" proceedings, the INS is
arguably required to charge both the applicable grounds of
inadmissibility and deportability during the initial
proceedings. But see Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D.
Cal. 2004) (fact situation: proceedings terminated after petty
offense exception found by IJ to apply to returning LPR
convicted of CIMT; INS then filed new NTA charging
deportability as aggravated felon). Although grounds of
deportation do not apply to a noncitizen seeking admission,
charging otherwise applicable grounds of deportability in the
NTA in cases like Zavala would conform with the concept of
consolidated "removal" proceedings, would give the respondent
notice of issues, and would promote administrative and judicial
economy should the respondent be found not inadmissible
Nevertheless, it is clear that there are situations in which claim preclusion

does not prevent the reopening or reconsideration of a final judgment. For
example, relief may be had from "final" district court judgments under
Federal Rule of Civil Procedure 60. See State Bank of S. Utah v. Gledhill
(In re Gledhill), 76 F.3d 1070, 1082 (10th Cir. 1996) (holding that res
judicata bars collateral but not direct attacks on a final judgment and that
"Rule 60(b) provides a procedural avenue whereby, in appropriate
circumstances, a party may assert a direct attack on a final judgment or
order"). We see no reason-and Mr. Rana does not present one-that the
doctrine of claim preclusion should bar reopening a "final" decision of an
agency in accordance with the immigration regulations but allow relief
from a "final" judgment of a district court under rule 60
97
Congress may be presumed, when enacting a statute

granting to an agency adjudicatory authority, to mandate
adherence to the doctrine of collateral estoppel. Id.
The INA grants adjudicatory authority to immigration

judges and the Board of Immigration Appeals
are charged with resolving factual and legal disputes based on
an evidentiary record developed by the parties following notice
and a hearing. 8 U.S.C. § 1229a(b), (c). These functions are
inherently judicial in nature, and properly subject to principles
of issue preclusion. See, e.g., United States v. Utah Constr. &
Min. Co., 384 U.S. 394, 422 (1966) (“When an administrative
agency is acting in a judicial capacity and resolved disputed
issues of fact properly before it which the parties have had an
adequate opportunity to litigate, the courts have not hesitated to
apply res judicata to enforce repose.”). Therefore, the INA will
be read to incorporate principles of collateral estoppel if
application of the doctrine does not frustrate congressional
intent or impede the effective functioning of the agency.
Astoria, 501 U.S. at 108-11; Utah Constr., 384 U.S. at 422.
(“Issues of fact litigated and decided in a prior administrative proceeding may

have issue preclusive effect on issues of fact presented in a subsequent
administrative or judicial action.”); Charles H. Koch, Jr., Administrative Law &
Practice § 5.72[1] (2d ed. 1997)
(“The doctrines of res judicata and collateral estoppel are
applicable to administrative proceedings when an agency is
acting in a judicial capacity.”); cf. Cook v. Principi, 318 F.3d
1334, 1337 (Fed. Cir. 2002) (applying res judicata to
administrative proceedings); Jones v. SEC, 115 F.3d 1173, 1178
(4th Cir. 1997) (same); SEC v. First Jersey Sec., Inc., 101 F.3d
1450, 1463-64 (2d Cir. 1996) (same). But cf. Title v. INS, 322
F.2d 21, 23-24 (9th Cir. 1963)
The INS nevertheless argues that, even if preclusion
principles should be read into the INA, collateral estoppel
Page 17
See also Restatement (Second) of Judgments § 83 cmt.
7
a (“[Collateral estoppel] applies when a final adjudicative

determination by an administrative tribunal is invoked as the
basis of claim or issue preclusion in a subsequent action,
whether that subsequent action is another proceeding in the
same administrative tribunal or is a proceeding in some other
administrative or judicial tribunal.”).
98
17
should bar relitigation of an issue only in subsequent
proceedings in the federal courts – not in proceedings within the
agency itself. It stresses that the decisions in which the Supreme
Court has discussed the doctrine, particularly Astoria Federal
Savings & Loan Association v. Solimino, 501 U.S. 104 (1991),
involved cases brought in federal court following an adverse
agency determination. See id. at 106-07. On this premise, the
INS posits that decisions of the agency should be given estoppel
effect only in subsequent judicial proceedings
There is no basis for this distinction. The doctrine of

collateral estoppel has long been understood to apply in all
proceedings that may be deemed “adjudicative,” no matter
whether the governing entity is a “court” or an “agency.” See
Utah Constr., 384 U.S. at 421-22 & n.20 (citing 2 Kenneth Culp
Davis, Administrative Law Treatise §§ 18.01-18.12 (1958); I.
Groner & H. Sternstein, Res Judicata in Federal Administrative
Law, 39 Iowa L. Rev. 300 (1954)); United States v. Int’l Bldg.
Co., 345 U.S. 502, 504-05 (1953); Comm’r v. Sunnen, 333 U.S.
591, 597-99 (1948); see also Pearson, 202 U.S. at 284-85. The
7
adversarial system of dispute resolution established in the INA

is plainly adjudicatory in character and susceptible to full
Page 18
18
application of common law principles of preclusion. See, e.g.,
Restatement (Second) of Judgments § 83. Nothing in the statute
or the legislative history – nor any authority of which this Court
is aware – suggests that collateral estoppel should bar
relitigation in proceedings before the federal courts, but not in
proceedings before the agency itself. Accord Hamdan v.
Gonzales, 425 F.3d 1051, 1059-60 (7th Cir. 2005); Santana-
Albarran v. Ashcroft, 393 F.3d 699, 703-04 (6th Cir. 2005);
Medina, 993 F.2d at 503-04; Ramon-Sepulveda, 824 F.2d at
750; Restatement (Second) of Judgments § 83, cited with
approval in Elliott, 478 U.S. at 798 n.6; Charles H. Koch, Jr.,
Administrative Law & Practice § 5.72 (2d ed. 1997); 18 James
Wm. Moore et al., Moore’s Federal Practice–Civil § 132.03[e]
(3d ed. 2001).
Requiring the INS to meet its burden of proof at a single
hearing is consistent with the statutory scheme, as interpreted by
the administering agency, see Fedorenko, 19 I. & N. Dec. at 61,
and will not frustrate the goals of Congress. The “lenient
presumption in favor of administrative estoppel” holds, see
99
Astoria, 501 U.S. at 108, and the INA will be held to incorporate
common law principles of collateral estoppel.
B.
The question then becomes how the doctrine should be
applied in this case. Courts and commentators have consistently
recognized that collateral estoppel was borne of equity and is
therefore “flexible,” bending to satisfy its underlying purpose in
light of the nature of the proceedings. See Nat’l R.R. Passenger
Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 528 (3d Cir.
Copyright & Disclaimers Policy
CONVICTION – REQUIREMENTS – CONVICTION DOES NOT EXIST

WITHOUT SENTENCE
POST CON – AFTER CONVICTION VACATED – IF THERE IS NO NEW

SENTENCE, THERE IS NO CONVICTION FOR IMMIGRATION PURPOSES
If no sentence has been imposed, the defendant does not have a final conviction for
immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a
criminal conviction may not be considered by the immigration authorities until it is
final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed.
1377 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman
v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937)); United
States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992)(citing United States v.
Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not
final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571
(6th Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction
is final for deportation purposes
The doctrine of res judicata proclaims that “a valid and final judgment precludes a
second suit between the same parties on the same claim or any part thereof.” Medina v.
INS, 993 F.2d 499, 503 (5th Cir. 1993); see also Dye v. U.S. Farm Servs. Agency, 129
Fed. Appx. 320, 322 (7th Cir. 2005) (“Res judicata bars suits where there is a final
judgment on the merits; an identity of the issues of the lawsuit; and an identity of the
parties or their privies.”). Res judicata (as well as the related principle of collateral
estoppel) applies to administrative proceedings such as the adjudication of petitions for
relief in immigration courts. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S.
104, 107-08 (1991); Santana-Albarran v. Ashcroft, 393 F.3d 699, 704 (6th Cir. 2005);
Johnson v. Ashcroft, 378 F.3d 164,
100
Although section 11366.5(a) and § 856(a)(2) are very similar, they differ in
one important respect: the mens rea requirement for section 11366.5(a) is only
"knowingly," while for § 856(a)(2) it is "knowingly and intentionally."
"Intentionally" and "knowingly" are terms with traditional meanings in criminal
law, and the meanings are different. Cf. Salviejo-Fernandez v. Gonzales, 455
F.3d 1063, 1067 (9th Cir. 2006) (citations omitted)(noting that generally,
"purpose" equates with specific intent, and "knowingly" with general intent).
Indeed,
CIMT CATG Analysis

A categorical analysis requires us to compare the elements of the statute of
conviction with a federal definition of the crime to determine whether conduct
proscribed by the statute is broader than the generic federal definition. Id. In doing
so, we “cannot examine the underlying facts of the prior offense, but ‘look only to
the fact of conviction and the statutory definition of the prior offense.’ ” United
States v. Corona-Sanchez, 291 F.3d 1201, 1203, 1212-13 (9th Cir. 2002) (enbanc)
(quoting Taylor, 495 U.S. at 602). If the statute of conviction criminalizes conduct
that would not satisfy the federal definition of the crime at issue, then the
conviction does not qualify as a predicate offense under the categorical approach.
Id. at 1203. In short, under the categorical approach, the issue is whether the full
range of conduct encompassed by the statute constitutes a crime of moral turpitude.
See United States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir. 2001). “[T]o
satisfy the categorical test, even the least egregious conduct . . . must qualify.”
United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006).
such behavior may be unwise and socially unacceptable to many, but it is not
“inherently base, vile, or depraved,” Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.
1996),or accompanied by a “vicious motive or corrupt mind,”Michel, 206 F.3d at
263. Nor is it “so far contrary to the moral law” as to “give rise to moral outrage.”
Navarro-Lopez, 2007 WL 2713211, *6. In short, the conduct discussed does not
meet the first Fernandez-Ruiz requirement of being an “act of baseness or
depravity contrary to accepted moral standards.”Fernandez-Ruiz, 468 F.3d at
1165-66 13600 QUINTERO-SALAZA
[5] If the crime of conviction does not categorically qualifyas a predicate offense
under a federal statute, it still may qualify under a modified categorical analysis.
Corona-Sanchez,291 F.3d at 1203. Under the modified categorical approach we
examine “ ‘documentation or judicially noticeable facts that clearly establish that
the conviction is a predicate conviction’” for removal purposes. Id. (quoting United
States v.Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc)).Under the
101
modified categorical approach, if “judicially noticeable facts would allow the

defendant to be convicted of an offense other than that defined as a qualifying
offense,” it cannot be used as a basis for removal. Id. (quoting United States v.
Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999)). “As we have noted
repeatedly, the government has the burden to establish clearly and unequivocally
the conviction was based on all of the elements of a qualifying predicate offense.”
United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (citing United
States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. 2002); United States v.
Pimentel- Flores, 339 F.3d 959, 968 (9th Cir. 2003); Corona-Sanchez, 291 F.3d at
1211).
[6]Here, the only evidence that the government tendered was the fact of
conviction. Therefore, absent any other judicially noticeable facts,
application of the modified categorical approach does not alter our
analysis.
(a) was categorically an "aggravated felony," as defined in 8 U.S.C. § 1101(a)(43)(B),

because all behavior prohibited by section 11366.5(a) would also have constituted a
violation of 21 U.S.C. § 856(a)(2). Although section 11366.5(a) and § 856(a)(2) are
very similar, they differ in one important respect: the mens rea requirement for
section 11366.5(a) is only "knowingly," while for § 856(a)(2) it is "knowingly
and intentionally." "Intentionally" and "knowingly" are terms with traditional
meanings in criminal law, and the meanings are different. Cf. Salviejo-Fernandez v.
Gonzales, 455 F.3d 1063, 1067 (9th Cir. 2006) (citations omitted)(noting that
generally, "purpose" equates with specific intent, and "knowingly" with
general intent). Indeed, in People v. Sanchez, 33 Cal. Rptr. 2d 155, 158 (Ct. App.
1994), a California court recognized that the lack of a specific intent requirement in
section 11366.5(a) differentiated it from another, more general, state drug law. ...
Accordingly, Eudave- Mendez's California conviction does not fall categorically
within 21 U.S.C. § 856(a)(2), and thus cannot constitute an "aggravated felony" on
the basis of being a "drug trafficking crime," 18 U.S.C. § 924
CA2 Finds BIA Must Give Opportunity to Rebut Administratively

Noticed Facts
The court held that the BIA erred when it failed to give Petitioner notice
of its intention to consider the fact that the Mislosevic regime had been
dismantled. The court also held that the BIA erred in failing to give
Petitioner the opportunity to rebut this administratively noticed fact
102
before issuing its decision. (Burger v. Gonzales, 8/17/07). AILA Doc. No.
07101262
TUESDAY, AUGUST 01, 2006
Cabrera-Perez: IJ May Not Order Deportation For Arriving In

Court Slightly Late
Cabrera-Perez v. Gonzales
No. 05-3896
Precedential
August 1, 2006
http://www.ca3.uscourts.gov/opinarch/053896p.pdf
Immigration judges must remember they are appointed, not anointed.
The Third Circuit in very strong language ordered that immigration judges must allow
someone in deportation proceedings to be heard in their case even if they were slightly
tardy for a hearing. In this case, the government frequently warned someone that she
had to bring witnesses at her next, major hearing. A witness got to her house late so they
set off from home a bit late and got a bit lost driving in downtown Newark, NJ. Her
attorney arrived exactly on time but by the time she got to the courtroom, she was
around 20 minutes late. The IJ had ordered her deported and when she asked the court
staff to get the judge to try to be heard, they refused. They tried to reopen the case and,
depressingly, the IJ refused to reopen it and the BIA upheld the judge's decision on
appeal. The case had to go all the way up to the Third Circuit to do justice and allow her
case to be heard on the merits.
Sadly, this is not the first time someone was ordered deported for arriving slightly late,
the IJ refused to reopen, the BIA affirmed, and a circuit court had to step in and do the
right thing. Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (reopening where 20 minutes
late but IJ was still in the courtroom working on other cases); Alarcon-Chavez v.
Gonzales, 403 F.3d 343 (5th Cir.
2005) (reopening where 20 minutes late and IJ was either still in the courtroom or had
103
just left and still nearby); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) (reopening
where two hours late due to late arrival of personally-hired interpreter after IJ failed to
get an interpreter at prior court appearance that led the immigrant to think she had to
bring her own interpreter).
The legal rule is that due process rights exist in immigration cases and the IJ and BIA
abused their discretion by refusing to reopen the case for minimal tardiness when the IJ
was either still in the courtroom or had recently left but was still nearby. Especially
when there was no history of the person arriving late in the case.
The Third Circuit used strong language, saying they would "expect nothing less from
immigration judges who sit in this circuit" to reopen such cases and that just like the
Fifth Circuit said in Alarcon-Chavez, immigration judges must "remember they are
appointed, not anointed."
Beltran-Tirado, 213 F.3d at 1183. The Ninth

Circuit disagreed, holding that the use of another’s social security card to
work and establish credit in the United States, as Beltran had done, did not
constitute a CIMT. Id. at 1184. The court relied heavily on the legislative
history of 42U.S.C. § 408(d), now recodified at § 408(e), which was added by
amendment in
1990. Id. at 1183. That section provides that aliens who have been granted
permanent resident status under amnesty or registry statutes are exempted
from prosecution for certain past misuses of false social security numbers. 42
U.S.C. § 408(e); see Beltran-Tirado, 213 F.3d at 1183. As the Ninth Circuit
noted, Congress’s conference committee report states,
The Conferees intend that this exemption apply only to those
individuals who use a false social security number to engage in
otherwise lawful conduct . . . The Conferees believe that individuals
who are provided exemption from prosecution under this proposal
should not be considered to have exhibited moral turpitude with
respect to the exempted acts for purposes of determinations made
by the Immigration and Naturalization Service
104
Monjaraz-Munoz v. INS, 327 F.3d 892, 896 (9th Cir. 2003). Under similar circumstances in Monjaraz-
Munoz, the
Ninth Circuit stated:
The role of an attorney . . . is especially important. For the alien unfamiliar with the laws of our
country, an attorney serves a special role in helping the alien through a complex and completely
foreign process. It is therefore reasonable for an alien to trust and rely upon an attorney’s advice to
such an extent that if an alien fails to show up to a hearing because of an attorney, we can say that
this is an exceptional circumstance “beyond the control of the alien.”
Id at 897; see also Iturribarria v. INS, 321 F.3d 889, 901 (9th Cir. 2003) (“One reason that aliens . . .
retain legal assistance in the first place is because they assume that an attorney will know how to comply
with the procedural details that make immigration proceedings so complicated.”).
5 Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 712 (6th Cir. 2004) (BIA abuses its
discretion when it ignores its ownprecedent); Hernandez v. Ashcroft, 345 F.3d 824,
846 (9th Cir. 2003) (same); Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002)
(“Although an agency can change or adapt its policies, it acts arbitrarily if it
departs from its established precedents without ‘announcing a
principled reason’ for the departure.”); Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996)
(“[A]dministrative agencies must apply the same basic rules to all similarly
situated supplicants. An agency cannot merely flit serendipitously from case to
case, like a bee buzzing from flower to flower, making up the rules as it goes
along.”); Salameda v. INS, 70 F.3d 447, 450 (7th Cir. 1995) (“An agency may not
abandon an interpretation without an explanation . . . . Agencies do not have the
same freedom as courts to change direction without acknowledging and justifying
the change.”); Davila-Bardales v.INS, 27 F.3d 1, 5 (1st Cir. 1994) (requiring BIA
to “confront the issue squarely and explain why the departure is reasonable” when
it departs from its own precedents).
6 We decline the Government’s invitation to affirm the IJ’s decision on the grounds that Galvez has not
shown that he was prejudiced byhis counsel’s performance. First, In re Grijalva-Barrera, 21 I. &N. Dec.
at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to
constitute an “exceptional circumstance” justifying rescission of an in absentia removal order. Second,
we may not affirm an agency decision on reasons other than those it provided. Dong Sik Kwon v. INS, 646
F.2d 909, 916 (5th Cir. 1981) (en banc) (court may not affirm BIA’s decision on reasoning other than that
adopted by the BIA
The scope of review of a removal order entered in absentia is limited by 8 U.S.C.

§ 1229a(b)(5)(D) to: (1) the validity of the notice provided to the alien, (2) the
reasons for the alien’s not attending the proceeding, and (3) whether or not the
alien is removable.
The first and third issues have been conceded by Lin, confining this review to her
reasons for failing to attend the second hearing Aliens facing removal are entitled
to Due Process under the United States Constitution. Abdulai, 239 F.3d at 549. Due
Process requires: (1) fact finding based on a record produced before the decision
maker and disclosed to the alien, (2) the opportunity to make arguments on her
105
own behalf, and (3) the right to an individualized determination of her interests. Id.
at 549. The denial of Lin’s motion to reopen did not implicate any of
these rights.
212c blake
gave teeth to the admonition of Judge Learned Hand: “It is well that we
should be free to rid ourselves of those who abuse our hospitality; but it is
more important that the continued enjoyment of that hospitality once granted,
shall not be subject to meaningless and irrational hazards.” DiPasquale v.
Karnuth, 158 F.2d 878, 879 (2d Cir. 1947).
PETITIONERS ARE NOT ELIGIBLE FOR NUNC PRO TUNC RELIEF.

1.
Standard of Review
Although, this Court reviews the BIA’s legal conclusions de novo, it must defer to the BIA’s
reasonable interpretations of the INA. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).
When
the BIA has adopted and affirmed an IJ’s decision, this Court reviews the IJ’s decision directly.
Selami v. Gonzales, 423 F.3d 621, 624-25 (6th Cir. 2005) (citing Denko v. INS, 351 F.3d 717,
726
(6th Cir. 2003)). This Court need not defer, however, to an IJ’s interpretation of the INA that
conflicts with BIA precedent. See Rodriguez-Roman v. INS, 98 F.3d 416, 427 (9th Cir. 1996)
(declining to defer to an IJ’s interpretation of the INA adopted by the BIA in a per curiam
opinion
that conflicted with BIA precedent).
2.
Analysis
1
The IJ incorrectly determined that she did not have the authority to issue a nunc pro tunc
order granting Petitioners a waiver pursuant to the 1993 version of § 212(i). The IJ’s
interpretation
of the 1996 amendments to the INA as abolishing her authority to issue nunc pro tunc orders for
waivers of inadmissibility was unreasonable in light of BIA case law on nunc pro tunc orders.
Nonetheless, we deny the petition for review because Petitioners are not eligible for a nunc pro
tunc
order granting a waiver of removability pursuant to the 1993 version of § 212(i).
a.
Nunc Pro Tunc Relief
A nunc pro tunc order is an order that has retroactive legal effect. Black’s Law Dictionary
1097 (7th ed. 1999). The BIA has long used nunc pro tunc orders to remedy the harshness of
United
States immigration laws. Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004) (citing Matter of L, 1
I. & N. Dec. 1 (A.G. 1940); Matter of T, 6 I. & N. Dec. 410, 413 (BIA 1954); Matter of A, 3 I. &
106
N. Dec. 168, 172-73 (BIA 1948)). Among other uses, the BIA has issued nunc pro tunc orders
to retroactively legalize an alien’s admission into the United States thereby eliminating the
grounds
for deporting the alien. Matter of L, 1 I. & N. Dec. at 1; Matter of T, 6 I. & N. Dec. at 413-14;
Matter of A, 3 I. & N. Dec. 172-73. For example, in the Matter of T, the BIA issued a nunc pro
tunc order waiving an alien’s perjury as grounds for deportation, despite the fact that the version
of the INA in effect at the time the BIA issued the order did not authorize such a waiver. Matter
of T, 6I. & N. Dec. at 413-14. The BIA reasoned that the version of the INA in effect when the
alien entered the United States authorized a waiver, and thus that the BIA had the authority to
issue a retroactive order granting waiver based on the former version of the INA. Id.
Although the INA does not explicitly confer the power to issue nunc pro tunc orders on the
BIA, the BIA has interpreted the INA to implicitly confer such power. See Matter of L, 1 I.&.N.
at 5-6. In 1940, the BIA concluded that Congress did not intend for immigration laws to operate
in a “capricious and whimsical fashion,” and that Congress therefore must have intended to
allow the Attorney General to have discretion to correct errors through retroactive orders. Id. The
BIA has held that the power to issue nunc pro tunc orders has survived numerous amendments
of the INA, including amendments that restrict the availability of discretionary waivers. See
Matter of T, 6 I.
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No. 04-3829
Patel, et al. v. Gonzales
Page 7
& N. Dec. at 413-14 (granting a waiver nunc pro tunc where the petitioner was not eligible for
discretionary relief under the current version of the INA due to an amendment to the INA
restricting the availability of waiver); see also In re Po Shing Yeung, 21 I. & N. Dec. 610, 624
(BIA 1997)(Rosenberg, Board Member, concurring in part and dissenting in part). As explained
by the Second Circuit in Edwards,The BIA has, through much of § 212(c)’s history, explicitly
deemed it appropriate to award § 212(c)’s waivers nunc pro tunc. And, despite multiple
amendments and a recodification of the statute, Congress has not expressly countermanded this
long-standing practice. Congressional reenactments, when made in the light of
administrative interpretations of this kind, go a long way to precluding the INS’s
current contention [that the 1996 restrictions on availability of the § 212(c) waiver
evince a congressional intent to preclude nunc pro tunc grants of § 212(c) waivers
based on the pre-1996 version of § 212(c)].
Edwards, 393 F.3d at 309-10 (internal citations omitted).
Although the BIA has the authority to issue nunc pro tunc orders, it only issues such orders
in two situations: (1) where the only ground of deportability or inadmissibility would thereby be
eliminated; and (2) where the alien would receive a grant of adjustment of status in connection
with the grant of any appropriate waivers. In re Felipe Garcia-Linares, 21 I. & N. Dec. 254, 259
(BIA1996); Matter of Roman, 19 I. & N. Dec. 855, 857 (BIA 1988). In its earlier cases, the BIA
also weighed the equities, including how long the Petitioner had resided in the United States and
whether the Petitioner had family living in the United States. Matter of T, 6 I. & N. Dec. at 413-
14; Matter of A, 3 I. & N. Dec. at 171-72.
Contrary to Respondent’s assertion, the BIA does not grant nunc pro tunc orders only where
107
the DHS (formerly the INS) erred causing an alien prejudice. Respondent mistakenly relies on
cases in which federal courts have granted, or ordered the BIA to grant, nunc pro tunc orders,
and not cases in which federal courts have remanded to allow the BIA to determine whether to
grant nunc pro tunc relief. (Resp’t Br. 24 (citing Edwards, 393 F.3d at 310).) In contrast, BIA
case law indicates that the BIA has authority under the INA to issue nunc pro tunc orders even
where there is no clear agency error. Matter of T, 6 I. & N. Dec. at 413-14; Matter of A, 3 I. & N.
Dec. at 171-72; see also Yeung, 21 I. & N. Dec. at 624 (Rosenberg, Board Member, concurring
in part and dissenting in part). Respondent offers no reason or authority suggesting that the
standard appropriate in federal court is also the standard appropriate for the DHS.
The standard employed by federal courts should not be imposed on the BIA and overrule its
longstanding precedent. It makes persuasive sense that the power of the BIA to enter nunc pro
tuncorders is greater than that of federal courts. Unlike the BIA, Congress did not entrust the
federal courts to implement the INA but rather to insure that the DHS and BIA act within their
statutory authority under the INA. Where there is no agency error, this Court has no reason to be
involved in immigration cases. In contrast, the BIA may reasonably determine that a nunc pro
tunc order is necessary to effectively implement the goals of the INA even where the DHS has
not erred.
Therefore, the authority of the BIA to issue a nunc pro tunc order need not be interpreted to be
identical to that of federal courts in immigration cases.
b.
As Applied in This Case
Here, the IJ incorrectly assumed that she did not have the authority to issue a nunc pro tunc
order granting Petitioners a discretionary waiver pursuant to the 1993 version of the INA. The IJ
reasoned that the 1996 amendments to the INA eliminated § 212(i) waivers for parents of United
States citizens, and thereby also eliminated the DHS’s authority to issue nunc pro tunc orders
Page 8
No. 04-3829
Patel, et al. v. Gonzales
Page 8
granting such waivers. Although the IJ’s reasoning has facial appeal, it is unreasonable because it
conflicts with BIA precedent. Rodriguez-Roman, 98 F.3d at 427 (declining to defer to IJ and
BIA
decisions in conflict with BIA precedent). Therefore, this Court will not defer to the IJ’s
interpretation of the INA and will instead follow the long-standing interpretation of the INA
articulated by the BIA. As noted above, the BIA has interpreted amendments to the INA
restricting the availability of discretionary waivers of deportation not to eliminate its authority to
issue nunc pro tunc orders granting such waivers. See Matter of T, 6 I. & N. Dec. at 413; see
also Edwards, 393 F.3d 299. Thus, the DHS has the authority to issue nunc pro tunc orders
granting waivers under the pre-1996 version of the INA even though Congress has eliminated
such waivers. See id.
Nonetheless, this Court will not grant the petition for review. Although the IJ has the
authority to issue nunc pro tunc orders granting waiver under the 1993 version of the INA, and
such relief would eliminate the sole grounds for removing Petitioners, Petitioners are not eligible
for such relief. When Petitioners entered the United States in 1993, their son, Sanjay Herat, was
not yet a United States citizen. Consequently, in 1993, Petitioners were not eligible for a
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discretionary waiver under the 1993 version of § 212(i). Thus, the IJ does not have the authority
to grant such relief under the 1993 version of § 212(i). See Matter of T, 6 I. & N. Dec. at 413
(granting a discretionary waiver nunc pro tunc to an alien who qualified for the waiver at his
time of entry).
III.
CONCLUSION
For the reasons set forth above, we DENY the petition for review.
JUDICIAL REVIEW – BIA APPEAL – ADMINISTRATIVE NOTICE

Burger v. Gonzales, __ F.3d __, 2007 WL 2331944 (2d Cir. Aug. 17, 2007) ("This Court
recently held that if the Board of Immigration Appeals (“BIA”) intends to take administrative
notice of potentially dispositive facts, it must warn a petitioner and provide the petitioner with an
opportunity to respond before it denies a motion to reopen on the basis of those facts. See
Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court
declined to resolve the related question whether due process requires this same result before the
BIA enters a final order of removal on the basis of administratively noticed facts. We now
address this question and hold that it does.")
JUDICIAL REVIEW – EVIDENCE – FACT FINDING BY BIA
Forteau v. U.S. Atty. Gen'l., __ F.3d __ (3d Cir. Jul. 20, 2007) ("The BIA simply ignored [the IJ's factual]
findings and replaced them with its own version of the facts. ... Because the BIA did not defer to the IJ’s
factual findings and review them for clear error, and because the BIA engaged in its own independent
factfinding, we ... summarily grant the petition for review and remand for further proceedings

The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs
lack jurisdiction to review motions filed by people who have been deported or have departed and
that any departure from the United States constitutes the withdrawal of a pending motion. The
Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain
situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the
present tense and so by its terms applies only to a person who departs the United States while he
or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, he or
she is no longer subject to proceedings; where a noncitizen has been removed, and then files a
motion to reopen, the proceedings have been completed and 8 CFR § 3.23(b)(1) is no longer
applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute
and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR §
1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any
time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th
Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order
where the noncitizen had departed the United States before the commencement of proceedings);
Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is
vacated, he or she has a right to file a motion to reopen, despite having been removed, if the
conviction was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179
(9th Cir. 1990). But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR §
3.2(d) trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).
109
JUDICIAL REVIEW – PETITION FOR REVIEW – NUNC PRO TUNC AUTHORITY

Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. Jun. 4, 2007) (court of
appeal's equitable nunc pro tunc authority could not be used to fix the type of
error that occurred when BIA denied petitioner's initial application for a waiver of
removal under former INA § 212(c) based on an erroneous interpretation of
statute; “the BIA, on the other hand, has a long history of employing nunc pro
tunc to backdate proceedings and orders where the error was not clerical or
where there was no error at all. . . . The BIA’s use of nunc pro tunc . . . is based on
a statutory commitment of authority to use back-dating measures where the BIA
deems it appropriate.”), compare with Edwards v. INS, 393 F.3d 299, 309-310 (2d
Cir. 2004) (extending BIA’s nunc pro tunc powers to allow appellate court to use
nunc pro tunc in immigration context as well). See also, Fernandes-Pereira v.
Gonzales, 417 F.3d 38 (1st Cir. 2005).
JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS – ABUSE OF DISCRETION

Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("An abuse of discretion may be
found where the BIA's decision 'provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains only summary or conclusory
statements; that is to say, where the Board has acted in an arbitrary or capricious manner.'"),
quoting Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations
omitted).
To challenge a removal, an alien must show: (1) the removal
hearing was fundamentally unfair; (2) the hearing effectively
eliminated the right of the alien to challenge the hearing by
means of judicial review; and (3) the procedural deficiencies
caused the alien actual prejudice.Lopez-Ortiz,313F.3d at
229.Demonstration of prejudice requires the alien to show a
reasonable likelihood that, but for the errors complained of, he
would not have been removed. United States v. Benitez-
Villafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999).
Petitioners argue the district court erred in characterizing
Nguyen’s claim as one for a due process right to discretionary
relief from a removal order, when to the contrary he claims a
due process right to a hearing on whether he warrants the
discretionary § 212(c) waiver. See Arevalo v. Ashcroft, 344 F.3d
1, 15 1st circ
Nguyen claims that his liberty is restrained, in
violation of his Fifth Amendment right to due process, by the
Government’s action in denying his claim to relief from removal
When determining whether a statute of limitations is jurisdictional or merely a time limitation

subject to equitable tolling, the Supreme Court has recognized that, while several
110
factors must be examined, the main purpose of the inquiry is to discover congressional intent
behind the statute. See Shendock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d
1458, 1462 (3d Cir. 1990) (“[A]ttachment of the label ‘jurisdiction’ to a statute’s filing
requirements without examination of its language and structure, as well as the congressional
policy underlying it, would be an abdication of our duty to interpret the language of a statute in
accordance with Congress’s intent in passing it.”); Ramadan v. Chase Manhattan Corp.,156 F.3d
499, 501 (3d Cir. 1998)

DEPORTATION – REMEDY FOR IAC AT SENTENCE REQUIRES PLACING DEFENDANT
IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT OCCURRED,
INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED PERIOD
Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable
nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as
if he were applying at the time his removal order became administratively final,
which was before he had served five actual years in custody and thereby became
disqualified for this relief; court did not reach question of whether statute
compelled this result or whether five-year sentence bar was analogous to a
statute of limitations which could be equitably tolled). In determining whether
nunc pro tun relief could be applied in this case, the court looked at the following
issues: 1. Statutory bar: "A court may not award equitable relief in
contravention of the expressed intent of Congress. See INS v. Pangilinan, 486 U.S.
875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d
299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA had
granted nunc pro tunc relief in the past, and noted that Congress never amended
INA § 212(c) to bar such grants. Id. 2. When nunc pro tunc relief should be
afforded: The court stated generally that "where an agency error would
otherwise be irremediable, and where the plaintiff has been deprived of a
significant benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App.
D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied
nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at
667-68." Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration
context, the court found that nunc pro tunc relief should be available were the
noncitizen has demonstrated that s/he was erroneously denied the opportunity
to apply the relief due to an error on the part of the agency, and that, but for
nunc pro tunc relief, the denial of relief would be irremediable. The court stated
that the noncitizen, outside an illegal reentry context, did not need to show that a
111
denial of the relief would result in a denial of due process. 3. What error may
nunc pro tunc relief be used to correct: Despite arguments that the doctrine of
nunc pro tunc may only be used to correct inadvertent errors, and not to remedy
a defect in a judgment order, the court held that in the immigration context nunc
pro tunc relief was available to correct such defects in the immigration context.
Edwards v. INS, 393 F.3d, at 309 n. 12.
Due Process /switch of IJ

Our reading of the administrative record leaves us convinced that the IJ cared little about the evidence and
instead applied whatever rationale he could muster to justify a predetermined outcome. See Kerciku, 314
F.3dat 918 (finding violation of procedural due process where IJ first made up his mind about alien’s
claims and refused to listen to testimony). The flaws in the IJ’s opinion call into question the fairness of
the proceedings,and since we cannot be confident that Bosede’s hearing comported with statutory
requirements or met minimum standards of due process, Bosede is entitled to a new one.
See Floroiu v. Gonzales, 481 F.3d 970, 976 (7th Cir. 2007).And to avoid repetition of the same mistakes
the third time around, we urge the agency to refer this case to a different immigration judge. See Niam v.
Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004).
RELIEF – LPR CANCELLATION – CONTINUOUS PRESENCE – NEW PERIOD STARTS WITH ADMISSION AFTER
COMMISSION OF OFFENSE
Okeke v. Gonzales, ___ F.3d ___ (3d Cir. May 18, 2005) (new period of continuous physical presence in
the United States begins with lawful reentry to the United States after commission of an offense).
Sinotes-Cruz v. Gonzalez, 468 F.3d 1190 (9th Cir. Nov. 2006) (permanent stop time rule for
cancellation of removal cannot be applied retroactively to convictions occurring prior to the effective
date of IIRAIRA, therefore allowing a person to apply for cancellation despite a conviction of a crime of
moral turpitude that occurred during the first seven years of physical presence).
To determine whether application of part B of § 1229b(d)(1) to the seven-year continuous

residence requirement of § 1229b(a)(2) would be impermissibly retroactive in Sinotes-Cruz’s
case, we look to the two-part analysis of Landgraf v. USI Film Products, 511 U.S. 244 (1994).
The first step is to determine whether Congress has given a clear indication that the law is to be
applied retroactively. St. Cyr, 533 U.S. at 316. The standard for finding such a clear indication is
a “demanding one.” Id. The statutory language must be so clear that it “could sustain only one
interpretation.” Id. at 317 (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)); see
also Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2428 (2006). “Because a statute that is
ambiguous with respect to retroactive application is construed under our precedent to be
unambiguously prospective, Landgraf, 511 U.S., at 264, . . . there is, for Chevron purposes, no
ambiguity in such a statute for an agency to resolve.” St. Cyr, 533 U.S. at 320 n.45. If the
language is “ambiguous with respect to retroactive application,”
we proceed to the second step of Landgraf. See id. at
112
320.
[10] At the second step, we determine whether the statute would have an impermissible
retroactive effect. “A retroactive effect, as defined in Landgraf, is one that ‘would impair rights
a party possessed when he acted, increase a party’s liability SINOTES-CRUZ v. GONZALES 18727
for past conduct, or impose new duties with respect to transactions already completed.’ ”
Jimenez-Angeles, 291 F.3d at 601 (quoting Landgraf, 511 U.S. at 280). “The inquiry into
whether a statute operates retroactively demands a commonsense, functional judgment about
‘whether the new provision attaches new legal consequences to events completed before
its enactment.’ ” St. Cyr, 533 U.S. at 321 (quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999)
(quoting Landgraf, 511 U.S. at 270)) (internal quotation marks omitted).
[11] Applying Landgraf’s first step, we hold that part B of § 1229b(d)(1) is ambiguous with
respect to its retroactivity. As the Court pointed out in St. Cyr, numerous other provisions
of IIRIRA expressly state that they have retroactive application. 533 U.S. at 318-20, 320 n.43.
For example, IIRIRA § 321(b), 8 U.S.C. § 1101(a)(43), states that IIRIRA’s
new definition of “aggravated felony” applies to “conviction[s] . . . entered before, on, or after”
the enactment of IIRIRA. Id. at 319-20. By contrast, the text of § 1229b(d)(1)(including part B)
says nothing whatsoever about retroactive application. Basing our analysis solely on the text of
§ 1229b(d)(1), we would have no trouble concluding that it is ambiguous with respect to its
retroactive application
JUDICIAL REVIEW – HARDSHIP AS DISCRETIONARY ISSUE

Barnaby-King v. US Dep't of Homeland Sec., 485 F.3d 684 (2d Cir. May 10, 2007) (prior case
finding hardship to be a discretionary issue not subject to judicial review, Jun Min Zhang v.
Gonzales, 457 F.3d 172 (2d Cir.2006), may no longer be binding precedent in this court, in light
of Xiao Ji Chen, 471 F.3d 315, 319 (2d Cir.2006).
JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS SUCH AS DENIAL OF

212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT REVIEWABLE WHERE NO COLORABLE
CONSTITUTIONAL CLAIMS OR QUESTIONS OF LAW ARE RAISED
Bugayong v. INS, 442 F.3d 67 (2d Cir. Mar. 15, 2006) (per curiam) (denial of adjustment of status and INA
§ 212(h) waiver on discretionary basis not subject to judicial review; REAL ID Act of 2005, §
106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(2)(D)), does not
override the jurisdiction-denying provision of 8 U.S.C. § 1252(a)(2)(B)(i)).
JUDICIAL REVIEW – STREAMLINING – BIA & IJ OPINION CONSIDERED TOGETHER

Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (“When the BIA issues a short
opinion adopting an IJ’s decision, we review the two decisions together, including the portions
[of the IJ’s decision] not explicitly discussed by the BIA.”).
JUDICIAL REVIEW – HABEAS – RIPENESS

Edwards v. INS, ___ F.3d ___, 2004 U.S. App. LEXIS 26335 (2d Cir. December 17, 2004) (Unpublished)
(petitioner's claims are ripe for judicial review, even though she will not become eligible for release from
113
criminal custody until 2006, since the determination of her claims may take that long in any event and
may be necessary to proceed now to avert possibility of mandatory immigration detention pending
litigation of the immigration claims after the criminal custody release date), distinguishing Simmonds v.
INS, 326 F.3d 351 (2d Cir. 2003)(holding immigration claims not yet ripe where petitioner would not be
released from criminal custody for 10 years, because the law governing the immigration consequences
of the criminal disposition might well change in the meantime.
JUDICIAL REVIEW – EVIDENCE – FACT FINDING BY BIA

Forteau v. U.S. Atty. Gen'l., __ F.3d __ (3d Cir. Jul. 20, 2007) ("The BIA simply ignored [the IJ's factual]
findings and replaced them with its own version of the facts. ... Because the BIA did not defer to the IJ’s
factual findings and review them for clear error, and because the BIA engaged in its own independent
factfinding, we ... summarily grant the petition for review and remand for further proceedings.").
JUDICIAL REVIEW – PETITION FOR REVIEW – NUNC PRO TUNC AUTHORITY

Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. Jun. 4, 2007) (court of appeal's equitable
nunc pro tunc authority could not be used to fix the type of error that occurred when BIA denied
petitioner's initial application for a waiver of removal under former INA § 212(c) based on an
erroneous interpretation of statute; “the BIA, on the other hand, has a long history of employing
nunc pro tunc to backdate proceedings and orders where the error was not clerical or where there
was no error at all. . . . The BIA’s use of nunc pro tunc . . . is based on a statutory commitment of
authority to use back-dating measures where the BIA deems it appropriate.”), compare with
Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. 2004) (extending BIA’s nunc pro tunc powers
to allow appellate court to use nunc pro tunc in immigration context as well). See also,
Fernandes-Pereira v. Gonzales, 417 F.3d 38 (1st Cir. 2005).

Andrade v. Gonzales, 459 F.3d 538 (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status
before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not
bar DHS from initiating removal proceeding based upon the same convictions).
NOTE: The court here engaged in no analysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), or
Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), which specifically prohibit the Government from
starting removal proceedings based upon convictions occurring prior to adjustment when the
Government was aware of those convictions at the time of adjustment and either granted a waiver
(Rafipour), or no waiver was needed since the convictions triggered deportation, but not inadmissibility
(Rainford). The noncitizen in this case had 21 total convictions, and had been involved in litigating pro se
for a number of years at all court levels.
JUDICIAL REVIEW – PETITION FOR REVIEW – STANDARD FOR REVIEW OF DENIAL

OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING
CONVICTION
Nath v. Gonzales, 467 F.3d 1185 (9th Cir. November 3, 2006)(court of appeals standard of
review of denial of motion to reopen removal proceedings after conviction has been vacated:
114
"We review the BIA's ruling on the motion to reopen for an abuse of discretion and will reverse
the denial of the motion to reopen only if the BIA acted “ ‘arbitrarily, irrationally, or contrary to
law.’ “ Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir.2004) (quoting Singh v. INS,
213 F.3d 1050, 1052 (9th Cir.2000)).").
JUDICIAL REVIEW – MOTION TO REOPEN – BIA NOT BARRED FROM GRANTING MOTION TO REOPEN
REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL
INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED – REGULATION DOES NOT BAR
CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that
motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA
from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal
order had been vacated; it was not necessary that the conviction be the sole reason for removal
U.S.C. § 1252(g) states:

[N]otwithstanding . . . section 2241 of title 28, United States Code, or any other habeas
corpus provision . . . no court shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders against any
alien under this chapter.
While this provision bars courts from reviewing certain exercises of discretion by
the attorney general, it does not proscribe substantive review of the underlying
legal bases for those discretionary decisions and actions. See Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 485 n.9, 119 S. Ct. 936, 944 n.9 (1999)
(“Section 1252(g) was directed against a particular evil: attempts to impose judicial
constraints upon prosecutorial discretion.”); see also Kwai Fun Wong v. United
States, 373 F.3d 952, 964 (9th Cir. 2004) (“[W]e have held that the reference to
‘executing removal orders’ appearing in § 1252(g) should be interpreted narrowly,
and not as referring to the underlying merits of the removal decision.”)
Here, Madu does not challenge the INS’s exercise of discretion. Rather, he brings a
constitutional challenge to his detention and impending removal. See Pet. for Writ of
Habeas Corpus at ¶ 21 (alleging that the “detention and imminent deportation of
Petitioner are denials of his substantive right to due process . . . .”). Accordingly, section
1252(g) does not apply
RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY

OF VOLUNTARY DEPARTURE PERIOD
Thapa v. Gonzales, __ F.3d __, 2006 U.S. App. LEXIS 21046 (2d Cir. Aug. 16, 2006) (courts
may stay voluntary departure period);
Third Circuit
115
RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY

OF VOLUNTARY DEPARTURE PERIOD
Obale v. Attorney General, 453 F.3d 151 (3d Cir. 2006) (courts may stay voluntary departure
period).
RELIEF – VOLUNTARY DEPARTURE – COURT HAS AUTHORITY TO ORDER A STAY OF VOLUNTARY
DEPARTURE PERIOD
For more information about stays of voluntary departure during court of appeals review and an
overview of the case law in other courts, see AILF’s Practice Advisory, Protecting Voluntary Departure
Period During Court of Appeals Review (October 25, 2005) available at
http://www.ailf.org/lac/lac_pa_chrono.shtml.
RELIEF – VOLUNTARY DEPARTURE – FAILURE TO DEPART

Matter of Bozena Zmijewska, 24 I. & N. Dec. 87 (BIA 2007) (BIA lacks authority to apply an “exceptional
circumstances” or other general equitable exception to the penalty provisions for failure to depart
within the time period afforded for voluntary departure under INA § 240B(d)(1), 8 U.S.C.A. §
1229c(d)(1); noncitizen has not voluntarily failed to depart the United States under INA § 240B(d)(1)
when the person, through no fault of his or her own, was unaware of the voluntary departure order or
was physically unable to depart within the time granted).
RELIEF – VOLUNTARY DEPARTURE

Matter of Diaz-Ruacho, 24 I. & N. Dec. 47 (BIA 2006) (noncitizen granted voluntary departure, who
subsequently fails to leave and fails to post the voluntary departure bond required by INA § 240B(b)(3),
8 U.S.C. § 1229c(b)(3), is not subject to penalties for failure to depart within the time period specified for
voluntary departure, since “posting of a voluntary departure bond is a condition precedent to
permission to depart voluntarily. . .”). http://www.usdoj.gov/eoir/vll/intdec/vol24/3546.pdf
RELIEF – WAIVER – 212(C) WAIVER – POST-CONVICTION RELIEF

Lawrence v. Gonzales, 446 F.3d 221 (1st Cir. May 5, 2006) (where pre-IIRAIRA conviction was
vacated on a basis of legal invalidity, but replaced with a new plea after IIRAIRA that also
triggers removal, a waiver under INA § 212(c) is unavailable where the new plea was not entered
nunc pro tunc).
RELIEF – 212(C) WAIVER – NONCITIZEN WHO PROCURED LPR STATUS BY FRAUD OR MISTAKE HELD
INELIGIBLE TO APPLY FOR 212(C) RELIEF SINCE NOT "LAWFULLY ADMITTED FOR PERMANENT
RESIDENCE"
De La Rosa v. Dep't of Homeland Sec., 489 F.3d 551 (2d Cir. Jun. 13, 2007) (a lawful permanent resident
who has procured her status by fraud or mistake has not been "lawfully admitted for permanent
residence" for purposes of section 212(c)).
RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF ACCRUAL OF SEVEN YEARS
DOMICILE BY TIME OF GUILTY PLEA
Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005) (noncitizen alien
need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible
for INA § 212(c) relief under INS v. St. Cyr; following rule that seven years for domicile for 212(c) stops at
time of application for 212(c)).
116
RELIEF – 212(C) RELIEF – LAWFUL DOMICILE – UNREVOKED DOMICILE = LAWFUL

DOMICILE EVEN IF LPR WOULD NOT HAVE BEEN GRANTED IF CRIMINAL HISTORY HAD BEEN
KNOWN
While a noncitizen must be a lawful permanent resident to obtain a waiver under
INA § 212(c), and LPR status obtained through fraud is insufficient, it is possible to
argue that a noncitizen who obtained LPR status though amnesty legalization,
even though s/he was not technically qualified because of a criminal offense
committed while s/he was a temporary resident, should still be considered an LPR
for 212(c) purposes, since the adjustment was automatic (and therefore no fraud
could have occurred), and the failure of the INS to rescind the temporary status
prior to adjustment bars the INS from denying that they are lawful permanent
residents now. But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005).
If the government mistakenly granted lawful temporary residence to your client,
the government's remedy was to terminate the LTR status. See INA sec.
245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec. 216(BIA 1990). Having failed to
terminate, your client is a resident. See INA sec. 246; Matter of Belenzo, 17 I. & N.
Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status granted
under sec.245 or 249). Under the rescission cases and statute, the U.S. can
rescind at any time if a noncitizen received LPR status by fraud. After having LPR
status for five years the government can't rescind in the absence of fraud. Even if
a noncitizen gets LPR status by fraud, she or he can still apply for 212(c) if she or
he gets a 237(a)(1)(H) waiver to forgive the fraud. Matter of Sosa-Hernandez, 20 I.
& N. Dec. 758 (1993). See also Perez-Enriquez v. Gonzales, 411 F3rd 1079 (9th Cir
2005). Thanks to Dan Kesselbrenner
1. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003)
In this case, a noncitizen sought to reopen his removal order to apply for cancellation of removal
for permanent residents, cancellation for non-permanent residents, and voluntary departure. The
BIA held that the respondent was ineligible for cancellation for permanent residents because he
was never “lawfully admitted for permanent residence” because he acquired his resident status
through fraud.
If the respondent in this case had been a spouse, parent, son, or daughter of a United States
citizen or lawful permanent resident then he could have filed a waiver under INA section
237(a)(1)(H), which would have made his admission lawful as of the date he acquired it, and
allowed him to apply for cancellation of removal for permanent residents. See Matter of Sosa-
Hernandez, 20 I&N 758 (BIA 1993) (holding that a noncitizen could file a fraud waiver under
former INA § 241(f), which would make her admission lawful as of the date she acquired it
enabling her to apply for a 212(c) waiver).
117
NON published BIA=NON precedent=NON binding
An unpublished Board decision does not have a binding effect and does not create a rule of law.
Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1991).
“Decisions which the Board does not designate as precedents are not binding on the Service or the
immigration judges in cases involving the same or similar issues.” Hernandez v. Ashcroft, 345 F.3d
824, 839 n.13 (9th Cir. 2003). “A survey of unpublished BIA decisions shows that they are
treated as limited to their facts. They do not serve as authority for later proceedings involving the
same issues, nor do they make new law.” Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993);
cf. Mead, 533 U.S. at 233 (holding that because agency decision binds only the parties and “stops
short of third parties” it lacks lawmaking power). The Board’s unpublished decisions, like this
court’s memorandum dispositions, are “more or less, a letter from the court to parties familiar with
the facts, announcing the result and essential rationale of the court’s decision.” Hart, 266 F.3d at
1178. They lack, by design, the reasoned and considered indicia required to provide guidance on
important questions of law. An unpublished Board opinion is not an authoritative source of the
agency’s interpretation of the law. Under the Chevron doctrine, only authoritative agency
interpretations are afforded deference. Mead, 533 U.S. at 226-27. Accordingly, the unpublished
Board opinions referred to by the court in its February 16, 2006 order do not provide an
interpretation of the statute
http://72.14.205.104/search?q=cache:R0zRwB22HEoJ:ilgrp.com/docs/03-
70244%2520Perez%2520Enriquez%2520Amicus.pdf+Matter+of+Medrano&hl=en&ct=clnk&cd=2
&gl=us
Matter of Virk
http://bulk.resource.org/courts.gov/c/F3/295/295.F3d.
1055.01-70055.html
Thus, an alien who, like Virk, obtains permanent resident status through a fraudulent marriage,
but subsequently marries a citizen or lawful permanent resident, can be forgiven the fraud and
maintain lawful permanent resident status through a § 241(f) waiver of deportation
Matter of Manchisi, 12 I. & N. Dec. 132, 137, 1967 WL 13978 (BIA 1967), overruled on other
grounds by Matter of Diniz, 15 I. & N. Dec. 447, 1975 WL 31546 (BIA 1975), rev'd by Matter of
Da Lomba, 16 I. & N. Dec. 616, 1978 WL 36481 (BIA 1978); see also Matter of Da Lomba, 16 I. &
N. Dec. 616, 620, 1978 WL 36481 (BIA 1978) (where alien entered the country with a visa from a
fraudulent marriage, and then entered into a bona fide marriage, the BIA held that "when an
alien is found deportable on the charge arising out of [the fraudulent marriage], section 241(f)
can save him deportation."); Matter of Sosa-Hernandez, 20 I. & N. Dec. 758, 761, 1993 WL
495143 (BIA 1993) (quoting Manchisi, 12 I. & N. Dec. at 137). The BIA has recognized that the
INS has incorporated into its Operations Instructions the policy that "an alien who qualifies as a
nondeportable alien under the authority of section 241(f) ìs thereby cleared of the illegality
118
which attached to the visa and to the entry, and is considered as an alien lawfully admitted for
permanent residence.'" Sosa-Hernandez, 20 I. & N. Dec. at 762(quoting Immigration and
Naturalization Service Operations Instructions 318.5).
RELIEF – 212(c) – LEAVING UNITED STATES WHILE 212(c) PENDING

A noncitizen LPR who leaves the United States during removal proceedings does not abandon a request
for INA § 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988), LPR respondent
was convicted of possession of marijuana, proceedings commenced and LPR conceded deportability as
charged in a hearing before the IJ, applied for a 212(c) waiver and the hearing was continued for
investigation. Then, the LPR departed the United States for a temporary visit abroad during the course
of the pending deportation proceeding in which he had applied for 212(c), and returned to the United
States. The IJ terminated proceedings and ruled that the 212(c) waiver application had been abandoned.
The BIA held that the IJ erred. The LPR's departure did not interrupt the proceeding, and it could
continue, assuming LPR still was deportable on same grounds. The INS did not need to start a new
proceeding, but could issue another OSC (NTA) or amend if they chose; and the LPR had not abandoned
his application for 212(c).
Thanks to Lory Rosenberg for this information. It should be noted, however, that the noncitizen might
not be admitted (or admissible) to the United States upon return. See INA § 101(a)(13)(C). On the other
hand, this could be a strategy for avoiding Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005), vacated by
Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). Issues
NATIONAL CLAIM
at his 1998 naturalization interview, he swore allegiance to the United States and signed an oath
declaration form
Matter of Cruz , 15 I. & N. Dec. 236, 237 (BIA 1975). The BIA held that "prima facie eligibility may be
established by an affirmative communication from the Service [USCIS] or by a declaration of a court that
the alien would be eligible for naturalization but for the pendency of the deportation proceedings. . . ."
Id. (emphasis added).
RELIEF – NATURALIZATION
Okafor v. Gonzales, 456 F.3d 531 (5th Cir. Jul. 18, 2006) (signing oath insufficient to confer
citizenship; it is necessary to participate in public ceremony pledging allegiance to the United
States and renouncing all former allegiances to foreign states and sovereignties).
Circumstances are sufficiently unusual that justice demands his WAIVER be given
retroactive effect.
See, e.g., Apokarina v. Ashcroft, 93 Fed Appx. 469, 471-72, 2004 WL 742286 (3dCir. 2004)
(reversing and remanding district court’s dismissal of petition) (unpublished decision);
Dominguez v.Ashcroft, 2004WL 2632916, at *1 (D. Or. Nov 18, 2004)(reserving decision
pending completion of removal proceeding against petitioner);Saad, 2004 WL 1359165, at **1-2
(considering mer-its of the application, but finding applicant otherwise ineligible for citizen-
ship); Ngwana v. Attorney General ofthe United States, 40 F. Supp.2d 319, 322 (D. Md. 1999)
(holding INA § 318 limits only Attorney General and does not bar judicial review); Gatcliffe v.
Reno, 23 F. Supp.2d 581, 584 (D.VI)
119
Because the court lacks jurisdiction over plaintiff’s

claims, the court will not inquire into defendants motion to
dismiss for failure to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
As opposed to DISMISSED for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1).
Bellajero
merits of his application for naturalization, a finding of eligibility for
naturalization, and an order granting his naturalization application or
alternatively, a declaration that he is eligible to naturalize but for the pending
removal proceedings.
Bellajaro's remaining argument is that triable issues of fact exist which preclude
summary judgment, but they have to do with whether he is of good moral
character ? not whether the INS correctly denied his naturalization application on
the ground that removal proceedings are pending.
Grewal v. Ashcroft, 301 F.Supp.2d 692, 696 (N.D.Ohio 2004) (noting that to divest
district courts of jurisdiction is particularly problematic when the removal
proceeding was initiated after the alien's application for naturalization was denied
and he had filed a petition for review in the district court); Ngwana v. Attorney
Gen. of the United States, 40 F.Supp.2d 319, 321 (D.Md.1999) (recognizing district
court jurisdiction to review a merits-based denial of an application); Gatcliffe v.
Reno, 23 F.Supp.2d 581, 582-83 (D.Vi.1998) (same)
8 U.S.C. § 1429 states in relevant part that “no person shall be naturalized against
whom there is outstanding a final finding of deportability pursuant to a warrant of arrest
issued under the provision of this or any other Act; and no application for naturalization
shall be considered by the Attorney General if there is pending against the applicant a
removal proceeding pursuant to a warrant of arrest issued under the provisions of this or
any other Act.”
 CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A

Person Is Removed (9/7/2007)
The court held that the regulation barring motions to reopen filed after a
person departs or is removed is invalid because it conflicts with the motion
to reopen statute. The Board of Immigration Appeals has jurisdiction to
adjudicate a motion to reopen filed post-departure. AILF appeared as
amicus curiae in support of the petitioner. (William v. Gonzales, 9/6/07)
AILA Doc. No. 07090771.
120
 CA4 Finds Exclusive District Court Jurisdiction Over Natz Applications Under
INA §336(b) (8/7/2007)
The court held that the timely filing of a request for a district court hearing
on a naturalization application under INA §336(b) vests the district court
with exclusive jurisdiction over the matter and deprives CIS of jurisdiction
to adjudicate an application unless instructed to do so by the court. (Etape
v. Chertoff, 8/2/07). AILA Doc. No. 07080767.
CA2 Discusses “Formal Judgment of Guilt” Under INA §101(a)(48)(A) (1/29/2008)

The court held that under the plain meaning of “conviction” in INA §101(a)(48)(A),
the entry of a “formal judgment of guilt…by a court” occurs when judgment is
entered on the docket, not when a defendant pleads guilty. Moreover, the
IMMACT90 amendments were not impermissibly retroactive as applied to
Petitioner. (Puello v. BCIS, 12/20/07). AILA Doc. No. 08012966
NATIONAL
he signed the affidavit of allegiance to the United States that is part of the citizenship application.
http://www.ailf.org/lac/clearinghouse_brandx.shtml
Affirmative Misconduct
As the Supreme Court has often emphasized, deportation is a drastic measure that may inflict "the equivalent
of banishment or exile," Barber v. Gonzales, 347 U.S. 637, 642-43, 74 S.Ct. 822, 825, 98 L.Ed. 1009; Fong
Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948); Delgadillo v. Carmichael, 332 U.S. 388,
391, 68 S.Ct. 10, 92 L.Ed. 17 (1947), and " result in the loss 'of all that makes life worth living.' " Bridges v.
Wixon,326 U.S. 135, 147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945). When such serious injury may be
caused by INS decisions, its officials must be held to the highest standards in the diligent performance of their
duties. Here, their duty was clear. Unlike the immigrants in Santiago, who had no right to enter the United
States when they did, Yoo had an absolute right to a labor certification under the INS's own regulation. INS
officials, by their affirmative inaction, deprived petitioner of that right without justification. We have stated that "a
person might sustain such a profound and unconscionable injury in reliance on (an official's) action as to
require, in accordance with any sense of justice and fair play, that (he) not be allowed to inflict the injury."
Schuster v. CIR, 312 F.2d 311, 317 (9th Cir. 1962). Justice and fair play can only be achieved in this case by
holding, as we do, that the Government is estopped from denying petitioner the benefit of pre-certification in
seeking an adjustment of his status under 8 U.S.C. § 1255.
By its maneuvers here, the INS has ensnared petitioner in a "Catch-22" predicament; the Service's conduct is
analogous to the entrapment of a criminal defendant and, as such, cannot be countenanced.
Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir.2001) (en banc) (holding negligently provided
misinformation an alien received from an INS officer could not serve as the basis for equitable estoppel,
because the alien must show the INS engaged in "affirmative misconduct," defined as a "deliberate lie" or "a
pattern of false promises")
121
A court of appeals does not have the authority to determine the weight to afford to each factor. Id. This court
will uphold a denial by the BIA unless it was made without a rational explanation, it inexplicably departed from
established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular
race or group. Bal v. Moyer, 883 F.2d 45, 46 (7th Cir.1989).
B) conditional parole.
8 U.S.C. � 1226(a).(13)
The plaintiffs argue that, pursuant to Mathews v. Eldridge, 424 U.S. 319, 334 (1976), due process requires
the INS to provide an LPR with notice of his right to parole within the United States(14) and with a parole
hearing before the Attorney General decides how to exercise her discretion. Congress, however, has
denied the district court jurisdiction to adjudicate deprivations of the plaintiffs' statutory and
constitutional rights to parole.(15)
The plaintiffs respond that the Attorney General's parole authority at issue in this case is found not in 8
U.S.C. � 1226, but instead in 8 U.S.C. � 1225(b)(2)(C). Therefore, they argue, the bar on judicial review
contained in � 1226(e), which applies only to "this section," does not bar this suit. But � 1225(b)(2)(C)
only authorizes the Attorney General to return an applicant for admission to Mexico pending the exclusion
proceedings. It is � 1226(a), by contrast, that authorizes her to grant parole within the United States to an
LPR subject to removal proceedings.
Consequently, an alien's LPR status includes elements of liberty and property rights of which he cannot be
deprived without due process of law. For example, the right to seek and engage in employment, to travel,
and to qualify for other benefits and entitlements are attributes or inherent characteristics of LPR status.
Therefore, the government cannot deprive an LPR of these rights or entitlements or significantly damage
them without first affording the LPR due process of law guaranteed by the Fifth Amendment. For instance,
the INS and other government agents may not, without affording an LPR such due process of law, (1)
confiscate his green card without providing him a reasonably adequate substitute document that will
afford him equal access to all attributes of LPR status or (2) deny an LPR readmission. Of course, an LPR
can be investigated, arrested, or prosecuted for a crime just as any other alien or citizen. But an LPR
cannot be deprived of any of the attendant rights of his status without due process of law, because the
Due Process clause of Fifth Amendment does not acknowledge any distinction between citizens and
resident aliens. See Galvan v. Press, 347 U.S. 522 (1954) ("[Because] an alien who legally became part of
the American community ... is a 'person,' [he] has the same protection for his life, liberty and property
under the Due Process Clause as is afforded to a citizen."); Bridges, 326 U.S. at 161 (Murphy, J.,
concurring) ("None of these provisions acknowledges any distinction between citizens and resident
aliens.").
http://caselaw.lp.findlaw.com/cgi-
bin/getcase.pl?court=5th&navby=case&no=9940122cv0
122
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=docket&no=04a0149p
ZAYED V US :
Adopting the approach to statutory interpretation urged upon it by the government — an approach
pioneered by the Supreme Court in Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) —
the district court elected to follow what it saw as the true intent of Congress without necessarily
adhering to the letter of the statutory language. The petition for review was dismissed without
prejudice, as we have said, and Ms. Zayed has filed a timely appeal
I think the court has the power to order the AG to Grant my natz application if the court found that CIS
erred in : 1- reopening the application based on new derogatory info.Eventhough the NTA has not been
filed with the immig court, I was not technically in removal proceedings yet. According to 8 cfr 1239.1(a)
Baez-Fernandez EXHAUSTION NOT REQUIRED IF INJUSTICE manifested

v. I.N.S., 385 F. Supp.2d 292, 295 (S.D.N.Y. 2005), which
recognized an exception to the exhaustion requirement “where
denial of jurisdiction would work a manifest injustice.” The
decision in Baez-Fernandez relied on the Second Circuit’s
decision in Marrero Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir.
2004), which involved a challenge to an order of removal where a
subsequent judicial decision had eliminated the legal basis for
the removal order.
Although the petitioner had not appealed his deportation order
to the Bureau of Immigration Appeals before filing a habeas
petition,the Second Circuit concluded, on the unique facts of
that case,that failure to consider the petitioner’s claim would
work a manifest injustice. Id. at 54. In Baez-Fernandez, which
involved an alien whose application for naturalization had been
denied because a removal action was pending, the court
distinguished Marrero Pichardo on the basis that the plaintiff
had not been ordered removed and he appeared to be eligible for
a waiver of the grounds of inadmissibility under former § 212(c)
of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1182(c).
HAPEUS / Questions of LAW
It is at least arguable that there is jurisdiction for this claim under 28 U.S.C. § 2241, as neither
AEDPA nor IIRIRA abolished the writ of habeas corpus for aliens seeking to challenge certain
legal determinations of the BIA. In order for this type of jurisdiction to exist, however, there
must be a claim cognizable under 28 U.S.C. § 2241, which limits the writ to claims that the
petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3). In addition, as discussed above, “judicial review of final orders of
removal is available where the review is limited to pure questions of law and does not touch
upon decisions that are under the discretion of the Attorney General.” Moussa, 389 F.3d at 554.
123
8 C.F.R. § 334.5(b) (1992).

Under these regulations, the INS appears not to have discretion simply to revoke an
application once granted, or to refuse to schedule a successful applicatnt for the taking of the
oath,
even though information comes to light indicating the application should not have been granted.
See
Patel v. INS, No. 98CV1937 JCH, 2000 WL 298921 (E.D. Mo. Jan. 20, 2000).
Saba-Bakare contends that the district court has jurisdiction over this
action and consequently over his request that it declare him prima facie
eligible for naturalization and/or review the USCIS’s determination that he is
not prima facie eligible for naturalization.
124
POST CON RELIEF – SENTENCE – VACATION OR REDUCTION OF SENTENCE IS EFFECTIVE FOR

IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S REASONS FOR GRANTING IT
Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to modify or reduce a
criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the
Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for
purposes of the immigration law without regard to the trial court's reasons for effecting the
modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing
Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th
Cir. 2006).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3522.pdf
10.31 A. Reopening Removal Proceedings

Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the
U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was
ordered removed in absentia and removed from the United States. He filed a motion to reopen to
rescind the in absentia order based on lack of notice. The IJ denied the motion, concluding that the
immigration court lacked jurisdiction because petitioner was outside of the United States. The BIA
affirmed the dismissal. The Eleventh Circuit found that petitioner’s motion was governed by 8 C.F.R. §
1003.23(b)(4)(ii), which says that a motion to reopen in absentia proceedings may be made at any time
if the person shows that he or she did not receive notice. This regulation does not bar reopening when
the person has been removed from the United States. The court noted that Patel v. United States AG,
334 F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the
BIA’s dismissal of a motion to reopen because the person was outside of the United States. Patel,
however, did not involve a motion to reopen to rescind an in absentia order. AILF Legal Action Center,
Litigation Clearinghouse Litigation Clearinghouse Newsletters are posted on AILF’s web page at
www.ailf.org/lac/litclearinghouse.shtml.
First Circuit
MOTION TO REOPEN – APPLICATION FOR RELIEF

Palma-Mazariegos v. Gonzales, 504 F.3d 144 (1st Cir. Oct. 2, 2007) (motion to reopen removal
proceedings for purpose of applying for relief must be accompanied by application for requested relief).

Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007) (BIA grant of a timely motion to
reopen did not vacate the original IJ’s decision finding removability and granting voluntary departure,
and did not stay the voluntary departure period, even though it is highly unlike that BIA would reach
decision on merits of motion to reopen before voluntary departure period expires; “We read §§
1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of
voluntary departure available only to aliens who agree to give up the fight and leave the country
125
willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v.
Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005);
Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following Dekoladenu v. Gonzales, 459 F.3d
500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006).
POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER
VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD
LEFT THE UNITED STATES
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal
proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. §
1105a(c) (1994) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the
alien ... has departed from the United States after the issuance of the order.”) did not invalidate the
regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on
behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to
his or her departure from the United States.”).
POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL
PROCEEDINGS
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon
which deportability was premised is an appropriate basis for reopening administrative proceedings); De
Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.
2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005).



126
NOTE: Under the particular facts of this case, it appears that the deportation order may not have
actually been final (see dissent). However, assuming (as the majority did), that the deportation order
was final and therefore the holding of the case does not apply outside the context of late motions to
reopen/reconsider will limit the reach of this otherwise unfortunate decision.
Second Circuit

Cyrus v. Keisler, 505 F.3d 197 (2d Cir. Oct. 19, 2007) (court lacks jurisdiction to review denial of
discretionary request for sua sponte motion to reopen).
BOARD OF IMMIGRATION APPEALS – MOTION TO RECONSIDER – DEFINITION AND STANDARD

Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has defined a motion to
reconsider as ‘"a request that the Board reexamine its decision in light of additional legal arguments, a
change of law, or perhaps an argument or aspect of the case which was overlooked."’ In re Cerna, 20 I.
& N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations establish that a motion to
reconsider must specify errors of fact or law in the BIA decision and be supported by relevant
authority.") citing 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir.
2001).
Fourth Circuit
MOTIONS TO REOPEN – DEPORTED NONCITIZENS

William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8 U.S.C.] § 1229a(c)(7)(A)
unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is
within or without the country. ... it is evident that 8 C.F.R. § 1003.2(d), containing the post-departure bar
on motions to reopen, conflicts with the statute by restricting the availability of motions to reopen to
those aliens who remain in the United States. Therefore, we conclude that this regulation lacks authority
and is invalid.").
Seventh Circuit

Eighth Circuit
MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT
UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL PROCEEDINGS
Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by granting DHS motion to
reopen pursuant to 8 C.F.R. § 1003.23(b)(3) because DHS failed to establish that the evidence submitted
127
with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to
the conclusion of removal proceedings).
Ninth Circuit

Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court
order issued in 2004, acknowledging that 1994 order imposing a twelve-month sentence, for Arizona
misdemeanor conviction was illegal since the state at the time of sentence designated the conviction a
misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then
six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, required
remand to the BIA to consider the issue in the first instance; issue could not have been considered
earlier, since Arizona court entered 2004 minute entry over six months after initial BIA decision in this
case), citing Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir; 2004) (remanding to BIA to
consider in first instance whether petition continues to be barred from adjustment of status); INS v.
Ventura, 537 U.S. 12, 17 (2002)(per curiam) (remanding "changed circumstances" issue to BIA for
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN
POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POST-CONVICTION ATTACK

Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2(d)
barring granting of motion to reconsider to noncitizen following physical deportation does not apply
when criminal conviction that formed a “key part” of the order of removal has been vacated on a basis
of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-
Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated
Eleventh Circuit
MOTION TO REOPEN – BIA

Cisneros v. U.S. Attorney Gen., __ F.3d __, 2008 WL 217364 (11th Cir. Jan. 28, 2008) (BIA abused its
discretion in failing to examine exceptional circumstances in denying the motion to reopen).
BIA

The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack
128
jurisdiction to review motions filed by people who have been deported or have departed and that any
departure from the United States constitutes the withdrawal of a pending motion. The Ninth and
Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v.
Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its
terms applies only to a person who departs the United States while he or she ‘is the subject of removal
…proceedings.’”; once a person leaves the United States, he or she is no longer subject to proceedings;
where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been
completed and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S. Atty. Gen., 462
F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders,
INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a
motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales,
412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in
absentia order where the noncitizen had departed the United States before the commencement of
proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is
vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction
was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But
see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua
sponte authority to reopen and reconsider a case at any time).
Other

New AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review
(January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys
representing clients who have prevailed on a petition for review or other legal action and who are
outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml.

One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal"
under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows
the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks
to Beryl B. Farris, Atlanta.
MOTION TO REOPEN – AFTER DEPARTURE FROM UNITED STATES

The regulations provide that departure from the United States under an order of deportation, or while a
removal order is on appeal to the BIA, shall render the immigration judge’s decision final and bar any
motion to reopen or reconsider. 8 C.F.R. §§ 1003.2(d), 1003.4. However, many circuits have challenged
the validity of these regulations. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (first sentence of 8
C.F.R. § 1003.2(d) is ultra vires to statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-
Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase “is the subject of”);
Contreras-Rodriguez v. United States Att’y Gen., 462 F.3d 1314 (11th Cir. 2006) (departure regulation
does not apply to in absentia motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir.
129
2003) ("Under 8 C.F.R. § 1003.4, any voluntary departure from the United States following entry of an
order of deportation will be deemed to withdraw a pending appeal and to render the order of
deportation final."). Thanks to Rachel E. Rosenbloom; Beth Werlin
POST CON RELIEF – STATE REHABILITATIVE RELIEF – WYOMING DEFERRED ENTRY OF PLEA AND
SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT
Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and
sentence, under Wyo. Stat. § 7-13-301 (“Without entering a judgment of guilt or conviction, [the court
may] defer further proceedings and place the person on probation for a term not to exceed five (5)
years.”), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. § 3607, for
purposes of avoiding a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration
purposes.
Moral turpitude refers generally to conduct that shocks the public conscience as
being inherently base, vile, or depraved, and contrary to the accepted rules of morality
and the duties owed between persons or to society in general. Moral turpitude has been
defined as an act which is per se morally reprehensible and intrinsically
Wrong, or malum in se, so it is the nature of the act itself and not the statutory
prohibition of it which renders a crime one of moral turpitude. Among the tests to
determine if a crime involves moral turpitude is whether the act is accompanied by a
vicious motive or a corrupt mind.
Departing while appeal is pending : Delagadillo
The respondent, through counsel, argues that his departure from the United States to
Cuba renders moot the Service’s appeal of the Immigration Judge’s order terminating
deportation proceedings. The respondent maintains that “there is no issue in regard to
[his] deportation as he has departed the United States.” According to the respondent,
because he is not the appealing party, “his departure cannot be construed as a
withdrawal of his appeal under 8 C.F.R. § 3.4. nor can it be construed as self-
deportation because he [prevailed in] this case [before the Immigration Judge] and
was not ordered deported.”
Summary JUDGMENT
“A district court’s grant of a summary judgment motion is subject to de novo review . . . .
All evidence submitted on the motion is to be construed in the manner most favorable to the
nonmoving party.” Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir. 2004)
(citations omitted). Summary judgment “should be rendered if the pleadings, the discovery and
the disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)
130
Matter Of Espinosa
This Board has been notified by the Service that the respondent has departed the United
States. We do not know, however, whether that departure is intended to be temporary or
permanent. We held in a recent precedent decision that an alien’s departure from the United
States does not serve as a constructive withdrawal of an appeal filed by the Service. Matter
of Luis, 22 I&N Dec. 3395, at 8 (BIA 1999). Furthermore, we decided that the Board has, as
a matter of prudence, reserved the discretion to dismiss appeals and deny motions as moot.
Id. at 9. We find, as we did in Matter of Luis, that the instant case is not moot because a
resolution of the Service’s appeal that is adverse to the respondent would have significant
legal consequences were the respondent to seek admission to the United States in the future.
Furthermore, because the respondent is a lawful permanent resident, the question whether he
is entitled to retain that status is not mooted by his mere departure from this country.
KRS 506.120 V KRS 506.080

KRS 506.120 clearly requires proof of a number of facts not required by KRS
506.080. For example, KRS 506.120(1) requires a person to have “the purpose to
establish or maintain a criminal syndicate or to facilitate any of its activities,” a
requirement not contained within KRS 506.080. According to KRS 506.080(1), if a
person engages in conduct to provide someone with the means or the
opportunity to commit a crime, his conduct must actually aid that party in
committing the crime. In other words, the crime allegedly being facilitated must
actually be consummated and committed. See KRS 506.080 (LRC Commentary).
No consummation requirement is contained within any of the prohibited acts

contained within KRS 506.120(1)(a)-(c). Thus, “each statute requires proof of a
fact the other does not.” However, there was testimony that Layton also bought
ingredients that were used by the group in the manufacturing of
methamphetamine. That conduct alone of providing materials supported a
criminal syndicate conviction. Therefore, Layton’s double jeopardy argument
must fail.
506.080 Criminal facilitation.
(1) A person is guilty of criminal facilitation when, acting with knowledge that another person is
committing or intends to commit a crime, he engages in conduct which knowingly provides such
person with means or opportunity for the commission of the crime and which in fact aids such person
to commit the crime.
(2) Criminal facilitation is a:
(a) Class D felony when the crime facilitated is a Class A or Class B felony or capital offense;
(b) Class A misdemeanor when the crime facilitated is a Class C or Class D felony;
(c) Class B misdemeanor when the crime facilitated is a misdemeanor.
131
. Facilitation of Aggravated Burglary
In 1992, in a Tennessee state court, Sawyers pled guilty to facilitation of a felony or, more specifically,
facilitation of aggravated burglary. He argues that the district court erred in classifying this as a "violent
felony" under the ACCA. We find, however, that the district court was correct and affirm its holding.
A person is a party to a crime in Tennessee "if the offense is committed by the person's own conduct, by
the conduct of another for which the person is criminally responsible, or by both." TENN. CODE ANN. §
39-11-401(a). The comments to this section make clear that Tennessee law provides "equal liability for
principals, accessories before the fact, and aiders and abettors." Id. § 39-11-401(a) cmt. More
specifically, a person is criminally responsible for an offense committed by another so long as he has the
appropriate mental state-i.e., an "intent to [*11] promote or assist the commission of the offense, or to
benefit in the proceeds"-and solicits, directs, aids, or attempts to aid the person who commits the crime.
Id. § 39-11-402(2).
"Facilitation of a felony is a lesser-included offense when a defendant is charged with criminal

responsibility for the conduct of another." State v. Fowler, 23 S.W.3d 285, 288 (Tenn.2000). "A person is
criminally responsible for the facilitation of a felony if, knowing that another intends to commit a
specific felony, but without the intent required for criminal responsibility [for the offense,] . . . the
person knowingly furnishes substantial assistance in the commission of the felony." TENN. CODE ANN. §
39-11-403(a).
Here, Sawyers pled guilty to facilitation of aggravated burglary. "Aggravated burglary occurs when an
individual enters a habitation 'without the effective consent of the property owner' and, . . . intends to
commit a felony . . . ." State v. Langford, 994 S.W.2d 126, 127 (Tenn.1999)(citing TENN. CODE ANN. §§
39-14-402 and 39-14-403).
Facilitation of aggravated burglary satisfies [*12] the "felony" requirement because it is punishable by
more than one year. Specifically, as a class D felony, the crime carries a minimum two year sentence.
TENN. CODE ANN. § 40-35-111(b)(4). n2 It is therefore necessary to determine if the crime meets the
second requirement under the ACCA. Facilitation of aggravated burglary clearly does not involve the use
of explosives or contain an element of force. Thus, it is a "violent felony" only if it is specifically
enumerated or falls within the otherwise clause.
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=FCLRetrieveCaseDetail&caseID=13&format=
FULL&resultHandle=913a1c58b50ee27990afda5f7e0510ee&pageLimit=10&xmlgTotalCount=18&combin
edSearchTerm=facilitation+and+mens+rea+and+intent&juriName=Combined%20Federal%20Cases&sou
rceFile=GENFED;COURTS
This case was tried on the theory that, in the course of his dealings with the cooperating witness, Roy
both conspired to and did in fact "conduct[] or attempt to conduct[] a financial transaction involving
property represented to be the proceeds of specified unlawful activity" -- to wit, marijuana sales
involving the cooperating witness -- "with the intent . . . to promote the carrying on of specified unlawful
activity" -- to wit, future marijuana sales to and by that same witness. 18 U.S.C. § 1956(a)(3)(A); 18
U.S.C. § 1956(h). Roy's principal appellate argument is that the district court committed reversible error
in informing the jury that Roy could be convicted if he engaged in the actus reus with an intent to
promote "or facilitate" the already [*3] referenced marijuana sales. As Roy correctly points out, the
132
statute makes no mention of an intent to "facilitate"; an intent to "promote" is required. Promotion and
facilitation are not the same, Roy posits, because one can facilitate something simply by doing nothing,
whereas one must engage in affirmative conduct in order to engage in "promotion." Thus, Roy contends,
the instruction impermissibly and prejudicially diminished the government's burden of proof. The
government's principal response is that, contrary to Roy's protestations, the words "promote" and
"facilitate" are synonymous and have been used interchangeably by a number of appellate courts,
including this court, in describing the mens rea required by 18 U.S.C. § 1956(c)(3)(A). See United States
v. LeBlanc, 24 F.3d 340, 346 (1st Cir. 1994); see also United States v. Panaro, 266 F.3d 939, 949-50 (9th
Cir. 2001); United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999); United States v. Paramo, 998 F.2d
1212, 1215-16 (3d Cir. 1993); United States v. Skinner, 946 F.2d 176, 177-78 (2d Cir. 1991).
Individual words [*4] usually signify a range of ideas, and we have little trouble agreeing with Roy that,
in some contexts, "promotion" and "facilitation" might signify different concepts. Moreover, we may
grant for the sake of argument that one sometimes may reasonably be thought to have "facilitated"
something without actually doing anything, whereas "promotion" always (or at least nearly always)
requires affirmative conduct of some sort. But the question here is not whether "promotion" and
"facilitation" are always synonymous; the question is whether, in the context of the jury instructions,
there is a reasonable likelihood that the jury understood the district court's use of the word "facilitate"
to denote something materially easier for the government to prove than the "promotion" that is
required by the statute. See United States v. DeLuca, 137 F.3d 24, 37 (1st Cir. 1998) (collecting cases).
Roy says that there is such a reasonable likelihood because the jury instructions "clearly misled the jury
as to the level of involvement required to convict Mr. Roy." The argument continues:
Had the District Court properly instructed the jury on the meaning of promote, the verdict likely [*5]
would have been different. Mr. Roy's actions may have facilitated the narcotics activity, but that
certainly does not mean he promoted, or intended to promote, such activity. Unfortunately, based on
the District Court's instructions, the jury believed it was enough to convict Mr. Roy if he merely
facilitated the activity.But Roy's elaboration of his argument incorrectly assumes that the district court's
instruction on promotion or facilitation described the actus reus at which the statute is directed. It did
not. As set forth above, the instruction described the actus reus prohibited by the statute as the
conducting of (or attempted conducting of) financial transactions involving the proceeds of unlawful
activity (here specified to be marijuana sales). The concepts of "promotion" or "facilitation" came into
play only in describing the mens rea with which one must have engaged in the actus reus. Thus, contrary
to Roy's argument, the jury was not permitted to convict on a showing that Roy somehow inertly
facilitated the narcotics activity. Rather, it was asked whether Roy had engaged in affirmative conduct
while harboring a specified mens rea: "to promote [*6] or facilitate" the carrying on of the specified
narcotics-related activity. Because it is incoherent to say that one engaged in affirmative conduct with
an intent to bring about some consequence by means of one's facilitative inaction, we think there is no
reasonable likelihood that the jury understood the district court's use of the verb "facilitate" in the jury
instructions to denote conduct-free passivity. And because Roy has not suggested any other definition of
"facilitate" under which the jury was reasonably likely to have convicted by finding that he engaged in
the actus reus with something short of the promotive intent required by the statute, we reject his
challenge to the instructions. See DeLuca, 137 F.3d at 37.
133
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=FCLRetrieveCaseDetail&caseID=1&format=F
ULL&resultHandle=f3a9a0c96363367e553dfb31714da7f5&pageLimit=10&xmlgTotalCount=1&combined
SearchTerm=krs+506.080&juriName=Combined%20Federal%20Cases&sourceFile=GENFED;COURTS
Jensen argues that because she did not actively participate in the sexual abuse, but rather only passively
allowed it to occur, her conviction for complicity to commit sexual abuse does not fall within the ambit
of offenses which require sex offender registration. Kentucky courts, however, disagree. In Parks v.
Commonwealth, 192 S.W.3d 318, 326 (Ky. 2006), the Kentucky Supreme Court distinguished complicity
liability from liability for an inchoate offense, such as criminal facilitation, [*10] which carries a reduced
penalty because the underlying offense was never actually committed. See KRS 506.080. The Kentucky
Supreme Court explained that "unlike an inchoate offense, 'KRS 502.020 does not create a new offense
known as complicity.'" Id. at 326 (citing Commonwealth v. Caswell, 614 S.W.2d 253, 254 (Ky. App.
1981)). Rather, as stated earlier by the Kentucky Supreme Court in Wilson v. Commonwealth, 601
S.W.2d 280, 286 (Ky. 1980), "one who is found guilty of complicity to a crime occupies the same status
as one being guilty of the principal offense."
PARKS v. Commonwealth page 10 http://apps.kycourts.net/supreme/sc_opinions.shtm
Complicity liability under KRS 502 .020 is not an inchoate offense, such as the offenses
described in KRS Chapter 506, e.g_, criminal facilitation, KRS 506.080, the offense to
which Blakeman and Morris pled guilty. Inchoate offenses carry reduced penalties
because the underlying offense was never actually committed. However, unlike an
inchoate offense, "KRS 502.020 does not create a new offense known as complicity ."
Commonwealth v. Caswell , 614 S.W.2d 253, 254 (Ky. App. 1981). "[O]ne who is found
guilty of complicity to a crime occupies the same status as one being guilty of the
principal offense." Wilson v.Commonwealth , 601 S.W.2d 280,286 (Ky. 1980) .
Smalley attempts to rebut the government’s assertion that

his crime was inherently fraudulent by noting that fraud is not
part of the language of either § 1952(a) or § 1956(a)(3)(B). The
Ninth Circuit has aptly noted, however, that “[e]ven if intent
to defraud is not explicit in the statutory definition, a crime
nevertheless may involve moral turpitude if such intent is
‘implicit in the nature of the crime.’” Goldeshtein v. INS, 8
F.3d 645, 648 (9th Cir. 1993) (quoting Winestock v. INS, 576
F.2d 234, 235 (9th Cir. 1978)); accord In re Flores, 17 I. & N.
Dec. 225, 228 (BIA 1980). Smalley stridently disagrees that his
offense is implicitly fraudulent and therefore turpitudinous,
however, because he analogizes money laundering to the
regulatory crime of structuring financial transactions to evade
reporting requirements under 31 U.S.C. § 5324, which both the
BIA and the Ninth Circuit have held is neither fraudulent nor a
134
CIMT. See Goldeshtein, 8 F.3d at 648; In re L-V-C-, 22 I. & N.

Dec. 594,602 (BIA 1999) (following Goldeshtein).
our categorical analysis of whether a crime

involves moral turpitude, the answer depends upon our analysis
of the elements of the crime that the government must prove
before 0btaining a conviction
www.probono.net/nationalareasearch/attachment.109695
www.opinions.kycourts.net/sc/2005-SC-000307-MR.pdf
KY Complicity v Facilitation: STRATTON v Comm of KY supreme court
The relevant part of the statute criminalizing complicity, KRS

KRS 502 .020(1), reads:
A person is guilty of an offense committed by another person when,
with the intention of promoting or facilitating the commission of the
offense, he :
(a) Solicits, commands, or engages in a conspiracy with such other
person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or
committing the offense;
In slight contrast, the statute criminalizing facilitation, KRS 506 .080(1), reads:
A person is guilty of criminal facilitation when, acting with

knowledge that another person is committing or intends to commit
a crime, he engages in conduct which knowingly provides such
person with means or opportunity for the commission of the crime
and which in fact aids such person to commit the crime.
The distinction between the applicability of the two statutes depends on the
defendant's mental state. See White v. Commonwealth, 178 S.W .3d 470, 489 (Ky.
2005) .
Under either statute, the defendant acts with knowledge that the
principal actor is committing or intends to commit a crime. Under
the complicity statute, the defendant must intend that the crime be
committed ; under the facilitation statute, the defendant acts without
such intent. Facilitation only requires provision of the means or
opportunity to commit a crime, while complicity requires solicitation,
conspiracy, or some form of assistance. "Facilitation reflects the
mental state of one who is `wholly indifferent' to the actual
completion of the crime."
Thompkins v. Commonwealth, 54 S.W .3d 147,150-51 (Ky. 2001) (citing Skinner v.
Commonwealth, 864 S.W .2d 290, 298 (Ky. 1993) and quoting Perdue v.
135
Commonwealth, 916 S .W.2d 148,160 (Ky. 1995), cert. denied , 519 U .S . 855,117 S .
Ct. 151, 136 L. Ed . 2d 96 (1996)).
An instruction on facilitation (as a lesser-included offense of complicity) "is
appropriate if and only if on the given evidence a reasonable juror could entertain
reasonable doubt of the defendant's guilt on the greater charge, but believe beyond a
reasonable doubt that the defendant is guilty of the lesser offense." Skinner, 864
S.W .2d at 298. An instruction on a lesser included offense requiring a different mental
state from the primary offense is unwarranted, however, unless there is evidence
supporting the existence of both mental states . See Taylor v. Commonwealth, 995
S .W.2d 355, 362 (Ky. 1999).
Duran, ID#3101
(1) An immigration judge in deportation proceedings properly denied the respondent's motion to subpoena government
records where the respondent failed to comply with the requirements of 8 C.F.R. § 287.4(a)(2) (1984) by not specifically
stating what he expected to prove by such documentary evidence and by not affirmatively showing a diligent effort to
obtain the records.
(2) While a subpoena is not required in the instant proceedings and access should generally be given to a person in
immigration proceedings concerning records maintained about himself, the respondent failed to show compliance with the
requirements of 8 C.F.R. § 103.21 (1984) which permit such access
Matter of Morales 21 / 130 1995
(5) An interlocutory appeal will ordinarily be considered moot upon the alien’s departure under an order of
exclusion and deportation, but such an appeal need not be considered moot in each and every circumstance,
particularly where the order of exclusion was erroneous and the issue raised has continuing importance to the proper
administration of the immigration laws. Matter of Okoh, 20 I&N Dec. 864 (BIA 1994), distinguished.
Matter of Brown, 18 I&N Dec. 324, 325(BIA 1982) (holding that an alien may
not defeat a Service appealand nullify deportation proceedings by effecting a
departure from and subsequent reentry to the United States). We therefore
hold that the respondent’s departure from the United States did not serve as
a constructive withdrawal of the Service’s appeal.
One of the principal distinctions between facilitation and complicity is that

"facilitation requires knowledge that another intends to commit a crime, while complicity
requires an intention to promote or facilitate commission of the offense ." Skinner v.
Commonwealth , 864 S.W.2d 290, 298 (Ky. 1993). Explained another way, "[f]acilitation
reflects the mental state of one who is 'wholly indifferent' to the actual completion of the
crime ." Perdue v. Commonwealth, 916 S.W.2d 148, 160 (Ky. 1995).
http://64.233.169.104/search?q=cache:GNCBYewEWuoJ:162.114.92.72/Opinions/2003-SC-000220-
MR.pdf+krs+506.080&hl=en&ct=clnk&cd=8&gl=us
CIMT STATUTe PARTYKA v. AG

http://www.ca3.uscourts.gov/opinarch/042804p.pdf.
136
Whether an alien’s crime involves moral turpitude is determined by the criminal statute and the
record of conviction, not the alien’s conduct. Knapik, 384 F.3d at 88,90-91; De Leon-Reynoso v.
Ashcroft, 293 F.3d 633, 635 (3dCir. 2002). Under this categorical approach, we read the
applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under
the statute. Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996); Matter of Marchena, 12 I. & N.
Dec. 355, 357 (BIA 1967). As a general rule, a criminal statute defines a crime involving “moral
turpitude only if all of the conduct it prohibits is turpitudinous
JUV . ADJ and Immigration
The United States continues to attract immigrants from many foreign lands, and lawyers in criminal
practice must increasingly be conscious of the immigration status of parties and deportation
consequences of criminal proceedings involving alien residents. So far, juvenile delinquency
adjudications have not been deemed criminal "convictions" that have negative immigration
consequences. (Matter of Ramirez-Rivero, 18 I&N 135 (BIA 1981); Matter of C.M., 5 I&N 327 (BIA 1953).)
But the conviction of a juvenile as an adult in a criminal court does meet the law’s requirement and may
result in deportation. (Matter of C.M., supra; Morasch v. INS, 363 F.2d 30 (9th Cir. 1966).) One major
consequence of the transfer of a youth to trial in adult court is exposure to the likelihood of deportation,
depending on the gravity of the offense charged or nature of the sentence imposed. 18 U.S.C. §§
5031-5042
4.1.C Finality of conviction Before Congress codified the definition of conviction in

1996, the Supreme Court had required that a conviction be final before it could be used in to
support a conviction-based ground of deportability.13 Although the BIA has not addressed the
issue in a precedent decision since 1996, the Fifth Circuit 14 and Seventh Circuit15 have held that
the statutory definition of conviction eliminated the finality requirement. In those circuits that
still require finality, a late appeal that is accepted as a direct appeal is not a final conviction for
immigration purposes.16
IJ REQ
An U is required to inform eligible aliens about the availability of discretionary relief,
including voluntary departure; failure to do so is a basis for a remand by the BlA. In re Julio
Antonio Cordova, 22 I. & N. Dec. 966, 970-72, 1999 WL 590719 (BlA 1999). Under 8
C.F.R. § 240.11(a)(2) (now 8 C.P.R. § 1240(a)(2)), "[t]he Immigration Judge shall inform
the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this
chapter and shall afford the alien an opportunity to make application during the hearing."
Voluntary departure is one of the "benefits enumerated in this chapter." See 8 C.P.R.
§240.26 (now 8 C.F.R. § 1240.26)
Moreover, the Board of Immigration Appeals (hereafter "the

BIA") requires a remand when an U misinforms or fails to inform an eligible alien about
voluntary departure rights, even when the alien is represented by an attorney. Cordova, 22 I.
& N. at 966.6 In short, as with § 212(c) relief, the "right to be informed of the possibility" of
voluntary departure relief, although the relief itself is not "constitutionally mandated, ... [is]
an established right." Copeland, 376 F.3d at 72
Argument against the Wobbler KY statute of Facilitation: (CIMT TEST)

137
1-KRS 506.080 is violated without any requirement that the def. have a specific intent to cause any
liability to the victim being defrauded.The statute requires the existance of no state of mind or
criminal intent beyond that plainly expressed on the face of the statute. “ The legistlator thought to
deter ALL acts by a facilitator that may or may not result in a liability,“whether or not such a
consequence was intended or even forseen” Moral turpitude generally requires an evil motive, one
doesnot violate …. by merely ………, Rather,one must intentionally engage in a deception or fraud
that might fairly be described as noninnocent behavior, even if, in some instances,it might not stem
from an evil motive.
2- the crime of facilitation was complete at the time the offense to defraud began.
3- Penalty for Facilitation of a class A is a class B Misd punishable by a max of 90 days in Jail.
4- CIMT is not defined by the INA or in any US code.
5- Intent to defraud shall be focused on the person who commits the actual offense not the facilitator.
(min. conduct required should be discussed)
http://www.plol.org/Pages/Secure/Document.aspx?d=4mBXPcT15pNzBDKeBxG%2bSw%3d%3d&l=Case
s&rp=4 5 cir case of viol facilitation ( immig is a driver of the car in which the pass. Is the drive by
shooter) Nguyen V Ashcroft.
Mizrahi v Gonzales Ca2 Solicitation of CS NY penal:
Because every solicitation conviction in New York depends on two statutes to define the minimum
conduct proscribed -- the generic statute which defines the actus reus element and the object statute
which defines the mens rea element -- when, as in Mizrahi's case, the intent element is supplied by a
statute defining the defendant's objective to be a drug crime, the solicitation conviction categorically
constitutes "a violation of . . . any law . . relating to a controlled substance." 8 U.S.C. § 182(a)(2)(A)(i)(II).
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=FCLRetrieveCaseDetail&caseID=5&format=F
ULL&resultHandle=12fbb1fe83a385acefd7112611619fda&pageLimit=10&xmlgTotalCount=16&combine
dSearchTerm=facilitation+and+deportation&juriName=Combined%20Federal%20Cases&sourceFile=GE
NFED;COURTS
2) Criminal and related grounds

(A) Conviction of certain crimes
(i) In general Except as provided in clause (ii), any alien convicted of, or who admits having
committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or
conspiracy to commit such a crime, or
PRO SE In Ca2
we construe the briefs of pro se petitioners as raising the
strongest arguments that they suggest, Weixel v. Bd. of Educ.,
287 F.3d 138, 146 (2d Cir. 2002);Mcintoch
CIMT test Cliché:

3Because the term “moral turpitude” is undefined by statute, this court has been
inclined to defer to the Board of Immigration Appeal’s (“BIA’s”) construction. See
Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006) (“The BIA has explained that the term
‘moral turpitude’ generally encompasses: ‘conduct that shocks the public conscience as being
inherently base, vile, or depraved, and contrary to the accepted rules of morality and the
duties owed between persons or to society in general. Moral turpitude has been defined as
138
an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is
the nature of the act itself and not the statutory prohibition of it which renders a crime one
of moral turpitude. Among the tests to determine if a crime involves moral turpitude is
whether the act is accompanied by a vicious motive or a corrupt mind.’” (quoting Hamdan
v. INS, 98 F.3d 183, 186 (5th Cir. 1996))). The conduct that Nguyen pleaded guilty to falls
within this definition.
By these standards, we conclude that the crime of malicious mischief as defined by the
Washington statute does not rise to the level of either depravity or fraud that would
qualify it as necessarily involving moral turpitude. In contrast to the bulk of other non-
fraud crimes necessarily involving moral turpitude, malicious mischief is a relatively
minor offense. Indeed, one can be convicted of malicious mischief for destroying as little
as $250.00 of another's property with an evil wish to annoy. Moreover, malice can be
inferred if the act is merely "wrongfully done without just cause or excuse." RCW Sec.
9A.04.110(12). The Washington statute's reach thus extends to include pranksters with
poor judgment. Consequently, unlike the crimes of spousal abuse, child abuse, first-
degree incest, and carnal knowledge of a fifteen year old, malicious mischief does not
necessarily involve an "act of baseness or depravity contrary to accepted moral
standards." Grageda 12 F.3d at 921; cf. Matter of N--, 8 I & N Dec. 466, 468 (BIA 1959)
(Delaware malicious mischief statute not a crime necessarily involving moral turpitude).5
As for fraudulent intent, it is undisputed that Washington's malicious mischief statute
includes no such element. We therefore conclude that malicious mischief, as defined by
RCW Sec. 9A.48.080, is not a crime necessarily involving moral turpitude.
16
The INS resists this conclusion, arguing that if a statute requires an "evil intent, wish, or
design to vex, annoy, or injure another person," then the crime necessarily involves
moral turpitude. We cannot accept this proposition. It is true that in the fraud context we
have placed a great deal of weight on the requirement of an evil intent. But even in this
139
context, we have not held that if a statute requires evil intent, it necessarily involves
moral turpitude. We have held only that without an evil intent, a statute does not
necessarily involve moral turpitude. See Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.1962)
("A crime that does not necessarily involve evil intent, such as an intent to defraud, is
not necessarily a crime involving moral turpitude."). To state the proposition positively,
we have held that in the fraud context an evil intent is necessary, but not sufficient, for a
crime inevitably to involve moral turpitude. Cf. Gonzalez-Alvarado, 39 F.3d at 246
(holding that "[a] crime involving the willful commission of a base or depraved act is a
crime involving moral turpitude, whether or not the statute requires proof of evil intent.").
17
While mental state is an important factor, we reject the contention that all crimes
requiring some degree of evil intent are necessarily crimes involving moral turpitude.
Here, for example, the Washington statute permits malice (which imports an evil intent)
to "be inferred from an act done in wilful disregard of the rights of another, or an act
wrongfully done without just cause or excuse, or an act or omission of duty betraying a
wilful disregard of social duty." RCW Sec. 9A.04.110(12). Under this definition, evil
intent may become much too attenuated to imbue the crime with the character of fraud
or depravity that we have associated with moral turpitude. At least outside of the fraud
context,6 the bare presence of some degree of evil intent is not enough to convert a
crime that is not serious into one of moral turpitude leading to deportation under section
241(a)(4) of the Immigration and Nationality Act. (Rodriguez-herrera, Petitioner, v.INS)
http://cases.justia.com/us-court-of-appeals/F3/52/238/573134/
PREJUIDICED IN proceedings: DUE PROCESS

See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (reversal of a BIA decision on due
process grounds is available where the petitioner suffered prejudice, and the proceeding
was “so fundamentally unfair that the alien was prevented from reasonably presenting his case.”)
Petitioner argues she was prejudiced by the introduction of the evidence because it provided the
basis for her removal. Clearly the evidence hurt Petitioner’s case. But Garcia-Flores does not bar
evidence that prejudices a petitioner; the rule bars evidence that prejudices protected interests
held by that petitioner
Shin v Mukasey: 1252 g/ Equitable estoppel
Petitioner argues the government should be estopped from removing her due to Sustaire’s
actions. Under 8 U.S.C.§ 1252(g), we have no “jurisdiction to hear any cause or claim
140
by or on behalf of any alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders . . . .” See also
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). However, we
have jurisdiction over petitioner’s equitable estoppel claim because it arises from actions
taken by a corrupt government employee prior to any decision made by the Attorney General to
commence proceedings against her. See Wong v. United States, 373 F.3d 952, 965 (9th Cir.
2004) (holding that “§ 1252(g) does not bar review of actions that occurred prior to any decision
to ‘commence proceedings’ ”).
SHIN v. MUKASEY 2033
WONG v U S: 1252 (a) (2) (B):
(ii) any other decision or action of the Attorney General the authority for which is specified
under this title to be in the discretion of the Attorney General....
8 U.S.C. § 1252(a)(2)(B). The government maintains that this provision precludes jurisdiction
in this Bivens action over Wong's challenges to the decisions regarding adjustment of status,
advance parole or permission to depart without advance parole, and revocation of parole.
In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142
L.Ed.2d 940 (1999) (AADC), the Supreme Court interpreted § 1252(g). In the course of doing so,
the Court cautioned that we must be careful not to read broadly language in the INA affecting
court jurisdiction that is subject to a "much narrower" interpretation. See id. at 478-82, 119 S.Ct.
936. Consistent with that admonition, we have recognized that the § 1252(a)(2)(B) jurisdictional
bar is not to be expanded beyond its precise language.
For example, decisions made on a purely legal basis may be reviewed, as they do not turn on
discretionary judgment. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir.2003)
(decision that alien was statutorily barred from petitioning for adjustment of status was not
discretionary and could be reviewed notwithstanding § 1252(a)(2)(B)); Montero-Martinez, 277
F.3d at 1143-44 (§ 1252(a)(2)(B) does not preclude jurisdiction over purely legal, and hence non-
discretionary, questions). Moreover, decisions that violate the Constitution cannot be
"discretionary," so claims of constitutional violations are not barred by § 1252(a)(2)(B). See
Torres-Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir.2001); see also Sanchez-Cruz v. INS, 255
F.3d 775, 779 (9th Cir.2001). In addition, § 1252(a)(2)(B)(ii) precludes jurisdiction only over
decisions as to which discretionary authority is "specified" by statute, not all discretionary
decisions. See Spencer Enterprises, Inc., 345 F.3d at 689-90.)
(B) does not preclude the district court from entertaining such claims.
B. Section 1252(g) — Review of Decisions or Actions by the Attorney General to

Commence Proceedings, Adjudicate Cases, or Execute Removal Orders
Section 1252(g) limits judicial review of certain decisions or actions of the Attorney
General regarding removal.15 That provision states:
Exclusive Jurisdiction. — Except as provided in this section and notwithstanding any

other provision of law, no court shall have jurisdiction to hear any cause or claim by or
on behalf of any alien arising from the decision or action by the Attorney General to
141
commence proceedings, adjudicate cases, or execute removal orders against any alien
under this Act.
8 U.S.C. § 1252(g).
AADC held that § 1252(g) "applies only to three discrete actions that the Attorney
General may take: her `decision or action' to `commence proceedings, adjudicate cases,
or execute removal orders.'" 525 U.S. at 482, 119 S.Ct. 936. Section 1252(g),
consequently, does not bar "all claims relating in any way to deportation proceedings."
Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir.2000) (en banc). As AADC
noted, "[t]here are of course many other decisions or actions that may be part of the
deportation process — such as the decisions to open an investigation, to surveil the
suspected violator, to reschedule the deportation hearing, to include various provisions
in the final deportation order ..., and to refuse reconsideration of that order." AADC, 525
U.S. at 482, 119 S.Ct. 936.
46
Following AADC, we have narrowly construed § 1252(g). For example, we have held that
"the reference to èxecuting removal orders' appearing in [§ 1252(g)] should be
interpreted narrowly, and not as referring to the underlying merits of the removal
decision." Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir.2002) (citations omitted).
Similarly, in Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001), we held
that § 1252(g) does not bar judicial review of decisions or actions that occur during the
formal adjudicatory process, because they are separate from the "decision to
adjudicate." Sulit v. Schiltgen, 213 F.3d 449 (9th Cir.2000), determined that § 1252(g)
does not bar the due process claims of aliens alleging that their green cards were
improperly seized without a hearing, that the INS failed to provide them with notice
requiring them to surrender for deportation, and that their counsel failed to notify them
of the issuance of the court's decision. See id. at 452-53 & n. 1; see also Catholic Soc.
Servs., 232 F.3d at 1150 (concluding that § 1252(g) does not limit jurisdiction to grant
injunctive relief in a class action challenging the INS's advance parole policy). But see
Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir.2002) (holding that § 1252(g)'s
bar to judicial review of decision whether to commence proceedings precludes review of
the decision when to commence proceedings).
Characterizing Wong's claims primarily as removal-based, the government urges that

they are for the most part barred by § 1252(g). Although her complaint could be read to
challenge the constitutionality of the removal itself, Wong has renounced such a broad
reading of her ambiguous allegations, stating in her brief that:
Plaintiffs' claims [do] not amount to a challenge of the decision of the INS to
`commence proceedings,' àdjudicate cases,' or èxecute removal orders.' Rather, ...
Plaintiffs' claims arise from the discriminatory animus that motivated and underlay the
actions of the individual defendants which resulted in the INS's decision to commence
removal proceedings and ultimately to remove Plaintiff Wong from the United States.
142
The instant case ... involves claims arising prior to any INS decision `to commence
proceedings against Wong, as well as claims that the Defendants placed Wong in a
detention situation where she suffered constitutional injury at the hands of third parties.
(emphasis added). Wong thus disclaims any challenge to the execution of the removal
itself, but rather asserts that her claims implicate only actions other than that removal,
or the commencement of proceedings, if any, leading to that removal.16
Wong is correct that § 1252(g) does not bar review of the actions that occurred prior to
any decision to "commence proceedings," if any, against her or to execute the removal
order, such as the INS officials' allegedly discriminatory decisions regarding advance
parole, adjustment of status, and revocation of parole. See Humphries v. Various Fed.
USINS Employees, 164 F.3d 936, 944 (5th Cir.1999) ("[W]e would defy logic by holding
that a claim for relief somehow àris[es] from' decisions and actions accomplished only
after the injury allegedly occurred.") (second alteration in original). None of these
decisions involves the discrete actions enumerated in § 1252(g).
C. Section 1252(a)(2)(A) — Jurisdiction to Review Any Cause or Claim Arising From or

Relating to Implementation or Operation of an Expedited Removal Order
Similarly, the government asserts that § 1252(a)(2)(A), which deals directly with the
expedited removal procedure under which Wong was removed, may also be implicated
by Wong's claims. Section 1252(a)(2)(A) reads in relevant part:
Notwithstanding any other provision of law, no court shall have jurisdiction to review —
(i) except as provided in subsection (e), any individual determination or to entertain any
other cause or claim arising from or relating to the implementation or operation of an
order of removal pursuant to section 235(b)(1) [setting forth procedures for expedited
removal],
(ii) except as provided in subsection (e), a decision by the Attorney `General to invoke
the provisions of such section, [or]
(iii) the application of such section to individual aliens, including the determination
made [as to eligibility for asylum].
8 U.S.C. § 1252(a)(2)(A). Subsection (e) provides that no court may "enter declaratory,
injunctive, or other equitable relief in any action pertaining to an [expedited removal
order]," unless certain exceptions not applicable here apply. 8 U.S.C. § 1252(e)(1)(A).
Like § 1252(g), § 1252(a)(2)(A) does not preclude Wong's claims concerning events that
occurred prior to the decision to initiate her expedited removal — namely, the claims
challenging the adjustment of status, advance parole, and revocation of parole decisions.
None of these claims implicates actions covered by § 1252(a)(2)(A). And, as we
explained above, Wong has expressly disclaimed interpreting her complaint to include a
143
challenge to her expedited removal, maintaining instead that the complaint challenges
only the decisions described above, which preceded her removal.17
We conclude that the district court properly exercised jurisdiction over Wong's claims
regarding advance parole, adjustment of status, and parole revocation, as well as over
her detention-related claims
We are not precluded, for example, from ruling on constitutional challenges to deportation procedures.
See Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir.1998) ("By its terms, [§ 1252(g)] does not prevent the
district court from exercising jurisdiction over the plaintiffs' due process claims [because such claims]
constitute `general collateral challenges to unconstitutional practices and policies used by the agency.'")
(quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991));
see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1121 (9th Cir.2001) (holding § 1252(g) did not bar
aliens' challenge to INS deportation procedures); Catholic Social Servs. v. INS, 232 F.3d 1139, 1150 (9th
Cir.2000) (en banc) (same).
Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007) (noting
that “unpublished BIA decisions do not constitute agency interpretations of law warranting
Chevron deference”)
Aggravated felony
Forgery A conviction under this statute is an aggravated felony as a crime related to
forgery under 8 U.S.C. § 1101(a)(43)(R) if the sentence is at least one year. In the
aggravated felony definition, forgery is not defined. Nor is the there a federal definition
of forgery to use as a benchmark. Therefore, courts have reasoned that the common law
definition of forgery should be used to determine whether a particular offense is an
aggravated felony. The three elements of the common law definition of forgery are: (1)
the false making or material alteration (2) with intent to defraud (3) of a writing that, if
genuine, might be of legal efficacy). Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005).
The common law definition of forgery exactly mirrors the Virginia definition of forgery
and therefore, a conviction under this statute is an aggravated felony if the sentence
imposed is at least one year
18.2-193 Credit card forgery

Elements
(1)(a)
- with intent to defraud a purported issuer, a person or organization providing
money, goods or services or anything else of value, or any other person
- falsely makes or falsely embosses a purported credit card or utters such a credit
card
(1)(b)
- not being the cardholding or the person authorized by him
- with intent to defraud the issuer, or a person or organization providing money,
goods or services or anything else of value, or any other person
- signs a credit card
(1)(c)
- not being the cardholder or the person authorized by him
144
- with intent to defraud the issuer, or a person or organization providing money,

goods or services or anything else of value, or any other person
- forges a sales draft or cash advance/withdrawal draft
- or uses a credit card number of a card of which he is not the cardholder,
- or utters, or attempts to employ as true, such forged draft knowing it to be forged
Crime involving moral turpitude
A conviction under this statute is a crime involving moral turpitude because any
conviction under this statute requires fraud as an essential element. See Jordan v.
DeGeorge, 341 U.S. 223 (1951).
Aggravated felony
Forgery
A conviction under this statute is a forgery offense and therefore an aggravated
felony under 8 U.S.C. § 1101(a)(43)(R) if the sentence imposed is at least one year. The
Virginia definition of credit card forgery matches the common law definition of forgery,
which has been used to define the forgery offense in 8 U.S.C. § 101(a)(43)(R). See
Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005) (three elements of common law
forgery are (1) the false making or material alteration (2) with intent to defraud (3) of a
writing that, if genuine, might be of legal efficacy).
Fraud offense
A conviction under this statute is a fraud offense and therefore an aggravated
felony under 8 U.S.C. § 1101(a)(43)(M)(i) if the loss to the victim is over $10,000.
8 CFR 3.3 (e)

(e) Effect of departure from the United States. Departure from the United States of a person who
is the subject of deportation proceedings, prior to the taking of an appeal from a decision in his
or her case, shall constitute a waiver of his or her right to appeal. [61 FR 18906, Apr. 29, 1996, as
amended at 66 FR 6445, Jan. 22, 2001]
Withdrawal of Appeal
Departure from the United States of a person who is the subject of deportation proceedings
subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a
withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as
though no appeal had been taken. Departure from the United States of a person who is the
subject of deportation or removal proceedings, except for arriving aliens as defined in § 1.1(q) of
this chapter, subsequent to the taking of an appeal, but prior to a decision thereon, shall
constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the
same extent as though no appeal had been taken.[61 FR 18907, Apr. 29, 1996, as amended at 62 FR
10331, Mar. 6, 1997
Third Circuit on statute of limitations
"In this immigration case, the Department of Homeland Security seeks to deport an alien based
on misrepresentations she made in applying for an adjustment of status more than five years
previously. We conclude that a subsequent amendment to the statute did not negate our earlier
precedent that the government was required to rescind and begin deportation within five years.
Accordingly, we will grant the petition for review." Garcia v. Atty. Gen., Oct. 28, 2008
We review the IJ's factual determinations for substantial evidence. n2 See Francis v. Gonzales, 442 F.3d
131, 137 (2d. Cir. 2006). When the Government bears the burden of proof below, the substantial
145
evidence standard is more demanding than in asylum and withholding of removal cases. See id. at 137-
39. In order to grant Yuhter's petition for review, we "are not required to find that any rational trier of
fact would be compelled to conclude that" Yuhter's transcript was authentic, but "we must find that any
rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and
convincing evidence." Id. at 138-39.
Asika v Ashcroft
Third Circuit, Asika contends that the "practical effect" of reading section 246(a) not to apply to
deportation in this set of cases would be to "construe it out of existence." See Bamidele v. INS, 99 F.3d
557, 562-65 (3d Cir. 1996). He also argues the Attorney General's contrary interpretation is not due
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L.
Ed. 2d 694, 104 S. Ct. 2778 (1984), both because the statute is clear and because "a statute of
limitations is not a matter within the particular expertise of the INS," see Bamidele, 99 F.3d at 561.
AGG. Felony. And 1 yr Sentence:
we have already [*17] concluded that "Congress was sufficiently clear in its intent to include certain
crimes with one-year sentences in the definition of 'aggravated felony.'" United States v. Graham, 169
F.3d 787, 788 (3d Cir. 1999), cert. denied 528 U.S. 845, 145 L. Ed. 2d 99, 120 S. Ct. 116 (rejecting the
argument that a one-year sentence does not implicate 8 U.S.C. § 1101(a)(43)(G)).
Alford Plea :
As the lnunigration Judge determined,in http://www.bibdaily.com/pdfs/BIAu%208-25-08%20Dennis.pdf
Mathew Dennis
however, neither offense categorically satisfies the requirements ofits respective aggravated felony
category, andthus the charges ofdeportability cannot be sustained absent proof that the respondent's
convictions were based on proof of (or admissions to) facts identifying his offenses as aggravated
felonies. Where an alien was convicted by means of a plea, as here, an hnmigration Judge
conducting such a "modified categorical" inquiry is "generally limited to examining the statutory
definition, charging document~ written plea agreement, transcript ofplea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented" or which was"confirmed by the
defendant." Shepard v. United States, 544 U.S. 13, 16, 26 (2005) (emphasis added
Immigration Judge' determined that because the respondent had entered an Alford plea-thereby
neither "assent[ingJ" to nor "confirm[ing]" any factual basis for his plea-it was simply not possible
to "pare down" his offenses ofconviction to ones encompassed by the elements oftheir respective
aggravated felony categories. This result appears to be consistent with-and dictated by-eontroIling
Supreme Court precedent.l Thus, we will dismiss the appeal.
The appeal is dismissed.
REMOVABILITY UNDER THE INA (2nd Circ ALSOL,
http://www.bibdaily.com/pdfs/Alsol%202%2011-14-08.pdf
As we recently emphasized, “the INA premises removability not on what

an alien has done, or may have done, or is likely to do in the future (tempting as it
may be to consider those factors), but on what he or she has been formally
146
convicted of in a court of law.” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d

137, 145 (2d Cir. 2008); see also Rashid v. Mukasey, 531 F.3d 438, 445 (6th Cir.
2008); Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 125 (2d Cir.
2007) (The INA renders “removable an alien who has been convicted of an
aggravated felony, not one who has committed an aggravated felony.”) (emphases
added) The requirement that an alien be convicted of a removable offense before
suffering the consequences under immigration law is precisely what Lopez
requires. Under Lopez, an offense that could have been prosecuted -- not
necessarily resulting in conviction -- as a recidivist offense is not an offense
punishable as a federal felony. The INA and Lopez require an actual conviction for
an offense that proscribes conduct that is punishable as a federal felony, not a
conviction that could have been obtained if it had been prosecuted. See 8 U.S.C. §
1227(a)(2)(A)(iii) (rendering deportable an alien who has been “convicted of an
aggravated felony”); 8 U.S.C. § 1229b(a)(3) (stating that the Attorney General may
cancel removal if, inter alia, the alien “has not been convicted of any aggravated
felony”).
Sentence as defined pre 1996:
The enactment of section 101(a)(48)(B) of the Act overrules our previous holding,
set forth in Matter of Esposito, 21 I&N Dec. 1 (BIA 1995), wherein we had held
that a sentence, for excludability purposes under section 212(a)(10) of the Act, is
not “actually imposed” if the sentencing court suspends the imposition of an
alien’s sentence. See also Matter of Castro, 19 I&N Dec. 692 (BIA 1988) (holding
that when a court suspends the imposition of a sentence, there is no “sentence
actually imposed” for purposes of section 212(a)(9) of the Act.)
(The panel will retain jurisdiction in the event review subsequent to the Lavira's
administrative proceedings is required.) lavira v AG
http://legal.rights.com/F.3d/478/478.F3d.158.05-3334.html
Solicitation v Facilitation NY:
Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992). The BIA found that a non-citizen
convicted in Arizona of solicitation to possess narcotics was convicted of a CSO. The
individual was convicted under a statute which provided that a person is guilty of the
offense if he “ ‘commands, encourages, requests or solicits’ another person to engage in
criminal activity with the intent to promote or facilitate the commission of the crime.”
Under Arizona law solicitation is classified as a preparatory offense (inchoate crime) and
the BIA found that the crime is more closely related to attempt, conspiracy and aiding
and abetting than it is to misprision of a felony. The BIA noted that under federal law,
one who commands, encourages or requests a crime is deemed to be an accomplice and
guilty of the substantive offense. The BIA also based its decision of the similarity of the
penalties in Arizona for solicitation and for the underlying offense.
BUT CONSIDER:
147
Coronado-Durazo v. I.N.S., 123 F.3d 1322 (9th Cir. 1997). A conviction of

solicitation to sell narcotics in Arizona was not a CSO where the solicitation
statute specifies a general offense not limited to controlled substance
violations.
ALSO CONSIDER:
United States v. Liranzo, 944 F.2d 73 (2nd Cir. 1991). A New York
conviction of criminal solicitation of a narcotics offense was not a “controlled
substance offense” for purposes of sentencing as a career offender. The
career offender statute defines “controlled substance offense” as “an offense
under federal or state law prohibiting the manufacture, import, export, or
distribution of a controlled substance . . . or the possession of a controlled
substance with the intent to manufacture, import, export, or distribute.” U.S.S.G. 4B1.2(2).
United States v. Dolt, 27 F. 3d 235 (6th Cir. 1994). The Sixth Circuit held that a Florida
conviction for solicitation to traffic in cocaine was not a “controlled substance offense” for
career offender purposes. The solicitation statute at issue did not require completion or
commission of an offense or overt act to complete the crime. The court distinguished
solicitation from attempt and also did not accept the government’s contention that solicitation
was similar to aiding and abetting. MOTIVE!!! LIMITED PARTICIPATION?
(which was specifically mentioned in offender statute).
http://64.233.169.104/search?q=cache:nMZZxR4n3B8J:www.pu
bdef.maricopa.gov/newsletter/vol13/ftd0503.pdf+facilitation+a
nd+moral+turpitude&hl=en&ct=clnk&cd=66&gl=us
Current BIA case law on facilitation to commit a drug offense in Arizona holds it is a violation
“relating to” a controlled substance. See Matter of Del Risco, 20 I. & N. 109, 109 (BIA 1989).
However, this opinion predates Coronado- Durazo and might be overruled if the issue
came before the BIA again. State case law defines it as an offense of its own (not a lesser
included). See State v. Harris, 134 Ariz. 287, 288, 655 P.2d 1339, 1340 (App.1982) (holding
crime of facilitation was not a lesser-included offense of burglary or theft). So, facilitation
might also be a good plea. Attempt and conspiracy to commit deportable offenses, on
the other hand, are specifically included in the immigration laws.
ARS § 13-2002 Forgery
Every subsection of this statute includes the element “intent to defraud” and is a CIMT.
Solicitation to commit forgery or possession of a forgery device, first subsection, are possible
class 6 plea deals that avoid being CIMTs. Forgery with an imposed sentence of at least
one year is also an aggravated felony. See In re Aldabesheh, 22 I.&.N. 983 (BIA 1999
IJ prejuidice/Due Process:
Zolotukhin, 417 F.3d at 1075 (“The IJ’s prejudgment of the merits of petitioner’s
case led her to deny [petitioner] a full and fair opportunity to present evidence on
his behalf, including that the IJ excluded the testimony of several key witnesses.”).
The IJ violated Hassani’s due process rights, requiring that we remand this case for
148
a new hearing—one in which Hassani would be given a “full and fair opportunity”
to present his case, Lopez-Umanzor, 405 F.3d at 1059, and to assert any other
grounds that may warrant relief from removal.
Summary JUDGMENT NATZ:

Donaldson v Acosta
We review a district court's grant of summary judgment de novo , applying the same standard as
the district court. Shepherd v. Comptroller of Pub. Accounts , 168 F.3d 871, 873 (5th Cir. 1999).
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper when the
"pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter
of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett , 477 U.S.317, 322-23 (1986); Anderson
v. Liberty Lobby, Inc. , 477 U.S. 242,251-52 (1986).
When making its determination, the court must draw all justifiable inferences in favor of the
nonmoving party.
Anderson , 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574,
587-88 (1986); Bodenheimer v. PPG Indus. Inc. , 5 F.3d 955, 956 (5th Cir. 1993).
To defeat a properly supported motion for summary judgment, the non-movant must present
more than a mere scintilla of evidence. Anderson , 477 U.S. at 251. Rather, a factual dispute
precludes a grant of summary judgment if the evidence would permit a reasonable jury to return
a verdict for the nonmoving party. See Merritt- Campbell, Inc. v. RxP Prods., Inc. , 164 F.3d
957, 961 (5th Cir. 1999). http://altlaw.org/v1/cases/104968
149
150
151
POST CONVICTION RELIEF
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Chapter 10
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Chapter 10: Post-Conviction Relief
§ 10.1 I. Introduction
Other
CRIMINAL DEFENSE – POST-CONVICTION RELIEF – POST CON RELIEF –

APPEALS
T. O'Toole, Appeal and Post Conviction Review, in L. FRIEDMAN RAMIREZ,
152
ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 663 (2d ed. 2007).
§ 10.2 II. Elimination of a Conviction
First Circuit
POST-CON – EFFECTIVE ORDER – NUNC PRO TUNC

Lawrence v. Gonzales, ___ F.3d ___, 2006 WL 1195679 (1st Cir. May 5,
2006) (where pre-IIRAIRA conviction was vacated on a basis of legal
invalidity, but replaced with a new plea after IIRAIRA that also triggers
removal, a waiver under INA § 212(c) is unavailable where the new plea
was not entered nunc pro tunc).
Third Circuit
POST CON RELIEF – EFFECTIVE ORDER

Cruz v. Att’y Gen. of the US, ___ F.3d ___ (3d Cir. Jun. 21, 2006) (BIA erred
in failing to grant motion to reopen based upon new evidence that
conviction upon which removal order was based has been recently
vacated). http://caselaw.lp.findlaw.com/data2/circs/3rd/052764p.pdf
Other
POST CON – EFFECTIVE ORDER

N. Tooby, Recent Developments Concerning Effective Orders Vacating
Convictions, 11 Bender's Imm. Bull. 534 (Jun. 1, 2005).
§ 10.3 A. Vacating the Conviction on a Ground of Legal

Invalidity
First Circuit
POST CON RELIEF – AFTER VACATUR, FEDERAL COURT MUST RESENTENCE

DEFENDANT WHOSE ORIGINAL SENTENCE HAD BEEN ENHANCED BY
VACATED CONVICTION
United States v. Pettiford, 101 F.3d 199, 200–202 (1st Cir. 1996); United
States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996); United States v. Cox,
83 F.3d 336, 339–340 (10th Cir. 1996); United States v. Nichols, 30 F.3d 35,
36 (5th Cir. 1994) (government conceded Custis allowed defendant to
reopen sentencing); United States v. LaValle, 167 F.3d 1255 (9th Cir. 1999);
cf. United States v. Fondren, 54 F.3d 533, 535 (9th Cir. 1995).
153
Ninth Circuit
POST CON RELIEF – AFTER VACATUR, CRIMINAL COURT CAN RESENTENCE

ON REMAINING COUNTS
United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one
count of conviction, the trial court has jurisdiction to resentence the
defendant on all remaining counts of conviction). Accord, United States v.
Harrison, 113 F.3d 135 (8th Cir. 1997); United States v. Davis, 112 F.3d 118
(3d Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), cert.
denied, 117 S. Ct. 1861 (1997) (resentencing does not violate double
jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v.
United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States v.
Morris, 116 F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d
734 (8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997);
United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997).
POST CON RELIEF – AFTER VACATUR, DISMISSED COUNTS ARE REINSTATED

Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997)
(dismissed counts are not reinstated since defendant did not breach plea
agreement), with United States v. Buner, 134 F.3d 1000 (10th Cir. 1998)
(No. 97-5066) (dismissed counts are reinstated); United States v. Barron,
127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d
675 (9th Cir. 1998). See also United States v. Hillary, 106 F.3d 1170, 1172
(4th Cir. 1997) ("on correcting the error complained of in a section 2255
petition, the defendant may be placed in exactly the same position in
which he would have been had there been no error in the first instance."),
quoting United States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United
States v. Jose, 425 F.3d 1237 (9th Cir. 2005), cert. denied, 126 S.Ct. 1664
(Feb. 27, 2006).
Tenth Circuit
POST CONVICTION RELIEF – EFFECTIVE ORDER

Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005) (where
Government bears the burden in immigration proceedings, the
Government must prove by clear, convincing, and unequivocal evidence
that a vacated criminal conviction remains a conviction for immigration
purposes). In deportation proceedings, the government must prove a
noncitizen’s deportability by clear, convincing and unequivocal evidence. 8
U.S.C. § 1229a(c)(3)(A); 8 C.F.R § 242.14(a) (1997); 8 C.F.R. § 1240.8 (as
amended by 68 Fed. Reg. 9824, 9839 (Feb. 28, 2003); Woodby v. INS, 385
154
U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (requiring "clear,
unequivocal, and convincing evidence that the facts alleged as grounds for
deportation are true"); Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th
Cir. 1985); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (reversing
deportation order where smuggling "for gain" had not been established by
Woodby v. INS, 385 U.S. 276 (1966) standard). In Cruz-Garza v. Ashcroft,
396 F.3d 1125 (10th Cir. Feb. 2, 2005)(Utah conviction of attempted theft
by deception, a third-degree felony, with a suspended sentence and a term
of probation, was not sufficiently proved to establish a ground of
deportation, because the record of post-conviction proceedings did not
establish with sufficient clarity and certainty that the conviction was still in
existence), the Tenth Circuit applied the rule of Woodby v. INS, 385 U.S.
276 (1966) to the question whether a conviction had been eliminated, by
post-conviction relief, so it no longer triggered a ground of deportation.
The court held that the government must establish by clear and convincing
evidence that the conviction was still in existence for immigration purposes
before a valid removal order could be premised on it. The INS had to
prove by "clear and convincing evidence" that petitioner was subject to
removal, i.e., that his conviction fell within the aggravated-felony ground of
deportation and thus supported removal under 8 U.S.C. § 1227(a)(2)(A)(iii).
8 U.S.C. § 1229a(c)(3)(A); see Evangelista v. Ashcroft, 359 F.3d 145, 149-50
(2d Cir. 2004); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.
2003).
The BIA never acknowledged this burden. On the contrary,

as the quoted passage reflects, the BIA approached the
case as if petitioner bore the burden of disproving that his
conviction qualified him for removal. See also id. at 2
(finding petitioner "failed to establish that his conviction
was vacated on the basis of a procedural or substantive
defect in the underlying proceedings."). While formal error
regarding the ascription of the burden of proof can, in
itself, undermine the validity of a BIA decision, see
Sandoval, 240 F.3d at 581; Murphy v. INS, 54 F.3d 605, 610,
612 (9th Cir. 1995), that is not the basis of our disposition
here. Rather, as explained below, we conclude in more
direct fashion that the evidence of record is legally
insufficient to satisfy the INS’s stringent burden of proof
and, thus, that the order for removal must be reversed.
See Sandoval, 240 F.3d at 583 (reversing removal order
where record relating to reduction of alien’s initially
155
qualifying conviction to a non-qualifying offense was

insufficient to support removal under clear and convincing
evidentiary standard); see also Cortez-Acosta v. INS, 234
F.3d 476, 480-83 (9th Cir. 2000) (reversing removal order
that had been based on suggestive but inconclusive
indications of alien’s removable activity (assisting illegal
entry of another alien), "because the weakness of the
administrative record does not satisfy the stringent [clear
and convincing] evidentiary standard for deportation").
Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005). The court
indicated the record before it was susceptible to two inferences: (a) that
the felony conviction had been reduced to a misdemeanor, on the basis of
an error in the original proceedings, so that it would no longer constitute a
felony for immigration purposes, or (b) that the conviction had been
reduced solely on the basis of considerations that arose after the
conviction first came into existence, such as rehabilition or to avoid
immigration consequences, and would therefore still constitute a felony for
immigration purposes. The court concluded:
Given the vagaries of the evidentiary record and, more

importantly, the plain implication of the state statute
authorizing reduction of petitioner’s felony conviction to a
Class B misdemeanor, we hold "that the INS did not prove
by clear, unequivoval, and convincing evidence that
[petitioner] was convicted of [a qualifying felony under §§
1101(A)(43) and 1227(a)(2)(A).]" Sandoval, 240 F.3d at 583.
"Thus we are compelled to grant the petition for review,
because the weakness of the administrative record does
not satisfy the stringent evidentiary standard for
deportation." Cortez-Acosta, 234 F.3d at 483.
Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132 (10th Cir. Feb. 2, 2005)
(footnote omitted). Therefore, the court granted the petition for review,
reversed directing the BIA’s decision, and vacated the order for petitioner’s
removal. The Eleventh Circuit had previously applied the same standard
to rule evidence of a conviction was insufficient to establish a firearms
conviction ground of deportation. Adefemi v. Ashcroft, 358 F.3d 828 (11th
Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d
1269 (11th Cir. June 30, 2003) (BIA could not reasonably have concluded
that government showed by clear and convincing evidence that noncitizen
had been convicted of firearms offense, so as to be ineligible for 212(c)
156
relief from deportation, where only evidence offered by government was

traffic ticket that alleged unlawful possession of firearm, but contained
many unfilled blanks, failed to specify basis for fine imposed, and did not
explicitly indicate fact of conviction, offense of conviction, or charge to
which alien might have pled guilty). The INS had relied exclusively on a
single piece of evidence in support of its charge that Adefemi was
deportable on the basis of a firearms conviction. This was a two-sided,
preprinted document that would be colloquially termed a traffic "ticket."
On the front appears a uniform citation form used to charge drivers with
moving violations. On the reverse is boilerplate language for use in
recording several types of action taken in the City Court of Atlanta, such as
the receipt of a plea or the imposition of sentence.
The form provides no means of discerning Adefemi’s

actual plea in this case: there is no indication that he
amended an initial plea of not guilty to one of guilty, nor
has anything been written in a space provided for stating
the charge to which Adefemi, if he did enter a guilty plea,
in fact admitted. Consistent with this ambiguity, none of
three boxes printed next to each of three possible pleas--
guilty, not guilty, and "nolo cont’d"--have been checked in
a separate section of the form. Below the sections
bearing Adefemi’s signatures is another section titled
"Disposition and Sentence," in which the word "Probation"
has been rubber- stamped. Still lower, in a separate
section, the number "330.00" has been written on a space
for designating a "fine." The next line appears to state that
a term of confinement shall be served should payment be
defaulted. However, the portion of the form titled
"Disposition and Sentence" has been left entirely blank
apart from the "Probation" stamp and a second stamp that
reads "State Case." Significantly, nothing has been written
in spaces specifically reserved for identifying the
"Sentence: Amount Fine/Forfeiture $" and the number of
"Days (Months) probated." The failure of the Atlanta City
Court to complete these sections makes it difficult to
interpret the meaning of the "Probation" stamp, since the
imposition of a probationary sentence would seem to
require that a term of probation be set. [Footnote
omitted.] In the absence of additional evidence by
which the INS might have clarified the meaning of the
157
form, we do not think this document could allow a

reasonable fact finder to conclude that the INS had shown
any conviction by clear and convincing evidence. Our
conclusion rests on the highly tenuous nature of any
inferences drawn from what is in essence nothing more
than the front and back of a traffic ticket, with a great
many blanks left unfilled. [Footnote omitted.] While the
document does indicate a fine of $330, it fails to specify
the basis for this penalty. Nowhere does it explicitly
indicate the fact of conviction, the offense for which any
conviction was entered, or any specific charge to which
Adefemi may have pled guilty. Even were we to assume
that the clerical stamp reading "Probation" and the
reference to a fine are evidence of some kind of conviction,
we do not think it can be said that they are clear and
convincing evidence of conviction of a firearms offense.
The fact that the front side of the document lists such an
offense does not mean Adefemi pled to or was convicted
of that offense, since he may well have pled guilty to
another, lesser offense. The reverse side simply fails to
offer any clear guidance as to what this offense may have
been. In sum, we think the "clear and convincing"
evidentiary standard applicable in deportation proceedings
requires something more than this ambiguous ticket
before an individual may be "compelled by our
Government to forsake all the bonds formed here and go
to a foreign land where he often has no contemporary
identification." Woodby, 385 U.S. at 285. We also think a
reasonable factfinder would have to conclude that the INS
has not shown by clear and convincing evidence that
Adefemi was convicted of a firearms offense.
Adefemi v. Ashcroft, 358 F.3d 828, 835-837 (11th Cir. Jan. 29, 2004),
vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June
30, 2003). The court therefore reversed the decision of the BIA and
remanded the case for further proceedings consistent with its opinion.
The Seventh Circuit, as well, had applied this standard to the question of
proof of a conviction to justify deportation.
"[I]t is incumbent upon the Government in [deportation]

proceedings to establish the facts supporting deportability
by clear, unequivocal, and convincing evidence." Woodby
158
v. INS, supra, 385 U.S. at 277, 87 S.Ct. at 484; Garcia v. INS,

31 F.3d 441, 443 n.1 (7th Cir.1994). Where, as here, the
Board finds that the INS has met that burden, it is our task
to consider whether the deportation order is "supported
by reasonable, substantial, and probative evidence." 8
U.S.C. § 1105a(a)(4). See Woodby, 385 U.S. at 282-83, 87
S.Ct. at 486; Rosendo-Ramirez v. INS, 32 F.3d 1085, 1087
(7th Cir.1994).
Dashto v. INS, 59 F.3d 697, 701 (7th Cir. 1995) (certificate of conviction
that noncitizen had used handgun was not satisfactory proof of weapons
charge for purposes of finding him ineligible for discretionary relief, since it
was nothing more than clerk of court’s representation on what underlying
court records reveal about nature of conviction, and there was no court
record which confirmed that noncitizen had in fact used handgun in
connection with armed robbery to which he pled guilty). Because the
consequences of deportation are so harsh, the government must bear the
burden of showing deportability by clear, convincing and unequivocal
evidence before removal will be ordered.
Other
POST CONVICTION RELIEF – ORDER VACATING CONVICTION ON MERITS ON

APPEAL OR ON POST CONVICTION PROCEEDINGS HAS BEEN ELIMINATED
FOR IMMIGRATION PURPOSES
Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This
definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. §
1101(a)(48)(A)], though broad, is clearly not intended to encompass
convictions that have been formally entered but subsequently reversed on
appeal or in a collateral proceeding for reasons pertaining to the factual
basis for, or procedural validity of, the underlying judgment. Cf. In re P-, 9
I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to
writ of coram nobis for a constitutional defect could not serve as basis for
order of deportation). Subsequently set-aside convictions of this type fall
outside the text of the new definition because, in light of the subsequent
proceedings, they cannot be considered formal adjudications of the alien's
guilt.")
§ 10.4 1. A Conviction Vacated as Legally Invalid

Causes No Immigration Damage
159
First Circuit
POST-CON – EFFECTIVE ORDER

De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due
process violation where BIA denied request to grant sua sponte motion on
the basis of recently vacated convictions, allowing noncitizen to apply for
relief, where BIA denied motion on the basis that it would deny any
application for relief as a matter of discretion because noncitizen, “had
previously been convicted of four criminal offenses, and while three of
these had been vacated, none had been vacated because De Araujo was
not guilty of the crimes committed.”)
Second Circuit
POST CON RELIEF – EFFECTIVE ORDER – COURT'S ORDER GRANTING

MOTION TO WITHDRAW A PLEA ELIMINATES A CONVICTION FOR
IMMIGRATION PURPOSES
Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) (a criminal court's
order withdrawing a plea eliminates the conviction for mmigration
purposes; an interpretation of the statutory definition [of conviction to the
ontrary] appears to lead to the bizarre result that a withdrawn guilty plea
would still be a “conviction” for immigration purposes, because the
“conviction” would be established on the date of the entry of the plea. We
reject this reading because “[a] statute should be interpreted in a way that
avoids absurd results.”), citing United States v. Dauray, 215 F.3d 257, 264
(2d Cir. 2000).
Third Circuit

Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005) (approving the Board’s
distinction between "convictions vacated for rehabilitative purposes and
those vacated because of underlying defects in the criminal proceedings").
Fifth Circuit
POST CONVICTION RELIEF – EFFECTIVE ORDER – DHS CONCEDES

NONCITIZEN IS NOT REMOVABLE BASED ON VACATED CONTROLLED
SUBSTANCES CONVICTION EVEN IN FIFTH CIRCUIT
Gaona-Romero v. Gonzales, ___ F.3d ___, 2007 WL 2372357 (5th Cir. Aug.
21, 2007) (per curiam) (since government concedes that noncitizen is no
longer removable, because his conviction was vacated as legally invalid, the
160
panel affirmance of the removal order is vacated, the case is remanded to

the BIA to permit the government to withdraw its charge of removability
pursuant to in Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated
by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), and the petition for
rehearing is denied as moot). Note: This decision may be used to show that
the Government has agreed to follow Pickering, rather than Renteria, even
within the Fifth Circuit.
Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – NINTH CIRCUIT FOLLOWS

PICKERING TO HOLD CONVICTION VACATED FOR SUBSTANTIVE OR
PROCEDURAL DEFECT IS ELIMINATED FOR IMMIGRATION PURPOSES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006)
(conviction vacated for any procedural or substantive defect has been
eliminated for immigration purposes, and cannot trigger removal, whereas
conviction vacated for equitable, rehabilitative, or immigration purposes
unrelated to the merits of the conviction remains), following Matter of
Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in
Pickering v. Gonzales, 454 F.3d 525 (6th Cir. July 17, 2006).
POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF –

GOVERNMENT BEARS BURDEN OF PROVING CONVICTION STILL EXISTS
AFTER VACATUR HAS BEEN ISSUED
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) ("for
the government to carry its burden in establishing that a conviction
remains valid for immigration purposes, the government must prove "with
clear, unequivocal and convincing evidence, that the Petitioner's conviction
was quashed solely for rehabilitative reasons or reasons related to his
immigration status, i.e., to avoid adverse immigration consequences.")
(original emphasis), citing Pickering v. Gonzales, 454 F.3d 525 (6th Cir.
2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).
BIA
POST CON RELIEF – CONVICTION – EFFECTIVE ORDER – CONVICTION

VACATED FOR COURT'S FAILURE TO ADVISE DEFENDANT OF POSSIBLE
IMMIGRATION CONSEQUENCES OF PLEA IS NO LONGER A CONVICTION
FOR IMMIGRATION PUPOPRSES
Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006)
(conviction vacated pursuant to Ohio Revised Code § 2943.031, for failure
of the trial court to advise the defendant of the possible immigration
161
consequences of a guilty plea, is no longer a valid conviction for

§ 10.5 2. The New Definition of Conviction Did Not

Alter This Rule
§ 10.6 3. The BIA Decision in Matter of Pickering Did

Not Alter This Result
First Circuit

Herrera-Inirio v. Gonzales, 208 F.3d 299 (1st Cir.2000) (applying Pickering
analysis to vacated convictions, although decision pre-dates Pickering;
subsequent dismissal of charges, based solely on rehabilitative goals does
not vitiate that original admission).
Third Circuit
POST CON RELIEF – EFFECTIVE ORDER – ARGUMENT THAT VACATED

CONVICTIONS ARE NOT CONVICTIONS
In Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20,
2005), the Third Circuit held it was reasonable for the BIA to hold that a
criminal conviction vacated for stated rehabilitative purposes or the stated
purpose to avoid immigration consequences remains a conviction for
immigration purposes, but that convictions those vacated because of
underlying defects in the criminal proceedings are eliminated for
immigration purposes. The court established a categorical test for
distinguishing between these two types of vacatur: "To determine the basis
for a vacatur order, the agency must first look to the order itself. If the
order explains the court’s reasons for vacating the conviction, the agency’s
inquiry must end there. If the order does not give a clear statement of
reasons, the agency may look to the record before the court when the
order was entered. No other evidence of reasons may be considered."
The court also stated: "We will not accept an interpretation of the
Immigration and Nationality Act that permits, let alone requires,
speculation by federal agencies about the secret motives of state judges
and prosecutors." In Pinho, the court found the state vacatur effectively
eliminated the conviction for immigration purposes because "The only
basis for the vacatur appearing in the order or the pleadings is Pinho’s
162
ineffective assistance claim." The Third Circuit, however, also stated:

"Given the expansive statutory definition of "conviction," and the
deference the agency’s interpretation is owed, the agency could have
chosen to contend that as a matter of federal law all vacated state
convictions remain "convictions" under § 1101(a)(48)(A), whether
rehabilitative or substantive. If the agency wishes to adopt this
interpretation of the statutory definition it may do so, through rulemaking
or adjudication, and it may defend that interpretation before the courts.
But the agency has not done so, and it is another matter entirely for the
agency to distinguish among vacated convictions based on the reasons for
the vacatur, and then to arrogate to itself the power to find hidden reasons
lurking beneath the surface of the rulings of state courts. Under the
Supremacy Clause, the Department of Homeland Security may, pursuant to
statutory authority, properly interpret § 1101(a)(48)(A) to encompass
convictions vacated by order of state courts. But it is far from clear that it
may rewrite state-court rulings as to the legal basis for those orders. Our
Federalism has not yet come to that." (Id. at ___ [emphasis supplied]). If
counsel are faced with an argument in immigration or federal court that
the statutory definition of conviction, INA 101(a)(48)(A), includes as
convictions even those that have been vacated as legally invalid on
constitutional grounds such as ineffective assistance of counsel, the
following arguments might be a starting point. The suggestion in Pinho
that the agency could adopt an interpretation of the statute that included
as convictions even those that had been vacated as legally invalid was not
part of the holding of the court. This issue was not before the court in
Pinho. The language in question is therefore dictum. R.A.V. v. City of St.
Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary
to all traditions of our jurisprudence to consider the law on [a] point
conclusively resolved by broad language in cases where the issue was not
presented or even envisioned"]; United States v. Vroman, 975 F.2d 669,
672 (9th Cir. 1992) (precedent not controlling on issue not presented to
prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v.
Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS,
58 F.3d 1355 (9th Cir. 1995).). In fact, such an interpretation is
unsupportable as well as unconstitutional, and should not be adopted. It is
unsupportable because the statute and legislative history give no support
to this interpretation. Elsewhere in Pinho, the court stated:
Nothing in the statute specifically addresses vacated

convictions. Clearly they are not convictions that have
been withheld. If they are covered, then, it will be under
163
the first disjunct: "a formal judgment of guilt of the alien

entered by a court." The statute is entirely silent with
respect to the subsequent procedural history of a
"judgment entered by a court," and the undoubted
congressional purpose of closing the "withheld judgment"
loophole tells us nothing whatsoever about what Congress’
purpose was with respect to vacaturs, or whether it had
any purpose at all in that regard. (Id. at ___ [footnote
omitted].)
Since deportation on the basis of a conviction is a drastic result, the

agency is not free to create out of whole cloth a statutory interpretation
that has no support in the text or legislative history of the statute. Mr.
Justice Douglas, speaking for a unanimous Supreme Court, stated:
"We resolve the doubts in favor of that construction

because deportation is a drastic measure and at times the
equivalent of banishment or exile, Delgadillo v. Carmichael,
332 U.S. 388, 68 S.Ct. 10 (92 L.Ed. 17). It is the forfeiture
for misconduct of a residence in this country. Such a
forfeiture is a penalty. To construe this statutory provision
less generously to the alien might find support in logic. But
since the stakes are considerable for the individual, we will
not assume that Congress meant to trench on his freedom
beyond that which is required by the narrowest of several
possible meanings of the words used." Fong Haw Tan v.
Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433
(1948).
Reiterating this principle, Chief Justice Warren has written, "Although

not penal in character, deportation statutes as a practical matter may
inflict ‘the equivalent of banishment or exile,’ . . . and should be strictly
construed." Barder v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825, 98
L.Ed. 1009 (1954). While The Court of Appeal for the Ninth Circuit
expressed awareness of this principle in Garcia Gonzales, saying, "We are
aware, too, that matters of doubt should be resolved in favor of the alien in
deportation proceedings, because of the severity of the remedy invoked."
Garcia Gonzales v. Immigration and Naturalization Service, 344 F.2d 804
(9th Cir. 1965). See also Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. at 384 n.8
(2005) (applying rule of lenity to aggravated felony definition in
deportation context). Aside from being an unsupportable interpretation,
it would probably be unconstitutional to allow the agency to attach such
164
drastic consequences to a conviction that the law of the case had

determined to be unconstitutional. As the court recognized, elsewhere in
Pinho:
Accepting the distinction between substantive and

rehabilitative vacaturs not only gives proper deference to
the agency’s interpretation, but also serves to avoid the
constitutional problems that might arise under a reading
which brings constitutionally protected conduct or
constitutionally infirm proceedings into the category of
"conviction"-cases, for example, involving an alien who
was convicted of conduct subsequently deemed
constitutionally protected, or whose conviction was
reversed on direct appeal because of insufficient evidence,
or whose conviction was vacated on collateral attack
because of a plain constitutional defect. The agency does
not read the statute as encompassing such situations,
however, so these difficult cases have not come before us.
Id. at ___, n. 22.
Therefore, it would be not only unsupportable but unconstitutional to

include as convictions those that had been vacated as legally invalid. The
court also stated: "We will not accept an interpretation of the Immigration
and Nationality Act that permits, let alone requires, speculation by federal
agencies about the secret motives of state judges and prosecutors." In
Pinho, the court found the state vacatur effectively eliminated the
conviction for immigration purposes because "The only basis for the
vacatur appearing in the order or the pleadings is Pinho’s ineffective
assistance claim." Suggest petition for rehearing in Pinho to eliminate the
following language:
"Given the expansive statutory definition of "conviction,"

and the deference the agency’s interpretation is owed, the
agency could have chosen to contend that as a matter of
federal law all vacated state convictions remain
"convictions" under § 1101(a)(48)(A), whether
rehabilitative or substantive. If the agency wishes to adopt
this interpretation of the statutory definition it may do so,
through rulemaking or adjudication, and it may defend
that interpretation before the courts. But the agency has
not done so, and it is another matter entirely for the
agency to distinguish among vacated convictions based on
165
the reasons for the vacatur, and then to arrogate to itself

the power to find hidden reasons lurking beneath the
surface of the rulings of state courts. Under the Supremacy
Clause, the Department of Homeland Security may,
pursuant to statutory authority, properly interpret §
1101(a)(48)(A) to encompass convictions vacated by order
of state courts. But it is far from clear that it may rewrite
state-court rulings as to the legal basis for those orders.
Our Federalism has not yet come to that." (Id. at ___
[emphasis supplied]).
The court should grant a petition for rehearing and eliminate this
italicized language. This issue was not before the court in Pinho. The
italicized language is therefore dictum. R.A.V. v. City of St. Paul, 112 S.Ct.
2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all
traditions of our jurisprudence to consider the law on [a] point conclusively
resolved by broad language in cases where the issue was not presented or
even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir.
1992) (precedent not controlling on issue not presented to prior panel),
cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner,
952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d
1355 (9th Cir. 1995).)
POST CON RELIEF – CONVICTION – VACATUR CATEGORICAL ANALYSIS

APPLIED TO PICKERING ISSUE
Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20, 2005)
(a criminal conviction vacated for stated rehabilitative purposes or the
stated purpose to avoid immigration consequences remains a conviction
for immigration purposes; convictions vacated because of underlying
defects in the criminal proceedings are eliminated for immigration
purposes; "To determine the basis for a vacatur order, the agency must
first look to the order itself. If the order explains the court’s reasons for
vacating the conviction, the agency’s inquiry must end there. If the order
does not give a clear statement of reasons, the agency may look to the
record before the court when the order was entered. No other evidence of
reasons may be considered.")
Sixth Circuit
POST CON RELIEF – EFFECTIVE ORDER –THE DEFENDANT'S MOTIVE IN

SEEKING TO VACATE IS IRRELEVANT
166
Pickering v. Gonzales, - 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter
of Pickering, 23 I. & N. Dec. 621 (BIA 2003) ("the motive of the Petitioner in
seeking to have his conviction quashed is of limited relevance to our
inquiry. See Sandoval v. INS, 240 F.3d 577, 583 (7th Cir.2001). Such motive
is relevant only to the extent that the Canadian court relied upon it in
quashing the conviction.").
JUDICIAL REVIEW – PETITION FOR REVIEW – DISPOSITION – WHERE

RECORD CONTAINED INSUFFICIENT EVIDENCE TO ESTABLISH
DEPORTABILITY, REMEDY WAS REVERSAL WITHOUT REMAND FOR
CONSIDERATION OF ADDITIONAL EVIDENCE
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter
of Pickering, 23 I. & N. Dec. 621 (BIA 2003). (where immigration court
lacked sufficient record of documents on which criminal court based
decision to vacate conviction, and government therefore failed to show by
clear and convincing evidence that the criminal court had vacated the
conviction solely to avoid immigration consequences, removal proceedings
ordered terminated without remand for consideration of additional
evidence).
POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF

Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter
of Pickering, 23 I. & N. Dec. 621 (BIA 2003) (where immigration court
lacked sufficient record of documents on which criminal court based
decision to vacate conviction, and government therefore failed to show by
clear and convincing evidence that the criminal court had vacated the
conviction solely to avoid immigration consequences, deportation
proceedings ordered terminated without remand for consideration of
additional evidence).
Other
POST CON RELIEF – EFFECTIVE ORDER – PICKERING

Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering:
Comity or Tragedy?, 8 Bender’s Immigration Bulletin 1103 (July 1, 2003).
§ 10.7 4. Full Faith and Credit Precludes Looking

Behind the Face of An Order Vacating a Conviction
167
Second Circuit
POST CON RELIEF – EFFECTIVE ORDER – FULL FAITH AND CREDIT

Saleh v. Gonzales, ___ F.3d ___, 2007 WL 2033497 (2d Cir. July 17, 2007)
(amendment of the removable conviction was secured solely to aid
petitioner in avoiding immigration consequences and was not based on any
procedural or substantive defect in the original conviction; BIA did not
violate full faith and credit by failing to honor the amendment, since post-
conviction motion stated it was brought for immigration purposes and
failed to identify any substantive or procedural defects in the conviction),
citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005).
POST CON RELIEF – EFFECTIVE ORDER – GOVERNMENT HAS BURDEN OF

PROOF OF CONTINUED EXISTENCE OF CONVICTION
Saleh v. Gonzales, ___ F.3d ___, ___ n.4, 2007 WL 2033497 (2d Cir. July 17,
2007) ("the Government bears the burden of proving, by clear and
convincing evidence, that Saleh is removable . . . ."), citing 8 U.S.C. §
1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006) (per
curiam); see also Pickering v. Gonzales, 465 F.3d 263, 268-69 (6th Cir.
2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Cruz-
Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005).
Fifth Circuit
POST-CONVICTION – NUNC PRO TUNC ORDER EFFECTIVE

Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24,
2006) (Kansas court’s nunc pro tunc correction of internally inconsistent
criminal judgment was a proper use of nunc pro tunc under Kansas law; as
a correction of record made to properly reflect the original judgement, the
nunc pro tunc judgment was properly considered by the BIA, and such
consideration does not contradict Renteria-Gonzalez v. INS, 322 F.3d 804
(5th Cir. 2002) rule that vacated conviction remains a conviction for
Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – COMITY AND RESPECT FOR STATE
COURTS' DECISIONS – FULL FAITH AND CREDIT
The Ninth Circuit has recognized that a proper respect for state and federal
courts requires that their orders be considered valid and effective, unless
they can be shown to be otherwise. Rashtabadi v. INS, 23 F.3d 1562, 1569
(9th Cir. 1994). In Rashtabadi, the Ninth Circuit acknowledged what the
168
United States Supreme Court stated well more than a century ago:
"There is no principle of law better settled, than that every act of a court of
competent jurisdiction shall be presumed to have been rightly done, till the
contrary appears; and this rule applies as well to every judgment or decree,
rendered in the various stages of their proceedings, from the initiation to
their completion, as to their adjudication that the plaintiff has a right of
action. Every matter adjudicated, becomes a part of their record; which
thenceforth proves itself, without referring to the evidence on which it has
been adjudged."
Id. (quoting Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed 490
(1836) (quotation in original, supporting citations omitted). "Principles of
comity, finality and economy all militate in favor of placing the burden of
attacking court judgments and orders on the party who seeks to upset
them." Id. The Board itself has acknowledged and applied these same
principles. See Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000)
(rejecting the INS's argument that the Board should go behind a state court
vacatur of judgment to determine whether it was entered for purposes of
avoiding removal, according full faith and credit to the state court
judgment, and relying on 28 U.S.C. § 1738, which requires federal courts to
accord full faith and credit to state court judgments). At least where a
substantive defect must be found to support a vacatur, Matter of Pickering,
23 I&N Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263
(6th Cir. 2006) does not require a different result.
As the Ninth Circuit previously held, "[c]ertain areas of criminal regulation

are beyond Congress's reach[,]" even in the immigration arena, which
Congress possesses exclusive authority to regulate. Cazarez-Gutierrez v.
Ashcroft, 382 F.3d 905, 912 - 914 (9th Cir. 2004). The Board has no
authority to reach into the merits of a change of plea proceeding; that
proceeding was governed by, and carried out pursuant to, state law.
Accordingly, the vacatur of a state conviction must be accorded full faith
and credit by the Board and by the Court.
Thanks to Deborah S. Smith.
BIA
POST CON RELIEF – EFFECTIVE ORDER – MOTION TO REOPEN – BURDEN OF

PROOF THAT CONVICTION HAD NOT BEEN VACATED SOLELY FOR
169
IMMIGRATION PURPOSES IS ON RESPONDENT IN MOTION TO REOPEN

Matter of Chavez-Martinez, 24 I. & N. Dec. 272 (BIA Aug. 31, 2007)
(noncitizen seeking to reopen proceedings to establish that a conviction
has been vacated bears the burden of proving that the conviction was not
vacated solely for immigration purposes).
Note: It is unclear from the facts of this case whether the noncitizen was
charged with inadmissibility or deportability. Therefore it is unclear who
bore the original burden of proof. The BIA specifically distinguishes this
situation from that when a noncitizen is not yet subject to a final order of
removal. The BIA also notes a circuit split on this issue in the motion to
reopen context. Compare Nath v. Gonzales, 467 F.3d 1185, 1188-1189 (9th
Cir. 2006) with Rumierz v. Gonzales, 456 F.3d 31, 40-41 (1st Cir. 2006).
§ 10.8 5. Analyzing Immigration-Related Grounds
Sixth Circuit
POST CON RELIEF – EFFECTIVE ORDER – CONVICTION VACATED FOR

IMMIGRATION REASONS STILL EXISTS
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007)
("We hold that the present case is distinguishable from Pickering on the
ground that, unlike the petitioner in Pickering, petitioner Sanusi did not
raise or argue any colorable legal basis for the vacation of his conviction[,
since] it is well settled that there is no obligation to advise a criminal
defendant of the collateral immigration consequences of entering a guilty
plea."), citing El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002).
POST CON RELIEF – EFFECTIVE VACATUR – PICKERING

(although a petitioner’s immigration motive for seeking post-conviction
relief is not sufficient by itself to hold vacatur ineffective for immigration
purposes, there must be some demonstrable legal basis for the vacatur;
defendant’s “state court petition and the uncontested order of the
Arkansas court with the docket entry--‘On 8-11-03, Milton Dejesus,
attorney for defendant, filed a petition for writ of coram nobis. City
Attorney had no objection. Judge granted the motion.’--fail to provide the
evidence from which it may be reasonably inferred that the writ of coram
nobis was granted on any recognized legal ground. On this record, the only
reasonable inference that can be drawn is that the conviction was vacated
for the sole purpose of relieving Sanusi from deportation.”).
170
http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf
"In Morgan, the Supreme Court upheld the availability of coram vobis to a
defendant who had not been provided counsel, but who had served his
entire sentence. Morgan, 346 U.S. at 512. The Court noted that, with no
other remedy being then available and sound reasons for the failure to
seek earlier relief, the petitioner was entitled to seek a writ of coram vobis,
for "[o]therwise a wrong may stand uncorrected which the available
remedy would right." Id. In this case, the wrong suffered by Mohamed
cannot stand uncorrected. A defendant's Sixth Amendment rights must be
protected, and in this case, the result was that both Mohamed and the
Court were unaware of the immigration consequences that would follow
from his sentence. Therefore, pursuant to a writ of coram vobis, the Court
will amend Mohamed's sentence from a term of two years to a term of
three hundred and sixty days, with all time suspended."
Commonwealth v. Mohamed, Aug. 18, 2006.
Case No. (Criminal) 06-1059
CIRCUIT COURT OF ARLINGTON COUNTY, VIRGINIA
71 Va. Cir. 383
2006 Va. Cir. LEXIS 244
§ 10.9 6. Jurisdiction of the Criminal Court to Issue the

Order Vacating the Conviction.
§ 10.10 7. Grounds for Vacating a Conviction Based

on a Plea of Guilty or No Contest
BIA
STATE REHABILITATIVE RELIEF – DRUG CASES – NINTH CIRCUIT – LUJAN

WORKS DESPITE PRIOR NO-PLEA DIVERSION DISMISSAL
"At no time shall a defendant be required to make an admission of guilt
as a prerequisite for placement in a pretrial diversion program" Cal. Penal
Code § 1001.3 et seq. Therefore, under the definition of conviction found
at 8 U.S.C. § 1101(a)(48)(a), diversion under the California statute in effect
171
at the time petitioner received the disposition does not constitute a

conviction. See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida
diversion, similar to California diversion, held not to be a conviction under
Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)). A prior no-plea
California diversion disposition therefore does not render a noncitizen
disqualified from eligibility for FFOA treatment of a subsequent possession
conviction. A disposition of diversion that did not require a plea of guilty or
no contest and does not constitute a conviction under 8 U.S.C. §
1101(a)(48)(a). In addition, this disposition does not constitute "a
disposition under this subsection [8 U.S.C. § 3607(a)]."
§ 10.11 B. State Rehabilitative Relief
POST CON RELIEF – STATE REHABILITATIVE RELIEF – INEFFECTIVE TO

ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES, AS
DISTINGUISHED FROM A CONVICTION THAT HAS BEEN VACATED ON THE
MERITS
Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115 (1983) (Federal
firearms disabilities applied with respect to one who pled guilty to a State
offense punishable by imprisonment for more than one year, even if the
record of the State criminal proceeding was subsequently expunged
following a successfully served term of probation: “expunction under state
law does not alter the historical fact of the conviction, . . . does not alter
the legality of the previous conviction[,] and does not signify that the
defendant was innocent of the crime to which he pleaded guilty”); United
States v. Smith, 96 F.3d 1350, 1351 (11th Cir. 1996) (per curiam); United
States v. Mejias, 47 F.3d 401, 403-404 (11th Cir. 1995); see also United
States v. Norbury, 492 F.3d 1012, 1014-1015 (9th Cir. 2007); United States
v. Miller, 434 F.3d 820, 824 (6th Cir. 2006).
POST CON RELIEF – STATE REHABILITATIVE RELIEF – IIRAIRA NEW

DEFINITION OF CONVICTION DID NOT IMPLIEDLY REPEAL THE FEDERAL
FIRST OFFENDER ACT
E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353,
379, 102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial
interpretation of a statute and to adopt it when it re-enacts a statute
without changing it).
“Congress is presumed to be aware of an administrative or judicial

interpretation of a statute and to adopt that interpretation when it re-
enacts a statute without change, see Albemarle Paper Co. v. Moody, 422
172
U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v.
Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951);
National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64
L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09
and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a
new law incorporating sections of a prior law, Congress normally can be
presumed to have had knowledge of the interpretation given to the
incorporated law, at least insofar as it affects the new statute.” Lorillard v.
Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978).
"This rule is based on the theory that the legislature is familiar with the
contemporaneous interpretation of a statute . . . . Therefore, it impliedly
adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and
Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v.
United States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate
Co., 283 U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943);
Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New
Materials High Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir.
1998), reh'g denied, in banc suggestion declined (Jan. 28, 1999) and cert.
dismissed, 120 S.Ct. 394 (1999).
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102
S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE
STATUTE ANALYSIS – CONJUNCTIVE CHARGES United States v. Garcia-
Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California
conviction of sale or transportation of a controlled substance, in violation
of Health & Safety Code § 11352(a), properly triggered 16-level sentence
enhancement for illegal reentry after deportation since charging to which
plea was entered listed offenses in the conjunctive, and plea of guilty was
entered to every offense listed within the counts of conviction).
NOTE: This decision appears to contradict the decision in Malta-Espinoza v.

Gonzales, 478 F.3d 1080, 2007 WL 624532 (9th Cir. March 2, 2007) (where
the statute is framed in the disjunctive, e.g., harassment or following is
sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g.,
harassment and following, establishes conviction of harassment, or
following, or both, because a plea of guilty admits only the elements of the
charge necessary for a conviction and does not establish more than would
have been established by a jury verdict of guilty on the charge), following
United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States
v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) (“Where a statute specifies
173
two or more ways in which an offense may be committed, all may be

alleged in the conjunctive in one count and proof of any one of those acts
conjunctively charged may establish guilt.”).
The court based its reasoning on the following analysis:
In California, a guilty plea admits every element of the offense charged,

People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837
(Cal.1981), including all accusations and factors comprising the charge
contained in the pleading. People v. Palacios, 56 Cal.App.4th 252, 257, 65
Cal.Rptr.2d 318 (Cal.Ct.App.1997); see People v. Tuggle, 232 Cal.App.3d
147, 154, 283 Cal.Rptr. 422 (Cal.Ct.App.1991) (“By pleading guilty as
charged [to an information worded in the conjunctive, charging, “robbery
by means of force and fear”], appellant necessarily admitted the force
allegation and cannot now escape the consequences of that admission.”)
(emphasis added). Thus, “a plea of guilty means guilty ‘as charged’ in the
information, and by it ‘all averments of fact are admitted.... The effect is
the same as if the defendant had been tried before a jury and had been
found guilty upon evidence covering all material facts.’ “ Arenstein v. Cal.
State Bd. of Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357
(Cal.Ct.App.1968) disapproved on other grounds by Barber v. Long Beach
Civil Serv. Comm'n, 45 Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4
(Cal.Ct.App.1996) (citations omitted).
Accordingly, by pleading guilty to counts one and two as worded, in the

conjunctive, Garcia-Medina admitted to several offenses committed on at
least two occasions. It is uncontested that most of these offenses qualify as
drug trafficking for the purposes of section 2L1.2. Garcia-Medina did not
clarify his plea before the California trial court; instead, he admitted every
offense listed in the charging document and cannot now escape the
consequences of his admission. See People v. Guerrero, 44 Cal.3d 343, 355-
356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988).
United States v. Garcia-Medina, __ F.3d __, __, 2007 WL 2317381 at *3

(8th Cir. Aug. 15, 2007).
Second Circuit
POST CON RELIEF – CONVICTION – EFFECTIVE ORDER – NONCITIZEN

REMAINS CONVICTED FOR IMMIGRATION PURPOSES EVEN IF A STATE
CONVICTION HAS BEEN VACATED UNDER A REHABILITATIVE STATUTE
174
("the BIA has reasonably concluded that an alien remains convicted of a
removable offense for federal immigration purposes when a state vacates
the predicate a conviction pursuant to a rehabilitative statute."), citing
Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006), vacating Matter of
Pickering, 23 I. & N. Dec. 621 (BIA 2003); Alim v. Gonzales, 446 F.3d 1239,
1249-50 (11th Cir.2006); Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir.
2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza
v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Resendiz-Alcaraz v.
Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS,
261 F.3d 771, 774 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299, 305
(1st Cir. 2000), and following Sanusi v. Gonzales, 474 F.3d 341, 342-43 (6th
Cir. 2007) (“We deny the petitions for review on the ground that the state
court's vacation of Sanusi's conviction was ineffective for immigration
purposes because it was done solely for the purpose of ameliorating the
immigration consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432
(6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005).

Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may
not take administrative notice of facts without affording other party to
rebut the inferences drawn from those facts).
Lower Courts of Second Circuit
EXPUNGEMENT – FALSE STATEMENT FOR IMMIGRATION BENEFIT

Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007)
(the fact that applicant stated that he had not been arrested [after prior
indication that he had] was not an intentional misstatement to the
government where applicant could have believed that the expungement of
the records of those arrests meant that he could state to the government
that he had no longer been arrested).
http://bibdaily.com/pdfs/Szpak%207-25-07.pdf
Third Circuit
RELIEF – REFUGEE STATUS – CANNOT DEPORT WITHOUT TERMINATING

Smirko v. Ashcroft, 387 F.3d 279 (3rd Cir. Oct. 26, 2004) (finding that INA
and legislative history suggest that "refugee status" does not end when
noncitizen admitted as refugee adjusts status, but continues until refugee
status is terminated by the immigration authorities; noncitizens with
refugee status cannot be deported for commission of a crime of moral
175
turpitude within five years of entry).
Fourth Circuit
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES – FLORIDA

Green v. State, ___ Fla. App. ___, 2005 WL 156724 (4th Dist. January 26,
2005) (defendant suffered sufficient prejudice to make motion to withdraw
plea on grounds trial court violated state advisal statute requiring advice to
defendant concerning potential immigration consequences of guilty plea,
even though deportation proceedings have not yet been begun, since
possibility of future deportation proceedings constitutes sufficient "threat
of deportation" under Peart v. State, 756 So. 2d 42, 44 (Fla. 2000).)
Fifth Circuit
POST-CON RELIEF – EFFECTIVE VACATUR – FIFTH CIRCUIT

Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) (court
recognizes the DHS will follow Pickering even in the Fifth Circuit: “we
vacated the Discipio I opinion because the Government modified its
position and terminated deportation proceedings against Discipio because
his conviction had been vacated on procedural and substantive defects, the
Government bowing to the BIA's opinion in In re Pickering.FN10 See
Discipio II, 417 F.3d at 449-50.”)
POST CON – EXPUNGEMENT— FOREIGN

Danso v. Gonzales, 489 F.3d 709 (5th Cir. June 15, 2007) (rejecting equal
protection argument that noncitizen’s British expungement should be
given effect for immigration purposes where noncitizen could
hypothetically have availed himself of the expungement procedures set
forth in the Federal First Offenders Act (FFOA)).
CONVICTION – DEFERRED ADJUDICATION – TEXAS – DEFERRED

ADJUDICATION CONSTITUTES A CONVICTION FOR IMMIGRATION
PURPOSES
Salazar-Regino v. Trominski, ___ F.3d ___ (5th Cir. June 30, 2005) (Texas
deferred adjudication following guilty plea to felony possession of
marijuana constituted a conviction for removal purposes under INA §
101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute
grounds for removal under the BIA law in place at the time the plea of
guilty was entered), following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th
Cir. 1999).
176
Lower Courts of Sixth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FIRST OFFENSE DRUG

CASES – OPEN QUESTION IN SIXTH CIRCUIT
Shurney v. INS, 201 F.Supp.2d 783, 794 (D. Ohio 2001) ("The question
before this Court is not whether Lujan-Armendariz should be adopted in
this Circuit; the question presented in this proceeding is whether, in light of
Lujan-Armendariz, Shurney has a good faith basis to contest his removal
and, hence, has a protectible liberty interest in objecting to detention
pending removal. Since the Sixth Circuit has yet to rule on Shurney’s
contention and another Circuit Court has ruled in a manner favorable to
Shurney, this Court cannot conclude that Shurney’s argument is
frivolous.").
Seventh Circuit
POST CON RELIEF – CONVICTION VACATED PURSUANT TO EXTRAORDINARY

MOTION FOR NEW TRIAL, FOLLOWED BY DISMISSAL OF CHARGES,
REMAINED A CONVICTION FOR IMMIGRATION PURPOSES SINCE
NONCITIZEN FAILED TO ESTABLISH THAT CONVICTION HAD BEEN VACATED
BASED ON A PROCEDURAL OR SUBSTANTIVE DEFECT IN THE UNDERLYING
CRIMINAL PROCEEDINGS
Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar.
22, 2006) (per curiam) (Georgia conviction of two counts of child
molestation, followed by the granting of an extraordinary motion for a new
trial, and the State of Georgia's motion to nolle prosse charges, continued
to constitute a conviction under INA § 101(a)(48)(A), 8 U.S.C. §
1101(a)(48)(A), for removal purposes, since noncitizen failed to establish
that conviction had been vacated based on a procedural or substantive
defect in the underlying criminal proceedings; noncitizen bears burden to
show conviction was vacated on a basis of legal invalidity). This decision
violates the long-standing rule that the government bears the burden of
establishing by clear and convincing evidence every fact necessary to prove
deportability. Woodby v. INS, 385 U.S. 276 (1966).
CONTROLLED SUBSTANCES – ATTEMPTED SIMPLE POSSESSION

CONVICTION EXPUNGED PURSUANT TO A STATE REHABILITATIVE STATUTE
CONTINUED TO EXIST AS A GROUND OF DEPORTATION
Ramos v. Gonzales, ___ F.3d ___, 2005 WL 1618821 (7th Cir. July 12, 2005)
(Nebraska conviction for attempted possession of cocaine, in violation of
177
Neb.Rev.Stat. §§ 28-201, 28-416 (2003), continued to constitute a

"conviction," for removal purposes, even though it had been expunged
pursuant to a rehabilitative statute, Neb.Rev.Stat. § 29-2264, resulting in
an order stating that "the adjudication previously entered by this Court is
hereby set aside and nullified, and the Court further orders that all civil
disabilities and disqualifications imposed as a result of said adjudication are
hereby removed" and a later order stating rehabilitation had not played a
part in the order, despite an argument that Equal Protection required
granting the same effect to this state court order as would have been
granted to an order under the Federal First Offender Act, 18 U.S.C. § 3607),
following Gill v. Ashcroft, 335 F.3d 574, 577-78 (7th Cir. 2003).
CONVICTION – VACATED ON POST-CONVICTION RELIEF – EFFECTIVENESS

OF ORDER VACATING CONVICTION – SEVENTH CIRCUIT AFFIRMS
PICKERING RULE-POST CON RELIEF – EFFECTIVE ORDER
Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (according Chevron
deference to, and affirming rule of Matter of Pickering, 23 I. & N. Dec. 621,
624 (BIA June 11, 2003), vacated by Pickering v. Gonzales, 465 F.3d 263
(6th Cir. 2006), that if a court amends an alien's conviction for reasons
solely related to rehabilitation or immigration hardships, as opposed to
responding to procedural or substantive defects in the underlying criminal
proceedings, then the alien remains "convicted" for immigration purposes).
POST CON RELIEF – EFFECTIVE ORDER VACATING CONVICTION – ILLINOIS

ORDER AMENDING FELONY CONVICTION OF POSSESSION WITH INTENT TO
DISTRIBUTE THC TO MISDEMEANOR POSSESSION OF MARIJUANA WAS
INEFFECTIVE TO ELIMINATE THE FORMER CONVICTION FOR REMOVAL
PURPOSES, SINCE IT WAS NOT BASED ON A GROUND OF LEGAL INVALIDITY
Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (Illinois order amending
felony conviction of possession with intent to distribute THC, in violation of
Wis. Stat. § 961.41(1m)(h)(1), to misdemeanor possession of marijuana
was ineffective to eliminate the former conviction for removal purposes,
since it was not based on a ground of legal invalidity).
Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – REHABILITATIVE RELIEF

DOES NOT ELIMINATE CONVICTION FOR PURPOSES OF IMPOSING FEDERAL
CONTROLLED SUBSTANCE SENTENCE ENHANCEMENT
United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007)
(determination of whether current controlled substances offense was
committed after a prior conviction for a felony drug offense has become
178
final, so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D)

is made under federal law, not state law; under federal law: "An expunged
or dismissed state conviction qualifies as a prior conviction if the
expungement or dismissal does not alter the legality of the conviction or
does not represent that the defendant was actually innocent of the
crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115,
103 S.Ct. 986, 74 L.Ed.2d 845 (1983).
POST CON RELIEF – STATE REHABILITATIVE RELIEF – LOPEZ STRENGTHENS

ARGUMENT THAT STATE REHABILITATIVE RELIEF ANALOGOUS TO THE
FEDERAL FIRST OFFENDER ACT ELIMINATES QUALIFYING CONVICTIONS FOR
committed after a prior conviction for a felony drug offense has become
final, so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D)
is made under federal law, not state law; under federal law: "An expunged
or dismissed state conviction qualifies as a prior conviction if the
expungement or dismissal does not alter the legality of the conviction or
does not represent that the defendant was actually innocent of the
crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115,
103 S.Ct. 986, 74 L.Ed.2d 845 (1983).
POST CON RELIEF – STATE REHABILITATIVE RELIEF IS INEFFECTIVE TO

ELIMINATE CONVICTION FOR PURPOSES OF CONSTITUTING A PRIOR
CONVICTION UNDER THE FEDERAL CONTROLLED SUBSTANCES ACT
United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007) (state
conviction constitutes prior conviction under federal Controlled Substances
Act even if state court expunged conviction by granting state rehabilitative
relief); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006) (same);
United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003)(same); United
States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997) (same); United
States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993) (same).
POST-CON – STATE REHABILITATIVE STATUTES – LUJAN – CONVICTION

MUST BE EXPUNGED TO AVOID REMOVAL
Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Oct. 27, 2004) (although
Oregon expungement would erase simple possession conviction, if granted,
the immigration authorities may remove noncitizen before expungement is
granted; court distinguished between situation where, as here, noncitizen
had not yet made any attempt to begin expungement, and where the
179
noncitizen is in process of obtaining an expungement by court order).
POST CON RELIEF – STATE REHABILITATIVE RELIEF – STATE EXPUNGEMENT

STATUTE DOES NOT HAVE TO BE EQUIVALENT TO FFOA TO ELIMINATE
IMMIGRATION CONSEQUENCES OF CONVICTION
Under Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994), the state
expungement statute does not have to be identical to the FFOA: "We
rejected this narrow approach in Garberding v. INS, 30 F.3d 1187, 1190
(9th Cir. 1994). Garberding involved Montana's expungement statute,
which was not limited to first-time simple drug possession offenses but
allowed expungement of a broad range of more serious offenses. Id. at
1189. Considering Garberding's challenge on Equal Protection grounds, we
concluded that the INS had no rational basis for treating her differently
simply because Montana's statute covered a broader range of offenses
than did the FFOA, id. at 1190-91, and held that "persons who received the
benefit of a state expungement law were not subject to deportation as
long as they could have received the benefit of the federal Act if they had
been prosecuted under federal law." Chavez-Perez v Ashcroft, 386 F.3d
1284, 1288 (9th Cir. 2004). This interpretation accepted in Matter of
Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995), which requires only that the
defendant be a simple possession first offender and that a "court has
entered an order pursuant to a state rehabilitative statute under which the
alien's criminal proceedings have been deferred pending successful
completion of probation or the proceedings have been or will be dismissed
after probation." Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995).
Therefore, the statute expungement statute need not be equivalent to the
FFOA if the conduct could have been covered under the FFOA if the case
had been prosecuted in federal court, and rehabilitative treatment
resulting in dismissal was granted. Thanks to Jonathan Moore.
Tenth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FEDERAL FIRST

OFFENDER ACT – CONVICTION EXCLUDES EXPUNGEMENTS
Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) ("[T]he
First Offender Act, 18 U.S.C. § 3607, permits the expungement of first-time
simple drug-possession offenses for all purposes, including immigration
adjudications. As the Ninth Circuit noted in Lujan-Armendariz, there is no
reason to suppose that Congress repealed the First Offender Act sub
silentio. It thus makes sense to read the § 1101(a)(48)(a) definition to
exclude expungements.").
180
POST CON RELIEF – STATE REHABILITATIVE RELIEF – WYOMING DEFERRED

ENTRY OF PLEA AND SENTENCE NOT EQUIVALENT TO FEDERAL FIRST
OFFENDER ACT EXPUNGEMENT
Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming
deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301
(“Without entering a judgment of guilt or conviction, [the court may] defer
further proceedings and place the person on probation for a term not to
exceed five (5) years.”), was not equivalent to expungement under Federal
First Offender Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction
under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration
purposes).
JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION DOCTRINE –

FAILURE TO EXHAUST IS EXCUSED IF RESPONDENT CAN SHOW
MISCARRIAGE OF JUSTICE, SUCH AS WHERE CONVICTION ON WHICH
DEPORTATION IS BASED DOES NOT CONSTITUTE AN AGGRAVATED FELONY
Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (court of
appeal can reach claim that controlled substances conviction does not
constitute an aggravated felony, under Lopez, even though respondent
failed to exhaust before the IJ or BIA because the law was clear against
him, under the miscarriage of justice exception to the exhaustion doctrine
of 8 U.S.C. § 1252(d)(1)), following Marrero Pichardo v. Ashcroft, 374 F.3d
46, 53 (2d Cir. 2004); see Coleman v. Thompson, 501 U.S. 722, 750 (1991);
Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001) (habeas
petitioner's failure to exhaust may be excused “when administrative
remedies are inadequate” but not where administrative procedures exist
to reopen petitioner's case) (internal quotation marks omitted); Sousa v.
INS, 226 F.3d 28, 32 (1st Cir. 2000) (“Even where statutes impose an
exhaustion requirement the Supreme Court has, despite the rhetoric of
jurisdiction, carved out exceptions.”); Singh v. Reno, 182 F.3d 504, 511 (7th
Cir. 1999) (finding that an exception exists to address “certain
constitutional due process claims”).
BIA
POST-CONVICTION – EFFECT OF EXPUNGEMENT

Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second
possession conviction can constitute aggravated felony, under INA §
101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000), even if court expunged first
state conviction pursuant to a State’s rehabilitative procedures), citing
United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United
181
States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham,
315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272,
1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2
(3d Cir. 1993).
Other
CONVICTION – STATE REHABILITATIVE RELIEF

Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (noncitizen
whose firearms conviction was expunged pursuant to section 1203.4 of the
California Penal Code has been "convicted" for immigration purposes;
Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.).

Matter of MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005) (a noncitizen
whose firearm conviction was expunged pursuant to California Penal Code
§ 1203.4 is still "convicted" for immigration purposes under INA §
101(a)(48)).
EXPUNGEMENT - EFFECT ON INADMISSIBILITY

People who can benefit from rehabilitative relief eliminating a conviction
under Lujan also are protected from being held inadmissible for having
made an admission, because of a longstanding BIA rule that where a case is
addressed in criminal proceedings and a disposition results that is less than
a conviction, the person cannot be found inadmissible for having
"admitted" the offense. Neither the prior guilty plea, or even a subsequent
admission to INS official, will make them inadmissible for admitting the
elements of the offense. See California Criminal Law and Immigration
(2004), § 3.8. Thanks to Kathy Brady, ILRC for this analysis.
POST CON RELIEF – EXUNGEMENT POST CON RELIEF – EFFECTIVE ORDER

VACATING CONVICTION
James A.R. Nafziger & Michael Yimesgen, The Effect of Expungement on
Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930 (2003).
POST CON RELIEF – EXPUNGEMENT – SIMPLE POSSESSION

The literal requirements of the Federal First Offender Act are: 18 U.S.C. §
3607 (a) Pre-judgment Probation: If a person found guilty of an offense
described in section 404 of the Controlled Substances Act (21 U.S.C. 844)
(1) has not, prior to the commission of such offense, been convicted of
182
violating a Federal or State law relating to controlled substances; and (2)

has not previously been the subject of a disposition under this subsection.
Under this language, it may be possible to obtain a Lujan safe
expungement where two simple possession acts and convictions exist if, (1)
at the time of commission of the second possession offense, the
defendant had not yet been convicted of the first, and (2) both convictions
are expunged at the same time. Thanks to Ann Benson for this analysis.
STATE ADVISAL STATUTES

Even though many state advisal statutes are inaccurate in informing some
noncitizens they "may" be deported, when the specific conviction in fact
triggers mandatory deportation, there is no workable judicial advisal that
correctly advises all noncitizen defendants of the exact immigration
consequences of a plea, even to an aggravated felony. For example, a plea
to a sexual abuse of a minor misdemeanor might well fall within the petty
offense exception and thus allow a LPR married to a USC to adjust status to
get a new green card and thus avoid deportation as in Matter of Rainford,
20 I. & N. Dec. 598 (BIA (1992) and Matter of Gabrielsky, 20 I. & N. Dec. 750
(BIA 1993). Thus, in that case, a plea to an aggravated felony would not
trigger mandatory deportation. It would be a serious mistake for the court
to misadvise the defendant that he will absolutely be deported when there
is an easy remedy available to protect against deportation. The court is
simply not in any position, without investigating the actual immigration
status and prior criminal history of a defendant, and doing research on the
specific immigration consequences of the new conviction in light of the
prior history, to give the defendant accurate information on the exact
immigration consequences of the new conviction. The immigration
consequences of any criminal disposition depend on (a) the detailed
immigration situation of each individual client, (b) the exact record of
conviction in the criminal case, and (c) the defendant's prior record, as well
as (d) certain conduct-based grounds of inadmissibility, deportability, and
bases for relief or waivers in immigration court. This analysis is beyond the
duty or power of the court to give to every noncitizen defendant. The
solution is for criminal defense counsel to do this investigation, obtain
confidential privileged attorney-client information, verify the exact
immigration consequences of each disposition, try to avoid the worst of
them if possible, and tell the client what is going on in a confidential
attorney-client conference. It is not in the client's interest to inform the
prosecutor or court of the exact nature (or even approximate nature) of
the confidential and privileged advice defense counsel gives the
defendant. The criminal court will breathe a sigh of relief that this is too
183
complicated and not their function; courts will likely be happy to leave it to
criminal defense counsel. If the court wants to police defense counsel's
performance of their duty to do this, in order to avoid future IAC claims,
the court's question should be limited to whether counsel has investigated
the actual immigration consequences of the plea and informed the client of
them (without specifying what they are) and leaving it at that. As far as the
court's advisal goes, the current version is the best the court can
realistically do: to tell the defendant, "If you are not a U.S. citizen, this plea
might cause your (a) deportation, (b) exclusion, or (c) denial of
naturalization or other immigration benefits."
POST CON RELIEF – STATE REHABILITATIVE RELIEF – PRIOR NO-PLEA

DIVERSION DOES NOT DISQUALIFY NONCITIZEN FROM LUJAN
EXPUNGEMENT
"At no time shall a defendant be required to make an admission of guilt as
a prerequisite for placement in a pretrial diversion program" Cal. Penal
Code §§ 1001.3 et seq. Therefore, under the statutory definition of
conviction INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), diversion under
the California "no-plea" diversion statute does not constitute a conviction.
See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion,
similar to California no-plea diversion, held not to be a conviction under
Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)). A prior no-plea California
diversion disposition therefore does not disqualify a noncitizen from
eligibility for FFOA treatment under Lujan of a subsequent possession
conviction. A disposition of diversion that did not require a plea of guilty or
no contest and does not constitute a conviction under 8 U.S.C. §
1101(a)(48)(A). In addition, this disposition does not constitute "a
disposition under this subsection." Federal First Offender Act, 8 U.S.C. §
3607(a).
SAFE HAVEN – STATE REHABILITATIVE RELIEF – PRIOR FOREIGN

CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT
The Federal First Offender Act, 18 U.S.C. § 3607(a)(1), does not permit an
expungement if the defendant has prior to the commission of the current
offense suffered a conviction under "Federal or State" law. This provision
does not include foreign convictions as a disqualification for this relief.
§ 10.12 C. Judicial Recommendation Against Deportation
Second Circuit
POST-CON RELIEF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION

184
WORKS FOR AGGRAVATED FELONIES

Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (judicial
recommendations against deportation prevent deportation based upon an
aggravated felony conviction as well as convictions of crimes of moral
turpitude).
POST-CON – JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS

FOR AGGRAVATED FELONIES – RETROACTIVITY
Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (deportation may
be avoided even as a result of new aggravated felonies, created after
repeal of JRAD statute: “[J]ust as respondents may rely on IIRIRA's
expanded definition of aggravated felony to argue petitioner's
deportability on that ground, petitioner may rely on the same definition to
claim JRAD protection from deportation on that ground.”).

DEPORTATION – REMEDY FOR IAC AT SENTENCE REQUIRES PLACING
DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD
NOT OCCURRED, INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED
PERIOD
Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted
equitable nunc pro tunc relief by allowing noncitizen to apply for INA §
212(c) relief as if he were applying at the time his removal order became
administratively final, which was before he had served five actual years in
custody and thereby became disqualified for this relief; court did not reach
question of whether statute compelled this result or whether five-year
sentence bar was analogous to a statute of limitations which could be
equitably tolled). In determining whether nunc pro tun relief could be
applied in this case, the court looked at the following issues: 1. Statutory
bar: "A court may not award equitable relief in contravention of the
expressed intent of Congress. See INS v. Pangilinan, 486 U.S. 875, 883-85,
100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d 299,
309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA
had granted nunc pro tunc relief in the past, and noted that Congress never
amended INA § 212(c) to bar such grants. Id. 2. When nunc pro tunc
relief should be afforded: The court stated generally that "where an
agency error would otherwise be irremediable, and where the plaintiff has
been deprived of a significant benefit - "fairness to the parties," Weil v.
Markowitz , 264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987),
dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67
F.3d at 945; see also Batanic, 12 F.3d at 667-68." Edwards v. INS, 393 F.3d,
at 310. Applying this to the immigration context, the court found that nunc
185
pro tunc relief should be available were the noncitizen has demonstrated
that s/he was erroneously denied the opportunity to apply the relief due to
an error on the part of the agency, and that, but for nunc pro tunc relief,
the denial of relief would be irremediable. The court stated that the
noncitizen, outside an illegal reentry context, did not need to show that a
denial of the relief would result in a denial of due process. 3. What error
may nunc pro tunc relief be used to correct: Despite arguments that the
doctrine of nunc pro tunc may only be used to correct inadvertent errors,
and not to remedy a defect in a judgment order, the court held that in the
immigration context nunc pro tunc relief was available to correct such
defects in the immigration context. Edwards v. INS, 393 F.3d, at 309 n. 12.
Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF –

GOVERNMENT BEARS BURDEN OF PROOF THAT ORDER VACATING
CRIMINAL CONVICTION WAS INEFFECTIVE TO ELIMINATE CONVICTION FOR
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006)
(government has burden of proof by clear and convincing evidence that
order vacating conviction was ineffective to eliminate conviction for
immigration purposes when respondent made motion to reopen removal
proceedings after conviction had been vacated; because order was
ambiguous as to whether it had been based on a ground of invalidity,
government could not meet its burden of proof, and BIA abused its
discretion in denying motion to reopen).
POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF – JUDICIAL

RECOMMENDATION AGAINST DEPORTATION – BURDEN ON GOVERNMENT
TO PROVE RESENTENCING GRANTED SOLELY TO ENABLE COURT TO ISSUE
TIMELY JRAD OR ELSE JRAD WOULD BE HELD EFFECTIVE
Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all presumptions normally
operating in favor of the judgment operate in favor of the validity of a
Judicial Recommendation Aagainst Deportation, and the burden is on the
government to prove the criminal resentencing was granted solely to
enable the court to issue a timely JRAD or else the JRAD would be held
effective).
Lower Courts of Ninth Circuit
POST-CON – JUDICIAL RECOMMENDATION AGAINST DEPORTATION

People v. Paredes, 72 Cal.Rptr.3d 867 (Cal.App. 4 Dist. Feb. 26, 2008)
186
(agreement of state to JRAD does not constitute an express or implied

promise that the conviction will not render the noncitizen deportable; the
fact that the federal immigration laws changed retroactively to make 1987
manslaughter conviction deportable as an aggravated felony not sufficient
to show that the original 1987 plea agreement had been violated).
§ 10.13 1. Immigration Effects of a JRAD.
Eleventh Circuit
SENTENCE – SENTENCE IMPOSED

Hernandez v. U.S. Att’y Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan.
18, 2008) (twelve month suspended sentence, and one year probation, is a
sentence imposed of one year, even if probation is later revoked and the
defendant required to serve 22 days in jail).
Other
POST CON RELIEF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION

– IMMIGRATION EFFECT
There is a question whether a CMT conviction, for which a JRAD was validly
obtained before November 29, 1990, can trigger deportation for multiple
CMT convictions when combined with a later (or earlier) second CMT.
Immigration counsel could argue that under the former statute, still
enforced, deportation cannot be based on a CMT for which a JRAD was
granted. The government can argue that the CMT for which a JRAD was
granted forms one CMT of a two-CMT deportation ground. They could
analogize to those cases that hold if a noncitizen has CMTs that trigger
deportation, and then respondent obtains a waiver of deportation for
them under former INA § 212(c) waiver, and the client suffers another CMT
conviction, the old waived CMT can be combined with the new CMT
conviction to trigger deportation for multiple CMTs. The waiver does not
eliminate the old CMT. It merely waivers deportation for that ground and
that ground only. The two-CMT deportation ground is a different ground,
and both CMT convictions continue to exist, and so can trigger deportation.
The question would be whether counsel can distinguish those 212(c) cases.
§ 10.14 2. Procedural Requirements.
§ 10.15 3. Continuing Validity of Pre-1990 JRADs

187
§ 10.16 4. Ineffective Assistance of Counsel
Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY –

RETURN TO PRE-ERROR STAGE OF PROCEEDINGS
Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was
denied effective assistance of counsel, the district court did not err in
ordering the parties to return to the pre-error stage of the criminal
proceeding).
BIA
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS –

RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED
DELAY CAUSING TIME LIMIT TO EXPIRE
Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented
from exercising a right granted him within a statutory period by
unexplained or unnecessary administrative delay, or carelessness in
handling his application, or in failing to inform him of his right, he will not
be barred from asserting his rights or be deprived of the right.")
§ 10.17 5. Vacating the Conviction
§ 10.18 6. Effective Date
§ 10.19 7. The Government May Not Collaterally

Attack a JRAD.
§ 10.20 8. Bibliography
§ 10.21 D. Pardon
Other
POST CON – PARDON – SELECTIVE SERVICE PARDON – VIETNAM WAR

The 1977 presidential pardon for violations of the Military Selective Service
Act specifically applies to eliminate the commission of such violations as
grounds of inadmissibility. Implementation of Presidential Proclamation
No. 4483 and Executive Order No. 11967 (both effective Jan. 21, 1977), 42
Fed. Reg. 59562 (Nov. 18, 1977). This pardon was cited in Matter of
188
Rahman, 16 I. & N. Dec. 579 (BIA 1978), regarding President Ford's pardon
of Vietnam era draft dodgers, particularly regarding LPRs who returned on
or before June 1, 1978.
§ 10.22 1. Determination of Whether a Pardon Exists
Seventh Circuit
POST CON RELIEF – PARDON – SUFFICIENCY OF PROOF OF PARDON – NO

ERROR IN BIA REFUSAL TO CONSIDER UNCERTIFIED COPY OF GEORGIA
PARDON
Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar.
22, 2006) (per curiam) (uncertified photocopy of purported pardon was
"not sufficiently reliable to meet [] heavy evidentiary burden to reopen
proceedings." even though it bore a signature and a seal, because under 8
C.F.R. § 287.6, "an official record or entry . . . when admissible for any
purpose, shall be evidenced by an official publication thereof, or by a copy
attested by the official having legal custody of the record or by an
authorized deputy;" although § 287.6 is not the "exclusive" method of
authentication, see Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (per
curiam), noncitizen offered no compelling reason why a properly certified
copy of the pardon could was not submitted).
§ 10.23 2. Foreign Pardons.
§ 10.24 III. Reduction of Felony to Misdemeanor
Ninth Circuit
SENTENCE – GUIDELINES – WOBBLER – REDUCED SENTENCE IS USED FOR

GUIDELINES CALCULATIONS
United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a
defendant is convicted of an alternative "felony-misdemeanor" or
"wobbler," the alternative sentence ultimately executed is the one to be
used in guidelines calculations).
§ 10.25 IV. Vacating or Modifying Sentence
§ 10.26 A. Basic Rule: Most Recent Sentence Governs
§ 10.27 B. The New Definition of "Conviction" Does Not

189
Alter This Result
BIA
POST CON RELIEF – SENTENCE – VACATION OR REDUCTION OF SENTENCE

IS EFFECTIVE FOR IMMIGRATION PURPOSES REGARDLESS OF THE
CRIMINAL COURT'S REASONS FOR GRANTING IT
Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's
decision to modify or reduce a criminal sentence nunc pro tunc is entitled
to full faith and credit by the Immigration Judges and the Board of
Immigration Appeals, and such a modified or reduced sentence is
recognized as valid for purposes of the immigration law without regard to
the trial court's reasons for effecting the modification or reduction),
clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing
Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v.
Gonzales, 465 F.3d 263 (6th Cir. 2006).
§ 10.28 C. Reducing Sentence
§ 10.29 D. Grounds to Vacate Sentence
§ 10.30 V. Reopening Proceedings After a Conviction Has

Been Vacated
Eighth Circuit
POST CON RELIEF – VACATUR MUST BE PRESENTED TO IMMIGRATION

COURT TO BE CONSIDERED ON PETITION FOR REVIEW
Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. § 1252(b)(4)(A);
Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th Cir. 2003) (en banc)
(holding BIA violated noncitizen's right to due process, in appeal of decision
granting suspension of deportation, when BIA stated it was entirely
precluded from considering new evidence bearing on hardship including
evidence that, in the eight years intervening between immigration judge's
decision and proceedings before BIA, noncitizen's daughter had been
diagnosed with serious medical condition for which treatment was likely
unavailable if noncitizen was deported).
§ 10.31 A. Reopening Removal Proceedings

190
Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to

Reopen Filed From Outside of the U.S. Contreras-Rodriguez v. U.S. Attorney
General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was ordered removed in
absentia and removed from the United States. He filed a motion to reopen
to rescind the in absentia order based on lack of notice. The IJ denied the
motion, concluding that the immigration court lacked jurisdiction because
petitioner was outside of the United States. The BIA affirmed the dismissal.
The Eleventh Circuit found that petitioner’s motion was governed by 8
C.F.R. § 1003.23(b)(4)(ii), which says that a motion to reopen in absentia
proceedings may be made at any time if the person shows that he or she
did not receive notice. This regulation does not bar reopening when the
person has been removed from the United States. The court noted that
Patel v. United States AG, 334 F.3d 1259 (11th Cir. 2003), is in apposite. In
Patel the court dismissed a petition for review of the BIA’s dismissal of a
motion to reopen because the person was outside of the United States.
Patel, however, did not involve a motion to reopen to rescind an in
absentia order. AILF Legal Action Center, Litigation Clearinghouse Litigation
Clearinghouse Newsletters are posted on AILF’s web page at
www.ailf.org/lac/litclearinghouse.shtml.
First Circuit
MOTION TO REOPEN – APPLICATION FOR RELIEF

Palma-Mazariegos v. Gonzales, 504 F.3d 144 (1st Cir. Oct. 2, 2007) (motion
to reopen removal proceedings for purpose of applying for relief must be
accompanied by application for requested relief).

Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007)
(BIA grant of a timely motion to reopen did not vacate the original IJ’s
decision finding removability and granting voluntary departure, and did not
stay the voluntary departure period, even though it is highly unlike that BIA
would reach decision on merits of motion to reopen before voluntary
departure period expires; “We read §§ 1229a(7)(C)(1) and 1229c(b)(2),
then, as evincing a congressional intent to make the benefits of voluntary
departure available only to aliens who agree to give up the fight and leave
the country willingly.”), disagreeing with Ugokwe v. Attorney Gen., 453
F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335
(3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005);
Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following
Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir.2006); Banda-Ortiz v.
191
Gonzales, 445 F.3d 387, 391 (5th Cir.2006).
POST CON RELIEF – EFFECTIVE ORDER – DENIAL OF MOTION TO REOPEN

REMOVAL PROCEEDINGS AFTER VACATUR AFFIRMED SINCE REGULATION
PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD LEFT THE
UNITED STATES
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal
to reopen removal proceedings after a criminal conviction was vacated is
affirmed where IIRAIRA's repeal of 8 U.S.C. § 1105a(c) (1994) (repealed
1996) (“An order of deportation ... shall not be reviewed by any court if the
alien ... has departed from the United States after the issuance of the
order.”) did not invalidate the regulation, 8 C.F.R. § 1003.23(b)(1) (“A
motion to reopen or to reconsider shall not be made by or on behalf of a
person who is the subject of removal, deportation, or exclusion
proceedings subsequent to his or her departure from the United States.”).
POST CON RELIEF – EFFECTIVE ORDER – VACATUR IS APPROPRIATE BASIS

TO REOPEN REMOVAL PROCEEDINGS
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the
overturning of a conviction upon which deportability was premised is an
appropriate basis for reopening administrative proceedings); De Faria v.
INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d
1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125,
1128-29 (10th Cir. 2005).

De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due
process violation where BIA denied request to grant sua sponte motion on
the basis of recently vacated convictions, allowing noncitizen to apply for
relief, where BIA denied motion on the basis that it would deny any
application for relief as a matter of discretion because noncitizen, “had
previously been convicted of four criminal offenses, and while three of
these had been vacated, none had been vacated because De Araujo was
not guilty of the crimes committed.”)

Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006)
(noncitizen bears burden of showing conviction was vacated on a basis of
legal invalidity where the order of removal has already become final, and
the noncitizen is making a late motion to reopen/reconsider in light of the
new evidence that the conviction has been vacated).
192

Rumierz v. Gonzales, ___ F.3d ___, 2006 WL 2169431 (1st Cir. Aug. 3, 2006)
(noncitizen bears burden of showing conviction was vacated on a basis of
legal invalidity where the order of removal has already become final, and
the noncitizen is making a late motion to reopen/reconsider in light of the
new evidence that the conviction has been vacated).
NOTE: Under the particular facts of this case, it appears that the
deportation order may not have actually been final (see dissent). However,
assuming (as the majority did), that the deportation order was final and
therefore the holding of the case does not apply outside the context of late
motions to reopen/reconsider will limit the reach of this otherwise
unfortunate decision.
Second Circuit

Cyrus v. Keisler, 505 F.3d 197 (2d Cir. Oct. 19, 2007) (court lacks jurisdiction
to review denial of discretionary request for sua sponte motion to reopen).
BOARD OF IMMIGRATION APPEALS – MOTION TO RECONSIDER –

DEFINITION AND STANDARD
Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has
defined a motion to reconsider as ‘"a request that the Board reexamine its
decision in light of additional legal arguments, a change of law, or perhaps
an argument or aspect of the case which was overlooked."’ In re Cerna, 20
I. & N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations
establish that a motion to reconsider must specify errors of fact or law in
the BIA decision and be supported by relevant authority.") citing 8 C.F.R. §
1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir.
2001).
Fourth Circuit
MOTIONS TO REOPEN – DEPORTED NONCITIZENS

William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8
U.S.C.] § 1229a(c)(7)(A) unambiguously provides an alien with the right to
file one motion to reopen, regardless of whether he is within or without
the country. ... it is evident that 8 C.F.R. § 1003.2(d), containing the post-
departure bar on motions to reopen, conflicts with the statute by
restricting the availability of motions to reopen to those aliens who remain
193
in the United States. Therefore, we conclude that this regulation lacks

authority and is invalid.").
Seventh Circuit

Gao v. Gonzales, __ F.3d __ (7th Cir. Sept. 25, 2006) (BIA does not need
judicial permission to reopen a case sua sponte after the filing of a petition
for review). http://caselaw.lp.findlaw.com/data2/circs/7th/053215p.pdf
Eighth Circuit
MOTION TO REOPEN – NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE

MATERIAL BUT UNAVAILABLE AND UNDISCOVERABLE PRIOR TO
CONCLUSION OF REMOVAL PROCEEDINGS
Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused
discretion by granting DHS motion to reopen pursuant to 8 C.F.R. §
1003.23(b)(3) because DHS failed to establish that the evidence submitted
with its motion to reopen was not only material, but was also unavailable
and undiscoverable prior to the conclusion of removal proceedings).
Ninth Circuit

Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov.
15, 2006) (Arizona court order issued in 2004, acknowledging that 1994
order imposing a twelve-month sentence, for Arizona misdemeanor
conviction was illegal since the state at the time of sentence designated
the conviction a misdemeanor, and under Arizona law the maximum term
of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-
707, rendering the twelve-month sentence illegal on its face, required
remand to the BIA to consider the issue in the first instance; issue could
not have been considered earlier, since Arizona court entered 2004 minute
entry over six months after initial BIA decision in this case), citing
Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-1234 (9th Cir; 2004)
(remanding to BIA to consider in first instance whether petition continues
to be barred from adjustment of status); INS v. Ventura, 537 U.S. 12, 17
(2002)(per curiam) (remanding "changed circumstances" issue to BIA for
POST CON RELIEF – MOTION TO REOPEN – BIA ACTS ILLEGALLY IN DENYING

MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING
194
CONVICTION
(BIA acted arbitrarily, irrationally, or contrary to law in denying motion to
reopen removal proceedings after conviction had been vacated, even
where order vacating conviction did not specify whether the conviction
was vacated on ground of invalidity or solely for rehabilitative or
POST-CON – EFFECT OF DEPORTATION PRIOR TO COMPLETION OF POST-

CONVICTION ATTACK
Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug.
21, 2006) (8 C.F.R. § 1003.2(d) barring granting of motion to reconsider to
noncitizen following physical deportation does not apply when criminal
conviction that formed a “key part” of the order of removal has been
vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v.
INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d
819, 821 (9th Cir. 1981) (order of deportation based on certain vacated
Eleventh Circuit
MOTION TO REOPEN – BIA

Cisneros v. U.S. Attorney Gen., __ F.3d __, 2008 WL 217364 (11th Cir. Jan.
28, 2008) (BIA abused its discretion in failing to examine exceptional
circumstances in denying the motion to reopen).
BIA

The BIA, citing 8 CFR §§ 1003.2(d) and 1003.23(b)(1), takes the position
that the BIA and IJs lack jurisdiction to review motions filed by people who
have been deported or have departed and that any departure from the
United States constitutes the withdrawal of a pending motion. The Ninth
and Eleventh Circuits, however, have found these regulations inapplicable
in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR §
3.23(b)(1) “is phrased in the present tense and so by its terms applies only
to a person who departs the United States while he or she ‘is the subject of
removal …proceedings.’”; once a person leaves the United States, he or she
is no longer subject to proceedings; where a noncitizen has been removed,
and then files a motion to reopen, the proceedings have been completed
and 8 CFR § 3.23(b)(1) is no longer applicable); Contreras-Rodriguez v. U.S.
Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation
195
governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8

CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a
motion to reopen “at any time,” even if the client has departed the United
States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d)
inapplicable to a motion to reopen to rescind an in absentia order where
the noncitizen had departed the United States before the commencement
of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006)
(where a person’s conviction is vacated, he or she has a right to file a
motion to reopen, despite having been removed, if the conviction was a
“key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d
1179 (9th Cir. 1990). But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672
(5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua sponte authority to
reopen and reconsider a case at any time).
Other

New AILF Practice Advisory: Return to the United States after Prevailing on
a Petition for Review (January 17, 2007). This Practice Advisory contains
practical and legal suggestions for attorneys representing clients who have
prevailed on a petition for review or other legal action and who are outside
of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml.

One possible way to obtain return of noncitizen wrongfully removed would
be to negotiate a "deal" under which the U.S. Government flies the client
back to the USA, admits the client to USA, and allows the client to adjust
status in exchange for client waiving suit and fees against the United
States. Thanks to Beryl B. Farris, Atlanta.
MOTION TO REOPEN – AFTER DEPARTURE FROM UNITED STATES

The regulations provide that departure from the United States under an
order of deportation, or while a removal order is on appeal to the BIA, shall
render the immigration judge’s decision final and bar any motion to reopen
or reconsider. 8 C.F.R. §§ 1003.2(d), 1003.4. However, many circuits have
challenged the validity of these regulations. William v. Gonzales, 499 F.3d
329 (4th Cir. 2007) (first sentence of 8 C.F.R. § 1003.2(d) is ultra vires to
statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v.
Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase “is
the subject of”); Contreras-Rodriguez v. United States Att’y Gen., 462 F.3d
1314 (11th Cir. 2006) (departure regulation does not apply to in absentia
motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir.
196
2003) ("Under 8 C.F.R. § 1003.4, any voluntary departure from the United
States following entry of an order of deportation will be deemed to
withdraw a pending appeal and to render the order of deportation final.").
Thanks to Rachel E. Rosenbloom; Beth Werlin.
§ 10.32 B. Reopening Criminal Proceedings
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CRIMES OF MORAL TURPITUDE – INTENT REQUIREMENT
Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) (a criminal offense must have at least a
willfullness requirement to constitute a crime of moral turpitude: "Such crimes “ ‘must be done willfully’
or with ‘evil intent.’ “ Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007) (quoting Fernandez-
Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir. 2006)). The requirement of a “willful” or “evil” state of
mind has long been recognized by this Court, Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993), Hirsch
v. INS, 308 F.2d 562, 567 (9th Cir. 1962), and by other courts of appeals, see Fernandez-Ruiz, 468 F.3d at
1166 (collecting cases). The Second Circuit has observed that a “corrupt scienter is the touchstone of
moral turpitude.” Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000).").
CRIMES OF MORAL TURPITUDE – INTENT REQUIREMENT – KNOWLEDGE

Mei v. Ashcroft, 393 F.3d 737 (7th Cir. Dec. 29, 2004) (A requirement of willfulness found to be inherent
in the aggravated form of evading a police officer, under 625 ILCS 5/11-204, where willfulness is an
element of the unaggravated form of the offense, "because the legislature might think that the
requirement for the aggravated offense that the defendant has exceeded the speed limit by at least 21
m.p.h. was a proxy for willfulness as well as evidence of increased dangerousness warranting a heavier
penalty," and by reference to the jury instructions given in aggravated evading cases; any person who
violates this statute "may not want to endanger anyone, but he has to know that he is greatly increasing
the risk of an accident (and for the further reason that a fleeing driver is dividing his attention between
the road ahead and his pursuer); and he is doing so as a consequence of his deliberate and improper
decision to ignore a lawful order of the police.").
DETENTION – MANDATORY DETENTION – "WHEN RELEASED"

Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA § 101(f)(8), 8 U.S.C. § 1101(f)(8), the date
of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of
“conviction” in 8 U.S.C. § 1101(a)(48)(A), the entry of a “formal judgment of guilt . . . by a court” occurs
when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood,
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294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or
entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea
coupled with a sentence constitutes a conviction under the INA, and noting that “Congress focused the
sanction of removal on a criminal conviction as opposed to an admission of guilt”); Mugalli v. Ashcroft,
258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a
Certificate of Relief is still a conviction under the INA because the defendant “entered a plea of guilty,
and the court entered a formal judgment of guilt”).
RELIEF – MANDATORY DETENTION – RETROACTIVITY

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004) (habeas petition, seeking review of
his continued detention pursuant to a final order of removal, is granted where IIRAIRA had an
impermissible retroactive effect on plaintiff's 1994 guilty plea).
DETENTION – JUDICIAL REVIEW – HABEAS – CUSTODIAN

Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. Apr. 17, 2006) (petitioner should have named the warden of
the prison in which he was detained as defendant instead of naming DHS officials, the Secretary of
Homeland Security and the Attorney General).
DETENTION – ASSIGNING OF DETENTION DISTRICTS

Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (DHS may, without following
APA requirements of notice and comment, redetermine detention boundaries, even to the extend
that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit),
reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007),
to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006).
DETENTION – NONCITIZEN’S ARRESTED IN IDAHO AND MONTANA SUBJECT TO
TENTH CIRCUIT LAW
Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (noting that DHS has redrawn
detention boundaries to subject noncitizens arrested in Idaho and Montana, within the Ninth
Circuit, will be placed in removal proceedings in Colorado, in the Tenth Circuit, and therefore
subject to Tenth Circuit law), reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831
(10th Cir. March 29, 2007), to the extent the prior decision is inconsistent Lopez v. Gonzalez,
127 S.Ct. 625 (2006
DETENTION – BOND – AUTOMATIC STAY

Effective Nov. 1, 2006, 8 C.F.R. § 1003.19(i)(2) is a final version of the interim rule first published in 2001
that allows an officer of the DHS to request an automatic stay of release from detention of a noncitizen
an immigration judge has found is eligible for release on bond in a Matter of Joseph, 22 I. & N. Dec. 660
(BIA 1999) hearing. The new rule requires the DHS file a form EOIR-43 notice of intent to file appeal
within one day of the IJ’s bond decision. The stay will lapse within 10 days unless the DHS actually files
an appeal of the bond decision to the BIA. Even if an appeal is filed, the stay will lapse within 90 days
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from the day the notice of appeal is filed unless the BIA grants a discretionary stay extending the period.
71 Fed. Reg. 57873 (Oct. 2, 2006).
DETENTION - CONDITIONS
Detention Report: Behind Bars "Between March and July 2006, in response to numerous complaints
about conditions of detention, the ACLU-NJ undertook a series of interviews with detainees in the
county jails in an effort to shed light on the conditions of confinement. The project resulted in a [May
2007] report, Behind Bars: The Failure of the Department of Homeland Security to Ensure Adequate
Treatment of Immigration Detainees." http://www.aclu-nj.org/downloads/051507DetentionReport.pdf
RELIEF – DETENTION
There’s a new web address for ICE’s Detention Operations Manual (the detention standards):
http://www.ice.gov/partners/dro/opsmanual/index.htm ARIZONA IMMIGRATION CONSEQUENCES
CHART ONLINE Chart: http://www.ilrc.org/Cal_DIP_Chart_by_section.pdf Notes Accompanying the
Chart: http://firrp.org/documents/arizona%20notes%20revised%202005.doc
DETENTION – NEW WEBSITE

www.detentionwatchnetwork.org
DETENTION – ARRIVING ALIEN – DOES REGULATION DEPRIVE IMMIGRATION JUDGE OF JURISDICTION

TO DECIDE CONDITIONS OF CUSTODY FOR ARRIVING ALIENS IN REMOVAL PROCEEDINGS
The Department of Homeland Security argues that its regulation 8 C.F.R. §1003.19(h) denies to the
Immigration Judge jurisdiction to redetermine conditions of custody with respect to [subparagraph
(2)(B)] "[a]rriving aliens in removal proceedings, including persons paroled after arrival pursuant to
section 212(d)(5) of the Act." The term "arriving alien" is not defined in the Immigration and Nationality
Act [INA], but is defined by regulation at 8 C.F.R. 1001.1(q):
DETENTION – MANDATORY DETENTION – INAPPLICABLE TO ARRIVING ALIENS

INA § 236 applies only to those who have been "arrested on a warrant" issued by the AG (or DHS). See
INA § 236(a). Arriving aliens are only "detained" under INA § 235. They are not "arrested on a
warrant." Therefore, INA § 236(c) does not apply to arriving aliens. Thanks to Lisa Brodyaga
DETENTION – REMOVAL – ARRIVING ALIENS – REGULATIONS PROVIDE IJ HAS NO

JURISDICTION TO SET BOND
The regulations divest the Immigration Judges of jurisdiction over bond applications by arriving
aliens. 8 C.F.R. §§ 3.19(h)(2)(i)(B), 236.1(c)(11).
GOOD MORAL CHARACTER – 180-DAY BAR – PRETRIAL CONFINEMENT LATER
CREDITED AGAINST SENTENCE COUNTS AS CONFINEMENT AS A RESULT OF
CONVICTION
Arreguin-Moreno v. Mukasey, 511 F.3d 1229 (9th Cir. Jan. 14, 2008) (pre-sentence time in
custody in a criminal case, which is credited as time served in a sentence imposed after
conviction, is considered to be confinement as a result of a conviction for purposes of the 180-
day Good Moral Character bar of INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).).
GOOD MORAL CHARACTER – UNDERPAYMENT OF INCOME TAXES
Matter of Locicero, 11 I&N Dec. 805 (BIA 1966) (an individual who had knowingly provided fraudulent
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information on his income tax returns for two years, by underreporting, was not a person of good moral
character). Note: The Board has found that failure to file tax returns is not necessarily a bar to good
moral character, citing Matter of T, 1 I&N Dec. 158 (BIA 1941), Matter of Carbajal, Int. Dec. 2765 (Comm.
1978). Thanks to Susan Compernolle
STATUTORY CONSTRUCTION – DECLARES WHAT HAS ALWAYS BEEN THE LAW

A judicial decision interpreting a statute does not announce a new rule. For example, INS v. St.
Cyr, 533 U.S. 289 (2001) was a case of statutory interpretation. 121 S.Ct. at 2278. As such, its
holding did not change the law. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S.Ct.
1510, 128 L.Ed.2d 274 (1994). Rather, St. Cyr “finally decided what [IIRAIRA] had always
meant and explained why the [BIA and the] Courts of Appeals had misinterpreted the will of the
enacting Congress.” 511 U.S. at 313 n. 12, 114 S.Ct. 1510.
JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS
CORPUS CAN BE USED TO CHALLENGE DETENTION
The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of
removal, deportation, and exclusion and consolidate such review in the court of appeals. The
REAL ID Act, however, did not affect the ongoing availability of habeas corpus to challenge the
length or conditions of immigration detention. Since the REAL ID Act’s enactment on May 11,
2005, the courts of appeals have uniformly upheld the right to file a habeas corpus petition to
challenge the lawfulness of detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005);
DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d
442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assuming
without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS 21503, *2
(5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9 (6th
Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7,
2006) (unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah
v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th
Cir. 2006); Madu v. Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006).
Thanks to AILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan.
12, 2007
Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. May 29, 2007) (petitioner was statutorily
ineligible to prove good moral character because he had engaged in alien smuggling).
GOOD MORAL CHARACTER – REGULATIONS
United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. § 316.10(b)(3)(iii),
barring good moral character based on commission of “unlawful acts that adversely reflect upon
the applicant’s moral character, or was convicted or imprisoned for such acts” is not ultra vires to
INA § 101(f); nor is the regulation unconstitutionally vague, as applied to respondent who set
fire to own vehicle with intent to defraud insurance company).
RELIEF – GOOD MORAL CHARACTER – CONVICTIONS OCCURRING OUTSIDE OF
GMC PERIOD CANNOT SERVE AS SOLE BASIS FOR DISCRETIONARY FINDING OF
NO GOOD MORAL CHARACTER
Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996) (even a serious conviction or set of
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convictions that that occur outside the statutorily mandated period cannot serve as the sole basis
to decline to find good moral character as a matter of discretion).
GOOD MORAL CHARACTER
Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles:
First, the applicant cannot have a conviction on the list enumerated in INA § 101(f), 8 U.S.C. §
1101(f), during the period for which Good Moral Character must be shown, in order to avoid a
complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR §
316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction
listed on INA § 101(f) committed prior to the beginning of the period during which Good Moral
Character must be shown. This second hurdle is not a complete bar to showing Good Moral
Character. The agency must weigh positive factors against negative factors. Torres-Guzman v.
INS, 804 F.2d 531 (9th Cir. 1986).

JURISDICTION TO CONSIDER ARGUMENT THAT IJ'S DENIAL OF CONTINUANCE
CONSTITUTED ABUSE OF DISCRETION DESPITE 8 U.S.C. § 1252(a)(2)(C)
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (rejecting argument that 8 U.S.C. §
1252(a)(2)(C) bars judicial review of argument that IJ abused discretion to deny continuance of
removal proceedings: "This argument fails for the simple reason that the denial of a continuance
is wholly separate and distinct from a “final order of removal” and thus does not lie within the
scope of § 1252(a)(2)(C).").
JUDICIAL REVIEW – PETITION FOR REVIEW – DENIAL OF CONTINUANCE –

STANDARD OF REVIEW
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (“An IJ would, however, abuse his
discretion in denying a continuance if (1) his decision rests on an error of law (such as
application of the wrong legal principle) or a clearly erroneous factual finding or (2) his
decision-though not necessarily the product of a legal error or a clearly erroneous factual finding-
cannot be located within the range of permissible decisions.”), quoting Morgan v. Gonzales, 445
F.3d 549, 551-52 (2d Cir. 2006) (internal quotation marks and alterations omitted).
JUDICIAL REVIEW – REAL ID ACT – SUSPENSION CLAUSE -- JUDICIAL REVIEW –
PETITION FOR REVIEW – 30-DAY DEADLINE – EXTRA 30-DAY GRACE
PERIODRuiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. Feb. 14, 2008) (in immigration cases
where habeas corpus relief in the U.S. district courts has been eliminated by the REAL ID Act of
2005 for aliens seeking to challenge orders of removal entered against them, the Suspension
Clause of the U.S. Constitution is not violated by the REAL ID Act, but a grace period of 30
days from the effective date of the Act should be afforded to those whose petitions were rendered
untimely by the provisions of the Act).
JUDICIAL REVIEW – DISCRETION
Yang v. Mukasey, __ F.3d __, 2008 WL 248542 (2d Cir. Jan. 31, 2008) (court lacks jurisdiction
to review question of whether criminal conviction is a crime of moral turpitude where the
Immigration Judge also found, independently from the crime of moral turpitude, that the
noncitizen was additionally ineligible for qualifying relief as a matter of discretion
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JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION REQUIREMENT – JURISDICTIONAL AND

CANNOT BE EXCUSED FOR MANIFEST INJUSTICE
Valenzuela Grullon v. Mukasey, ___ F.3d ___ (2d Cir. Jan. 7, 2008) (exhaustion requirement is statutory
and jurisdictional, and the jurisdictional defect cannot be excused on a ground of manifest injustice).
JUDICIAL REVIEW – STATUTORY INTERPRETATION – STATUTE MUST BE

CONSTRUED TO GIVE MEANING TO EACH PART
Puello v. BCIS, 511 F.3d 324, ___, (2d Cir. Dec. 20, 2007) (a statute must be construed to give
meaning to each part and not render any part superfluous); see Griffiths v. INS, 243 F.3d 45, 53
(1st Cir. 2001) (holding that a notation of “guilty-filed” on the criminal docket could not
constitute a conviction under the first prong of the INA conviction definition because “a formal
judgment of guilt under the first prong of the definition entails a showing of something beyond a
simple finding of guilt . . . . Otherwise the reference in the second prong of the statute to deferred
adjudications where either a judge or a jury has ‘found the alien guilty’ would be rendered
superfluous.”); Tablie v. Gonzales, 471 F.3d 60, 64 (2d Cir. 2006)(“[A] statute must, if
reasonably possible, be construed in a way that will give force and effect to each of its provisions
rather than render some of them meaningless.”; Allen Oil Co., Inc. v. Comm’r of Internal
Revenue, 614 F.2d 336, 339 (2d Cir. 1980); N.W. Forest Res. Council v. Glickman, 82 F.3d 825,
834 (9th Cir. 1996) (A "statute must be interpreted to give significance to all of its parts. . . .
Courts have long followed the principle that statutes should not be construed to make surplusage
of any provision.").
JUDICIAL REVIEW – DEFERENCE – CRIMES OF MORAL TURPITUDE
Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) ("We accord Chevron deference to the
BIA's construction of ambiguous statutory terms in immigration law, such as “moral turpitude.”
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct.
2778, 81 L.Ed.2d 694 (1984); see also Michel v. INS, 206 F.3d 253, 262-65 (2d Cir. 2000)
(deferring to the BIA's rule that crimes for which knowledge is an element are generally CIMTs).
“However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing
... state criminal statutes, and so we review de novo the BIA's finding that a petitioner's crime of
conviction contains those elements which have been properly found to constitute a CIMT.” Gill
v. INS, 420 F.3d 82, 89 (2d Cir. 2005). Thus, in this case, we defer to the BIA's view that larceny
involving a permanent taking amounts to a CIMT, but we review de novo whether Wala's
conviction for third-degree burglary under Connecticut law falls within this category. ").
JUDICIAL REVIEW – BOARD OF IMMIGRATION APPEALS HAS NO AUTHORITY TO

ISSUE REMOVAL ORDER IN FIRST INSTANCE
Rhodes-Bradford v. Keisler, 507 F.3d 77 (2d Cir. Nov. 7, 2007) (BIA has no authority to issue a
removal order in the first instance, after IJ had ordered termination of proceedings).
JUDICIAL REVIEW – BIA APPEAL – ADMINISTRATIVE NOTICE
Burger v. Gonzales, __ F.3d __, 2007 WL 2331944 (2d Cir. Aug. 17, 2007) ("This Court recently held that
if the Board of Immigration Appeals (“BIA”) intends to take administrative notice of potentially
dispositive facts, it must warn a petitioner and provide the petitioner with an opportunity to respond
before it denies a motion to reopen on the basis of those facts. See Chhetry v. U.S. Dep’t of Justice, 490
202
F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court declined to resolve the related question whether
due process requires this same result before the BIA enters a final order of removal on the basis of
administratively noticed facts. We now address this question and hold that it does.")
JUDICIAL REVIEW – HARDSHIP AS DISCRETIONARY ISSUE

Barnaby-King v. US Dep't of Homeland Sec., 485 F.3d 684 (2d Cir. May 10, 2007) (prior case finding
hardship to be a discretionary issue not subject to judicial review, Jun Min Zhang v. Gonzales, 457 F.3d
172 (2d Cir.2006), may no longer be binding precedent in this court, in light of Xiao Ji Chen, 471 F.3d
315, 319 (2d Cir.2006).
JUDICIAL REVIEW – PETITION FOR REVIEW – NONPRECEDENTIAL BIA DECISION NOT ACCORDED
CHEVRON DEFERENCE
Rotimi v. Gonzales, 473 F.3d 55, 2007 WL 10771 (2d Cir. Jan. 3, 2007) ("[N]onprecedential decision by a
single member of the BIA should not be accorded Chevron deference, see Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984), we remand petitioner's case to provide the BIA with the
opportunity to construe the “lawfully resided continuously” provisions of § 212(h) in a precedential
opinion").
JUDICIAL REVIEW – QUESTIONS OF LAW
Chen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition “question of law” for purpose of
judicial review is not limited to questions of statutory construction), revising prior opinion, 434
F.3d 144 (2d Cir. 2006).

Spina v. Department of Homeland Sec., 470 F.3d 116 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction
to review order of removal even after petition has been physically removed from the United States)
following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004).
JUDICIAL REVIEW – JURISDICTION LIMITATION – DISCRETIONARY DECISIONS – DENIAL OF 212(C)

WAIVER
Avendano-Espejo v. Department of Homeland Sec., 448 F.3d 503 (2d Cir. May 11, 2006) (court lacks
jurisdiction to review discretionary denial of INA § 212(c) relief).
OF REMOVAL
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JUDICIAL REVIEW – HABEAS – RIPENESS

Edwards v. INS, ___ F.3d ___, 2004 U.S. App. LEXIS 26335 (2d Cir. December 17, 2004) (Unpublished)
(petitioner's claims are ripe for judicial review, even though she will not become eligible for release from
criminal custody until 2006, since the determination of her claims may take that long in any event and
may be necessary to proceed now to avert possibility of mandatory immigration detention pending
litigation of the immigration claims after the criminal custody release date),
AGGRAVATED FELONY – FRAUD OFFENSE – TAX OFFENSE NOT LISTED IN (M)(ii)

CAN CONSTITUTE FRAUD OFFENSE AGGRAVATED FELONY UNDER (M)(i)
Kawashima v. Gonzales, ___ F.3d ___, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal
conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. §
7206(1), qualifies as an “aggravated felony” under INA § 101(a)(43)(M)(i), 8 U.S.C. §
1101(a)(43)(M)(i), despite argument that (M)(i) is inapplicable in this case, reasoning that
(M)(ii)'s specific reference to § 7201 indicates Congress's intent to exclude all federal tax
offenses from the definition of aggravated felonies under the more general subsection (M)(i)).
AGGRAVATED FELONIES – TAX OFFENSES – CONVICTIONS OF VIOLATING
STATUTES OTHER THAN 26 U.S.C. § 7201 CANNOT CONSTITUTE TAX OFFENSE
AGGRAVATED FELONIES UNDER INA § 101(a)(43)(M)(ii)
Kawashima v. Gonzales, ___ F.3d ___, ___, n.3, 2007 WL 2702330 (9th Cir. Sept. 18, 2007)
(federal convictions for subscribing to a false statement on a tax return, in violation of 26 U.S.C.
§ 7206(1), and aiding and abetting in the preparation of a false tax return, in violation of 26
U.S.C. § 7206(2), cannot qualify as an “aggravated felony” under INA § 101(a)(43)(M)(ii), 8
U.S.C. § 1101(a)(43)(M)(ii), because that provision is limited to tax offenses in violation of §
7201); following United States v. Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).
AGGRAVATED FELONY – FRAUD OFFENSES – LOSS – CALIFORNIA RESTITUTION

CANNOT COMPENSATE VICTIM FOR PAIN AND SUFFERING
In re Imran Q., 57 Cal.Rptr.3d 233, Previously published at: 149 Cal.App.4th 581, (April 9,
2007) No. B188613 (reversing order that defendant pay close to $18,000 in restitution for
injuring the victim in a hit and run, where trial court failed to recognize that some portion of the
victim's civil settlement with defendant likely included compensation for the victim's pain and
suffering, and the record does not show the parties or court attempted to allocate the settlement
between economic damages supporting restitution and pain and suffering, which do not support
restitution
CRIMES OF MORAL TURPITUDE – FEDERAL FRAUD OFFENSES
Ted Cassman and Raphael Goldman, The Federal Mail and Wire Fraud Statutes – Must There be
an Intent to Obtain Property, or Merely Deprive?
The federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, proscribe “any scheme or
artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises.” (Ibid. [emphasis supplied].) Nowhere do these statutes suggest that
the offense could occur if the defendant intended only to “deprive” someone of money or
property, rather than “obtain” it. Nevertheless, federal courts have often approved jury
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instructions that use the word “deprive” instead of “obtain.” For example, the Fifth Circuit’s
pattern jury instructions define “scheme to defraud” in the context of these statutes as “any
scheme to deprive another of money, property, or of the intangible right to honest services by
means of false or fraudulent pretenses, representations, or promises.” Fifth Circuit Criminal Jury
Instructions Nos. 2.59, 2.60. Likewise, while the Ninth Circuit Model Criminal Jury Instructions
use the word “obtain,” the Ninth Circuit Court of Appeals has itself sometimes carelessly used
the word “deprive” in describing the required elements of a mail or wire fraud offense. See, e.g.,
United States v. Thomas, 32 F.3d 418, 419 (9th Cir. 1994) (stating that, in a mail fraud
prosecution, the defendant “must have intended to deprive his victims of money or property”).
The difference between obtaining and depriving is not merely semantic. Consider the case of an
executive at a publicly-traded company accused of making false statements designed to
artificially inflate the price of her company’s stock. The executive in this scenario arguably
intends to deprive any person who purchases the stock at the inflated price of money or property.
But unless the executive also intends to sell her own stock holdings at the inflated prices, she has
not hatched a scheme to obtain money or property from the stock purchasers.
Although §§ 1341 and 1343 use the disjunctive “or” between the phrases “scheme or artifice to
defraud” and “for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises,” the Supreme Court twice has held — based on the history of the
mail and wire fraud statutes and the meaning of the term “defraud” — that those phrases are to
be read together as defining a single offense. Cleveland v. United States, 531 U.S. 12, 25-26
(2000); McNally v. United States, 483 U.S. 350, 358-359 (1987). Thus, a “deprivation is a
necessary but not a sufficient condition” of mail or wire fraud because “only a scheme to obtain
money or other property from the victim by fraud violates” those statutes. United States v.
Walters, 997 F.2d 1219, 1227 (7th Cir. 1993); see also Monterey Plaza Hotel Ltd. P’ship v.
Local 483 of Hotel Employees, Rest. Employees, 215 F.3d 923, 926-27 (9th Cir. 2000) (“The
purpose of the mail and wire fraud proscriptions is to punish wrongful transfers of property from
the victim to the wrongdoer”); United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989) (“after
McNally the elements of mail fraud remain unchanged except that the intent of the scheme must
be to obtain money or property, [and] the Court made it clear that the intent must be to obtain
money or property from the one who is deceived” (emphasis added)); United States v. Baldinger,
838 F.2d 176, 180 (6th Cir. 1988) (Section 1341 “was intended by the Congress only to reach
schemes ‘that have as their goal the transfer of something of economic value to the defendant.’”);
United States v. Alsugair, 256 F. Supp. 2d 306, 312 (D.N.J. 2003) (“[I]n addition to an allegation
that a defendant deprived a victim of money or property, the mail-fraud statute, 18 U.S.C. §
1341, requires an allegation that the defendant obtained money or property as well.”). [For
obvious reasons, this analysis does not apply to fraud charges that allege a scheme to deprive the
victim of “honest services” under 18 U.S.C. § 1346.]
Unless defense counsel watches carefully, the subtle shift from obtain to deprive can deprive a
defendant of the right to have every element of the charged offense proved beyond a reasonable
doubt, permitting the government to obtain a conviction on insufficient evidence in mail and
wire fraud cases. Defense counsel should consider moving to dismiss charges that allege only a
scheme to deprive, as opposed obtain, money and property under 18 U.S. C. §§ 1341 and 1343.
Further, counsel should submit instructions that properly define the offense as requiring an intent
205
to obtain money and property in all mail and wire fraud cases. Finally, counsel should make and
preserve objections to any jury instructions that suggest that an intent to deprive is sufficient for
a mail or wire fraud conviction.
CRIMES OF MORAL TURPITUDE – DEPORTATION FOR SINGLE CMT – NOLO PLEA NOT SUFFICIENT BY
ITSELF TO SHOW OFFENSE “COMMITTED” WITHIN FIVE YEARS OF ADMISSION
United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) (federal conviction under 8 U.S.C. §
1253(b) for willful failure to comply with a term of release under supervision -- which required that he
not “commit any crimes” -- is reversed where misdemeanor nolo contendere convictions were legally
insufficient to support his conviction, because a nolo contendere plea is not an admission of guilt to the
underlying crime, a conviction based on such a plea does not prove that he "commit[ted] any crimes;"
the convictions should not have been admitted under Federal Rules of Evidence 410, 803(22), or 803(8)
for the purpose of proving that he actually committed the underlying crimes charged).
DEPORTABLE BECAUSE INADMISSIBLE AT TIME OF ENTRY OR ADJUSTMENT –

COURT MUST LOOK AT LAW AS IT EXISTED AT TIME OF ENTRY/ADJUSTMENT
Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (to determine
whether a noncitizen is deportable for being inadmissible at entry or adjustment under INA §
237(a)(1)(A), the court must look to the law as it existed at the time of entry or adjustment, not
current law).
206
LO
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Post-Conviction Relief for
Immigrants - Chapter 5
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Chapter 5: Vehicles for Vacating a Conviction
§ 5.1 I. Introduction: 3 Requirements for Successful Post-

Conviction Relief
§ 5.2 A. Practical Requirements
§ 5.3 1. Matching the Vehicle to the Immigration

Effect
§ 5.4 2. Matching the Vehicle to the Ground of Legal

Invalidity
§ 5.5 3. Choosing a Vehicle that Works

207
Ninth Circuit
POST CONVICTION RELIEF – FEDERAL – EXPUNGEMENT NOT AVAILABLE AS

A VEHICLE FOR POST CON RELIEF
United States v. Crowell, ___ F.3d ___ (9th Cir. June 30, 2004) (federal
proceedings for expungement of federal convictions are unavailable for the
purpose of collaterally attacking the validity of the conviction).
§ 5.6 4. Timing of Post-Conviction Relief
Other
NO SANCTIONS FOR DHS DELAY IN FILING NTA FOLLOWING CONVICTION

There is no statute of limitations requiring the federal immigration
authorities to begin deportation proceedings within a certain time after a
deportable conviction occurs. It is true that federal statute provides that
"the Attorney General shall begin any removal proceedings [in the case of
an alien who is convicted of an offense which makes the alien deportable]
as expeditiously as possible after the date of the conviction." (INA §
239(d)(1), 8 U.S.C. § 1229(d)(1).) The following subsection, however, makes
clear Congress' intent not to "create any substantive or procedural right or
benefit that is legally enforceable by any party against the United States or
its agencies or officers or any other person." (INA § 239(d)(2), 8 U.S.C. §
1229(d)(2).)
The DHS is thus free to initiate deportation proceedings against a

noncitizen 5, 10, 25 years, or more after the deportable conviction has
occurred. E.g., Atkinson v. Attorney General of U.S., 479 F.3d 222 (3d Cir.
2007) (deportation proceedings begun in June, 1997, on the basis of a Dec.
1991, conviction of conspiracy to distribute a controlled substance: six-year
delay); Toia v. Fasano, 334 F.3d 917 (9th Cir. June 30, 2003) (removal
proceedings first begun in 1997 on the basis of a 1989 conviction: eight-
year delay); Matter of Brevia, 23 I. & N. Dec. 766 (BIA 2006), aff’d, Brieva-
Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007) (deportation proceedings
begun in February, 2003, on the basis of a 1995 conviction of unauthorized
use of a motor vehicle: eight-year delay). There is no legal protection
whatsoever against government delay in the initiation of removal
proceedings. (INA § 239(d)(2), 8 U.S.C. § 1229(d)(2).)
208
§ 5.7 B. General Considerations
§ 5.8 1. Developing a Strategy
§ 5.9 2. Obtaining the Relief: General Procedure
Other
CRIM DEF – NEGOTIATING WITH PROSECUTORS POST CON RELIEF –

NEGOTIATING WITH PROSECUTORS
Some issues to cover when negotiating with prosecutors, either to obtain a
safe plea bargain that will not result in adverse immigration consequences,
or when trying to negotiate the reopening of a case via post conviction
relief for the same purposes, would be the following: (1) It is legitimate to
negotiate dispositions in light of the immigration consequences to the
defendant and innocent family and friends;
(2) Prosecutorial discretion is broad enough to take into account totality of
the circumstances;
(3) It is not proper or realistic to act as if the immigration consequences do
not exist;
(4) There is a public interest only in punishing the defendant, but not in
punishing his or her innocent family;
(5) The victim very often has a strong interest in avoiding the deportation
of the defendant, e.g., in DV cases to preserve the parent-child relationship
and continue to obtain child support from the defendant, which would
terminate upon deportation;
(6) It is appropriate to differentiate between good guys and bad guys, and
to reward defendants who successfully turn their lives around by offering
flexibility in plea bargaining to avoid immigration consequences, or in
negotiating post-conviction relief for the same purpose, and
(7) It serves the common interest in fairness to give the defendant
accurate advance notice of all consequences, including the important
immigration consequences, of the plea so the defendant can make an
informed decision.
§ 5.10 3. 10sion Between Strength of Ground and

Equities
§ 5.11 4. Adverse Criminal Consequences of Setting

Aside Conviction
209
§ 5.12 5. Vacating a Conviction Will Not Avoid

Conduct-Based Immigration Consequences
§ 5.13 6. Ex Post Facto Laws and Obtaining the

Benefit of Changes in the Law
Second Circuit
EX POST FACTO – CONTROLLING DATE – LAST DATE OF THE OFFENSE

ALLEGED IN THE CHARGE
United States v. Broderson, 67 F.3d 452 (2d Cir. 1995); U.S.S.G. § 1B1.11(b),
comment (n.2) (for Ex Post Facto purposes, controlling date is the last date
of the offense, as alleged in indictment).
§ 5.14 II. Federal Vehicles for Vacating a Conviction
§ 5.15 A. Motion to Withdraw Plea
Ninth Circuit
POST CON RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA

United States v. Ross, 511 F.3d 1233 (9th Cir. Jan. 14, 2008 ) (a conviction
and 188-month sentence following a guilty plea to conspiracy to distribute
crack is affirmed in part and remanded in part where: 1) a failure to advise
defendant of the standard of proof during the plea colloquy did not
constitute plain error; 2) there was no abuse of discretion in denying
defendant's motion to withdraw his guilty plea; and 3) a remand was
warranted pursuant to Ameline).
POST CON RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA MADE ON

GROUND COURT FAILED TO ADVISE DEFENDANT OF REASONABLE DOUBT
STANDARD PROPERLY DENIED
United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) (rejecting
argument that the district court abused its discretion when it denied the
motion to withdraw the guilty plea, since defendant claims his intention to
plead guilty to the offense while retaining the right to litigate the drug
quantity constitutes a “fair and just reason” for withdrawing his plea under
Federal Rule of Criminal Procedure 11(d)(2)(B), since the court had
informed him “by pleading guilty, you are agreeing to the base amount”
and the defendant agreed with the factual basis including drug quantity
stated by the government).
210
POST CON RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA –

DEFENDANT'S STATEMENTS DURING PLEA COLLOQUY ENTITLED TO
STRONG PRESUMPTION OF VERACITY
United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008)
("Statements made by a defendant during a guilty plea hearing carry a
strong presumption of veracity in subsequent proceedings attacking the
plea. United States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir.2001) (giving
“substantial weight” to a defendant's in-court statements in determining
whether a guilty plea was voluntary); United States v. Anderson, 993 F.2d
1435, 1438 (9th Cir.1993) (“[S]tatements made by a criminal defendant
contemporaneously with his plea should be accorded great weight because
[s]olemn declarations made in open court carry a strong presumption of
verity.”) (internal quotation omitted).").
POST CONVICTION RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA –

STANDARD OF REVIEW -- ABUSE OF DISCRETION – ERROR OF LAW
United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 (9th
Cir. July 15, 2004) ("This Court reviews a district court's denial of a motion
to withdraw a guilty plea for an abuse of discretion. See United States v.
Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001) (en banc). A district court abuses
its discretion when it makes an error of law. See id.; see also Koon v.
United States, 518 U.S. 81, 100 (1996) ("A district court by definition
abuses its discretion when it makes an error of law.")).
§ 5.16 1. Procedural Requirements
POST CON – FEDERAL – RULE 33 MOTION TO VACATE — TIME LIMITS

Eberhart v. United States, ___ U.S. ___ (October 31, 2005) (Federal Rule of
Criminal Procedure 33, which allows a district court to vacate any judgment
and grant a new trial if the interest of justice so requires, is an inflexible
claim-processing rule, and the Seventh Circuit incorrectly construed its
time limitations as jurisdictional).
Ninth Circuit
POST CONVICTION RELIEF – VEHICLES – SUA SPONTE MOTION TO VACATE

GUILTY PLEA
In re Ellis, ___ F.3d ___ (9th Cir. Feb. 04, 2004) (district court lacks sua
sponte authority to vacate a previously entered and accepted guilty plea;
upon rejecting the plea agreement, the only course available for the
district court under FRCP rule 11 is to advise the defendant of his rights,
211
including the right to withdraw the guilty plea).

http://caselaw.findlaw.com/data2/circs/9th/0170724p.pdf
§ 5.17 2. Grounds
Ninth Circuit
POST-CON RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA – GROUNDS

– INNOCENCE
United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 *3
(9th Cir. July 15, 2004 (Noncitizen request to withdraw plea to violation of
18 U.S.C. § 1326(a), illegal reentry, on the basis that Immigration Judge
failed to inform noncitizen of possible relief under INA § 212(c), and
therefore initial deportation was improper, is essentially an assertion of
actual innocence).
POST-CONVICTION RELIEF – FEDERAL – MOTION TO WITHDRAW PLEA –

GROUNDS
United States v. Ortega-Ascanio, ___ F.3d ___, 2004 WL 1575244 (9th Cir.
July 15, 2004) (defendant may withdraw guilty plea after district court
accepts plea, but before sentencing if defendant can show fair and just
reason for withrawal, including inadequate plea colloquy, newly discovered
evidence, intervening circumstances, or any other reason for withdrawing
plea that did not exist when plea was entered).
§ 5.18 3. Immigration Consequences
§ 5.19 B. Direct Appeal
Eighth Circuit
JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS MAY NOT

CONSIDER NON-RECORD MATERIAL SUBMITTED FOR THE FIRST TIME ON
APPEAL
Gebremaria v. Ashcroft, __ F.3d __ (8th Cir. Aug. 2, 2004) (IIRAIRA §
309(c)(4)(B) bars consideration of material not included in the record from
the immigration court proceeding, including proof of noncitizen’s medical
condition where noncitizen was aware of the condition during the initial
proceedings).
212
Ninth Circuit
POST CON RELIEF – APPEAL – FEDERAL – MAGISTRATE MAY ISSUE

CERTIFICATE OF APPEALABILITY
Hanson v. Mahoney, ___ F.3d ___ (9th Cir. Jan. 10, 2006) (federal
magistrate judges who adjudicate habeas petitions by consent of the
parties have authority to issue certificates of appealability).
APPEALS - FAILURE OF GOVERNMENT TO ARGUE HARMLESSNESS

United States v. Gonzalez-Flores, __ F.3d __ (9th Cir. Aug., 12, 2005) (the
burden to that an error was harmless is on the government; reversal is
required where harmlessness is not shown by a preponderance of the
evidence). See United States v. Seschillie, 310 F.3d 1208, 1214-16 (9th Cir.
2002). Here government advanced no argument that the evidentiary error
was harmless. "Usually when the government fails to argue harmlessness,
we deem the issue waived and do not consider the harmlessness of any
errors we find. See, e.g., United States v. Varela-Rivera, 279 F.3d 1174,
1180 (9th Cir. 2002); United States v. Vallejo, 237 F.3d 1008, 1026 (9th Cir.
2001), amended by 246 F.3d 1150. This approach makes perfect sense in
light of the nature of the harmless-error inquiry: it is the government's
burden to establish harmlessness, and it cannot expect us to shoulder that
burden for it. However, we recognize that no interest is served -- and
substantial time and resources are wasted -- by reversal in those unusual
cases in which the harmlessness of any error is clear beyond serious debate
and further proceedings are certain to replicate the original result."
JUDICIAL REVIEW – HABEAS – IMMIGRATION CASES

Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2004), reh’g en banc denied __
F.3d __, 2004 WL 151667 (9th Cir. 2004) (doctrine of issue preclusion
prevents noncitizens from filing habeas corpus to challenge whether an
offense is an aggravated felony, since the same issue was raised in
determining whether the court had jurisdiction to hear the case on petition
for review; twelve circuit judges dissented to denial of rehearing, arguing
that the decision cuts off habeas to most immigrants seeking the petition).
Tenth Circuit
POST CON RELIEF – DIRECT APPEAL – FEDERAL – MOOTNESS – DIRECT

APPEAL PROPERLY DISMISSED AS MOOT AFTER DEFENDANT HAD BEEN
REMOVED FROM THE UNITED STATES
US v. Vera-Flores, __ F.3d __, 2007 WL 2247660 (10th Cir. Aug. 7, 2007)
(appeal of a sentence for possession of a firearm by an illegal alien is
213
dismissed where defendant's removal from the United States mooted his
appeal).
Second Circuit
POST CON RELIEF – FEDERAL -- APPEAL – MOOTNESS – DEPORTATION OF

APPELLANT DID NOT RENDER APPEAL FROM SENTENCE MOOT
United States v. Hamdi, ___ F.3d ___, 2005 WL 3366948 (2d Cir. Dec. 12,
2005) (completion of sentence and deportation of defendant do not render
his appeal from sentence moot).
Ninth Circuit
APPEALS - FEDERAL - CHALLENGE TO SUFFICIENCY OF INDICTMENT

United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing
appeal challenging whether indictment alleges sufficient facts to state an
offense because such challenge must await final judgment after trial; court
refused to treat appeal as mandamus, since trial court did not clearly err)
Use Note: Mandamus appears to be the appropriate vehicle for redress
if indictment is fatally flawed.
§ 5.21 2. Filing a Late Notice of Appeal
Sixth Circuit
CONVICTION – FINALITY – OUT OF TIME APPEAL – PENDENCY OF REQUEST

FOR LATE APPEAL DOES NOT AFFECT FINALITY OF CONVICTION
United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004)
(request to begin belated appeal does not affect finality of a conviction).
Ninth Circuit
POST CON RELIEF – APPEAL – OUT OF TIME APPEAL

Johnson v. United States, 362 F.3d 636 (9th Cir. April 2, 2004) (second
petition brought to challenge sentence not barred under "successive rule"
by first habeas petition, brought to challenge counsel's failure to file notice
of appeal).
POST CON RELIEF – APPEAL – OUT OF TIME APPEAL

Johnson v. United States, __ F.3d __ (9th Cir. April 2, 2004) (First habeas
214
petition, brought only to challenge trial counsel failure to file notice of

appeal, did not bar second "successive" petition challenging petitioner's
sentence; successful 2255 petition, utilized to obtain out-of-time appeal,
does not render subsequent collateral challenge "second" or "successive"
under AEDPA).
§ 5.22 3. Attacking a Waiver of Appeal
POST CON RELIEF – APPEAL – WAIVER OF APPEAL IN PLEA AGREEMENT

DOES NOT BAR COLLATERAL ATTACK RAISING ERRORS IN MEANS BY
WHICH PLEA AGREEMENT WAS REACHED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S.
Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (waiver of appeal in plea
agreement does not bar collateral attack raising errors in means by which
plea agreement was reached: "'There is no general bar to a waiver of
collateral attack rights in a plea agreement.' Frederick v. Warden,
Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing
Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)). 'However,
a waiver of appellate or collateral attack rights does not foreclose an attack
on the validity of the process by which the waiver has been produced,
here, the plea agreement.' Id. (citations omitted). Where, as here, a
petitioner claims a violation of Rule 11 or the ineffectiveness of trial
counsel, the Second Circuit has stated that he is not barred under the
terms of the plea agreement from bringing a petition to vacate the
conviction based on the legal shortcomings of the process in which the
waiver was obtained. See id. at 196. Accordingly, the Court will address
'the merits of [the] petition notwithstanding [the petitioner's] general
waiver of the right to collaterally attack his conviction.' Id. at 193; see also
Lebron v. United States, 267 F. Supp.2d 325, 328 (E.D.N.Y. 2003).").
Ninth Circuit
POST CON – APPEAL – WAIVER OF PRE-PLEA ISSUES BY ENTRY OF PLEA

United States v. Castillo, ___ F.3d ___ (9th Cir. Sept. 22, 2006) (appeal from
conviction by guilty plea for being an illegal alien in possession of a firearm
dismissed where defendant's entry of an unconditional guilty plea deprived
the appeals court of jurisdiction to consider his pre-plea constitutional
claims, and that jurisdictional defect is not waivable by the government).
215
POST CON RELIEF – FEDERAL – APPEAL – WAIVER OF APPEAL VALID

BECAUSE PLEA VALID
United States v. Pacheco-Navarette, ___ F.3d ___, 2005 WL 3502055 (9th
Cir. Dec. 23, 2005) (appeals from convictions and sentences following guilty
pleas to being noncitizens in possession of a firearm are dismissed for lack
of jurisdiction where appeal waivers were not invalid since nothing about
the plea process was unlawful).
POST CON RELIEF – FEDERAL – APPEALS – WAIVER OF APPEAL

United States v. Speelman, ___ F.3d ___ (9th Cir. Dec. 16, 2005)
(stipulation in plea agreement that defendant "knowingly, expressly and
voluntarily waives the right to contest either the conviction or the sentence
or the application of the sentencing guidelines in any post-conviction
proceeding including any proceeding under 28 U.S.C. section 2255" held
insufficient to show that he waived his right to directly appeal his sentence,
since: "In common legal usage, the term 'post conviction proceeding' refers
to a collateral challenge to a judgment or sentence, as opposed to a direct
appeal.").
POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO ADVISE –

WAIVERS OF POST-CONVICTION RELIEF
Washington v. Lampert, 422 F.3d 864 (9th Cir. Sept. 6, 2005) (ineffective
assistance where trial counsel failed to explain consequences of the
stipulated sentencing agreement, and the effect of waivers of post-
conviction relief)
POST CON RELIEF – DIRECT APPEAL – WAIVER OF APPEAL POST CON RELIEF
– GROUNDS – GUILTY PLEA WAIVES GROUNDS
United States v. Lopez-Armenta, __ F.3d __ (9th Cir. March 10, 2005)
(defendant's challenge to the district court's denial of his motion to
suppress is dismissed since he waived his right to appeal pretrial
constitutional defects when he entered an unconditional guilty plea).
POST CON RELIEF – DIRECT APPEAL – WAIVER OF APPEAL – WAIVER

INEFFECTIVE SINCE INEFFECTIVE ASSISTANCE INVALIDATED PLEA
AGREEMENT POST CON RELIEF – DIRECT APPEAL -- CLAIM OF INEFFECTIVE
ASSISTANCE PROPERLY RAISED ON DIRECT APPEAL AFTER APPEAL WAIVER
United States v. Jeronimo, __ F.3d __ (9th Cir. Feb. 23, 2005) Court lacks
216
jurisdiction to entertain appeals where there is a valid and enforceable

waiver of right to appeal. United States v. Vences, 169 F.3d 611, 613 (9th
Cir. 1999). Appellate court reviews de novo whether defendant has waived
right to appeal by entering into plea agreement and validity of such a
waiver. United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir. 2003).
Waiver of appellate rights is enforceable if (1) the language of the waiver
encompasses his right to appeal on the grounds raised, and (2) the waiver
is knowingly and voluntarily made. United States v. Joyce, 357 F.3d 921,
922 (9th Cir. 2004); United States v. Martinez, 143 F.3d 1266, 1270-71 (9th
Cir. 1998). Here, defendant waived all grounds, including whether the trial
court abused discretion in refusing to let him withdraw his plea. Record on
direct appeal insufficient to determine whether agreement was knowingly
and voluntarily made. Matter should be raised in habeas. Note Berzon, J.
dissent: "the majority offends logic with a basic ‘chicken and egg’ scenario:
It relies on a waiver whose validity is contingent upon the answer to a legal
question to preclude the consideration of that very legal question." Trial
counsel left defendant uninformed about a certain legal fate (sentencing as
career criminal) and instead affirmatively indicated a lower sentence was
possible than was actually the case. This issue could and should be dealt
with on direct appeal, as the evidence had been presented to the trial
court during the plea withdrawal hearing and the government did not
dispute it. Ed. Note: Judge Berzon is absolutely right. There is absolutely no
point in wasting everyone’s time and money raising an issue on habeas
that can easily be reached on direct appeal.
POST CON – APPEALS – WAIVER – COMPETENT BUT SUICIDAL DEFENDANT

Dennis v. Budge, __ F.3d __ (9th Cir. Aug. 5, 2004) (fact that defendant has
mental disorder that causes defendant to choose execution over appeal
does not show defendant lacks capacity to make rational choice, as long as
mental disorder does not affect defendant’s capacity to appreciate options
and choose among them)
POST CONVICTION RELIEF – APPEAL – WAIVER OF APPEAL – WAIVER OF

APPEAL AS TO ANY ASPECT OF SENTENCE WAIVED APPEAL OF VALIDITY OF
SUPERVISED RELEASE RESTRICTIONS
United States v. Joyce, ___ F.3d ___ (9th Cir. February 3, 2004) (plea
agreement waiving right to appeal conviction and "any aspect of the
sentence imposed," precludes defendant from appealing restrictions
imposed as special conditions of supervised release).
217
Other
POST CONVICTION RELIEF – DIRECT APPEAL –ORDER VACATING

CONVICTION ON MERITS ON APPEAL OR ON POST CONVICTION
PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES
Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This
definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. §
1101(a)(48)(A)], though broad, is clearly not intended to encompass
convictions that have been formally entered but subsequently reversed on
appeal or in a collateral proceeding for reasons pertaining to the factual
basis for, or procedural validity of, the underlying judgment. Cf. In re P-, 9
I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to
writ of coram nobis for a constitutional defect could not serve as basis for
order of deportation). Subsequently set-aside convictions of this type fall
outside the text of the new definition because, in light of the subsequent
proceedings, they cannot be considered formal adjudications of the alien's
guilt.")
§ 5.24 a. Effect of Reversal of Conviction
§ 5.25 b. Finality Of Decision
Lower Courts of Fifth Circuit
CONVICTION – DATE OF CONVICTION IS DATE PUNISHMENT IMPOSED

Donaldson v. United States, __ F.Supp.2d __, 2005 WL 1248879 (S.D. Tex.
April 26, 2005) (noncitizen found guilty by jury of an aggravated felony
offense [simple possession] on November 13, 1989, but sentenced [to
deferred adjudication] on January 19, 1990, was found to have been
"convicted" on January 19, 1990, and was therefore permanently barred
from naturalization for inability to show good moral character).
Ninth Circuit
POST CON RELIEF – FINALITY OF ORDER VACATING CONVICTION

The DHS is arguing that if the prosecution appeals a trial court order
vacating the criminal judgment against the defendant, the immigration
court can continue to treat the case as if the conviction is still in effect.
Immigration counsel could try the argument that a trial-court conviction is
218
treated as existing in criminal court, even though an appeal is pending, but

of course that is not true in immigration court: a conviction on appeal is
not treated as final in immigration court until the appeal is over with.
Immigration counsel could try the judicial economy argument, that 95% of
appeals in criminal cases are unsuccessful, so it is grossly unfair to deport
the respondent before the appeal is over because 95% of the time it will
have been a mistake, but the prosecution could break down that statistic
into defense appeals (95% lost) and prosecution appeals (67% won). The
Ninth Circuit in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000),
vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), stated
that Congress cannot be thought to intend that a noncitizen should be
deported when a delay until probation has expired will bring an effective
expungement. The BIA in Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980),
held that the IJ has discretion to continue a deportation hearing to allow
the respondent to get an expungement where the expungement will solve
the problem. These decisions could be used to argue that the IJ should at
least continue the removal proceeding to see if the deportable conviction
still exists at the termination of the appeal. This last is a stronger argument
if the prosecution's grounds for appeal is weak. It would be possible to file
a habeas petition in United States District Court, under 28 U.S.C. § 2241,
and argue that the prosecution is not likely to prevail on the appeal, and
therefore the DHS is not likely ultimately to win a deportation order, and
the deportation proceeding should therefore be stayed until the criminal
appeal has been completed.
BIA
CONVICTION – FINALITY OF CONVICTION – FIFTH AND SEVENTH CIRCUITS

DO NOT FOLLOW GENERAL RULE
In most circuits, convictions in criminal cases are not considered sufficiently
final to permit the initiation of deportation proceedings if an appeal is
pending or they are still subject to appeal. Matter of Polanco, 20 I. & N.
Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh Circuits. See
Moosa v. INS,171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322
F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th
Cir. 2004).
§ 5.26 5. Negotiating a Better Result On Appeal
§ 5.27 C. Habeas Corpus

219
Second Circuit
POST CONVICTION RELIEF – NO PETITION FOR REVIEW JURISDICTION OVER

HABEAS PETITION CHALLENGING CONVICTION
Sandher v. Gonzales, ___ F.3d ___ (2d Cir. March 15, 2007) (dismissing
habeas petition that challenged criminal conviction, and had been
transferred from district court to court of appeals under REAL ID Act of
2005 § 106 since section 106 does not apply to habeas petitions
challenging a criminal conviction).
Ninth Circuit
POST-CON HABEAS CORPUS - FEDERAL - EVIDENCE OF ACTUAL INNOCENCE

Smith v. Baldwin, 466 F.3d 805 (9th Cir. Oct. 24, 2006) (petitioner raising
claim of actual innocence, and that state coerced principal witness into not
testifying, may pursue federal habeas even though he did not comply with
all the procedural prerequisites, holding petitioner met Schlup standard
after according disputed witness' statements the benefit of the
presumption of truthfulness), citing Schlup v. Denno, 513 U.S. 298, 315
(1995).
POST CON RELIEF – HABEAS – FEDERAL

Buckley v. Terhune, ___ F.3d ___, 2005 WL 147437 (9th Cir. Jan. 25, 2005)
(grant of habeas corpus reversed where state court's determination of
facts not unreasonable under AEDPA).
JUDICIAL REVIEW – HABEAS – IMMIGRATION CASES

Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2004), reh’g en banc denied __
F.3d __, 2004 WL 151667 (9th Cir. 2004) (doctrine of issue preclusion
prevents noncitizens from filing habeas corpus to challenge whether an
offense is an aggravated felony, since the same issue was raised in
determining whether the court had jurisdiction to hear the case on petition
for review; twelve circuit judges dissented to denial of rehearing, arguing
that the decision cuts off habeas to most immigrants seeking the petition).
§ 5.28 1. General Requirements
POST CON RELIEF – SUFFICIENCY OF PRESERVATION OF CONSTITUTIONAL

CLAIM
Dye v. Hofbauer, ___ U.S. ___ (October 11, 2005) (denial of habeas corpus
220
petition reversed where the Court of Appeals incorrectly ruled that

prosecutorial misconduct claim was presented improperly).

Brown v. Payton, __ U.S. __ (March 22, 2005) (grant of habeas relief to
defendant is reversed where Ninth Circuit's decision was contrary to the
limits on federal habeas review imposed by the Antiterrorism and Effective
Death Penalty Act).
HABEAS CORPUS - FEDERAL - EXHAUSTION

Baldwin v. Reese, 124 S.Ct. 1347 (March 2, 2004) (ineffective assistance of
counsel claim not "fairly presented" where petitioner did not complain that
ineffective assistance violated federal law; state supreme courts not
required to read lower appellate opinions before deciding whether to grant
a hearing, courts should be able to rely exclusively on briefs to alert them
to issues). Use Note: The Court gave some guidance on presenting issues
of federal law in state courts: "A litigant wishing to raise a federal issue can
easily indicate the federal law basis for his claim in a state court petition or
brief, for example, by citing in conjunction with the claim the federal
source of law on which he relies or a case deciding such a claim on federal
grounds, or by simply labeling the claim 'federal.'" From this statement, it
appears that the Court is indicating that a defendant can "federalize" an
issue simply by making any reference to "federal law."
POST CON RELIEF – HABEAS – FEDERAL – REQUIREMENT OF EXHAUSTION

OF FEDERAL CLAIM IN STATE COURT
Baldwin v. Reese, 124 S.Ct. 1347 (March 02, 2004) (prisoner seeking habeas
failed to exhaust state remedies by failure to "fairly present" federal claim
to state court).
Second Circuit
POST CON RELIEF – FEDERAL – HABEAS – CORAM – 2241 – 2255

Grullon v. Ashcroft, 374 F.3d 137 (2d Cir. June 30, 2004) (doctrine that
second § 2255 petitions may be considered motion to amend previous
pending petition also applies to second § 2241 petitions). See Ching v.
United States, 298 F.3d 174 (2d Cir. 2002).

221
POST CON – TENNESSEE – CORAM NOBIS

State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A
writ of error coram nobis lies "for subsequently or newly discovered
evidence relating to matters which were litigated at the trial if the judge
determines that such evidence may have resulted in a different judgment,
had it been presented at the trial." T.C.A. § 40-26-105; State v. Hart, 911
S.W.2d 371, 374 (Tenn. Crim. App. 1995).").
Ninth Circuit
POST CON RELIEF – HABEAS – SUCCESSIVE HABEAS

Carrington v. United States, ___ F.3d ___, 2007 WL 2597326 (9th Cir. Sept.
11, 2007) (sentences for drug offenses are affirmed where: 1) the statutory
limits on second or successive habeas petitions do not create a gap in the
post-conviction landscape that can be filled with common law writs; 2)
Booker does not apply to cases on collateral review; 3) Booker did not
lower sentencing ranges, nor was Booker an action "by the Sentencing
Commission", therefore 18 U.S.C. section 3582(c)(2) does not apply; and 4)
petitioners did not present the exceptional circumstances and equities
necessary for a grant of extraordinary relief).
POST CON RELIEF – HABEAS CORPUS – FEDERAL – CONSTITUTIONAL

CHALLENGE TO AEDPA REJECTED
Crater v. Galaza, 491 F.3d 1119 (9th Cir. July 9, 2007) (Anti-Terrorism and
Effect Death Penalty Act is not unconstitutional restriction on habeas relief:
"the Act does not preclude this Court from entertaining an application for
habeas corpus relief, although it does affect the standards governing the
granting of such relief.").
POST CON RELIEF – HABEAS CORPUS – FEDERAL - BURDEN TO

DEMONSTRATE STATE PROCEDURAL RULE IS NOW ADEQUATE
King v. LaMarque, ___ F.3d ___ (9th Cir. Sept. 20, 2006) (after federal court
has found a state procedural rule inadequate (here the timeliness rule of In
re Clark (1993) 855 P.2d 729), burden falls on the government to show that
the rule is now adequate).
http://caselaw.lp.findlaw.com/data2/circs/9th/0515757pv2.pdf
POST CON RELIEF – FEDERAL – SUCCESSIVE PETITION DISMISSED –

INSUFFICIENT SHOWING OF ACTUAL INNOCENCE
Stephens v. Herrera, ___ F.3d ___(9th Cir. Sept. 13, 2006) (habeas petition
dismissed because showing of actual innocence was insufficient within the
meaning of Bousley v. United States, 523 U.S. 614, 623 (1998) to overcome
222
the successive-petition bar of 28 U.S.C. § 2255).

HABEAS CORPUS - FEDERAL - MIXED PETITION

Jackson v. Roe, __F.3d __ (9th Cir. Sept. 23, 2005) (federal court must stay
mixed petition while petitioner exhausts unexhausted claims pending
before California Supreme Court), following Rhines v. Weber, 125 S.Ct.
1528 (2005).
POST-CON NATIONAL - HABEAS CORPUS - FEDERAL - SHOWING REQUIRED

FOR HEARING
Earp v. Stokes, 423 F.3d 1024 (9th Cir. Sept. 8, 2005) (Petitioner alleged
facts warranting evidentiary hearing on claim that prosecutor committed
prejudicial misconduct by dissuading a witness from testifying, and on
claim that defense counsel was ineffective in failing to sufficiently
investigate mitigation evidence. Petitioner presented colorable claims and
had never received evidentiary hearing on them in state court.)
HABEAS CORPUS - FEDERAL - DISMISSING MIXED PETITION

Jefferson v. Budge, 419 F.3d 1013 (9th Cir. Aug. 16, 2005) (district court
erred in dismissing dismiss mixed habeas petition without first offering
petitioner the options provided in Rose v. Lundy, 455 U.S. 509 (1982)
(choice of exhausting his unexhausted claims by returning to state court, or
abandoning those claims and pursuing the remaining exhausted claims in
federal court)).
HABEAS CORPUS - FEDERAL - EXHAUSTION FAILURE

Castillo v. McFadden, __ F.3d __, 2005 WL 427893 (9th Cir. Feb. 24, 2005)
(petitioner failed to exhaust state remedies because in his brief to the state
appellate court he did not apprise that court that he was making a federal
constitutional claim; citation to either a federal or state case involving the
legal standard for a federal constitutional violation would have been
sufficient to establish exhaustion [Peterson v. Lampert, 319 F.3d 1153,
1158 (9th Cir. 2003)]; general claim of denial of "fair trial," without citation
to federal or federally-based authority is not sufficient). Ed. Note: this is a
case where the state judge admitted a videotape of defendant’s
interrogation and later in the trial said, "In my 19 years on the trial bench, I
have never ever admitted a tape like that in evidence. I’ m really concerned
about it." The court then opined that its decision would "never hold up if
there is any appeal, never in a million years." Note powerful Hawkins, J.
dissent: "Castillo consistently complained of the use of the videotape in
evidence and the correspondingly obvious prejudicial impact. And make no
223
mistake about it, the tape is powerful evidence; so potent that all the
curative instructions in the world could not erase its impact. I would,
therefore, reach the merits and grant the petition." I fear that this is yet
another example of the Ninth Circuit avoiding relief to deserving
defendants based on hyper-technical legal reasoning. I hope this is not a
sign of things to come. Use Note: the majority’s action in ducking the issue
does not excuse state trial counsel’s failure to properly brief it. It’s not that
hard to throw in some federal constitutional cases, folks!
HABEAS CORPUS - FEDERAL - NO EXHAUSTION

Galvan v. Alaska Department of Corrections, 397 F.3d 1198 (9th Cir. Feb.
9th 2005) (petitioner failed to fairly present federal ineffective assistance
of counsel claim before highest state court when her petition to the Alaska
Supreme Court made only passing mention (in distinguishing a state case)
of the Sixth Amendment and of federal cases; "Briefing a case is not like
writing a poem, where the message may be conveyed entirely through
allusions and connotations. Poets may use ambiguity, but lawyers use
clarity. If a party wants a state court to decide whether she was deprived of
a federal constitutional right, she has to say so.").
HABEAS CORPUS – FEDERAL – FAIR PRESENTATION

Casey v. Moore, __ F.3d __ (9th Cir. Oct. 12, 2004) (sixth amendment
hearsay claims not "fairly presented" to state court since defendant cited
only state constitution; "A petitioner must present a claim (1) throughout
the entire direct appellate process of the state, or (2) throughout one
entire judicial postconviction process available in the state." Liebman &
Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed.
1998)).
POST CON RELIEF – FEDERAL – SUCCESSIVE HABEAS

Hamilton v. Newland, 374 F.3d 822 (9th Cir. July 01, 2004) (district court
erred in treating defendant’s motion as successive habeas petition rather
than FRCP 60(b)(6) motion).
HABEAS CORPUS -- FEDERAL -- INSUFFICIENT FEDERALIZATION

Castillo v. McFadden, 370 F.3d 882 (9th Cir. June 1, 2004) (defendant must
give state notice that he is bringing federal constitutional claims by
referring in appellate briefs to specific provisions of the federal constitution
or citing to federal law; raising federal arguments in trial motions
insufficient). See Baldwin v. Reese, 125 S.Ct. 1347, 1350 (2004). The
224
court stated that the concluding sentence that stated petitioner's rights
under the Fifth, Sixth and Fourteenth Amendments were violated was a
"conclusory, scattershot citation of federal constitutional provisions,
divorced from any articulated federal legal theory, was the first time
Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note
thoughtful and powerful dissent by Judge Hawkins, pointing out that
petitioner did cite federal cases in his argument.
HABEAS CORPUS – FEDERAL – SECOND HABEAS NOT SUCCESSIVE

Johnson v. United States, 362 F.3d 636 (9th Cir. April 2, 2004) (second
petition brought to challenge sentence not barred under "successive rule"
by first habeas petition, brought to challenge counsel's failure to file notice
of appeal).
§ 5.29 2. Federal Habeas Corpus
POST CON RELIEF – HABEAS – FEDERAL – DEFERENCE DUE TO STATE COURT

Bell v. Cone, 125 S.Ct. 847, 73 USLW 3428 (January 24, 2005) (a grant of a
writ of habeas corpus was improper where it failed to accord to the state
court the deference required by 28 U.S.C. § 2254(d)).
Second Circuit
JUDICIAL REVIEW – HABEAS – ABUSE OF THE WRIT

Esposito v. Ashcroft, ___ F.3d ___, 2004 WL 2966589 (2d Cir. Dec. 23, 2004)
(affirming district court order dismissing second habeas petition, which
sought to relitigate issues rejected in first action, where petitioner had
failed to appeal the initial habeas denial, on grounds of "abuse of the
writ").
POST CON RELIEF – FEDERAL – INEFFECTIVE COUNSEL – NO BAR FOR

FAILURE TO PURSUE IAC CLAIM ON DIRECT APPEAL
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S.
Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) ("A motion under § 2255 is not a
substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d
Cir. 1998). In § 2255 proceedings, the Supreme Court has recognized the
rule of procedural default or "exhaustion" of federal remedies. Reed v.
Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994).
Generally, the rule bars the presentation of a claim through a writ of
225
habeas corpus where the petitioner failed properly to raise the claim on
direct review. Id. If the claim has not been presented on direct review, the
procedural bar may be waived only if the petitioner establishes (1) "cause"
for the waiver and shows "actual prejudice" from the alleged violations or
(2) "actual innocence." Bousley v. United States, 523 U.S. 614, 622, 118 S.
Ct. 1604, 1611 (1998); Rosario v. United States, 164 F.3d 729, 732 (2d Cir.
1998); see also Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 2667-
68, 91 L. Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct.
2639, 2643-44, 91 L. Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72,
87, 97 S. Ct. 2497, 2506-07, 53 L. Ed.2d 594 (1977); Douglas v. United
States, 13 F.3d 43, 46 (2d Cir. 1993). Further, the traditional procedural
default rule generally does not apply to ineffective assistance of counsel
claims. Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690; 155 L. Ed.
2d 714 (2003). In Massaro, the Supreme Court held that ineffective
assistance claims are appropriately litigated in the context of a collateral
challenge in the district court and not on direct appeal. Id. at 504-05;
accord United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9, 124 S.Ct.
2333, 159 L. Ed. 2d 157 (2004). This is so because the trial record is not
developed precisely for the object of litigating the ineffective assistance
claim, but instead is devoted to issues of guilt or lack of guilt. Massaro, 538
U.S. at 504-05, 123 S. Ct. 1690; 155 L. Ed. 2d 714.").
POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA CLAIM NOT

BARRED BY FAILURE TO RAISE ON DIRECT APPEAL
Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence
pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel
grounds for misadvice concerning immigration consequences not barred by
failure to raise issues on direct appeal).
POST CON – FEDERAL – CAUSE AND PREJUDICE FOR NOT RAISING

GROUNDS ON DIRECT APPEAL GROUNDS
Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence
pursuant to 28 U.S.C. § 2255 on involuntary plea and ineffective counsel
grounds for misadvice concerning immigration consequences not barred by
failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F.
Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation
consequences of the defendant's sentence was "cause" for the defendant's
failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109,
111 (D.D.C. 2004) (permitting a procedurally barred § 2255 claim regarding
the voluntariness of a guilty plea made when the petitioner was not
226
properly informed that deportation was absolute).
Ninth Circuit
HABEAS CORPUS - FEDERAL - SECOND HABEAS NOT SUCCESSIVE

Johnson v. United States, __ F.3d __ (9th Cir. April 2, 2004) (First habeas
petition, brought only to challenge trial counsel failure to file notice of
appeal, did not bar second "successive" petition challenging petitioner's
sentence; successful 2255 petition, utilized to obtain out-of-time appeal,
does not render subsequent collateral challenge "second" or "successive"
under AEDPA).
Other
POST-CON – HABEAS CORPUS – ACTUAL INNOCENCE

House v. Bell, __ F.3d __ (Jun. 12, 2006) (defendant successfully made the
stringent showing required by the actual-innocence exception to
procedural default rules). http://laws.lp.findlaw.com/us/000/048990.html
§ 5.30 3. The Petition Must Be Timely Filed
Ninth Circuit
POST CON RELIEF – HABEAS CORPUS – FEDERAL – NEW PETITION FILED

AFTER DISMISSAL WITHOUT PREJUDICE FOR FAILURE TO EXHAUST DOES
NOT RELATE BACK TO DATE OF FILING OF ORIGINAL PETITION
Rasberry v. Garcia, ___ F.3d ___ (9th Cir. May 25, 2006) (habeas petition
filed after district court dismissed previous petition without prejudice for
failure to exhaust state remedies does not relate back to the date of filing
of original habeas petition).
POST CON – FEDERAL – HABEAS – TIMELINESS

United States v. Lafromboise, ___ F.3d ___ (9th Cir. October 26, 2005)
(court of appeals vacated denial of plaintiff's motion for habeas relief as
untimely, where district court's judgment in underlying criminal
proceedings is not yet final and the one-year limitations period has not
begun to run).
POST CON – HABEAS – FEDERAL – SECOND FILING RELATES BACK TO DATE

227
OF ORIGINAL FILING
Anthony v. Cambra, __ F.3d __ (9th Cir. Dec. 15, 2000) (district court
accepted resubmitted habeas petition containing only exhausted claims
nunc pro tunc to date of original petition; court had improperly denied
initial petition containing both exhausted and inexhausted claims).
§ 5.31 a. Federal Habeas Corpus and the AEDPA

Statute of Limitations
Ninth Circuit
POST CONVICTION RELIEF – FEDERAL HABEAS – STATUTE OF LIMITATIONS

– ABUSE OF DISCRETION TO FAIL TO STAY PETITION TO ALLOW
EXHAUSTION
Olvera v. Giurbino, 371 F.3d 569 (9th Cir. June 08, 2004) (abuse of
discretion where district court failed to allow defendant to stay habeas
petition so he could properly exhaust claims without having his petition
bared by the statute of limitations).
§ 5.32 i. The Starting Date

Evans v. Chavis, ___ U.S. ___ (Jan. 10, 2006) (court of appeals decision that
California prisoner's request for federal appellate review, made three years
after a lower state court ruled against him, was timely under AEDPA, is
reversed where the circuit court departed from the Supreme Court's
interpretation of the AEDPA as applied to California's system in Carey v.
Saffold, 536 U. S. 214 (2002)).
§ 5.33 ii. Statutory Tolling
POST CON RELIEF – HABEAS – FEDERAL – STATUTE OF LIMITATIONS –

STATE’S WAIVER OF STATUTE OF LIMITATIONS DEFENSE EXCUSED WHERE
THERE WAS NO INTELLIGENT WAIVER ON THE STATE’S PART AND ONLY AN
EVIDENT MISCALCULATION OF TIME
Day v. McDonough, ___ U.S. ___ (Apr. 25, 2006) (affirming dismissal of a
habeas petition as untimely under AEDPA one-year statute of limitations,
since district court had discretion to correct the state’s erroneous
computation sua sponte when there was no intelligent waiver on the
state’s part and only an evident miscalculation of time).
http://laws.lp.findlaw.com/us/000/041324.html Perhaps this principle
228
can be applied to excuse violations of the AEDPA statute of limitations on

the part of the petitioner, since due process requires procedural rules be
applied evenhandedly to the prosecution and defense. See Wardius v.
Oregon, 412 U.S. 470, 474 (1973) (procedural rules must cut both ways,
since due process "speak[s] to the balance of forces between the accused
and his accuser.").
POST CON RELIEF – HABEAS CORPUS – FEDERAL – STATUTE OF

LIMITATIONS – TOLLING BETWEEN STATE PETITIONS
Evans v. Chavis, ___ U.S. ___ (Jan. 10, 2006) (though California has no
statutory period for filing a challenge to a denial of a habeas petition,
three-year delay between adverse ruling and request for appellate review
was not a "reasonable time" within the meaning of In re Harris (1993) 5
Cal.4th 813, 828, n.7; state high court's denial "on the merits" did not
mean that it considered the petition timely; Supreme Court suggests that
the California court might define what it means by "reasonable time," and
strongly suggests that 30 to 60 days are the magic numbers).
POST CON RELIEF – HABEAS – FEDERAL – REVIEW OF STATE CONVICTION

PRECLUDED SINCE STATE PETITION REJECTED BY STATE COURT AS
UNTIMELY IS NOT PROPERLY FILED UNDER 28 U.S.C. § 2244(d)(2), AND
THEREFORE DOES NOT TOLL THE 1-YEAR AEDPA STATUTE OF LIMITATIONS
FOR FILING A FEDERAL HABEAS CORPUS PETITION
Pace v. DiGuglielmo, ___ U.S. ___, 2005 WL 957194 (April 27, 2005)
(federal habeas review of state conviction precluded since state petition
rejected by state court as untimely is not properly filed under 28 U.S.C. §
2244(d)(2), and therefore does not toll the 1-year AEDPA statute of
limitations for filing a federal habeas corpus petition).
Ninth Circuit
POST CON RELIEF – FEDERAL – AEDPA STATUTE OF LIMITATIONS – STATE

CONVICTIONS
Allen v. Siebert, 128 S.Ct. 2 (9th Cir. Nov. 5, 2007) (when a postconviction
petition is untimely under state law, "that [is] the end of the matter" for
purposes of tolling the AEDPA's 1-year statute of limitations for filing a
federal habeas petition, and the inquiry does not turn on the nature of the
particular time limit relied upon by the state court at issue).
POST CON RELIEF – HABEAS CORPUS – FEDERAL

King v. Lamarque, ___ F.3d ___ (9th Cir. Jul. 26, 2006) (simply contesting
229
the adequacy of a state rule is sufficient to meet the petitioner's burden,

under Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), if the court has
previously found the rule to be too ambiguous to bar federal review during
the applicable time period).
POST CON RELIEF – FEDERAL – HABEAS – STATUTE OF LIMITATIONS –

TOLLING – PROPERLY FILED PETITION
Bonner v. Carey, ___ F.3d ___ (9th Cir. Mar. 7, 2006) (California Superior
Court denied state petition as untimely when it said that petitioner could
have raised the claims in an earlier petition and that there "[wa]s no reason
stated for any delay in this regard"; petition was thus never "properly filed"
for purposes of the tolling provision of the Antiterrorism and Effective
Death Penalty Act of 1996).
HABEAS CORPUS – FEDERAL – INTERVAL TOLLING

Gaston v. Palmer, 387 F.3d 1004 (9th Cir. Oct. 28, 2004) (petitioner entitled
to tolling during time six separate state habeas petitions were pending,
including intervals between the dismissal of one application and the filing
of next one, because there is no strict time limit on the filing of habeas
petitions in the different courts; intervals as long as 307 and 282 days were
entitled to interval tolling).
POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS

Isley v. Arizona Dept. of Corr., __ F.3d __ (9th Cir. Sept. 15, 2004) (petition
for habeas corpus granted where state petition for post-conviction relief
was pending within the meaning of 28 U.S.C. section 2244(d)(2) and
entitled defendant to toll one year statute of limitation period for filing
federal post-conviction relief).
POST CON – HABEAS – FEDERAL – STATUTE OF LIMITATIONS – TOLLING –

FILING OF STATE POST CONVICTION RELIEF PETITION
Chavis v. Lemarke, ___ F.3d ___ (9th Cir. Aug. 27, 2004) (district court
dismissal of federal habeas corpus petition as untimely reversed since
statute of limitations was tolled due to filing of state habeas petitions).
POST CON -- HABEAS CORPUS -- FEDERAL -- TOLLING DURING STATE

REVIEW ROUNDS
Chavis v. LeMarque, ___ F.3d ___ (9th Cir. 2004) (AEDPA one-year statute
of limitations for 28 U.S.C. § 2254 habeas proceedings tolled while second
round of state post-conviction petitions were pending, even though they
230
were denied on procedural grounds, since state court's ultimate decision

on a particular petition does not affect whether that petition is "pending"
while court considers it). See also Carey v. Saffold, 536 U.S. 214, 219-21
(2002) (time gap between petitions viewed under California's
"reasonableness" standard rather than strict time limit; question is
whether petitioner unreasonably delayed filing in next court). A petition
is considered pending during one full round of state review, which includes
petitions in Superior Court, the Court of Appeal, and the state Supreme
Court. During subsequent rounds of state petitions, the statute of
limitations is tolled while each petition is pending, but not between
petitions. AEDPA time starts to run 31 days after the state supreme court
denies the final petition. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir.
2002).
§ 5.34 iii. Equitable Tolling
First Circuit
POST CON RELIEF – STATUTE OF LIMITATIONS

Neverson v. Farquharson, 366 F.3d 32 (1st Cir. May 4, 2004) (28 U.S.C. §
2244(d)(1) statute of limitations is not jurisdictional, and therefore can be
subject to equitable tolling).
Ninth Circuit
POST CON RELIEF – FEDERAL – STATUTE OF LIMITATIONS – EQUITABLE

TOLLING
Harris v. Carter, 515 F.3d 1051 (9th Cir. Feb. 8, 2008) (reversing district trial
court's order of dismissal of a petition for a writ of habeas corpus as
untimely, and remanding where equitable principles require tolling of the
AEDPA's statute of limitations in this rare case in which petitioner relied on
the circuit court's legally erroneous holding in determining when to file a
federal habeas petition).
POST CON RELIEF – FEDERAL – HABEAS – STATUTE OF LIMITATIONS --

EQUITABLE TOLLING – LACK OF ADEQUATE LAW LIBRARY
Roy v. Lampert, ___ F.3d ___ (9th Cir. Sept. 22, 2006) (federal habeas
petitions dismissed as untimely by district court remanded for evidentiary
hearing on equitable tolling claims where petitioners made sufficient
allegations that they pursued their claims diligently and faced
extraordinary circumstances once they were transferred to an Arizona
231
prison facility which allegedly had a woefully deficient law library.

POST CON RELIEF – FEDERAL – HABEAS – EQUITABLE TOLLING – DEFICIENT

LAW LIBRARY
Roy v. Lampert, ___ F.3d ___ (9th Cir. Jul. 12, 2006) (reversing dismissal of
petitioners' federal habeas petitions as untimely, and ordering evidentiary
hearing on their equitable tolling claim, where they made sufficient
allegations that they pursued their claims diligently and faced
extraordinary circumstances once they were transferred to an Arizona
prison facility which allegedly had a woefully deficient law library).
POST CON – HABEAS CORPUS – FEDERAL – HEARING ON TOLLING

Roy v. Lampert, __ F.3d __ (9th Cir. July 12, 2006) (petitioners entitled to
evidentiary hearing regarding claim that because they were transferred to
a prison with a "woefully deficient law library," statute of limitations should
be equitably tolled).
HABEAS CORPUS - FEDERAL - TOLLING DUE TO PRISON'S FAILURE TO

PROVIDE LAW LIBRARY MATERIALS
Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 7, 2006) (evidentiary hearing
required to determine if prison's failure to provide Spanish-language
materials and assistance to Spanish-speaking inmates constituted
extraordinary circumstance justifying tolling of one-year period for filing
federal habeas petition); distinguishes Kane v. Garcia Espitia, 126 S. Ct. 407,
408 (2005) (per curiam) (denial of access to a law library cannot provide a
basis for a pro se petitioner's habeas relief) because Mendoza only involves
the tolling of an AEDPA deadline, not grant of habeas relief.

LIMITATIONS – EQUITABLE TOLLING
Rasberry v. Garcia, ___ F.3d ___ (9th Cir. May 25, 2006) (equitable tolling
of federal habeas statute of limitations is not justified by lack of
sophistication of pro se petitioner, standing alone, as an extraordinary
circumstance).

LIMITATIONS – EQUITABLE TOLLING WHILE PETITIONER IN SEGREGATION
Espinoza-Matthews v. People of the State of California, ___ F.3d ___ (9th
Cir. Dec. 28, 2005) (petitioner in administrative segregation for his own
protection who was denied access to his legal materials was entitled to
232
equitable tolling [extraordinary circumstances beyond a prisoner's control

making it impossible to file a petition on time] of the one-year AEDPA
statute of limitations to file federal habeas corpus under 28 U.S.C. § 2254).
POST CON RELIEF – FEDERAL – HABEAS – STATUTE OF LIMITATIONS –

EQUITABLE TOLLING
Espinoza-Matthews v. People of California, ___ F.3d ___, 2005 WL 3535129
(9th Cir. Dec. 28, 2005) (reversing dismissal of defendant’s petition for a
writ of habeas corpus from his conviction as untimely, since defendant is
entitled to equitable tolling where he was denied access to his legal
materials for a period of time).
POST CON RELIEF – FEDERAL – HABEAS

United States v. Battles, 362 F.3d 1195 (9th Cir. March 30, 2004) (equitable
tolling applies to one year time limitation in 28 U.S.C. § 2255).
POST-CONVICTION RELIEF – FEDERAL – HABEAS

United States v. Battles, __ F.3d __ (9th Cir. March 30, 2004) (Equitable
tolling applies to one year time limitation in 28 U.S.C. § 2255).
§ 5.35 4. The Requirement Of Custody
POST CON RELIEF – HABEAS – FEDERAL – PROPER CUSTODIAN

In Rumsfeld v. Padilla, __ U.S. __, 2004 WL 1432135 (June 6, 2004) (habeas
is limited to the "immediate custodian"; proper respondent to habeas is
"the person" with ability to produce prisioner’s body before court, i.e. the
warden of facility where prisoner is being held, not Attorney General or
other remote supervisory official).
First Circuit
CRIM DEF – SENTENCE – DEPORTATION DOES NOT AUTOMATICALLY

TERMINATE PAROLE FOR PURPOSES OF CRIMINAL HISTORY SCORE
United States v. Carrasco-Mateo (1st Cir. November 23, 2004) (deportation
does not automatically terminate defendant’s existing parole term or
status for purposes of calculating criminal history score).
http://laws.lp.findlaw.com/1st/03-1553.html
233
Third Circuit
JUDICIAL REVIEW – HABEAS CORPUS – CUSTODY REQUIREMENT – NO

CUSTODY AFTER REMOVAL FROM UNITED STATES
Kumarasamy v. Att’y Gen. of the US, __ F.3d __ (3d Cir. Jun. 23, 2006)
(petitioners who have already been removed from the United States do not
satisfy the "in custody" requirement for habeas corpus jurisdiction).
Tenth Circuit
POST CONVICTION RELIEF - HABEAS - FEDERAL - CUSTODY REQUIREMENT

Broomes v. Ashcroft, __ F.3d __ (10th Cir. Feb. 17, 2004) (petitioner cannot
collaterally attack an expired state court conviction under 28 U.S.C. § 2241
or 2254); accord, Drakes v. INS, 330 F.3d 600, 605-606 (3d Cir., cert.
denied, 124 S.Ct. 541 (2003); Contreras v. Schiltgen, 151 F.3d 906, 907-908
(9th Cir. 1998); Neyor v. INS, 155 F.Supp.2d 127, 138-139 (D.N.J. 2001).
http://laws.findlaw.com/10th/026419.html
§ 5.36 a. Registration Requirements as Custody
Ninth Circuit
POST CON RELIEF -- EX POST FACTO – REGISTRATION REQUIREMENT DOES

NOT CONSTITUTE PUNISHMENT, SO MAY BE APPLIED RETROACTIVELY TO
OFFENSE COMMITTED PRIOR TO STATUTORY CHANGE
Hatton v. Bonner, ___ F.3d ___ (9th Cir. Jan. 27, 2004) (amendment to
Penal Code § 290, requiring registration for persons convicted of violating
Penal Code § 220 [assault with intent to commit oral copulation], could be
applied retroactively to defendant who committed offense prior to the
amendment, because registration is not punishment), citing Smith v. Doe,
123 S. Ct. 1140 (2003).
§ 5.37 b. Immigration Custody
Second Circuit
POST CON RELIEF – FEDERAL – HABEAS – CUSTODY – IMMIGRATION

CUSTODY DOES NOT CONSTITUTE CUSTODY UNDER 28 USC 2254
United States v. Ogunwomoju, 512 F.3d 69 (2d Cir. Jan. 7, 2008) (a
petitioner in immigration custody or under an order of removal as a
234
consequence of his criminal conviction is not "in custody" within the

meaning of 28 U.S.C. § 2254 for purposes of habeas corpus jurisdiction).
Ninth Circuit
POST CONVICTION RELIEF – HABEAS – FEDERAL – CUSTODY –

IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY SUFFICIENT TO
GRANT FEDERAL HABEAS JURISDICTION SUFFICIENT TO CHALLENGE LEGAL
VALIDITY OF CONVICTION UNDERLYING DEPORTATION PROCEEDINGS
Resendiz v. Kovensky, ___ F.3d ___, 2005 WL 1501495 (9th Cir. June 27,
2005) (immigration custody does not constitute custody sufficient to grant
federal habeas jurisdiction sufficient to challenge legal validity of
conviction underlying deportation proceedings, after AEDPA and IIRAIRA,
so a petitioner may not collaterally attack his state court conviction in a 28
U.S.C. § 2241 petition against the INS).
§ 5.38 c. Mootness
Second Circuit
JUDICIAL REVIEW – FEDERAL – HABEAS – MOOTNESS – REMOVAL DID NOT

RENDER MOOT HABEAS ACTION CHALLENGING REMOVAL ORDER ON BASIS
THAT CONVICTION DID NOT CONSTITUTE AN AGGRAVATED FELONY
Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (removal of
respondent did not render moot a federal habeas action under 28 U.S.C. §
2241 challenging validity of removal order on basis of aggravated felony,
since he can show some 'collateral consequence' ... meaning 'some
concrete and continuing injury other than the now-ended [threat of
removal]' to establish a live case or controversy; noncitizen convicted of a
crime of moral turpitude may seek cancellation of removal and thereby
avoid permanent inadmissibility, only if he is not an aggravated felon; fact
that noncitizen removed as aggravated felon causes ongoing damage
sufficient to create case and controversy).
POST CON RELIEF – HABEAS CORPUS – MOOTNESS – DEPORTED

AGGGRAVATED FELON PRESENTS LIVE CONTROVERSY
Swaby v. Ashcroft, 357 F.3d 156 (2nd Cir. Feb. 3, 2004) (lifetime bar from
reentrying the United States due to aggravated felony conviction is
collateral consequences which creates live controversy).
235
POST CON RELIEF – HABEAS – MOOTNESS AFTER DEPORTATION –

DISQUALIFICATION FROM NATURALIZATION CONSTITUTES CONTINUING
DAMAGE SUFFICIENT TO PREVENT MOOTNESS EVEN AFTER DEPORTATION
State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn.
App. June 7, 2005) (as a likely collateral consequence of the conviction, the
noncitizen's ability to petition for naturalization is gravely impaired, so the
issue is not moot and subject matter jurisdiction is not a bar to the
defendant's present appeal from denial of a motion to withdraw the plea).
Lower Courts of Third Circuit
POST CONVICTION RELIEF – HABEAS – IMMIGRATION – DEPORTATION

DOES NOT MOOT HABEAS
The fact that a noncitizen has been deported does not moot his habeas
petition. His future ineligibility for readmission to the United States
preserves his Article III standing. See Shittu v. Elwood, 204 F. Supp. 2d 876,
878 (E.D. Pa. 2002); Johnson v. Department of Justice, (Not Reported in
F.Supp.2d), 2004 WL 1240695 (E.D. Pa. June 3, 2004).
Fifth Circuit
VEHICLE – FEDERAL – HABEAS – MOOTNESS

Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of
noncitizen while appeal of district court dismissal of habeas petition was
pending in court of appeal did not deprive district court of habeas
jurisdiction on remand, and case was not moot, but district court lacked
authority to grant any relief beyond vacating defective deportation order).
§ 5.39 5. Procedure
POST CON RELIEF – US SUPREME COURT – FEDERAL HABEAS RULES DO

NOT LIMIT STATE COURT AUTHORITY TO REMEDY TEAGUE
NONRETROACTIVE VIOLATIONS
Danforth v. Minnesota, 128 S.Ct. 1029 (Feb. 20, 2008) (rule of Teague v.
Lane, 489 U. S. 288 (1989), does not limit the authority of state courts to
give broader effect to new rules of criminal procedure than is required by
Teague).
HABEAS CORPUS – FEDERAL – POWER TO DISMISS ON OWN MOTION

Day v. McDonough, __ U.S. ___ (Apr. 25, 2006) (district court had the
236
power (after giving petitioner notice and a chance to respond) to dismiss a

state habeas petition for untimeliness even though the State erroneously
agreed it was timely. If the waiver by the State had been deliberate, it
would have been an abuse of discretion to dismiss it, but here it was just
an error).
POST CON RELIEF – HABEAS – FEDERAL – APPEAL – CERTIFICATE OF

APPEALABILITY
Tennard v. Dretke, 124 S.Ct. 2562 (June 24, 2004) (district court should
have issued certificate of appealability, because reasonable jurist could
have found district court's assessment of constitutional claims relating to
defendant's low IQ of 67 debatable or wrong).
http://laws.lp.findlaw.com/us/000/02-10038.html
POST CONVICTION RELIEF – HABEAS – FEDERAL HABEAS – STATE

CONVICTION – WARNING TO PRO SE PLAINTIFF
Pliler v. Ford, 124 S.Ct. 2441 (June 21, 2004) (no requirement that district
court warn pro se plaintiff bringing habeas petition that it could not
consider motions to stay unless plaintiff dismissed unexhausted claims, or
that if he chose to dismiss the claims, they would be time-barred if raised
in the future).
First Circuit
POST CON – HABEAS – EXHAUSTION REQUIREMENT

Sayyah v. Farquharson, ___ F.3d ___, 2004 WL 1921824 (1st Cir. Aug. 30,
2004) (bar judicial review of final removal orders unless noncitizen has
exhausted all administrative remedies to which s/he has a right, under 8
U.S.C. § 1252(d), applies to bar habeas corpus petitions as to unexhausted
claims).
Ninth Circuit
POST CON RELIEF – HABEAS CORPUS – FEDERAL – SUFFICIENCY OF

EVIDENCE AT CLOSE OF CASE-IN-CHIEF
LaMere v. Slaughter, 458 F.3d 878 (9th Cir. Aug. 8, 2006) (habeas relief
properly denied, despite claims under In re Winship, 397 U.S. 358 (1970),
and Jackson v. Virginia, 443 U.S. 307 (1979), on the grounds that the
prosecution failed to introduce sufficient evidence of guilt during case-in-
chief, since Winship and Jackson do not apply to a motion for directed
verdict of acquittal at the close of the case-in-chief; court on habeas looks
237
at all the evidence presented to determine if it was sufficient).
POST CON RELIEF – HABEAS CORPUS – FEDERAL – REMAND FOR

EVIDENTIARY HEARING
Earp v. Ornoski, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (claim of ineffective
assistance for failure to investigate mitigating circumstances merited
evidentiary hearing).
HABEAS CORPUS - FEDERAL - NO WAIVER OF PROCEDURAL DEFAULT

OBJECTION
Morrison v. Mahoney, __ F.3d __, 2005 WL 418563 (9th Cir. Feb. 23, 2005)
(state did not waive procedural default argument by moving to dismiss first
petition on statute of limitations grounds, and then waiving that defense
when the case was returned to the district court after a successful appeal;
procedural default doctrine "bars federal habeas when a state court
declined to address a prisoner’s federal claims because the prisoner had
failed to meet a state procedural requirement." [Calderon v. United States
District Court, 96 F.3d 1126, 1129 (9th Cir. 1996) (internal quotations
omitted)]; the petitioner can avoid the effect of a procedural default by
showing cause and prejudice or manifest injustice [Martinez-Villareal v.
Lewis, 80 F.3d 1301, 1307 (9th Cir. 1996)]; it must be raised by the
government in its first responsive pleading, but the motion to dismiss was
not a responsive pleading).
HABEAS CORPUS - FEDERAL - EXPANSION OF RECORD

Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. Feb. 16, 2005) (district
court properly refused petitioner’s request to expand the record under
Rule 7 of rules governing 28 U.S.C. section 2254 cases with his own
declaration, on the grounds that petitioner had failed to comply with
section 2254(e)(2), requiring that petitioner show the factual predicate
could not have been discovered previously).
HABEAS CORPUS - FEDERAL - PROCEDURAL DEFAULT

Henderson v. Lampert, 396 F.3d 1049 (9th Cir. Jan. 28, 2005) (petition was
"second or successive" petition barred by 28 U.S.C. section 2244(b)(1),
where petition raised same claims raised in earlier petition that was
dismissed on state procedural default grounds (which constitutes a
decision on the merits), and petitioner failed to challenge first petition’s
dismissal).
GUILTY PLEAS - HABEAS - HEARING REQUIRED

United States v. Howard, ___ F.3d ___ (9th Cir. Aug. 25, 2004) (district
court should have permitted defendant to develop these claims on habeas
238
petition more fully in an evidentiary hearing; claim must be "so palpably

incredible or patently frivolous as to warrant summary dismissal" to justify
refusal of an evidentiary hearing); citing United States v. Leonti, 326 F.3d
1111, 1116 (9th Cir. 2003) (quoting United States v. Schaflander, 743 F.2d
714, 717 (9th Cir. 1984)).
POST CON – HABEAS – STATUTE OF LIMITATIONS – AMENDMENT RELATES

BACK TO DATE OF ORIGINAL FILING
Felix v. Mayle, 379 F.3d 612 (9th Cir. Aug. 09, 2004) (amendment to habeas
petition to include new claim relates back to date of filing of original
petition, and therefore avoids one year limitation under AEDPA).
§ 5.41 D. Coram Nobis
POST CON RELIEF – FEDERAL CORAM NOBIS

At common law, the writ of error coram nobis was used as a device for
correcting fundamental errors in both civil and criminal cases. United
States v. Morgan, 346 U.S. 502, 508 (1954). Although use of the writ was
suspended in civil cases in federal courts, the writ has nevertheless
survived to redress an ongoing injustice in a criminal case, and is available
even after the defendant has completed serving his sentence. Id. at 508-
511 [writ of coram nobis is available to void a judgment in a criminal case
which was obtained in violation of the United States Constitution].
A writ of error coram nobis is "essentially a remedy of last resort for

petitioners who are no longer in custody pursuant to a criminal
conviction." United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000).
Relief under a writ of coram nobis "is strictly limited to those cases in
which errors of the most fundamental character have rendered the
proceeding itself irregular and invalid." Ibid. Thus, the writ of error coram
nobis is limited to defects in a criminal case which sap the proceeding of
any legal validity and is intended to prevent substantial civil disabilities
attached to a wrongful criminal conviction. United States v. Keane, 852
F.2d 199, 203 (7th Cir. 1988); see also Phelps Dodge Corp. v. Guerra, 92
N.M. 47, 50 (1978) [where Rule 60 is properly invoked "it should be
liberally construed for the purpose of doing substantial justice"].
To obtain coram nobis relief, a petitioner must demonstrate that: (1) there
are circumstances compelling such action to achieve justice; (2) sound
239
reasons exist for failure to seek appropriate relief earlier; (3) the petitioner
continues to suffer legal consequences from his conviction that can only be
remedied by granting of the writ; and (4) the error is fundamental. United
States v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002); see also Foundation
Reserve Insurance Co. v. Martin, 79 N.M. 737, 449 P.2d 339 (Ct.App. 1968)
[Rule 60(B)(6) vests power in courts adequate to enable them to vacate
judgments whenever such action is appropriate to accomplish justice].
Thanks to Tova Indritz.
Ninth Circuit
POST CON RELIEF – FEDERAL – CORAM NOBIS – LACHES

United States v. Riedl, ___ F.3d ___, 2007 WL 2230256 (9th Cir. Aug. 6,
2007) (laches argument that government has not been prejudiced by
tardiness "would transform the extraordinary writ of coram nobis into a
free pass for attacking criminal judgments long after they have become
final." "It is irrelevant that the government has not established prejudice as
to Riedl's void-for-vagueness claim because the doctrine of laches only
becomes applicable once a petitioner has satisfied the second coram nobis
requirement.").
POST CON RELIEF – FEDERAL -- CORAM NOBIS – GROUNDS – INEFFECTIVE

ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12,
2005) (affirmative misadvice by defense counsel concerning immigration
consequences of disposition of criminal case constitutes ineffective
assistance of counsel where counsel said deportation was not a serious
possibility, and in fact it became a near certainty).
Ninth Circuit
POST CON RELIEF – CORAM NOBIS – NEED TO PETITION FOR CORAM NOBIS
DIRECTLY IN FEDERAL COURT
Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir.
June 27, 2005) (district court did not commit error in failing to consider 28
U.S.C. § 2241 habeas to be a petition for coram nobis, because this issue
had not been raised in the district court and petitioner provided no
authority suggesting that the district court might have a duty to sua sponte
raise the issue), distinguishing United States v. Kwan, ___ F.3d ___, 2005
WL 1119652 (9th Cir. May 12, 2005), in which the Ninth Circuit held that
240
coram nobis relief was available under similar circumstances, because here
the petitioner did not file coram nobis in the district court). The court in
Resendiz rejected a claim that the district court should have sua sponte
construed the petition as a petition for coram nobis, instead of habeas
corpus: "Resendiz argues that the district court should not have construed
his petition as one under § 2241, but instead should have construed it as a
writ of coram nobis, even though Resendiz never asked the court to do so.
Because Resendiz did not contend below that his petition should be
construed as a writ of coram nobis, and because he provides no authority
suggesting that the district court might have a duty to sua sponte raise the
issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp.,
953 F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate court will
not hear an issue raised for the first time on appeal."). In footnote 3 to this
quotation, the Resendiz court stated: "Our recent decision in United States
v. Kwan, No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which
we held that coram nobis relief was available under similar circumstances,
does not affect our decision. Unlike Kwan, Resendiz did not petition the
district court for the writ of coram nobis, but argued instead that the court
should have so construed his habeas petition sua sponte."
POST CON RELIEF – FEDERAL -- CORAM NOBIS – STATUTE OF LIMITATIONS

– AEDPA STATUTE OF LIMITATIONS FOR 2255 RELIEF DID NOT APPLY TO
CORAM NOBIS
2005) (one-year AEDPA statute of limitations for filing a motion to vacate a
judgment under 28 U.S.C. § 2255 did not apply to the filing of a petition for
a writ of error coram nobis after custody had expired in the federal
criminal case).
Other
POST CON RELIEF – FEDERAL – CORAM NOBIS

May v. People of Guam, 2005 Guam 17, 2005 WL 2654274 (Oct. 18, 2005)
(trial court erred in failing to recharacterize a habeas corpus petition, filed
after custody had expired, as a petition for a writ of error coram nobis, but
error was harmless since coram nobis would have been properly denied
because it was presented too late, over 24 years after the conviction
occurred, with no valid explanation for the delay).
§ 5.43 2. Grounds
241

Qiao v. United States, ___ F.Supp.2d ___, 2007 WL 4105813 (S.D.N.Y., Nov.
15, 2007) ("Qiao has shown that (1) his guilty plea was the product of
ineffective assistance of counsel and as such, should be set aside to
"achieve justice"; (2) his administrative efforts challenging the designation
of his 1999 conviction as an aggravated felony constitute "sound reasons . .
. for [his] failure to seek appropriate earlier relief"; and (3) the removal
proceedings brought by DHS against Qiao cause him "to suffer legal
consequences from his conviction that may be remedied by granting of the
writ." Id. at 90. Accordingly, Qiao's petition for a writ of error coram nobis
is granted, and Qiao's conviction and sentence for mail fraud and
conspiracy to commit mail fraud is hereby vacated.").
http://bibdaily.com/pdfs/Qiao%2011-15-07.pdf
Ninth Circuit

United States v. Walgren, 885 F.2d 1417 (9th Cir. Sept. 13, 1989) (federal
mail fraud conviction vacated on coram nobis, since mail fraud conviction
rests upon the fundamental error that it was commission of a fraud that
was not a crime and defendant met other requirements of coram nobis).

Korematsu v. United States, 584 F. Supp. 1406 (D. Cal. 1984) (granting
petition of coram nobis filed by American citizen of Japanese ancestry to
vacate 1942 conviction for being in a place from which all persons of
Japanese ancestry were excluded pursuant to a civilian exclusion order,
where Government deliberately omitted relevant information and
provided misleading information before the court concerning whether the
actions taken were reasonably related to the security and defense of the
nation and the prosecution of the war, where Government failed to rebut
petitioner's certificate setting forth collateral consequences he believed he
suffered and would continue to suffer as result of the 1942 conviction and
where Government failed to rebut petitioner's showing of timeliness).

242
Ninth Circuit
POST CON RELIEF – FEDERAL -- GROUNDS – INEFFECTIVE ASSISTANCE OF

COUNSEL – AFFIRMATIVE MISADVICE – PREJUDICE – LOSS OF
OPPORTUNITY FOR FAVORABLE EXERCISE OF DISCRETION
2005) (defense counsel's ineffective assistance of counsel, in failing to
notify the defendant when, prior to sentence, the law changed and in fact
deportation changed from a mere possibility to a near certainty, was
prejudicial where the defendant could have made a motion under
F.R.Crim.P. 32(e) to withdraw the plea and attempted to renegotiate the
disposition in light of the new legal consequences, or attempted to obtain a
sentence of two days less, and lost the opportunity for a favorable exercise
of discretion).
§ 5.45 E. Audita Querela
§ 5.46 F. All Writs Act
§ 5.47 III. State Vehicles for Vacating a Conviction
POST CONVICTION RELIEF – AMENDING RECORD OF CONVICTION TO

SPECIFY AMOUNT OF MARIJUANA 30 GRAMS OR LESS
In some states, it is possible to file a joint motion with the prosecution
asking the criminal court for a stipulated and amended sentence order that
amends the record of conviction to specify the actual amount of marijuana
to be less than 30 grams. This has been effective in immigration court to
qualify the conviction for the exception to the controlled substances
deportation ground and should also be effective in qualifying the
conviction for a waiver of inadmissibility under INA § 212(h). Thanks to Jeff
Joseph.
Other
POST CON – WASHINGTON STATE

forms to vacate misdemeanors (and juvenile convictions) may be found at:
http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=38
§ 5.48 A. Motion to Withdraw Plea
§ 5.49 1. Motions Prior to Judgment

243
§ 5.50 a. Procedure
Lower Courts of Tenth Circuit
POST CON – UTAH – STATUTE OF LIMITATIONS – 30-DAY DEADLINE TO FILE

MOTION TO WITHDRAW GUILTY PLEA
State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (under
Utah Code Ann. § 77-13-6(2)(b) (1999), defendant must file motion to
withdraw guilty plea within 30 days after entry of plea; phrase "entry of the
plea" refers to date of conviction, which generally occurs at sentencing, not
at date of plea colloquy). See State v. Ostler, 31 P.3d 528 (2001).
§ 5.51 b. Grounds
§ 5.52 c. Immigration Consequences
Second Circuit
POST CON RELIEF – EFFECTIVE ORDER – COURT'S ORDER GRANTING

MOTION TO WITHDRAW A PLEA ELIMINATES A CONVICTION FOR
Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) (a criminal court's
order withdrawing a plea eliminates the conviction for mmigration
purposes; an interpretation of the statutory definition [of conviction to the
ontrary] appears to lead to the bizarre result that a withdrawn guilty plea
would still be a “conviction” for immigration purposes, because the
“conviction” would be established on the date of the entry of the plea. We
reject this reading because “[a] statute should be interpreted in a way that
avoids absurd results.”), citing United States v. Dauray, 215 F.3d 257, 264
(2d Cir. 2000).
§ 5.53 2. Motions After Judgment
§ 5.54 a. Procedure
§ 5.55 b. Grounds
§ 5.56 c. Immigration Consequences
§ 5.57 B. Motion to Vacate for Violation of State Advisal

Statute
244
POST CON RELIEF – TEXAS – STATE ADVISAL STATUTE

Hwang v. State, 2004 WL 585000 (Tex.App. March 25, 2004) (trial court
erred by not informing appellant that guilty plea could result deportation,
as required under Texas Code of Criminal Procedure article 26.13).
Other
GROUNDS – VIENNA CONVENTION

Article 36 of the Vienna Convention on Consular Relations (21 U.S.T. 77,
TIAS 6820), can be used to attempt to suppress a confession, or vacate a
guilty plea, in a criminal or immigration case, in light of the LaGrand and
Avena decisions. LaGrand Case (Germany v. U.S.), 2001 I.C.J. 104 (June 27)
available at http://www.icjcij.org/icjwww/idocket/igus/igusframe.htm;
Avena and Other Mexican Nationals (Mexico v. United States of America),
2003 I.C.J. 128,
http:www.icjcji.org/icjwww/ipresscom/ipress2003/ipress2003-45--mus--
20031223.htm (as visited February 5, 2004). Madej v. Schomig, 223
F.Supp.2d 968 (N.D. Ill. 2002), recognizes the impact of LaGrand: "After
LaGrand, however, no court can credibly hold that the Vienna Convention
does not create individually enforceable rights. The International Court of
Justice was quite clear on that point, announcing that 'Article 36,
paragraph 1, creates individual rights.' LaGrand Case, 2001 I.C.J. 104, at P
77." The impact of Avena can be seen by what happened in the capitol
case, Torres v. Mullin, 124 S.Ct. 562 (2003), in which the defendant
received a stay, a parole recommendation for clemency, and a
commutation, based on Avena and the VCCR. Many police departments
have incorporated the Vienna Convention's requirement that the arresting
officer inform a noncitizen arrestee of his right to contact his consulate, so
counsel may have the argument that the officer violated his duties
imposed upon him by his own training manual or department regulations
as well as the Vienna Convention.
POST CON RELIEF – STATE ADVISAL STATUTE – MASSACHUSETTS M.G.L. c.

278 sec. 29D: § 29D.
Conviction upon plea of guilty, nolo contendere or an admission to
sufficient facts; motion to vacate The court shall not accept a plea of
guilty, a plea of nolo contendere, or an admission to sufficient facts from
any defendant in any criminal proceeding unless the court advises such
defendant of the following: "If you are not a citizen of the United States,
you are hereby advised that the acceptance by this court of your plea of
245
guilty, plea of nolo contendere, or admission to sufficient facts may have

consequences of deportation, exclusion from admission to the United
States, or denial of naturalization, pursuant to the laws of the United
States." The court shall advise such defendant during every plea colloquy at
which the defendant is proffering a plea of guilty, a plea of nolo
contendere, or an admission to sufficient facts. The defendant shall not be
required at the time of the plea to disclose to the court his legal status in
the United States. If the court fails so to advise the defendant, and he
later at any time shows that his plea and conviction may have or has had
one of the enumerated consequences, even if the defendant has already
been deported from the United States, the court, on the defendant's
motion, shall vacate the judgment, and permit the defendant to withdraw
the plea of guilty, plea of nolo contendere, or admission of sufficient facts,
and enter a plea of not guilty. Absent an official record or a
contemporaneously written record kept in the court file that the court
provided the advisement as prescribed in this section, including but not
limited to a docket sheet that accurately reflects that the warning was
given as required by this section, the defendant shall be presumed not to
have received advisement. An advisement previously or subsequently
provided the defendant during another plea colloquy shall not satisfy the
advisement required by this section, nor shall it be used to presume the
defendant understood the plea of guilty, or admission to sufficient facts he
seeks to vacate would have the consequence of deportation, exclusion
from admission to the United States, or denial of naturalization. CREDIT(S)
Added by St.1978, c. 383. Amended by St.1996, c. 450, § 254; St.2004, c.
225, § 1, eff. Oct. 27, 2004.
POST CON RELIEF – NEW MEXICO – STATE REHABILITATIVE RELIEF

See New Mexico Statutes, Annotated § 31-20-13 (1978).
POST CON RELIEF – STATE ADVISAL STATUTE – IOWA

Iowa Rule of Criminal Procedure 2.8(2)(b) provides in relevant part:
Before accepting a plea of guilty, the court must address the defendant
personally in open court and inform the defendant of, and determine that
the
defendant understands, the following:
...
(3) That a criminal conviction, deferred judgment, [*5] or deferred
sentence may affect a defendant's status under federal immigration laws.
246
§ 5.59 2. Grounds
Lower Courts of First Circuit
POST CON RELIEF – STATE – MASSACHUSETTS – RECORD OF CONVICTION –

STATE ADVISAL STATUTE – EXPUNGEMENT
Commonwealth v. Rodriguez, 802 N.E.2d 1039 (Mass. Feb. 10, 2004)
(Massachusetts pretrial probation is not considered conviction for state
purposes, therefore statutory requirement to warn of immigration
consequences under G. L. c. 278, § 29D, are not required for such
disposition, even if the disposition would be a conviction for federal
§ 5.61 C. Nonstatutory Motion to Vacate
§ 5.62 1. Nature of the Motion
§ 5.65 D. Direct Appeal
POST CON RELIEF – NEW YORK – APPEAL – DEPORTED DEFENDANT

UNAVAILABLE TO OBEY MANDATE OF COURT SO APPEAL DISMISSED
People v. Diaz, ___ N.Y.2d ___ (Ct. App. Sept. 19, 2006) (appeal dismissed
without prejudice as, although defendant has been involuntarily deported,
he is nevertheless unavailable to obey the mandate of the court).
http://caselaw.lp.findlaw.com/data/ny/cases/app/mot881mem06.pdf
§ 5.67 2. Filing a Late Notice of Appeal
Sixth Circuit
CONVICTION – FINALITY – OUT OF TIME APPEAL – PENDENCY OF REQUEST

FOR LATE APPEAL DOES NOT AFFECT FINALITY OF CONVICTION
247
United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004)
(request to begin belated appeal does not affect finality of a conviction).
§ 5.68 3. Attacking a Waiver of Appeal
Ninth Circuit
POST CON RELIEF – APPEAL – WAIVER OF APPEAL – VALIDITY

United States v. Castillo, __ F.3d __, 2007 WL 2120232 (9th Cir. Jul. 25,
2007) (a valid guilty plea containing a waiver of the right to appeal does not
deprive the court of jurisdiction over an appeal; procedural rules of court
[such as Rule 11] cannot expand or contract the jurisdiction of the courts
themselves or the lower courts).
§ 5.70 a. Effect of Reversal of Conviction
§ 5.71 b. Finality Of Decision
Other
POST CON RELIEF – ORDER VACATING CONVICTION – IMMIGRATION

EFFECT OF GOVERNMENT APPEAL FROM ORDER VACATING CONVICTION –
OREGON
The DHS has argued that a conviction still exists in Oregon, despite the trial
court's order vacating a conviction on a ground of legal invalidity, where
the prosecution is appealing the grant of post-conviction relief. O.R.S §
138.610 states: "An appeal taken by the State stays the effect of the
judgment or order in favor of the defendant, so that the release agreement
and security for release is held . . . but if in custody the defendant may be
released . . . ." The DHS argues therefore, a conviction still exists under
Oregon law until the defendant wins on appeal.
POST CON – TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF –
WASHINGTON STATE
See § 2.28
§ 5.72 E. Habeas Corpus and Post-Conviction Relief

Petitions
248
§ 5.73 1. General Requirements for Issuance
CAL POST CON – REQUIREMENT OF OBJECTION IN TRIAL COURT

In re Seaton (2004) ___ Cal.4th ___ (claims of constitutional error, even
when clear and fundamental and striking at the heart of the process, that
were not raised at trial may not be raised in habeas proceeding, unless
ineffective assistance of counsel is shown or the facts were not known at
the time of trial).
http://caselaw.findlaw.com/data2/californiastatecases/s067491.doc
§ 5.74 2. Timeliness
Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY –

RETURN TO PRE-ERROR STAGE OF PROCEEDINGS
Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was
denied effective assistance of counsel, the district court did not err in
ordering the parties to return to the pre-error stage of the criminal
proceeding).
TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF - OREGON

Benitez-Chacon v. State of Oregon, 178 Or. App. 352 (2001) (petition for
post conviction relief subject to two year statute of limitations running
from date of final judgment).
BIA
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS –

RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED
DELAY CAUSING TIME LIMIT TO EXPIRE
Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented
from exercising a right granted him within a statutory period by
unexplained or unnecessary administrative delay, or carelessness in
handling his application, or in failing to inform him of his right, he will not
be barred from asserting his rights or be deprived of the right.")
249
§ 5.75 3. The Requirement of Custody
First Circuit
CAL POST CON – HABEAS CORPUS – CUSTODY -- DEFENDANT CAN

CHALLENGE CONSTITUTIONALITY OF STATE CONVICTION BY HABEAS
CORPUS, THOUGH DIRECT CUSTODY HAS EXPIRED, IF HE IS RESTRAINED OF
HIS LIBERTY IN FEDERAL IMMIGRATION CUSTODY SOLELY ON ACCOUNT OF
THE CONVICTION
People v. Villa, ___ Cal.App.4th ___, 2007 WL 706941 (1st Dist. March 9,
2007) (noncitizen in federal immigration custody solely as a result of a
California criminal conviction may properly file a petition for habeas corpus
in criminal court on the basis of ineffective assistance of counsel, even
though actual and constructive California criminal custody resulting from
that conviction has expired, petitioner was not entitled to that relief here
because he did not allege that he is in custody or restrained of his liberty
solely on account of the California conviction, and therefore did not
adequately allege a basis for habeas corpus relief), disagreeing with In re
Azurin (2001) 87 Cal.App.4th 20 (a petitioner may not use habeas corpus
where a California conviction provides the sole basis for confinement in a
federal deportation proceeding).
Second Circuit
POST CON RELIEF – FEDERAL – HABEAS – CUSTODY – IMMIGRATION

CUSTODY DOES NOT CONSTITUTE CUSTODY UNDER 28 USC 2254
United States v. Ogunwomoju, 512 F.3d 69 (2d Cir. Jan. 7, 2008) (a
petitioner in immigration custody or under an order of removal as a
consequence of his criminal conviction is not "in custody" within the
meaning of 28 U.S.C. § 2254 for purposes of habeas corpus jurisdiction).
§ 5.78 F. Coram Nobis
Lower Courts of Fourth Circuit
POST CON RELIEF – VIRGINIA – CORAM NOBIS

Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 Va. Cir. LEXIS 244
250
(County Circuit Ct. Aug. 18, 2006) (Virginia coram vobis relief granted on
claim of ineffective assistance of counsel since both defendant and court
were unaware of immigration consequences at the time of plea, so
sentence amended from two years to 360 days).
http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf
POST CON RELIEF – VIRGINIA – CORAM VOBIS – SENTENCE REDUCTION

GRANTED FOR IMMIGRATION PURPOSES AFTER CUSTODY EXPIRED SINCE
DEFENDANT HAD NO REASON TO SUSPECT THE PROBLEM EARLIER –
INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE
Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18,
2006) (granting writ of coram vobis, reducing sentence from two years to
360 days, thereby entitling petitioner to discretionary relief in the
immigration courts, after custody had expired, since petitioner had no
reason to suspect the advice was faulty any earlier than when he was
placed into removal proceedings upon returning to the United States).
Lower Courts of Eleventh Circuit
POST CON RELIEF – CORAM NOBIS – RAISING IAC CLAIM ON CORAM NOBIS
– NATIONAL REVIEW
Ten states— Alabama, Arizona, Florida, Illinois, Indiana, Mississippi,
Missouri, New York, South Carolina, and Utah--allow or have allowed
ineffective assistance of counsel claims to be raised on coram nobis.
Alabama, McKinney v. State, 511 So.2d 220 (Ala. 1987) (coram nobis relief
granted on grounds convicted person received ineffective assistance of
counsel when pleading guilty); Arizona, State v. Kruchten, 101 Ariz. 186,
417 P.2d 510 (1966) (coram nobis is proper remedy for claim that guilty
pleas were entered in violation of right to effective assistance of counsel);
Florida, Wells v. State, 788 So. 2d 200 (Fla. 2001) (ineffective assistance of
counsel claim was properly raised in coram nobis petition); Moreno v.
State, 592 So. 2d 1226 (Fla. Dist. Ct. App. 4th Dist. 1992) (coram relief
granted where guilty plea resulted from ineffective assistance of counsel);
Dugart v. State, 578 So. 2d 789 (Fla. Dist. Ct. App. 4th Dist. 1991) (a claim of
ineffective assistance of counsel may support a petition for coram nobis);
Illinois, People v. McManus, 66 Ill. App. 3d 986, 23 Ill. Dec. 774, 384 N.E.2d
568 (3d Dist. 1978) (coram nobis relief granted where direct appeal from
conviction had been dismissed due to attorney’s neglect); Indiana, Dobson
v. State, 242 Ind. 267, 177 N.E.2d 395 (1961) (competency of counsel claim
on coram nobis); Douglas v. State, 234 Ind. 621, 130 N.E.3d 465 (1955)
(coram nobis petition does not allege that trial counsel was incompetent);
251
Mississippi, Baker v. State, 358 So.2d 401 (Miss. 1978)(entry of guilty plea
under mistaken advice by counsel if properly pleaded and supported by
sufficient facts makes out case for relief under coram nobis); Missouri,
Ramsey v. States, 767 S.W.2d 572 (Mo. Ct. App. E.D. 1988) (Rule 27.26
motion treated as a petition for a writ of coram nobis allows for claim of
ineffective assistance of counsel where facts show deficient performance
of counsel and prejudice); New York, Aparicio v. Artuz, 269 F.3d 78 (2d Cir.
2001) (coram nobis remains available only in the context of ineffective
assistance of appellate counsel on direct appeal); People v. Keebler, 15
A.D.3d 724, 789 N.Y.S.2d 547 (3d Dep’t 2005), leave to appeal denied, 4
N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 (2005) (challenges to
adequacy of appellate counsel can only be entertained in a common law
coram nobis proceeding); South Carolina, State v. Liles, 246 S.C. 59, 142
S.E.2d 433 (1965) (ineffective assistance of counsel claim brought on coram
nobis); Utah, State v. Rees, 2003 UT App 4, 63 P.3d 120 (Utah Ct. App.
2003), cert. granted, 73 P.3d 946 (Utah 2003) (coram nobis encompasses
not only errors of fact but also legal errors or constitutional or fundamental
proportion including a claim of ineffective assistance of appellate counsel).
13 states—Colorado, District of Columbia, Hawaii, Idaho, Maine, New
Mexico, North Carolina, Oklahoma, Oregon, Tennessee, Washington, and
West Virginia--have not directly decided whether ineffective assistance of
counsel can be brought on coram nobis, but leave room to raise the claim.
Colorado, only law review cite was given in treatise re: law on coram nobis
grounds and it did not work (coram nobis may vacate a conviction obtained
in violation of any federal or state constitutional right); District of
Columbia, Thomas v. U.S., 271 F.2d 500 (D.C. Cir. 1959) (where a sentence
is attacked on grounds outside the record under circumstances where 28
U.S.C. § 2255 is not available, a petitioner has rights in common law writ of
coram nobis); Douglas v. U.S., 703 A.2d 1235 (D.C. 1997) (the purpose of
coram nobis is to correct errors not due to the defendant’s negligence and
which amounts to a miscarriage of justice); Hawaii, Wong v. Among, 52
Haw. 420, 477 P.2d 630 (1970) (coram nobis relief available to correct
fundamental errors and where the circumstances compel such action to
achieve justice); Idaho, Idaho R. Civ. Proc. 60(b) (catchall provision for relief
on coram nobis if there is any other reasons justifying relief from the
operation of judgment); Maine, Dwyer v. State, 151 Me. 382, 120 A.2d 276
(1956) (coram nobis is the proper common law vehicle to establish one’s
constitutional rights, upon a showing of an unjust deprivation thereof);
New Mexico, New Mexico Rule Civil Procedure 1-060(b) (coram nobis relief
is available from judgment for mistakes, inadvertence, surprise,
inexcusable neglect, fraud, etc. and any other reason justifying relief from
252
the operation of the judgment); State v. Romero, 76 N.M. 449, 415 P.2d
837 (1966)(New Mexico rule 60(b) is identical to Fed. R. Civ. Proc. Rule
60(b) with intent to retain all substantive rights protected by the old
common law writs of coram nobis but eliminates the niceties); North
Carolina, State v. White, 74 N.C. 220, 162 S.E.2d 473 (1968)(the North
Carolina PCHA as now written incorporates habeas corpus, coram nobis,
and any other common law or statutory remedy under which a prisoner
may collaterally attack his sentence); Oklahoma, Smith v. State, 1967 OK CR
149, 431 P.2d 949 (Okla. Crim. App. 1967) (coram nobis is limited to an
error of fact for which the statute provides no other remedy, which was
unknown to the court at the time and would have prevented the judgment
if known); Oregon, State v. Endsley, 214 Or. 537, 331 P.2d 338 (1958)
(coram nobis petition is available to obtain relief in a limited class of cases
from conviction obtained in violation of a constitutional right); Tennessee,
Tennessee Code Annotated § 40-26-105 (a writ of error will like for
subsequently or newly discovered evidence relating to matters that were
litigated at trial if such evidence would have resulted in a different
judgment at trial); Harris v. State, 102 S.W.3d 587 (Tenn. 2003) (the
grounds for seeking a writ of error coram nobis are not limited to specific
categories, but may be based upon any newly discovered evidence relating
to matters litigated at trial); Washington, Wash. Super. Ct. Crim. R. 7.8(b)
(coram nobis is allowed for mistakes, inadvertence, fraud, newly
discovered evidence etc. and any other reason justifying relief from the
operation of judgment); State v. Zavala-Reynoso, 127 Wash. App. 119, 110
P.3d 827 (Div. 3 2005) (a judgment may be vacated for any other reason
justifying relief, but is limited to extraordinary circumstances not otherwise
covered by Rule 7.8(b) and where relief did not otherwise exist at time of
judgment); West Virginia, State ex rel. Richey v. Hill, 216 W. Va. 155, 603
S.E.2d 177 (2004) (coram nobis is available when habeas corpus is not, i.e.,
when the petitioner is no longer incarcerated but is of limited scope, it
does not reach prejudicial misconduct in the course of the trial). Unclear
whether five states--Georgia, Maryland, Pennsylvania, Rhode Island, and
Wisconsin—may or might have allowed an ineffective assistance of counsel
claim to be raised on coram nobis. Georgia, South v. State, 72 Ga. App. 79,
33 S.E.2d 23 (1945) (the purpose of coram nobis is to correct an error of
fact not apparent on the record and where the defendant has been
deprived of a defense to which he could not have made at his trial) Note:
the writ of coram nobis will not lie where there is another adequate
remedy--IAC must be brought on direct appeal); Maryland, Skok v. State,
361 Md. 52, 760 A.2d 647 (2000) (the grounds for challenging a conviction
via coram nobis must be of constitutional, jurisdictional, or fundamental
253
character and the petitioner must be suffering or facing significant

collateral consequences from the conviction) Note: coram nobis cannot be
used if another statutory or common law remedy is available – in
Maryland, the UPCPA is used to raise an IAC claim; Pennsylvania, Com. v.
Orsino, 197 Pa. Super. 306, 178 A.2d 843 (1962)(purpose of coram nobis is
to correct errors of fact and not of law which if known at the time
judgment was rendered would have prevented it) Note: coram nobis may
not be used as a substitute for an appeal or as a motion for a new trial;
Rhode Island, State v. Lanoue, 117 R.I. 342, 366 A.2d 1158 (1976) (coram
nobis petition is appropriate procedure for raising newly discovered
evidence claim attacking probation and deferred sentence revocation);
Wisconsin, Jessen v. State, 95 Wis. 2d 207, 290 N.W.2d 685 (1980) (the
purpose of coram nobis is for the trial court to correct an error of fact
which was unknown at the time of trial and if known would have
prevented the judgment); Houston v. State, 7 Wis. 2d 348, 96 N.W.2d 343
(1959) (coram nobis not available where another remedy would lie, such as
where habeas would afford a proper and complete remedy) Note: habeas
corpus is the proper remedy for raising an IAC claim.
Other
POST CON RELIEF – FEDERAL – CORAM NOBIS – CUSTODY – STATUTE OF

LIMITATIONS
Where a federal defendant files a federal petition for coram nobis relief,
the issue may arise whether a federal defendant who has completed his
BOP term and has since been in ICE detention is deemed to be
concurrently on Supervised Release (the federal equivalent of parole). If so,
s/he is in federal custody and therefore must use 28 U.S.C. § 2255, instead
of federal coram nobis. If not, then there is no federal custody, and no
2255 jurisdiction, and no barrier to using federal coram nobis. While the
administrative practice is to accord ICE detainees Supervised Release
credit, the statute does not require it so it is possible to argue that the
administrative practice may be ultra vires. Thanks to James Smith.
§ 5.80 2. Grounds
Sixth Circuit
POST CON RELIEF – STATE VEHICLES - CORAM NOBIS

254
(“‘The function of the writ of coram nobis is to secure relief from a
judgment rendered while there existed some fact which would have
prevented its rendition if it had been known to the trial court and which,
through no negligence or fault of the defendant, was not brought forward
before rendition of judgment.’ “ Clorid v. State, 182 S.W.3d 477, 479
(Ark.2004) (quoting State v. Larimore, 17 S.W.3d 87, 93 (Ark.2000)). “
‘Coram nobis proceedings are attended by a strong presumption that the
judgment of conviction is valid’ “ and “ ‘[t]he mere naked allegation that a
constitutional right has been invaded will not suffice.’ “ Id. (quoting
Larimore, 17 S.W.3d at 93). “The writ of error coram nobis is an
extraordinary writ, known more for its denial than its approval.” Echols v.
State, 201 S.W.3d 890, 893 (Ark.2005)”).
§ 5.82 G. Audita Querela

255
by Norton Tooby
256
POST-CONVICTION RELIEF FOR IMMIGRANTS was published on February 1,

2004 and is updated monthly on these pages.
Other Relevant Resources

These are other resources available with your subscrption
that pertain to Post-Conviction Relief for Immigrants.
 Deportation Grounds Checklist
Buy This Book
Summary Table of Contents

Click the sections listed below to view recent case law pertinent to each section respectively.
See the Detailed Table of Contents (pdf) to view all section headings for this book.
Chapter 1 : Introduction and Overview
§ 1.1 I. Origins of the Problem
§ 1.4 IV. Overview of Post-Conviction Relief
Chapter 2 : Evaluating the Chances of Obtaining Post-Conviction Relief
§ 2.27 c. Attacking State Convictions
§ 2.28 2. Time Limits Within Which Actions for State
Chapter 3 : Investigating the Case
§ 3.3 A. Special Considerations
§ 3.6 A. Check for Unknown U.S. Citizenship
IV. Obtaining Information on “Equities” or Reasons Client

§ 3.8
Should be Allowed to Remain in the U.S
§ 3.9 V. Obtaining Information About the Criminal Case

257
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Chapter 6: Grounds for Vacating the Conviction
§ 6.1 I. Geography of the Field
DC Circuit
POST CON RELIEF – GUILTY PLEA WAIVES CLAIMS

United States v. Delgado-Garcia, ___ F.3d ___ (D.C. Cir. July 23, 2004) (defendants’
alien smuggling convictions affirmed on appeal; initial, unconditional pleading of guilty
to charged crimes acted as waiver of defendants' subsequent due process and
maritime law claims).
http://caselaw.lp.findlaw.com/data2/circs/dc/033060a.pdf
258
§ 6.2 II. Violations of the Right to Counsel
POST CON RELIEF – GROUNDS – DIRECT CONSEQUENCES – IMMIGRATION

CONSEQUENCES HELD NOT TO BE DIRECT CONSEQUENCES – CONNECTICUT
State v. Irala, 68 Conn. App. 520 (Conn. App. May 5, 2002) ("the impact of a plea's
immigration consequences on a defendant, while potentially great, is not of
constitutional magnitude and cannot transform this collateral consequence into a
direct consequence of the plea." (Internal quotation marks omitted)).
§ 6.3 A. Denial of Counsel
POST CON RELIEF – GROUNDS – COUNSEL – RIGHT TO COUNSEL OF CHOICE

United States v. Gonzalez-Lopez, __ U.S. __ (Jun. 26, 2006) (trial court's erroneous
deprivation of criminal defendant's choice of counsel not subject to harmless-error
analysis and entitles the defendant to reversal of his conviction).
POST CON RELIEF – GROUNDS – RIGHT TO COUNSEL – RIGHT TO COUNSEL OF CHOICE

United States v. Gonzalez-Lopez, 548 U.S. ___, 126 S.Ct. 2557 (2006) (Sixth
Amendment entitles a criminal defendant to retain counsel of his choice; where trial
court denies defendant the right to be represented by counsel of choice, it is
structural error requiring automatic reversal without showing of prejudice).
Fifth Circuit
POST-CON RELIEF – EFFECTIVE VACATUR – FIFTH CIRCUIT

Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) (court recognizes
the DHS will follow Pickering even in the Fifth Circuit: “we vacated the Discipio I
opinion because the Government modified its position and terminated deportation
proceedings against Discipio because his conviction had been vacated on procedural
and substantive defects, the Government bowing to the BIA's opinion in In re
Pickering.FN10 See Discipio II, 417 F.3d at 449-50.”)
Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – DEFENDANT'S RIGHTS AT ATTORNEY

COMPETENCY HEARING
Hovey v. Woodward, ___ F.3d ___ (9th Cir. Aug. 11, 2006) (a hearing conducted by the
judge into defense attorney's competency to represent the defendant is not a critical
stage of the proceedings at which the defendant had a right to be represented by
259
unconflicted counsel and to be present).
COUNSEL - REFUSAL TO PROCEED WITH OR WITHOUT

United States v. Massey, __ F.3d __ (9th Cir. 2005) ("Massey attempted to hinder his
trial by declining every constitutionally recognized form of counsel while
simultaneously refusing to proceed pro se. A defendant may not abuse the Sixth
Amendment in this way: tactics such as those employed by Massey amount to an
unequivocal waiver of the right to counsel. United States v. Kienenberger, 13 F.3d
1354, 1356 (9th Cir. 1994); United States v. Hardy, 941 F.2d 893, 896-97 (9th Cir.
1991)."
COUNSEL – SELF-REPRESENTATION – REQUEST FOR COUNSEL AT SENTENCING

Robinson v. Ignacio, 360 F.3d 1044 (9th Cir. March 10, 2004) (state trial court denial of
request for counsel at sentencing by defendant who had represented himself during
trial violated Sixth Amendment)
POST CON RELIEF - GROUNDS - SENTENCE - DENIAL OF COUNSEL

Robinson v. Ignacio, 360 F.3d 1044 (9th Cir. March 10, 2004) (Sixth Amendment right
to counsel violated when trial court denied timely request for representation at
sentencing on erroneous basis that once waived, the right to counsel cannot be re-
asserted).
CAL POST CON – GROUNDS – RIGHT TO COUNSEL OF CHOICE

Rhaburn v. Superior Court, 140 Cal.App.4th 1566 (2006) (trail court cannot remove
appointed counsel (public defender’s office) where office previously represented a
prosecution witness when individual attorney assigned to represent the current
defendant did not “have a ‘direct and personal’ relationship with the witness . . . .”).
CAL POST CON â€“ GROUNDS â€“ INEFFECTIVE COUNSEL â€“ DENIAL OF RIGHT TO
DISCHARGE RETAINED COUNSEL AND OBTAIN APPOINTED COUNSEL
People v. Ortiz, 51 Cal.3d 975 (1990) (defendant has the right to discharge retained
counsel without a showing of incompetency, conflict or other cause; defendant also
has right to then be represented by court appointed counsel if defendant is indigent
at that time).
CAL POST CON – GROUNDS – INEFFECTIVE COUNSEL – DENIAL OF RIGHT TO

DISCHARGE RETAINED COUNSEL AND OBTAIN APPOINTED COUNSEL
People v. Ortiz, 51 Cal.3d 975 (1990) (defendant has the right to discharge retained
counsel without a showing of incompetency, conflict or other cause; defendant also
has right to then be represented by court appointed counsel if defendant is indigent
260
at that time).
§ 6.4 1. Representation by Non-Counsel
Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – COUNSEL OF CHOICE

United States v. Ensign, 491 F.3d 1109 (9th Cir. July 5, 2007) (district court's refusal to
allow attorney to represent defendant pro hac vice did not violate constitutional right
to counsel of choice).
§ 6.5 2. Invalid Waiver of Right to Counsel
GROUNDS - RIGHT TO COUNSEL - INVALID WAIVER - NO NEED WARN OF DANGERS

Iowa v. Tovar, 124 S.Ct. 1379 (March 8, 2004) (trial court must inform unrepresented
defendants of nature charges against him, right to counsel regarding plea, and range
of allowable punishments for plea to be "knowing and intelligent,"; trial court does
not need to inform accused that viable defense will be overlooked, or that he will lose
opportunity to obtain independent opinion on whether it is wise to plead guilty).
Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – INVALID WAIVER OF COUNSEL – FAILURE

TO ADVISE DEFENDANT AND ENSURE UNDERSTANDING OF NATURE OF OFFENSE
RENDER WAIVERS INVALID
United States v. Forrester, ___ F.3d ___, ___ (9th Cir. July 6, 2007) (federal convictions
reversed on grounds that waiver of right to counsel was not knowing and intelligent,
and that the Sixth Amendment was violated, when he was allowed to proceed pro se
after district court failed to inform him of the nature of the conspiracy charge, or
ensure he understood the charge or that this charge is "a particularly complex and
confusing allegation to defend against."), following United States v. Dujanovic, 486
F.2d 182, 186 (9th Cir.1973) (“We cannot visualize a less minimal requirement than
the District Court shall not grant a request to waive counsel ... without ... determining
on the record that the demand to waive counsel ... is competently and intelligently
made with understanding of the nature of the charge ....”).
POST CON RELIEF – GROUNDS – COUNSEL – INVALID WAIVER OF COUNSEL –

ERRONEOUSLY OVERSTATING DIRECT PENAL CONSEQUENCES OF CONVICTION
RENDERS WAIVER INVALID SINCE ERROR REQUIRES AUTOMATIC REVERSAL WITHOUT
HARMLESS ERROR ANALYSIS
United States v. Forrester, ___ F.3d ___, ___ (9th Cir. July 6, 2007) (federal convictions
261
reversed on grounds that waiver of right to counsel was not knowing and intelligent,
and that the Sixth Amendment was violated, when he was allowed to proceed pro se
after district court failed accurately to "describe the “possible penalties” faced by
Forrester. Id. The court told him that he faced 10 years to life in prison, whereas he
actually faced the materially different sentence range of zero to 20 years in prison.";
even though court erroneously overstated defendant's exposure, automatic reversal
was required because court cannot engage in harmless error analysis for this type of
error), following United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) (“[T]he
failure to meet the requirements for a valid Faretta waiver constitutes per se
prejudicial error, and the harmless error standard is inapplicable.”); United States v.
Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994) (invalid Faretta waiver “requires
automatic reversal of a defendant's conviction”); United States v. Balough, 820 F.2d
1485, 1490 (9th Cir. 1987) ; cf. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)
(“Since the right of self-representation is a right that when exercised usually increases
the likelihood of a trial outcome unfavorable to the defendant, its denial is not
amenable to ‘harmless error’ analysis.”); cf. United States v. Keen, 96 F.3d 425, 429-30
(9th Cir.1996) (“Regrettably, given the overwhelming evidence of Keen's guilt and the
inconvenience a retrial would impose ... this discussion appears insufficient.... [He] is
entitled to a reversal and an opportunity to make an informed and knowing choice.”).
POST CON RELIEF – GROUNDS – COUNSEL – SELF-REPRESENTATION COUNSEL - SELF-

REPRESENTATION - DENIAL BASED ON LACK OF LEGAL KNOWLEDGE
Hirschfield v. Payne, 420 F.3d 922 (9th Cir. Aug. 22, 2005) (state court properly ruled
that first Faretta motion was for purposes of delay, but second motion (made after
case had to be delayed due to other reasons), which was denied by another judge on
the basis that the defendant did not have sufficient legal knowledge to represent
himself, was erroneous; because the appellate court did not address the second
motion separately, the federal panel reviewed the trial court's oral decision, and
found it contrary to clearly established federal law).
§ 6.6 3. Refusal to Allow Self-Representation
§ 6.7 B. Ineffective Assistance of Counsel
Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL

Edwards v. LaMarque, ___ F.3d ___, WL 270118 (9th Cir. Feb. 1, 2007) (reversing grant
of habeas on ineffective assistance grounds where, despite a self-proclaimed assertion
by trial counsel that his performance was inadequate, a California court was not
objectively unreasonable in determining that defendant's counsel made a reasonable,
tactical decision to ask the questions that led to his waiver of the spousal privilege).
262
POST CON RELIEF – GROUNDS – RIGHT TO COUNSEL – CONFLICT OF INTEREST –

MISTRIAL AS REMEDY
United States v. Elliot, __ F.3d __ (9th Cir. Apr. 18, 2006) (trial court did not err in
declaring mistrial when it appeared that defense counsel had previously represented a
witness).
POST CON RELIEF – INEFFECTIVE ASSISTANCE OF COUNSEL

Earp v. Ornoski, ___ F.3d ___, 2005 WL 3440810 (9th Cir. Dec. 16, 2005) (denial of
habeas petition reversed where petitioner had never been given an evidentiary
hearing on prosecutorial misconduct and ineffective assistance of counsel claims).
RIGHT TO COUNSEL
'Nonetheless, we cannot allow a “myopic insistence on expeditiousness” to render the
right to counsel “an empty formality”’ Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005)
citing Ungar v. Sarfite, 376 U.S. 575 (1964).
POST CONVICTION RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – ORIGINAL

COUNSEL CANNOT RAISE OWN INEFFECTIVENESS; EXCEPTION TO STATE STATUTE OF
LIMITATIONS WHERE IT TAKES MORE TIME TO SEE IF IAC CLAIM EXISTS
Leavitt v. Arave, ___ F.3d ___ (9th Cir. June 14, 2004) (original counsel cannot raise
own ineffectiveness; exception therefore exists to state post-conviction relief statute
of limitations where more time is necessary for independent counsel to determine
whether IAC claim exists).
Other
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE ON APPEAL – STANDARD OF

REVIEW – MILITARY COURT
United States v. Miller, 63 M.J. 452, 455-456 (U.S. Armed Forces, Aug. 29, 2006)
(applying Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)).
§ 6.8 1. Generally - Deficient Performance and Prejudice
Fifth Circuit
POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL

Draughon v. Dretke, __ F.3d __, 2005 WL 2404154 (5th Cir. Sep. 30, 2005) (counsel
provided ineffective assistance at both the guilt and sentencing phases of trial).
263
Ninth Circuit
POST CON RELIEF – HABEAS – PLEA – INEFFECTIVE ASSISTANCE OF COUNSEL

Womack v. Del Papa, ___ F.3d ___, 2007 WL 2296781 (9th Cir. Aug. 13, 2007) (habeas
denied over claim that petitioner entered an Alford guilty plea to several crimes that
was not knowing, voluntary and intelligent because he was deprived of effective
assistance of counsel).
AGGRAVATED FELONY – COV – CRIMINAL CONTEXT

United States v. Tzep-Mejia, __ F.3d __, 2006 WL 2361701 (9th Cir. Aug. 15, 2006)
(where sentence following prosecution for illegal re-entry was imposed without
reference to the United States Sentencing Guidelines, the reviewing court does not
need to determine whether prior criminal offense was a “crime of violence” for
sentencing guidelines purposes, since the guidelines did not play a part in determining
the sentence).
POST CON RELIEF – COUNSEL – INEFFECTIVE ASSISTANCE – FAILURE TO PREPARE

WITNESS
Hovey v. Woodward, ___ F.3d ___ (9th Cir. August 11, 2006)(counsel's failure to
investigate defendant's mental condition at the time of offense and to adequately
prepare expert witness sufficiently undermined confidence in verdict so as to require
reversal of sentence, where counsel failed to provide crucial psychiatric records to
testifying expert, and failed to give him information regarding an unrelated offense,
which made the expert look "ill-prepared and foolish.").
POST CON – COUNSEL – INEFFECTIVE ASSISTANCE – EFFECT ON GUILTY PLEA

Weaver v. Palmateer, __ F.3d __ (9th Cir. July 17, 2006) ("In assessing prejudice [from
allegedly ineffective assistance], we do not ask what a defendant might have done
had he benefited from clairvoyant counsel;" telling defendant that while he
technically could receive probation but probably would not was prudent advice. (Cf,
Iaea v. Sunn, 800 F.2d 861, 863-65 (9th Cir. 1986) [ineffective assistance where
attorney grossly mischaracterized probable sentence by suggesting, on several
occasions, that defendant had "a good chance" of receiving probation and that the
chance of an extended sentence was "almost zero," and yet defendant received life
sentence]).
POST CON RELIEF – GROUNDS – PLEA – INEFFECTIVE ASSISTANCE

Hoffman v. Arave, ___ F.3d ___ (9th Cir. Jul. 5, 2006) (affirming in part and reversing in
part habeas petition based on ineffective assistance of counsel during pre-trial plea
bargaining and during the guilt phase of his murder trial).
264
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – REMEDY – RETURN TO

PRE-ERROR STAGE OF PROCEEDINGS
Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied
effective assistance of counsel, the district court did not err in ordering the parties to
return to the pre-error stage of the criminal proceeding).
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – INVALID

GUILTY PLEA
Lambert v. Blodgett, ___ F.3d ___ (9th Cir. Dec. 28, 2004) (reversing order vacating
guilty plea on grounds of ineffective assistance of counsel and lack of knowing,
voluntary and intelligent plea, where district court erred in disregarding Washington
state courts’ factual findings and conclusions of law).
HABEAS CORPUS - FEDERAL - INEFFECTIVE ASSISTANCE NOT PREJUDICIAL

Allen v. Woodford, 366 F.3d 823 (9th Cir. May 6, 2004) ("[Petitioner's] representation
at the penalty phase of his trial fell below an objective standard of reasonableness.
Trial counsel admits he did nothing to prepare for the penalty phase until after the
guilty verdicts were rendered, and even then, in what little time was available, he
failed sufficiently to investigate and adequately present available mitigating
evidence.")

Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir. Jan. 30,
2004) (UNPUBLISHED) (BIA violated due process by waiting six years, until after law
had changed to respondent’s detriment, to review Immigration Judge’s originally
erroneous finding that expunged misdemeanor weapons conviction constituted
conviction for immigration purposes). The BIA must generally apply the law in place
at the time the BIA conducts its review. Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir.
1999). However, that rule is not absolute where the error effectively denied the
noncitizen a meaningful hearing under the law existing when the hearing was held.
See, e.g., Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001)
(BIA's failure to correct IJ's error was defect requiring application of law in effect at
time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000)
(procedural defect resulting in the loss of an opportunity for statutory relief requires
remand for a hearing under former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th
Cir. 2000) (ineffective assistance of counsel before IJ required remand for application
of law existing at the time of original hearing). Where the BIA’s failure to timely
remedy an IJ's error denies respondent the benefit of the law in effect at the time of
265
the original hearing, the only meaningful remedy is to give the respondent a hearing
under the law that would have applied, had the BIA not delayed his appeal.
Guadalupe-Cruz, 240 F.3d at 1212.
POST-CON – INEFFECTIVE ASSISTANCE AT PRELIMINARY HEARING

People v. Carter, __ Cal.4th __ (Cal. Aug, 15, 2005) ("Irregularities in pretrial
commitment proceedings require reversal on appeal only where defendant shows he
was ‘deprived of a fair trial or otherwise suffered prejudice as a result.’ (People v.
Pompa-Ortiz (1980) 27 Cal.3d 519, 529.).").

State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's
attorney has "an affirmative duty to determine [the client's] immigration status and
provide him with specific advice regarding the impact a guilty plea would have on his
immigration status.").
BIA
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL -- TIMELINESS – RIGHT TO

MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME
LIMIT TO EXPIRE
Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from
exercising a right granted him within a statutory period by unexplained or
unnecessary administrative delay, or carelessness in handling his application, or in
failing to inform him of his right, he will not be barred from asserting his rights or be
deprived of the right.")
Other
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – ABA

STANDARDS ARE RELEVANT TO A FINDING OF DEFICIENT PERFORMANCE Rompilla v.
Beard, ___ U.S. ___, 2005 WL
1421390 (June 20, 2005) (defense counsel's failure to examine file on defendant's
prior conviction for rape and assault at sentencing phase of capital murder trial fell
below the level of reasonable performance, and such failure was prejudicial to
defendant, warranting habeas relief on grounds of ineffective assistance of counsel,
placing reliance on ABA Standards, which stated: "It is the duty of the lawyer to
conduct a prompt investigation of the circumstances of the case and to explore all
266
avenues leading to facts relevant to the merits of the case and the penalty in the
event of conviction. The investigation should always include efforts to secure
information in the possession of the prosecution and law enforcement authorities.
The duty to investigate exists regardless of the accused's admissions or statements to
the lawyer of facts constituting guilt or the accused's stated desire to plead guilty." 1
ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.). The Court stated: ""[W]e
long have referred [to these ABA Standards] as 'guides to determining what is
reasonable.' " Wiggins v. Smith, 539 U.S., at 524, 123 S.Ct. 2527 (quoting Strickland v.
Washington, 466 U.S., at 688, 104 S.Ct. 2052), and the Commonwealth has come up
with no reason to think the quoted standard impertinent here." (Id. at 2466)).
POST CON RELIEF – GROUNDS – COUNSEL – ADVICE CONCERNING IMMIGRATION

CONSEQUENCES
Brian Bates, Law of the Land: Good Ideas Gone Bad: Plea Bargains and Resident Aliens,
66 Tex. B. J. 878 (November, 2003).
POST CON RELIEF – GROUNDS – COUNSEL – IMMIGRATION CONSEQUENCES

CRIMINAL DEFENSE – INTRODUCTION
Lory Diana Rosenberg, Preventative Lawyering: How Defense Counsel can Defend
Immigrants’ Rights, 27 The Champion 43 (Nat'l Ass'n of Criminal Defense Lawyers,
March, 2003).
POST CON RELIEF – GROUNDS – COUNSEL – ADVICE CONCERNING IMMIGRATION

CONSEQUENCES
Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 Cornell L. Rev. 697 (2002).
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL

David M. Siegel, "My Reputation or Your Liberty (Or Your Life): The Ethical Obligations
of Criminal Defense Counsel in Postconviction Proceedings," 23 Journal of the Legal
Profession 85 (1999).
§ 6.9 2. Failure to Conduct Competent Investigation of the Facts
Third Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO

INVESTIGATE
Outten v. Kearney, ___ F.3d ___, 2006 WL 2773076 (3d Cir. Sept. 28, 2006) (the
limited scope of counsel's capital sentencing investigation of mitigating evidence
constituted prejudicial ineffective assistance of counsel, requiring reversal).

267
INVESTIGATE MITIGATING EVIDENCE

Outten v. Kearney, 464 F.3d 401 (3rd Cir. 2006) (trial counsel failed to conduct
reasonably competent investigation into the potential mitigation).
Sixth Circuit

INVESTIGATE
Rolan v. Vaughn, 445 F.3d 671 (6th Cir. 2006) (counsel was ineffective in failing to
interview or present two witnesses defendant identified as being able to testify as to
self-defense defense).

Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006) (counsel failed to conduct any
mitigation investigation or present any mitigation evidence the court).

Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006) (counsel failed to conduct a
thorough investigation or presentation of defendant’s social history or available
mitigation).

Dickerson v. Bagley, 453 F.3d 690 (6th Cir. 2006) (counsel failed to investigate and
present mitigating evidence).
Ninth Circuit
POST CON – GROUNDS – COUNSEL – INEFFECTIVE ASSISTANCE – FAILURE TO

Correll v. Schriro, ___ F.3d ___ (9th Cir. Oct. 2, 2006) (counsel rendered ineffective
assistance by failing to investigate or present potential mitigating evidence; decision
not to do so was not strategic because counsel failed to conduct a sufficient
investigation to be able to make an informed decision), citing ABA standards and
Rompilla v.Beard, 545 U.S. 374, 125 S.Ct. 2456 (2005).
POST-CON - INEFFECTIVE ASSISTANCE - FAILURE TO INVESTIGATE

Landrigan v. Schriro, ___ F.3d ___ (9th Cir. Mar. 8, 2006) (colorable claim that
counsel's performance in failing to investigate fell below the objective standard of
reasonableness and that he was prejudiced thereby required remand for evidentiary
268
hearing).

CONDUCT REASONABLE INVESTIGATION INTO BACKGROUND OF PROSECUTION
WITNESS
Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) (defense counsel failed to conduct a
reasonable investigation into the background of jailhouse informants).

INVESTIGATE
Reynoso v. Giurbino, 462 F.3d 1099 (9th Cir. 2006) (counsel was ineffective in failing to
investigate whether prosecution witnesses had been offered, or accepted, rewards in
exchange for testimony).

INVESTIGATE – FAILURE TO REVIEW IMPORTANT RECORDS
Frierson v. Woodford, 463 F.3d 982 (9th Cir. 2006) (defendant was prejudiced by
ineffective assistance of counsel which resulted from counsel’s failure to review
important records).

PROVIDE ADEQUATE RECORDS TO EXPERT
Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) (defense counsel was ineffective in failing
to provide defense psychiatrist with records necessary for proper preparation of
expert).

STANDARDS FOR CRIMINAL JUSTICE – FAILURE TO INVESTIGATE OR PRESENT
MITIGATING EVIDENCE
Correll v. Ryan, 465 F.3d 1006 (9th Cir. 2006) (defense counsel’s failure to investigate
or present mitigation at penalty phase required reversal of death sentence, despite
personal knowledge of several mitigating factors).
GROUNDS – INSUFFICIENCY OF EVIDENCE

Chien v. Shumsky, __ F.3d __, 2004 WL 1418015 (9th Cir. June 25, 2004) (habeas
granted where evidence supporting perjury conviction for giving misleading
information regarding medical credentials found constitutionally insufficient).
§ 6.10 3. Failure to Research the Law
Ninth Circuit
269
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – PLEA

NEGOTIATIONS – ERRONEOUS ADVICE TO REJECT PLEA BARGAIN BASED ON FAILURE
TO RESEARCH THE LAW
Hoffman v. Arave, 455 F.3d 926 (9th Cir. 2006) (counsel ineffective by giving
incompetent advice regarding prosecution’s plea offer; counsel failed to be fully
aware of state of the law in advising defendant whether to accept offer).
COUNSEL - INEFFECTIVE ASSISTANCE - MISADVICE

Sophanthvong v. Palmateer, ___ F.3d ___ (9th Cir. April 12, 2004) (Counsel not
required to predict accurately how courts will resolve disputed issues; advice was at
most "mere incorrect prediction" of application of statute and did not amount to
"gross mischaracterization of the likely outcome" of plea bargain or trial; Strickland
requires only objectively reasonable advice under prevailing professional norms).
§ 6.11 4. Failure to Advise the Defendant of the Elements and

Defenses
§ 6.12 5. Failure to Advise the Defendant of Constitutional

Rights at Plea the Plea
Ninth Circuit
POST CON RELIEF – FEDERAL – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL –

FAILURE TO MITIGATE
Stankewitz v. Woodford, 365 F.3d 706 (9th Cir.), cert. den., 125 S. Ct. 517, 160 L. Ed.
2d 369 (2004) (evidentiary hearing required on claim of denial of effective assistance
of counsel based on counsel’s failure to "investigate and introduce available, vital
evidence of [defendant’s] childhood of abuse, poverty and institutionalization; his
mental deficiencies amounting to borderline retardation; and his drug and alcohol
abuse exacerbating his disturbed emotional state, particularly in the days leading up
to the killing.").
§ 6.13 6. Failure to Assist the Defendant to Withdraw
Lower Courts of Eighth Circuit
POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE PLEA
FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING
State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel
ineffective by failing to file motion in arrest of judgment to challenge guilty plea on
grounds that neither written plea of guilty nor in-court colloquy informed defendant
that guilty plea might affect immigration status; failure to move in arrest of judgment
270
does not bar challenge to guilty plea if failure to file motion in arrest of judgment
resulted from ineffective assistance).
§ 6.14 7. Failure to Consult the Defendant about an Appeal
Sixth Circuit
POST CON RELIEF – APPEAL – INEFFECTIVE COUNSEL

Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004)
(reversing district court's dismissal of habeas corpus petition based on four
constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal;
(2) appellate counsel was ineffective for not raising potential winning issues on
appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during
the taking of his plea, (b) advise Deitz of potential immigration consequences of a
guilty plea, required by Ohio Rev. Code § 2943.031, and (c) notify Deitz of his right to
contact the Mexican consulate, required by Article 36 of the Vienna Convention of
Consular Relations, and directing district court to decide the ineffective assistance
claims on their merits, since ineffective assistance of counsel constitutes cause to
excuse a procedural default: "Given that Dietz's claim of ineffective assistance of
counsel is not procedurally defaulted, that he has alleged facts that can establish
cause for his failure to file a direct appeal, and that prejudice would be presumed, he
is entitled to habeas relief if he can in fact prove that he asked his attorney to file a
timely appeal and that the attorney failed to do so.").
Ninth Circuit

FILE NOTICE OF APPEAL POST CON RELIEF – VEHICLES – DIRECT APPEAL – INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILURE TO FILE NOTICE OF APPEAL
United States v. Sandoval-Lopez, ___ F.3d ___ (9th Cir. June 6, 2005) (defense counsel
rendered ineffective assistance in violation of the Sixth Amendment by failing to file a
notice of appeal).
Eleventh Circuit
POST CON RELIEF – FEDERAL – APPEAL – WAIVER OF APPEAL – INEFFECTIVE

ASSISTANCE OF COUNSEL
Gomez-Diaz v. United States, ___ F.3d ___, 2005 WL 3465538 (11th Cir. Dec. 20, 2005)
(2255 motion properly raises claim of ineffective assistance of counsel for failure to
file a notice of appeal on request, despite government argument that plea agreement
271
contained waiver of right to appeal from sentence).
§ 6.15 8. Ineffective Assistance of Counsel on Appeal
Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – INEFFECTIVE ASSISTANCE – IAC ON

APPEAL
Moormann v. Schriro, ___ F.3d ___ (9th Cir. October 13, 2005) (denial of petition for
habeas corpus relief reversed where petitioner sufficiently asserted claims of
ineffective assistance of appellate counsel).
§ 6.16 C. Failure to Protect the Defendant Against the Immigration

Consequences of the Plea
§ 6.17 1. Deficient Performance
Sixth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – ADVICE OF POTENTIAL

IMMIGRATION CONSEQUENCES
Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – PLEA BARGAINING IS A CRITICAL STAGE

Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (negotiations with the
272
government are a "critical stage" of a prosecution for Sixth Amendment purposes).
§ 6.18 2. Misadvice vs. Failure to Advise

The difference between a plea of no contest, or nolo contendere, and a guilty plea is
chiefly that the no contest plea may not be used against the defendant in civil
proceedings, whereas the guilty plea can. There is no difference between the two
pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant
is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed
that the plea may not be used against him or her in civil proceedings. Immigration
proceedings are civil, not criminal, proceedings. In effect, the defendant is informed
that the plea does not constitute an admission that may be used in civil immigration
proceedings. If the plea is so used, in contradiction to the representation on which the
plea was entered, the defendant can move to vacate the criminal conviction on the
grounds that the plea was involuntary since it was based on a material
misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the
Supreme Court acknowledged that a plea bargain involves benefits to the defendant,
and held that Congress would not be presumed to have intended to deprive the
defendant of a benefit (there, eligibility for INA § 212(c) relief), on which s/he was
entitled to rely at the time the plea was entered. It is fundamental that "a plea that is
involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia,
401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969);
see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S.
238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea
that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats"
is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted];
Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d
1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct
consequences, it cannot stand if "induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business . . . . " Brady v. United States, 397 U.S.
at 755 (1969) [citation omitted]. It is established in federal law that the immigration
effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea.
United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein.
Thus defense counsel’s failure to advise the defendant that he or she will be deported
is not "ineffective assistance of counsel," and the trial court’s failure to do so does not
render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003);
United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet, as the quoted
273
passage in Brady suggests, and as the federal courts have consistently held over the
last three decades, this distinction between "direct" and "collateral" consequences
loses all significance when the defendant’s plea results from affirmative misadvice
about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d
55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989);
United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v.
McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987);
United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v.
United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61,
64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975);
United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v.
Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46
F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208,
1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich
1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d
1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of
misinformation regarding the "collateral consequence" of parole eligibility on the
voluntariness of a plea]. As those and other cases demonstrate, a plea that results
from actual misinformation provided to the defendant about its effects is not knowing
and voluntary, and cannot be given force. Applying these principles, the federal
courts have consistently voided guilty pleas entered – as this one was – on the basis of
affirmative misadvice regarding considerations of consequence to the defendant. For
example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth
Circuit held that a plea induced by material misinformation from the prosecution,
court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman
was advised by his counsel that the sentencing guidelines would fix his sentence at
somewhere between 10 to 16 months, and both the government’s attorney and the
district judge confirmed that defendant’s understanding. Id. at 1395-97. The
subsequent pre-sentence report, however, recommended 199 months. Id. at 1397.
After the receipt of the pre-sentence report, the defendant moved to withdraw his
guilty plea; however, the district court denied his motion and sentenced him to 109
months. Id. at 1397-98. The Ninth Circuit determined that the defendant had been
misinformed by the court, government counsel and his own counsel, and held that
"[b]ecause of this misinformation, we do not believe Toothman was ‘equipped
intelligently to accept the plea offer made to him.’" Id. at 1400; quoting, United States
v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found
that the plea was involuntary. Id. at 1401. Thanks to Don Chairez for the suggestion
for this argument.
POST-CON – GROUNDS – FAILURE TO ADVISE POST-CON – DEPORTATION AS A

COLLATERAL CONSEQUENCE
274
POST-CON – GROUNDS – FAILURE TO ADVISE POST-CON – DEPORTATION AS A

COLLATERAL CONSEQUENCE
Sial v. State, 862 N.E.2d 702 (Ind. App. Mar. 16, 2007) ("to succeed as a post-
conviction petitioner under these circumstances, Sial is required to establish special
circumstances or specific facts showing that if his attorney had properly advised him
of the penal consequences of a guilty plea-here, deportation-there is a reasonable
probability that he would have chosen to proceed to trial.") (emphasis added)
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – AFFIRMATIVE MISADVICE

People v. Michael, 2007 NY Slip Op 27220; 16 Misc. 3d 84; 2007 N.Y. Misc. LEXIS 3814
(May 22, 2007)("Defendant, a native of Pakistan and a lawful permanent resident of
the United States, alleged that he entered his guilty plea to sexual abuse in the second
degree (Penal Law § 130.60 [2]), a misdemeanor, in reliance upon his trial counsel's
misrepresentations that the United States Government usually does not deport
persons convicted of misdemeanors and that because defendant had been granted
"asylum," he would "not have a problem" with immigration authorities. The People do
not dispute that the advice allegedly given to defendant was materially inaccurate in
that defendant faces mandatory deportation upon a conviction of an offense involving
the sexual abuse of a minor, an "aggravated felony" under Federal deportation law,
even though classified a misdemeanor under New York State law (Immigration and
Nationality Act § 1101 [a] [43] [A]; § 237 [a] [2] [A] [iii]; United States v Couto, 311
F.3d 179, [*2] 184 [2d Cir 2002]; Zhang v United States, 401 F. Supp. 2d 233, 241-242
[ED NY 2005]; see People v McKenzie, 4 AD3d 437, 439, 771 N.Y.S.2d 551 [2004]).").
POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL – AFFIRMATIVE MISADVICE

People v. Michael, 842 N.Y.S.2d 159 (May 22, 2007) (“The People do not dispute that
the advice allegedly given to defendant was materially inaccurate in that defendant
faces mandatory deportation upon a conviction of an offense involving the sexual
abuse of a minor, an “aggravated felony” under Federal deportation law, even though
classified a misdemeanor under New York State law”).
POST CON RELIEF – INEFFECTIVE ASSISTANCE – IMMIGRATION CONSEQUENCES –

CONNECTICUT
State v. Aquino, ___ Conn. ___ (Aug. 8, 2006) (claim that criminal defense lawyers
obligated to determine client's immigration status and advise of immigration
consequences of criminal case dismissed as moot because record does not reflect
whether client was deported for aggravated felony or illegal presence; vacating
adverse Court of Appeals decision).
POST CON – FEDERAL – GROUNDS – INVOLUNTARY PLEA WHERE DEFENDANT TOLD

275
ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY

CERTAIN TO DO SO
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS
28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting motion to
vacate sentence pursuant to 28 U.S.C.§ 2255 on involuntary plea and ineffective
counsel grounds for misadvice concerning immigration consequences where
defendant was informed only that the conviction "could result in your deportation,"
where it was certain to do so).

ADVISE OF IMMIGRATION CONSEQUENCES – GENERAL RULE DOES NOT CONSTITUTE
INEFFECTIVE ASSISTANCE OF COUNSEL
State v. Aquino, ___ Conn. ___, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005)
("Our conclusion today is in agreement with the majority of jurisdictions, both federal
and state, that have considered the issue of whether the failure to advise a client of
the immigration consequences of a guilty plea constitutes ineffective assistance of
counsel. See id., [United States v. Gonzalez, 202 F.3d 20, 24 (1st Cir. 2000)] 25; United
States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357, 1358
(10th Cir. 1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1869, 123 L. Ed. 2d 489 (1993);
United States v. Del Rosario, 284 U.S. App. D.C. 90, 902 F.2d 55, 58-59 (D.C. Cir.), cert.
denied, 498 U.S. 942, 111 S. Ct. 352, 112 L. Ed. 2d 316 (1990); Santos v. Kolb, 880 F.2d
941, 944-45 (7th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S. Ct. 873, 107 L. Ed. 2d
956 (1990); United States v. George, supra, 869 F.2d 337-38; United States v.
DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989); United States v. Yearwood, supra, 863 F.2d
7-8; United States v. Campbell , supra, 778 F.2d 768-69; United States v. Gavilan, 761
F.2d 226, 228-29 (5th Cir. 1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.
1975); Government of Virgin Islands v. Pamphile, 604 F. Supp. 753, 756-57, 21 V.I. 348
(D.V.I. 1985); Oyekoya v. State, 558 So. 2d 990, 990-91 (Ala. Crim. App. 1989); Tafoya
v. State, 500 P.2d 247, 252 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35
L. Ed. 2d 611 (1973); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245 (Ariz. App.
1995); Matos v. United States, 631 A.2d 28, 31-32 (D.C. 1993); State v. Ginebra, 511
So. 2d 960, 962 (Fla. 1987); People v. Huante , 143 Ill. 2d 61, 73-74, 571 N.E.2d 736,
156 Ill. Dec. 756 (1991); Mott v. State , 407 N.W.2d 581, 583 (Iowa 1987); Daley v.
State, 61 Md. App. 486, 490, 487 A.2d 320 (1985); Commonwealth v. Fraire, 55 Mass.
App. 916, 917-18, 774 N.E.2d 677 (2002); Alanis v. State, 583 N.W.2d 573, 579 (Minn.
1998); State v. Chung, supra, 210 N.J. Super. 435; People v. Boodhoo, 191 App. Div. 2d
448, 449, 593 N.Y.S.2d 882 (1993); People v. Dor, 132 Misc. 2d 568, 572, 505 N.Y.S.2d
317 (1986); State v. Dalman, 520 N.W.2d 860, 863-64 (N.D. 1994); Commonwealth v.
Frometa, 520 Pa. 552, 556, 555 A.2d 92 (1989); State v. Figueroa, 639 A.2d 495, 501
(R.I. 1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah App. 1994), cert. denied,
892 P.2d 13 (Utah 1995); State v. Holley, 75 Wn. App. 191, 198, 876 P.2d 973 (1994),
276
on appeal after remand, 86 Wn. App. 1100 (1997), review denied, 133 Wn. 2d 1032,
950 P.2d 476 (1998); State v. Santos, 136 Wis. 2d 528, 532, 401 N.W.2d 856 (Wis. App.
1987).").

ADVISE OF ACTUAL IMMIGRATION CONSEQUENCES – CONNECTICUT
(affirming denial of motion to withdraw the plea based on a claim that ineffective
assistance of counsel meant the plea was not knowingly and voluntarily entered, since
counsel's failure to advise that deportation consequence was mandatory, not merely
possible, did not constitute ineffective assistance of counsel because counsel is not
required to inform the defendant of collateral consequences, as opposed to direct
consequences, of the plea).
POST CON RELIEF – VIRGINIA – CORAM VOBIS – SENTENCE REDUCTION GRANTED FOR
IMMIGRATION PURPOSES AFTER CUSTODY EXPIRED SINCE DEFENDANT HAD NO
REASON TO SUSPECT THE PROBLEM EARLIER – INEFFECTIVE ASSISTANCE OF COUNSEL
– AFFIRMATIVE MISADVICE
Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18, 2006)
(granting writ of coram vobis, reducing sentence from two years to 360 days, thereby
entitling petitioner to discretionary relief in the immigration courts, after custody had
expired, since petitioner had no reason to suspect the advice was faulty any earlier
than when he was placed into removal proceedings upon returning to the United
States).
POST CON – GROUNDS – INEFFECTIVE ASSISTANCE – IMMIGRATION CONSEQUENCES

Rosa v. State of Texas, __ S.W.2d __ (Tex Crim. App. Aug. 25, 2005) (ineffective
assistance of counsel for affirmatively misadvising noncitizen defendant of
immigration consequences of conviction).
POST CONVICTION RELIEF - OHIO - INEFFECTIVE COUNSEL - IMMIGRATION

CONSEQUENCES
State of Ohio v. Creary, __ F.Supp.3d __ (Oh. App. Feb. 26, 2004) (counsel gave
affirmative misadvise by advising client to plea guilty on basis that going to trial would
result in deportation; court found deportation for aggravated felons to be nearly
certain; while court gives considerable deference to lawyer's judgment when advising
277
client about likelihood of outcomes within a range of possibilities, there is no

justification for misinforming a client about the state of unambiguous law).
Seventh Circuit
POST CON RELIEF – GROUNDS – COURT OR PROSECUTION AFFIRMATIVE MISADVICE

CONCERNING COLLATERAL CONSEQUENCE OF PLEA CAN CONSTITUTE GROUNDS TO
VACATE CONVICTION
The Seventh Circuit has held that misinformation by the sentencing court regarding
the mandatory parole provision in the plea bargain violated due process. See Ferris v.
Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding defendant’s due process rights were
violated when in the course of making a plea agreement the court misinformed him
that he would not have to serve mandatory five-year parole term).
Ninth Circuit
POST CON RELIEF – FEDERAL -- GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL –

AFFIRMATIVE MISADVICE – FAILURE TO ADVISE DEFENDANT WHEN IMMIGRATION
CONSEQUENCES CHANGED PRIOR TO JUDGMENT
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005)
(defense counsel rendered ineffective assistance of counsel, by correctly advising the
defendant prior to entry of plea concerning immigration consequences of disposition
of criminal case that deportation was not a serious possibility, but in failing to notify
the defendant when, prior to sentence, the law changed and in fact it became a near
certainty, where the defendant could have made a motion under F.R.Crim.P. 32(e) to
withdraw the plea and attempted to renegotiate the disposition in light of the new
legal consequences).
GROUNDS - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES

United States v. Wang, 84 Fed.Appx. 950 (9th Cir. Dec. 29, 2003) (Not selected for
publication in the Federal Reporter) (affirmative misadvice of defense counsel that
plea to submitting false documents to United States Customs Service, in violation of
18 U.S.C. § 542, was ineffective assistance where counsel said immigration
consequences were uncertain, but conviction was in fact nearly certain to result in
deportation; if defendant not been misled by counsel, reasonable possibility existed
that defendant would have gone to trial or plead to lesser offense so as to avoid
certain removal as aggravated felon).
POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL

State v. Quintero-Morelos, 133 Wn. App. 591 (Jun. 22, 2006) ("The day following
278
sentencing, the judge decided to reduce the sentence by one day, which prevented
the defendant's federal deportation, because defense counsel failed at the time of the
original sentencing to inform the judge that the defendant was subject to deportation.
The question presented is whether the judge had discretionary authority to set aside
the judgment on the ground of neglect or carelessness of defense counsel. We
conclude that he did and we affirm that exercise of discretion.").
POST CON – IAC – AFFIRMATIVE MISADVICE

Vega-Gonzalez v. Oregon, __ P.3d __, 2006 WL 1100564 (Apr. 27, 2006) (advice of
criminal defense counsel that conviction of an aggravated felony "may" trigger
deportation is not affirmative misadvice; although conviction of an aggravated felony
is very likely to result in deportation, the DHS could choose not to prosecute or the
noncitizen could obtain withholding of removal or relief under the convention against
torture). Note: the Ninth Circuit, in United States v. Kwan, 407 F.3d 1005 (9th Cir.
2005), held that advice concerning possible deportation was affirmative misadvice,
where an aggravated felony conviction required mandatory deportation. Federal
circuit court decisions, however, are only persuasive, not binding, in state court.

Vega-Gonzalez v. State of Oregon, 191 Or. App. 587 (2004) (where conviction will lead
to mandatory deportation, defense counsel required to inform defendant; stating that
conviction "may" result in deportation is ineffective assistance of counsel. On July 20,
2004, Oregon Supreme Court granted State's request to review Court of Appeals
opinion).

Lyons v. Pearce, 298 Or. 554 (1985) (defense counsel has duty to advise defendant of
possibility of deportation)
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – FAILURE TO ADVISE – UTAH

POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – AFFIRMATIVE MISADVICE –
UTAH
State v. Rojas-Martinez, 125 P.3d 930, 539 Utah Adv. Rep. 58, 2005 UT 86 (Utah Nov
22, 2005) (advising defendant that guilty plea and conviction for sexual battery "might
or might not" lead to deportation is not an affirmative misrepresentation, and thus
does not constitute ineffective assistance of counsel).
POST CON – NEW MEXICO – INEFFECTIVE COUNSEL – FAILURE TO INVESTIGATE AND

ADVISE – AFFIRMATIVE MISADVICE
State v. Paredez, ___ N.M. ___ (Aug. 31, 2004) (New Mexico Supreme Court holds
279
criminal defense attorney has "affirmative duty to determine [the client's]

immigration status and provide him with specific advice regarding the impact a guilty
plea would have on his immigration status"; both affirmative misadvice and failure to
advise can constitute ineffective assistance of counsel).

State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's
attorney has "an affirmative duty to determine [the client's] immigration status and
provide him with specific advice regarding the impact a guilty plea would have on his
immigration status.").
POST CON – UTAH – GROUNDS – INEFFECTIVE COUNSEL – FAILURE TO ADVISE NOT

IAC BECAUSE IMMIGRATION IS A COLLATERAL CONSEQUIENCE
State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (counsel’s failure to
inform client of deportation consequences of guilty plea, without more, does not fall
below objective standard of reasonableness). See also United States v. Couto, 311
F.3d 179, 187 (2nd Cir. 2002).
POST CON – UTAH – GROUNDS -- INEFFECTIVE COUNSEL – AFFIRMATIVE MISADVICE

CONSTITUTES INEFFECTIVE ASSISTANCE
State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (Utah requires
affirmative misadvise regarding deportation consequences to find ineffective
assistance of counsel; court did, however, cite ABA rules requiring counsel to advise
defendant of immigration consequences).
POST CON – GROUNDS – INEFFECTIVE COUNSEL – MIGHT V. WILL -- MIGHT OR MIGHT

NOT BE DEPORTED IS AFFIRMATIVE MISADVICE FOR AGGRAVATED FELONY
State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (counsel’s
statement that defendant "might or might not" be deported as result of sexual battery
conviction was affirmative misadvise since conviction was aggravated felony under
immigration law, virtually mandating deportation without relief).
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – FAILURE TO ADVISE

CONCERNING FOREIGN IMMIGRATION CONSEQUENCES
United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995) (defense counsel's failure to
advise defendant before plea of adverse Nigerian immigration consequences of plea
did not constitute ineffective assistance of counsel).
Other
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – FAILURE TO ADVISE

280
Rob A. Justman, The Effects Of AEDPA And IIRIRA On Ineffective Assistance Of Counsel
Claims For Failure To Advise Alien Defendants Of Deportation Consequences Of
Pleading Guilty To An "Aggravated Felony," 2004 Utah Law Review 701 (2004).
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – IMMIGRATION

CONSEQUENCES
Ostroff, Jamie. Comment. Are immigration consequences of a criminal conviction still
collateral? How the California Supreme Court's decision in re Resendiz leaves this
question unanswered. (In re Resendiz, 19 P.3d 1172, Cal. .2000.) 32 Sw. U. L. Rev. 359-
382 (2003).
§ 6.19 3. Prejudice
POST CON RELIEF - NEW YORK - INEFFECTIVE ASSISTANCE - IMMIGRATION

CONSEQUENCES - AFFIRMATIVE MISADVICE - DEFENDANT’S STATEMENT HE WOULD
NOT HAVE PLEADED GUILTY IF CORRECTLY ADVISED SUFFICIENT TO REQUIRE A
HEARING
People v. McKenzie, ___ N.E.3d ___, 2004 N.Y. App. Div. LEXIS 1329 (N.Y. Feb. 9, 2004)
(allegation that defendant would not have pleaded guilty if properly advised,
sufficient to require hearing on claim of ineffective assistance based on affirmative
misadvice concerning immigration consequences).
Ninth Circuit
POST CON – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL

Davis v. Woodford, ___ F.3d ___ (9th Cir. September 21, 2004) (although counsel
rendered ineffective assistance in failing to impeach prosecution witness with
evidence that he had lied to a police officer about a traffic ticket -- counsel tried to
impeach with the fact of the misdemeanor conviction that followed the lie [but
misdemeanor convictions are not admissible for impeachment in California, only the
conduct underlying the conviction is] -- but evidence failed to meet the second
Strickland prong since the witness had been impeached with other evidence, and "it
was almost impossible to believe" this conduct would have made a difference in the
outcome of the case).
APPEALS - FEDERAL - STRUCTURAL ERROR

United States v. Recio, 371 F.3d 1093 (9th Cir. June 15, 2004) (trial court use of
criminal conspiracy rule that was later rejected constituted structural error, requiring
reversal without specific showing of prejudice); see Sullivan v. Louisiana, 508 U.S. 275,
281
282 (1993).
§ 6.20 4. The Collateral Consequences Argument
Sixth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FEDERAL

RULE -- FAILURE TO ADVISE OF COLLATERAL IMMIGRATION CONSEQUENCES DOES
NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL
Federal courts consistently have held that deportation is a collateral consequence. For
example, in El- Nobani v. United States, 287 F.3d 417, 419 (6th Cir. 2002), the
petitioner claimed that his lack of awareness of the deportation consequences
rendered his plea involuntary and unknowing. The United States Court of Appeals for
the Sixth Circuit disagreed: "A defendant need only be aware of the direct
consequences of the plea . . . . A collateral consequence is one that remains beyond
the control and responsibility of the district court in which that conviction was
entered. . . . It is clear that deportation is not within the control and responsibility of
the district court, and hence, deportation is collateral to a conviction. . . . Thus, the
fact that petitioner was unaware of the deportation consequences of his pleas does
not make his pleas unknowing or involuntary." (Citations omitted; internal quotation
marks omitted.) Id. at 421; see also United States v. Fry, 322 F.3d 1198, 1200 (9th Cir.
2003) ("we have held that deportation is a collateral, not direct, consequence of the
criminal process"); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988)
("we hold that potential deportation is a collateral consequence of a guilty plea");
United States v. Quin, 836 F.2d 654, 655 (1st Cir. 1988) (deportation generally
regarded as collateral consequence); United States v. Campbell, 778 F.2d 764, 767
(11th Cir. 1985) ("deportation is a collateral consequence of a guilty plea"); United
States v. Russell, 222 U.S. App. D.C. 313, 686 F.2d 35, 39 (D.C. Cir. 1982) (well settled
that rule 11 of Federal Rules of Criminal Procedure does not require informing
defendant of possibility of deportation); Fruchtman v. Kenton, 531 F.2d 946, 948-49
(9th Cir.) (deportation is collateral consequence), cert. denied, 429 U.S. 895, 97 S. Ct.
256, 50 L. Ed. 2d 178 (1976); Michel v. United States, 507 F.2d 461, 466 (2d Cir. 1974)
(same).
Other
POST CON RELIEF – GROUNDS – INVOLUNTARY PLEA – COLLATERAL CONSEQUENCES –

FAILURE TO ADVISE DEFENDANT OF COLLATERAL CONSEQUENCES – STANDARD OF
REVIEW – MILITARY COURT
United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) (“In the present
case, the requirement that Appellant register as a sexual offender is a consequence of
282
his conviction that is separate and distinct from the court-martial process.”).
§ 6.21 a. California Rejects the Collateral
§ 6.22 b. Further Arguments and Authority
§ 6.23 5. Affirmative Misadvice May Circumvent the Collateral

Consequences Argument
§ 6.24 6. Failure to Investigate Mitigating Facts
Ninth Circuit

FAILURE TO MITIGATE
to the killing.").
§ 6.25 a. Basic Approach
§ 6.26 b. Sample Argument
§ 6.27 7. Failure to Investigate the Immigration Consequences

of Trial
Fifth Circuit
POST CON – FEDERAL – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL–

INEFFECTIVE REPRESENTATION DURING PLEA BARGAINING – UNDERSTATEMENT OF
EXPOSURE AFTER CONVICTION AT TRIAL
United States v. Grammas, 376 F.3d 433 (5th Cir. 2004) (denial of effective assistance
of counsel in plea negotiations where counsel gave incompetent advice, which
misstated the exposure defendant faced at trial, and defendant proceeded to trial
instead of entering a guilty plea; case remanded for determination of actual
prejudiced, i.e., whether defendant would have pleaded guilty with competent advice
and whether he would have received a reduced sentence had he pled guilty).
283
§ 6.28 D. Conflict of Interest
Ninth Circuit
POST CON – GROUNDS – INEFFECTIVE ASSISTANCE – CONFLICT OF INTEREST

Young v. Runnels, ___ F.3d ___ (9th Cir. Jan. 23, 2006) (habeas denial affirmed over
ineffective assistance of counsel claim and a conflict of interest claim).
§ 6.29 1. Multiple Representation of Conflicting Interests
Ninth Circuit
POST CON RELIEF – GROUNDS – COUNSEL – CONFLICT OF INTEREST – COUNSEL PAID

BY CODEFENDANT NOT SUBJECT TO ACTUAL, MERELY THEORETICAL, CONFLICT OF
INTEREST
United States v. Wells, 394 F.3d 725 (9th Cir. Jan. 11, 2005) (fact that co-defendant
paid defendant's attorney's fees did not by itself create an actual conflict of interest:
the defendant knew who paid the fee, counsel competently represented him, and
there was some question whether the defendant paid some of the fee; payment by
third party does create a "theoretical division of loyalties," (quoting Mickens v. Taylor,
535 U.S. 162, 171 (2002).) See also Wood v. Georgia, 450 U.S. 261, 268-269 (1981).))
POST CON RELIEF – GROUNDS – RIGHT TO COUNSEL – CONFLICT OF INTEREST

Lewis v. Mayle, ___ F.3d ___, 2004 U.S. APP. LEXIS 24595 (9th Cir. Nov. 29, 2004)
(conviction vacated due to conflict of interest in retained counsel’s representation of
defendant and recent representation of his nephew, who was a prosecution witness,
despite signed express waivers of any conflicts, defendant never consulted with
independent counsel concerning the wisdom of the waiver or specifics of the potential
conflict, and there was no evidence that defendant was ever advised of his counsel’s
continuing obligations to his former client; counsel did not impeach the witness with
the available criminal history information stemming from his recent representation of
the witness (recent felony conviction for driving under the influence and pending
felony probation status at the time of trial)).
§ 6.30 2. Conflict of Interest in Failing to Raise Counsel’s Own

Ineffectiveness
§ 6.31 3. Conflict Between Defendant and Counsel
Ninth Circuit
284
POST CON RELIEF – GROUNDS – COUNSEL – CONFLICT OF INTEREST

Alberni v. McDaniel, __ F.3d __ (9th Cir. Aug. 9, 2006) (case remanded to determine
whether defendant's right to conflict-free counsel was violated by trial counsel's
cross-examination of a prosecution witness who had been counsel’s client).
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – CONFLICT OF

INTEREST
United States v. Elliot, 463 F.3d 858 (9th Cir. 2006) (defense counsel’s representation
of a key witness and defendant concerning the same subject matter created at least
an appearance of a conflict of interest)
POST CON – FEDERAL – HABEAS – INEFFECTIVE COUNSEL

Daniels v. Woodford, 428 F.3d 1181 (9th Cir. Nov. 2, 2005) (ineffective assistance of
counsel where conflict of interest arose where defense counsel was acting in his own
self interest in seeking job with district attorney’s office).
POST CON RELIEF – FEDERAL – GROUNDS – COUNSEL – ERRONEOUS DENIAL OF PRE-

TRIAL MOTION TO SUBSTITUTE COUNSEL ON GROUNDS OF IRRECONCILABLE
CONFLICT
Plumlee v. Del Papa, ___ F.3d ___ (9th Cir. October 18, 2005) (reversing denial of
plaintiff's petition for a writ of habeas corpus where Sixth Amendment rights were
violated when the trial judge denied pre-trial motion to substitute counsel on the
basis of an irreconcilable conflict).
POST CON – GROUNDS – CONFLICT OF INTEREST

Lewis v. Mayle, ___ F.3d ___ (9th Cir. November 29, 2004) (conviction vacated on
federal habeas petition reversed where criminal lawyer had actual conflict of interest
that adversely affected representation of his client).
§ 6.32 III. Invalid Guilty Pleas
GROUNDS – INVALID PLEA – FOR UNPRESERVED RULE 11 ERRORS, DEFENDANT MUST

SHOW HE WOULD NOT HAVE PLEADED GUILTY
United States v. Benitez, 124 S.Ct. 2333 (June 14, 2004) (to vacate plea on grounds of
F.R.Crim.P. 11 errors [as distinguished from "structural errors" or fundamental
constitutional errors under Boykin v. Alabama, to vacate the plea], and no objection
was raised in trial court, defendant must establish reasonable probability that but for
error, he would not have pleaded guilty).
285
POST CON – WAIVER OF RIGHTS BY IMMIGRANTS

Von Moltke v. Gillies, 332 U.S. 708 (1948) (court must make a thorough inquiry before
accepting waiver of right to counsel). United States v. Mendez, 102 F.3d 126 (5th Cir.
1997) (waiver of right to jury trial by silence insufficient where defendant was unable
to speak English and did not understand United States criminal system).

28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. §
2255 on involuntary plea and ineffective counsel grounds for misadvice concerning
immigration consequences not barred by failure to raise issues on direct appeal);
Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of
deportation consequences of the defendant's sentence was "cause" for the
defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d
109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255 claim regarding the
voluntariness of a guilty plea made when the petitioner was not properly informed
that deportation was absolute).

CERTAIN TO DO SO
POST CON RELIEF – GROUNDS – GENERAL TEST FOR VOLUNTARINESS OF PLEA –

CONNECTICUT
("It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has
been obtained in violation of due process and is therefore voidable. . . . A plea of
guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. . . . In
choosing to plead guilty, the defendant is waiving several constitutional rights,
including his privilege against self- incrimination, his right to trial by jury, and his right
to confront his accusers. . . . These considerations demand the utmost solicitude of
286
which courts are capable [*13] in canvassing the matter with the accused to make
sure he has a full understanding of what the plea connotes and its consequences. . . .
We therefore require the record affirmatively to disclose that the defendant's choice
was made intelligently and voluntarily." (Citations omitted; internal quotation marks
omitted.))
Ninth Circuit
POST CON RELIEF – FEDERAL – STANDARD OF REVIEW OF SUFFICIENCY OF PLEA

COLLOQUY
United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) ("We review de novo
the sufficiency of a Rule 11 plea colloquy. United States v. King, 257 F.3d 1013, 1021
(9th Cir. 2001). A Rule 11 mistake not preserved by timely objection below is subject
to plain error review. United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct.
2333, 159 L.Ed.2d 157 (2004). We review a district court's denial of a motion to
withdraw a guilty plea for abuse of discretion. United States v. Davis, 428 F.3d 802,
805 (9th Cir. 2005).").
GUILTY PLEAS - FEDERAL - REFUSAL TO ACCEPT

In re Vasquez-Ramirez, 443 F.3d 692 (9th Cir. Apr. 6, 2006) (district judge may not
reject a guilty plea that satisfies all requirements of FRCP 11(b); but may refuse to
abide by plea agreement between defendant and the government; if plea agreement
is rejected, judge must allow defendant to withdraw the plea; if defendant maintains
the plea the court "‘may dispose of the case less favorably toward the defendant than
the plea agreement contemplated.’ Fed. R. Crim. P. 11(c)(5)(C) . . . .").
POST CON RELIEF – FEDERAL – GROUNDS – INVALID PLEA – PREJUDICE STANDARD

SAME AS FOR IAC
United States v. Monzon, 429 F.3d 1268 (9th Cir. Dec. 7, 2005) (conviction and
sentence for possession of a firearm in furtherance of a drug trafficking crime
reversed where the court committed plain error when it accepted guilty plea in
violation of Federal Rule of Criminal Procedure 11, because court failed to establish a
factual basis for believing that the defendant possessed the firearm at least partly for
the purpose of protecting the drugs, where the defendant factually denied that intent
during the plea colloquy, and the error affected defendant’s substantial rights,
defined as a reasonable probability of a different outcome sufficient to undermine
confidence in the outcome).
§ 6.33 A. Ineffective Waiver of Jury Trial
§ 6.34 1. The Failure to Explain the Nature of the Right to a

287
Jury Trial
Ninth Circuit
POST CON RELIEF – FEDERAL – GUILTY PLEA – GROUNDS – INVALID

United States v. Bailon-Santana, 429 F.3d 1258 (9th Cir. Dec. 6, 2005) (conviction
vacated due to invalid jury waiver where the district court’s finding that defendant’s
lawyer properly translated a jury trial waiver form was not supported by the record).
§ 6.35 2. Involuntary Waiver of the Right to a Jury Trial
§ 6.36 B. Ineffective Waiver of Right to Remain Silent
§ 6.37 C. Ineffective Waiver of Confrontation
GROUNDS - CONFRONTATION VIOLATION

The United States Supreme Court revived the Confrontation Clause, and prohibited
"testimonial" use of hearsay in probation revocation hearings. Crawford v.
Washington, ___ U.S. ___, 124 S.Ct. 1354 (2004) (hearsay evidence not permitted at
probation revocation hearings); Morrissey v. Brewer, 408 U.S. 471, 489, 33 L.Ed.2d
484, 499, 92 S.Ct. 2593 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 786, 36 L.Ed.2d 656,
664, 93 S.Ct. 1756 (1973) (under the due process clause of the federal Constitution, a
defendant at a parole or probation revocation hearing generally has the right "to
confront and cross-examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation) . . . ."). It might be permissible, for
example, to suspend confrontation when the witness is from out of state. It was just
this possibility that led the Court in Gagnon v. Scarpelli to "[emphasize] that we did
not in Morrissey intend to prohibit use where appropriate of the conventional
substitutes for live testimony, including affidavits, depositions, and documentary
evidence." (411 U.S. at pp. 782-783, fn. 5) Absent unusual circumstances, however,
Crawford wipes out the now commonplace use of testimonial hearsay at revocation
hearings. This should mean the police officer is present at the hearing, not just his
report; the probation officer who actually searched your client must answer your
questions about where he found the drugs, not the PO’s deskbound supervisor.
Indeed, any witness who has not previously been cross examined will likely have to
testify at revocation hearings. By any measure, and not withstanding any future
decisions, these exclusions should have a huge impact on revocation proceedings.
Of course, Crawford does not exclude all or even most hearsay documents from
either trials or revocation hearings. People v. Maki (1985) 39 Cal.3d 707, and many of
Maki’s progeny, will probably survive Crawford. In Maki, the court affirmed the
288
admission of copies of a hotel receipt bearing the defendant's name and a car rental
invoice bearing his signature at a revocation hearing to establish that he had traveled
out of state. Documents such as these, which are not made in anticipation of being
used in court, are not testimonial. But it’s less common for the hearing to rest entirely
on such documents.
This may also mean immigration courts must receive live testimony, and cannot
rely on "testimonial" hearsay such as police reports or reports of immigration officers’
observations to sustain conduct-based grounds of deportation or inadmissibility.
Ninth Circuit
POST CON RELIEF – GROUNDS – CONFRONTATION -- CRAWFORD -- RETROACTIVITY

Bockting v. Bayer, __ F.3d __, 2005 WL 406284 (9th Cir. Feb. 22, 2005) (Crawford v.
Washington, 541 U.S. 36 (2004) retroactively applies to cases on federal habeas
review from state conviction; although a new rule, it is both a "watershed rule" and
one "without which the likelihood of an accurate conviction is seriously diminished."
[Schriro v. Summerlin, 124 S.Ct. 2519 (2004)]).
§ 6.38 D. Failure to Establish Factual Basis
Ninth Circuit
POST CONVICTION RELIEF – GROUNDS – PLEA COLLOQUY

United States v. Covian-Sandoval, __ F.3d __ (9th Cir. Aug. 31, 2006) (rejecting claim
that plea colloquy was inadequate under FRCP 11 where any such error did not
warrant relief under the plain error standard of review).
GROUNDS – INSUFFICIENCY OF EVIDENCE

Chien v. Shumsky, __ F.3d __, 2004 WL 1418015 (9th Cir. June 25, 2004) (habeas
granted where evidence supporting perjury conviction for giving misleading
information regarding medical credentials found constitutionally insufficient).
HABEAS CORPUS – FEDERAL – UNREASONABLE STATE COURT CONCLUSION

Taylor v. Maddox, 366 F.3d 992 (9th Cir. May 10, 2004) (state court conclusion that
confession obtained from 16-year old defendant was voluntary was objectively
unreasonable, as it ignored testimony of defendant's counsel that defendant had
called him shortly after confessing; "[F]ailure to take into account and reconcile key
parts of the record casts doubt on the process by which the finding was reached, and
hence on the correctness of the finding.").
289
PLEA – ALFORD PLEA POST CON RELIEF – GROUNDS – FACTUAL BASIS – INSUFFICIENT
FACTUAL BASIS EVEN MORE IMPORTANT FOR ALFORD PLEA
When a defendant denies guilt, the court must make a more searching inquiry and the
record must reveal a strong factual basis for a finding of guilty. If the defendant’s
admissions during the plea colloquy, coupled with the prosecution’s offer of proof, do
not cover all of the essential elements of the offense, the plea is arguably invalid on
this ground. United States v. Avery, 15 F.3d 816 (9th Cir. 1993), citing North Carolina v.
Alford, 400 U.S. 25 (1970); see Banks v. McGougan, 717 F.2d 186, 188 (5th Cir. 1983),
citing Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979); Wallace v. Turner, 695 F.2d
545, 548 (11th Cir. 1983).
POST CON RELIEF – WASHINGTON – GROUNDS – INSUFFICIENT EVIDENCE TO

SUPPORT PLEA
State v. Colquitt, ___ Wash. App. ___, 2006 Wash. App. LEXIS 1383 (Jun. 29, 2006)
("The agreement Colquitt entered into to participate in drug court was neither a
stipulation that the substance in the underlying charge was a controlled substance,
nor a stipulation to the sufficiency of the evidence. And, although he agreed that the
police report that included a field test of the substance could be admitted, there were
no laboratory test results. We hold that the police report and field test were not
sufficient evidence of a controlled substance. We reverse and remand to vacate the
conviction.").
§ 6.39 E. Failure to Inform Defendant of the Nature of the Offense
POST CON RELIEF – GROUNDS – INDICTMENT – DEFECTIVE FOR OMISSION TO STATE

AN ELEMENT
United States v. Resendiz-Ponce, ___ U.S. ___ (Jan. 9, 2007) (Ninth Circuit's decision
reversing respondent's conviction for illegally attempting to reenter the United States
is reversed where the indictment at issue was not defective for failure to omit an
element, and consequently, the Supreme Court did not need to answer the question
of whether the omission of an element of a criminal offense from a federal indictment
can constitute harmless error). http://laws.lp.findlaw.com/us/000/05998.html
Seventh Circuit
POST CON RELIEF – FEDERAL – GROUNDS – NATURE OF OFFENCE – COURT'S FAILURE

TO INFORM ILLEGAL RE-ENTRY DEFENDANT OF SIGNIFICANCE OF AGGRAVATED
FELONY DOES NOT JUSTIFY WITHDRAWAL OF THE PLEA, BECAUSE IT IS NOT AN
ELEMENT OF ILLEGAL RE-ENTRY AFTER DEPORTATION OFFENCE
290
United States v. Villarreal-Tamayo, ___ F.3d ___, 2006 WL 3055948 (7th Cir. Oct. 30,
2006 ) (court's failure to inform illegal reentry defendant of significance of aggravated
felony does not justify withdrawal of the plea, because (1) it is not an element of
illegal reentry after deportation offense; (2) it does not define a separate crime, but
rather is a penalty provision authorizing an enhanced penalty for violations of 8 U.S.C.
§ 1326(a)); and (3) the Constitution does not require an enhancement based on
recidivism to be treated as an element of the underlying offense), following
Almendarez-Torres, 523 U.S. at 244-47; see also United States v. Stevens, 453 F.3d
963, 967 (7th Cir.2006) (“ ‘[T]he district court does not violate a defendant's Sixth
Amendment right to a jury trial by making findings as to his criminal record that
expose him to greater criminal penalties.’”); United States v. Williams, 410 F.3d 397,
401-02 (7th Cir.2005); United States v. Lechuga-Ponce, 407 F.3d 895, 896-97 (7th
Cir.2005) (relying on Almendarez-Torres to state “the fact of a prior conviction need
not be proven beyond a reasonable doubt”).
POST CON RELIEF – GROUNDS – NATURE OF OFFENSE – COURT'S FAILURE TO EXPLAIN

ELEMENTS OF OFFENSE
United States v. Jones, 381 F.3d 615, 618-19 (7th Cir. 2004) (affirming district court's
denial of motion to withdraw guilty plea premised on a claim that defendant did not
understand guilty plea).
Ninth Circuit
APPEALS – FEDERAL – CHALLENGE TO SUFFICIENCY OF INDICTMENT

United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal
challenging whether indictment alleges sufficient facts to state offense because
challenge must await final judgment after trial; appeal does not fit within "collateral
order" exception to rule that only final judgments may be appealed; appeal could not
be treated as mandamus because trial court did not clearly err).
POST-CON – MOTION TO WITHDRAW PLEA – GROUNDS – FAILURE TO UNDERSTAND

CHARGES OR IMMIGRATION CONSEQUENCES OF PLEA
United States v. Zeng, __ F.Supp.2d __, 2007 WL 902380 (N.D.Cal. Mar, 22 2007)
(granting motion to withdraw guilty plea where Rule 11 violation occurred because
defendant was prevented, through cultural mores, from interrupting his attorney
during the guilty plea phase, and defendant did not understand the nature of the
charges against him, or the immigration consequences thereof, until he was later able
to read a Chinese translation of the plea agreement).
291
§ 6.40 F. Failure to Inform Defendant of Consequences of Plea

292
for this argument.
Seventh Circuit
POST CON RELIEF – GROUNDS – COURT OR PROSECUTION AFFIRMATIVE MISADVICE

CONCERNING COLLATERAL CONSEQUENCE OF PLEA CAN CONSTITUTE GROUNDS TO
293
VACATE CONVICTION
The Seventh Circuit has held that misinformation by the sentencing court regarding
the mandatory parole provision in the plea bargain violated due process. See Ferris v.
Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding defendant’s due process rights were
violated when in the course of making a plea agreement the court misinformed him
that he would not have to serve mandatory five-year parole term).
POST CON RELIEF – GROUNDS – INVALID PLEA

In re Fonseca, 2006 Wash. App. LEXIS 643 (Wash. Ct. App. Apr. 11, 2006) (court
vacated plea, because defendant did not enter a knowing, voluntary and intelligent
plea because he was not apprised of a direct consequence of the plea that he was
ineligible for a sentence under the Drug Offender Sentencing Alternative (DOSA)
under RCW 9.94A.660, so it remanded the case for the purpose of allowing Mr.
Fonseca the opportunity to elect between plea withdrawal and specific performance).
DC Circuit
POST CON - FEDERAL - PLEA - GROUNDS - INVOLUNTARY

United States v. Singh, __ F.Supp.3d __ (D.C. Feb. 24, 2004) (government is not
required to inform defendants of collateral immigration consequences of plea, but if
prosecutor does have such conversation, the obligation arises not to mislead; plea not
voluntary where defendant was confused by government about immigration
consequences of taking plea).
POST-CONVICTION RELIEF - INVOLUNTARY PLEA - IMMIGRATION CONSEQUENCES -

MISINFORMED BY COURT AND PROSECUTOR
United States v. Singh, __ F.Supp.3d __ (D.C. Feb. 24, 2003) (Plea involuntary where
prosecutor and judge informed defendant that deportation was a ‘possibility’,
although in fact, deportation was nearly certain as the plea was to an aggravated
felony; motion to vacate granted).
Other
POST CON RELIEF – GROUNDS – IMMIGRATION CONSEQUENCES -- JUDICIAL

MISADVICE THAT THERE WAS A CHANCE THE DEFENDANT COULD BE DEPORTED,
WHEN IT WAS IN FACT A CERTAINTY, CONSTITUTED A VIOLATION OF RULE
11 Most cases hold that a court’s misadvice regarding the mandatory minimum and
statutory maximum sentences is not detrimental to the defendant and therefore,
does not constitute a violation of Rule 11. But see, United States v. Singh, 305
F.Supp.2d 109 (U.S.D.C. 2004) (Rule 11 violated where both presiding judge and the
294
prosecutor misinformed a noncitizen defendant facing an aggravated felony

conviction that there was a "chance" that the defendant could face deportation from
the United States, "when in fact it was an absolute certainty."). See also, U.S. v. Lewis,
(5th Cir. 1989) (in addressing the appropriate remedy for Rule 11 violation, the court
agreed with the lower court that there was a Rule 11 violation due to misinformation
regarding the maximum special parole term); Spradley v. U.S., 421 F.2d 1043 (5th Cir.
1970) (sentencing court’s discussion of defendant’s eligibility for parole where he was
not eligible for parole violated Rule 11).
POST CON RELIEF - EFFECTIVE ORDER - GROUNDS -- COLLATERAL CONSEQUENCES -

EFFECT ON LICENSE
"Conviction of a crime is a ground for denying a professional license to any
professional regulated by the Business and Professions Code. Bus. & P C §§ 475,
480(a)(1)." Peck, Effect of a Criminal Conviction on Professional Licenses, Chap. 47, in
California Continuing Education of the Bar, California Criminal Law – Procedure and
Practice § 47.2, p. 1337 (6th ed. 2002). Conviction of a crime is a ground for
suspending or revoking a license of anyone licensed by the various acts covered in the
Business and Professions Code. Ibid. This specifically applies to real estate sales
people. Bus. & Prof. Code § 10177(b).
POST-CONVICTION RELIEF - OREGON

If the court advised the noncitizen defendant only that s/he "may" be deported as a
result of the plea, when the truth is that deportation is mandatory, the Oregon courts
will vacate the conviction. Case?
§ 6.41 G. Breach of Plea Bargain
POST CON RELIEF – GROUNDS – BREACH OF PLEA BARGAIN – KEY CASES

Santabello v. New York, 404 U.S. 257 (1971) (any promise by the prosecutor which is
part of the inducement or consideration for a plea must be fulfilled). United States v.
Kramer, 781 F.2d 1380 (9th Cir. 198) (whether something is a "promise" for plea
agreement breach purposes is to be viewed by an objective standard). United States
v. Revis, 969 F.2d 985 (11th Cir. 1992) (central question in determining whether plea
agreement has been breached is how the terms of the agreement were "reasonably
understood by the defendant."). United States v. Giorgi, 840 F.2d 1022 (1st Cir.
1988) (government bears burden of clarifying any ambiguity in a plea agreement);
United States v. McQueen, 108 F.3d 64 (4th Cir. 1997) (same). United States v.
Swineheart, 614 F.2d 853 (3d Cir. 1980) (Government’s plea agreement promises still
enforceable even when the promises are couched in terms of the Government’s "sole
discretion").
295
Ninth Circuit
POST CON RELIEF – GROUNDS – PLEA BARGAIN – BREACH IN LATER TRIAL

Davis v. Woodford, __ F.3d __ (9th Cir. Apr. 27, 2006) (in 1986 the state expressly
agreed to treat the robbery conviction (which was based on 8 robberies) as only one
"strike" for purposes of later recidivist sentencing, so counting that conviction as eight
"strikes" violated the terms of defendant’s plea agreement; California Supreme
Court’s denial of Petitioner’s state habeas petition was based on an unreasonable
determination of the facts in the light of the evidence presented in state court, 28
U.S.C. § 2254(d)(2), and involved an unreasonable application of clearly established
Supreme Court precedent, Santobello v. New York, 404 U.S. 257 (1971), within the
meaning of 28 U.S.C. § 2254(d)(1)). Use Note: interesting procedural move on
the defendant’s part. He raised the issue in one habeas petition, apparently filed
directly with the California Supreme Court, which, not surprisingly, denied it without
comment. So there was no "reasoned state-court decision addressing" his claims, and
the Ninth Circuit undertakes independent review of the record. This case emphasizes
the absolute importance of obtaining the complete record of a prior conviction,
including the transcript of the guilty plea. You never know!
POST CON RELIEF – GROUNDS – BREACH OF PLEA AGREEMENT

Davis v. Woodford, __ F.3d __ (9th Cir. Apr. 27, 2006) (petition for a writ of habeas
corpus from a sentence for being a felon in possession of a firearm and evading a
peace officer is granted pursuant to a claim that the use of one of defendant’s
convictions as eight separate "strikes" for purposes of California’s Three Strikes Law
breached a plea agreement).
GUILTY PLEAS - RESCISSION OF PLEA AGREEMENT BY GOVERNMENT

United States v. Transfiguracion, 442 F.3d 1222 (9th Cir. Apr. 5, 2006) (government
could not back out of plea agreement in drug case where the defendant has complied
with the agreement by cooperating, even though the charges were ultimately
dismissed; under rule that ambiguities in contracts "are to be construed unfavorably
to the drafter," Black’s Law Dictionary 328 (7th ed. 1999)), the government was stuck
with the results of its sloppy plea drafting).
POST-CON – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO ADVISE – WAIVERS

OF POST-CONVICTION RELIEF
Washington v. Lampert, 422 F.3d 864 (9th Cir. Sept. 6, 2005) (ineffective assistance
where trial counsel failed to explain consequences of the stipulated sentencing
agreement, and the effect of waivers of post-conviction relief)
296

People v. Paredes, 72 Cal.Rptr.3d 867 (Cal.App. 4 Dist. Feb. 26, 2008) (agreement of
state to JRAD does not constitute an express or implied promise that the conviction
will not render the noncitizen deportable; the fact that the federal immigration laws
changed retroactively to make 1987 manslaughter conviction deportable as an
aggravated felony not sufficient to show that the original 1987 plea agreement had
been violated).
CAL POST CON – GROUNDS – BREACH OF PLEA AGREEMENT

People v. Toscano, ___ Cal.App.4th ___ (2d App. Dist. Nov. 22, 2004) (guilty plea to
spousal abuse reversed where trial court breached plea agreement by not permitting
defendant to move to strike a prior conviction).
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2004/b172387.html
§ 6.42 H. Promissory Estoppel
§ 6.43 I. Failure to Disclose Plea Agreement on the Record
§ 6.44 J. Coercion to Enter Plea
§ 6.45 K. Failure to Establish Mental Competence to Enter Plea
Ninth Circuit
POST CON RELIEF – GROUNDS – MENTAL INCOMPETENCE

Allen v. Calderon, ___ F.3d ___ (9th Cir. May 3, 2005) (district court erred in dismissing
habeas petition without appointing a guardian ad litem and counsel to assist the court
in evaluating petitioner's mental competence).
POST CON – GROUNDS – COMPETENCY TO STAND TRIAL – STANDARD OF REVIEW OF

COURT'S DECISION
Davis v. Woodford, ___ F.3d ___ (9th Cir. September 21, 2004) (fact that some of
defendant's actions were eccentric not substantial evidence of incompetency;
standard is whether reasonable judge would have experienced doubt with respect to
defendant's competency to stand trial); De Kaplany v. Enomoto, 540 F.2d 975, 983
(9th Cir.1976) (en banc).
Tenth Circuit
297
POST CONVICTION RELIEF – GROUNDS – MENTAL COMPETENCE – INVOLUNTARY

MEDICATION
United States v. Valenzuela-Puentes, ___ F.3d ___ (10th Cir. March 15, 2007) (court
order allowing involuntary medication of illegal reentry defendant so as to render him
competent to stand trial is reversed where record did not contain evidence from
which a conclusion of a substantial likelihood of restoring competency was
unavoidable, the district court provided no explanation as to whether or why it had
become clearly convinced that defendant could be rendered competent through
medication despite his exceptionally low IQ, and it was unclear whether the district
court applied the appropriate burden of proof).
http://laws.lp.findlaw.com/10th/042283.html
Other
POST CON RELIEF – FEDERAL – GROUNDS – MENTAL COMPETENCY

Willstatter, The Federal Criminal Competency System, 30 THE CHAMPION 16 (Jun.,
2006).
§ 6.46 L. Failure to Advise the Noncitizen Defendant of the Right

to Contact the Consulate
POST CON RELIEF – GROUNDS – VIENNA CONVENTION

Medellin v. Texas, ___ U.S. ___, 128 S.Ct. 1346 (Mar. 25, 2008) (neither an
International Court of Justice case, Case Concerning Avena and Other Mexican
Nationals (Mex. v. U. S.), 2004 I. C. J. 12, nor a memorandum issued by the President
of the United States constitutes directly enforceable federal law that pre-empts state
limitations on the filing of successive habeas petitions, affirming dismissal of a habeas
petition in a death penalty case raising a claim that petitioner was not informed of his
Vienna Convention right to notify the Mexican consulate of his detention).

Sanchez-LLamas v. Oregon, 548 U.S. __ (Jun. 28, 2006) (even assuming that the Vienna
Convention on Consular Relations creates judicially enforceable rights, suppression is
not an appropriate remedy for a violation of Article 36 of the Convention, requiring
consulate notification of a noncitizen is placed in criminal proceedings, and a state
may apply its regular rules of procedural default to Article 36 claims).

Medellin v. Dretke, ___ U.S. ___(May 23, 2005) (certiorari to review defendant's
habeas corpus petition, alleging violation of Vienna Convention rights, improvidently
granted where Texas state courts may provide defendant with the relief he seeks).
298
POST CON RELIEF – VIENNA CONVENTION

Medellin v. Dretke, 544 U.S. 660, 125 S.Ct. 2088 (2005) (per curiam) (United States
courts must comply with ruling by International Court of Justice that they must
reconsider claims for relief under the Vienna Convention on Consular Relations)
POST CON – GROUNDS – VIENNA CONVENTION

Mali v. Keeper of Common Jail (Wildenhus’s Case), 120 U.S. 1, 17 (1887) (consult has
standing under treaty to bring habeas corpus petition on behalf of foreign national);
see also Consulate Gen. Of Mexico v. Phillips, 17 F. Supp. 2d 1318, 1322-23 (S.D. Fla.
1998); People v. Corona, (1989) 211 Cal.App.3d 529, 538; 259 Cal. Rptr. 524. LaGrand
(Germany v. USA), 2001 I.C.J. 466 (June 27) (Vienna Convention creates individual
rights, not only right of consulate) Avena and Other Mexican Nationals (Mex. v. U.S.),
2004 I.C.J. 128 (Mar. 31) (Vienna Convention creates individual rights, not only right of
consulate) United States v. Rangel-Gonzales, 617 F.2d 529, 532 (9th Cir. 1980) ("The
right established by the [INS] regulation and in this case by the treaty is a personal one
. . . . personal rights cannot be abrogated simply because others do not exercise
them."). United States v. Chaparro-Alcantara, 37 F. Supp. 2d 1122, 1125 (C.D. Ill. 1999)
("[Defendants] have an individual right to consular notification under Article 36 which
in turn grants them standing to object to a violation of that provision."). United States
v. Miranda, 65 F. Supp. 2d 1002, 1005 (D. Minn. 1999) (two day period in which
authorities failed to notify noncitizen of rights under Convention was in violation of
Convention requirement that notification be given "without delay"). United States v.
Wendy G., 255 F.3d 761, 766 (9th Cir. 2001) (noncitizen juvenile defendants have right
to contact parents or consulate if parents are not available, and the parents or
consulate must also be informed of the right to communicate with the juvenile before
questioning by the police).
POST CON RELIEF – GROUNDS – MISADVICE TO DEFENDANT CONCERNING MATERIAL

LEGAL ISSUE AS GROUND TO WITHDRAW THE PLEA
Any unconditional guilty plea in federal court must be "knowing and voluntary."
McCarthy v. United States, 394 U.S. 459, 464-67 (1969). The basis of a motion to set
aside a guilty plea is a showing that the "accused does not understand the nature of
the constitutional protections that he is waiving." Henderson v. Morgan, 426 U.S. 637,
645 n.13 (1976). The cases that follow support an argument that incorrect judicial
advice concerning a fact (such as the effectiveness of a JRAD) that is material to the
decision to enter a plea renders the plea involuntary. Mistake in the estimate of
appellant’s sentence. United States v. Erskine, 355 F.3d 1161 (9th Cir. Jan. 21, 2004).
The Defendant chose to represent himself in court in prosecution for making threats
to FBI agents. In course of Feretta v. California, 422 U.S. 806 (1975) hearing to
establish that the defendant understood the dangers of self-representation, the court
299
correctly informed the defendant of the specific dangers of self representation, but
failed to correctly inform the defendant of the maximum penalty he would face if
convicted. The court therefore found that his sixth amendment right to counsel had
been violated for failure of the court to ensure that the defendant understood the
possible penalties. United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998).
Defendant was an INS agent who solicited sexual favors from eight women in
exchange for assistance with their immigration documents. Appellant was initially
indicted on 11 counts including felony sexual abuse, felony deprivation of rights under
color of law and bribery. Appellant agreed to plead guilty in exchange for the
government’s filing of a superceding 8-count information. The superceding
information changed count one from a felony to a misdemeanor and deleted all
references to sexual acts and bodily injuries. The remaining seven counts charged the
seeking of sexual favors by a public official. During the plea hearing appellant was
advised by his counsel that the sentencing guidelines would fix his sentence at
somewhere between 10 to 16 months. The discussion that took place during the plea
hearing shows that both the government’s attorney and the district judge confirmed
appellant’s understanding. The subsequent pre-sentence report recommended 199
months. After the receipt of the pre-sentence report, appellant moved to withdraw
his guilty plea to count one in order to eliminate criminal sexual abuse as the
underlying offense. The court denied his motion following a hearing and sentenced
him to 109 months. The court of appeal determined that appellant had been
misinformed by the court, government counsel and his own counsel that the basic
guideline range for all counts would be 10 to 16 months. Because of the
misinformation, the appeals court determined that appellant was not " ‘equipped
intelligently to accept the plea offer made to him,’ " and found that the plea was
involuntary. Mistaken belief that an appeal issue was preserved: United States v.
Pierre, 120 F.3d 1153 (11th Cir. 1997). Appellant pled guilty to three immigration
offenses (not specified). He filed a motion to dismiss, alleging violations of the Speedy
Trial Act. The motion was denied, he entered a guilty plea and was sentenced. During
the plea hearing, the record unequivocally indicated that appellant intended to plead
guilty on the condition that – and only after having been assured by the court that –
he had preserved the speedy trial issues for appeal. He appealed the denial of the
speedy trial issues and the government countered by arguing that the guilty plea
waived appellant’s right to raise the speedy trial issues on appeal. These facts raise
two related issues:
1. When a defendant enters a guilty plea based on his reasonable belief

that he has preserved his right to appeal a non-jurisdictional issue, is
the plea a conditional one within the meaning of Fed.R.Crim.P. 11?
2. If the plea is not conditional, was it still knowingly and voluntarily
entered?
300
For a conditional plea, Rule 11 requires, inter alia, the approval of the court, the
consent of the government and a writing. The definition of "consent" varies among
the circuits. In the 9th Circuit, Rule 11 consent is interpreted to require "unequivocal
government acquiescence." See United States v. Carrasco, 786 F.2d 1452 (9th Cir.
1986), infra. The appeals court held that, as in this case, silence or inaction by the
government does not constitute consent, and found that the plea was unconditional
under Rule 11. The appeals court then held that because appellant entered – and the
district court accepted – this guilty plea only on the reasonable (but mistaken) belief
that appellant had preserved the speedy trial issues for appeal, his plea was, as a
matter of law, not knowing and voluntary. The court found that the defendant had
been misinformed by the court, government counsel, and his own counsel of the basic
guideline range. Judge’s Failure to Explain Nature of the Charges. United States v.
Pena, 314 F.3d 1152 (9th Cir. Jan. 9, 2003). The Ninth Circuit held that plain error
occurred where the defendant was never informed by the prosecutor or the court of
the nature of the offense, in violation of Rule 11. The district court had merely asked
whether the defendant had read the plea agreement, and asked the defendant’s
counsel whether he understood and agreed with the elements of the offense. The
Ninth Circuit found that, except for application of the ‘plain error’ rather than
‘harmless error’ standard, all prior Ninth Circuit case law regarding Rule 11 violations
still apply. United States v. Bruce, 976 F.2d 552 (9th Cir. Oct. 1, 1992). Rule 11 requires
that "[b]efore accepting a plea of guilty or nolo contendere, the court must address
the defendant personally in open court and inform him of, and determine that he
understands … the nature of the charge to which the plea is offered…" Fed. R. Crim.P.
§ 11(c)(1). This procedure is not constitutionally mandated. The determination
depends upon the ‘the particular facts of each situation, looking to both the
complexity of the charge and the personal characteristics of the defendant,’ bases
solely on the basis of the record of the plea proceeding. United States v. Kramer, 781
F.2d 1380 (9th Cir.), cert. denied, 479 U.S. 819 (1986). The judge informed the
defendant that he was charged, under a superceding indictment, of "conspiracy to
manufacture methamphetamine," when the defendant was actually charged with
aiding and abetting a conspiracy to possess a controlled substance with intent to
distribute. The Ninth Circuit held both that the district court erred in misstating the
charge, and in failing to meet the Rule 11(c)(1) requirement that he be informed of
the ‘nature’ of the charge:
A trial judge fails to satisfy his obligation under Rule 11 when, as here,
he does not fully inform the defendant of the meaning and
application of legal argot and other legal concepts that are esoteric to
an accused, including the meaning and application of the term
conspiracy.
United States v. Bruce, 976 F.2d, at 560 (internal citations and quotation marks
301
omitted). Mistaken belief whether a motion could be filed after an unconditional plea.
United States v. Cortez, 973 F.2d 764 (9th Cir. 1992). Appellant was charged with
distributing and possessing crack within 100 ft of a video arcade. Shortly before his
trial, appellant moved for a continuance so that he could prepare a motion to dismiss
for selective prosecution. The United States opposed the motion stating that it could
properly be heard post-conviction and that it was not therefore necessary to grant a
continuance. The court denied appellant’s motion assuring him that he had "the right
to make a selective prosecution motion after trial if he was convicted." After the jury
was impaneled, appellant pled guilty to both counts. On the day of sentencing,
appellant filed the selective prosecution motion. He also filed a motion requesting
that "if the court believes that the guilty pleas act as a waiver of the selective
prosecution motion, the defendant would then move to withdraw his guilty pleas and
enter conditional guilty pleas." The court denied the selective prosecution motion and
made no ruling on the motion to withdraw the guilty plea. Appellant was sentenced.
The court of appeal found that appellant’s plea was not conditional because the Court
and the United States did not acquiesce. (Fed.R.Crim.P. 11) The court furthermore
determined that appellant’s unconditional plea was a waiver of his right to appeal on
the basis of selective prosecution, When a criminal defendant has solemnly admitted
in open court that he is in fact guilty of the offense with which he is charged, he may
not thereafter raise independent claims relating to the deprivation of Constitutional
rights that occurred prior to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea. Tollett v. Henderson, 411 U.S.
258 (1973). However, the court of appeals determined that appellant’s unconditional
plea was not knowingly and voluntarily entered into because he believed that his
unconditional guilty plea allowed him to appeal his selective prosecution claim. The
court wrote, "the discussions at the hearing prior to trial indicate that all parties
believed the selective prosecution claim could be made post-conviction." The court
clearly distinguished this case from one in which the defendant’s attorney incorrectly
predicts the outcome of some aspect of defendant’s case. Here, all parties present
including, the district judge, the U.S. Attorney and appellant’s counsel shared the
same erroneous belief. Appellant’s plea was set aside. Attorney misrepresented to
defendant that a sentence agreement had been made with the judge. Chizen v.
Hunter, 809 F.2d 560 (9th Cir. 1986). Appellant was charged with child molesting and
pled nolo contendre in exchange for the dismissal of the charge of contributing to the
delinquency of a minor. As part of his plea, he signed a Boykin waiver form by which
he initialed that his decision to plead had been made freely and voluntarily and that
he understood that "regardless of motions or recommendations made by others . . .
the sentence will be decided solely by the judge." Before sentencing, appellant moved
to withdraw his plea on the grounds that the plea had been induced by his attorney’s
assurance that a plea bargain had been struck and that the maximum sentence would
be 90 days. His motion to withdraw the plea was summarily denied and he was
302
sentenced to 180 days. The issue on appeal was whether the plea was involuntary
because it was based on the misrepresentation of his attorney that the trial judge had
committed himself to a particular sentence, notwithstanding that appellant has signed
a waiver form. The court distinguished this case from one where appellant’s counsel
erroneously predicts favorable consequences. Here, appellant’s plea was involuntary
because it was induced by his counsel’s misrepresentations as to what his sentence in
fact would be. (Note here that unlike almost every case so far, there is no other party
contributing to this mistaken belief. It is defendant’s counsel alone.) United States v.
Carrasco, 786 F.2d 1452 (9th Cir. 1986). Appellant was indicted for conspiracy to
transport and harbor illegal aliens, and for harboring illegal aliens. Before trial,
appellant filed a motion to suppress evidence and the district court denied the
motion. The government offered appellant a conditional plea agreement where
appellant would enter a conditional plea of guilty to count one in return for the
government’s dismissal of count two. Appellant would thereby be able to preserve his
right to appeal the suppression motion. Appellant and the co-defendant accepted the
plea, but the government withdrew the offer before the pleas were entered. The
appellant then pled guilty to count one and prepared for trial on count two. Count
two was then, sua sponte dismissed by the court. Appellant argues that the
government gave sufficient consent to the conditional plea based on the discussion on
the record and in writing. The court of appeals found the pre-plea discussions on the
record to be vague and "[do] not establish that the government manifested assent to
a conditional plea. The government attorney reasonably could have believed, based
on the exchange, that appellant was entering an unconditional plea." The appeals
court also found the writing to be deficient because it did not specify which pretrial
issues would be reserved for appeal. Therefore, the court of appeals found that there
was insufficient assent manifested by the government for a conditional plea, and that
the plea was therefore unconditional. Based on the same pre-plea conversations
between counsel and the court, the appeals court found that appellant did not
understand that her plea was unconditional, and it was therefore not knowing and
voluntary. Appellant’s sentence was vacated. Temporal scope of an appeal waiver.
United States v. Johnson, 67 F.3d 200 (9th Cir. 1995). Appellant was charged with
possession of heroin with intent to distribute, and with the importation of heroin. In a
written plea agreement, defendant pled guilty to count one. The agreement,
acknowledging that count one carried a mandatory minimum sentence of 10 years,
stated that appellant waived "the right to appeal any sentence imposed by the district
judge." The district court, sua sponte, raised the question of whether appellant could
qualify for sentencing under the newly enacted Violent Crime Control and Law
Enforcement Act of 1994. The "crime bill" added a section that allowed the court to
sentence certain drug offenders without regard to the statutory minimum sentences.
The court ultimately concluded that the new section did not apply to appellant
because of his criminal history. He was sentenced to the statutory minimum of 10
303
years. Appellant appealed the sentence claiming that the district court was incorrect
in its belief that the new ‘crime bill’ section did not apply to appellant. The
government moved to dismiss the appeal on the ground that Johnson waived his right
to appeal his sentence. Appellant argues that, although he knowingly and intelligently
waived all appealable issues from the sentence based upon the status of the law at
the time of his plea and waiver, such voluntary relinquishment of known rights was
not intended to encompass, and could not logically extend to, appeal of a sentencing
error premised upon a law not yet enacted at the time of the waiver. In this case of
first impression, the court of appeal held that appellant’s appeal waiver encompasses
appeals arising out of the new law applicable to his sentencing. The appeal’s court
found that because the waiver refers to "any sentence imposed by the district judge,"
and not "any sentence imposed under the laws currently in effect" it is reasonable to
find that the waiver includes any new laws enacted after the agreement. The appeals
court also concluded that the waiver was knowing and voluntary as to the laws
enacted after the waiver was executed. The court wrote that "the fact that [appellant]
did not foresee the specific issue that he now seeks to appeal does not place that
issue outside the scope of his waiver." (See United States v. Navarro-Botello, 912 F.2d
318, 320 (9th Cir. 1990).
Ninth Circuit
POST CON RELIEF – GROUNDS – VIENNA CONVENTION – VIOLATION OF FEDERAL

STATUTE OR TREATY IN STATE COURT PROCEEDINGS
A violation of a federal statute or treaty during the state court proceedings may also
provide a basis for federal habeas corpus relief. Benitez v. Garcia, 449 F.3d 971 (9th
Cir. 2006) (extradition treaty violation). Like violations of the federal Constitution,
violations of statutes and treaties should also be preserved in state court. See, e.g.,
Breard v. Greene, 523 U.S. 371 (1998) (alleged violation of Vienna Convention was
procedurally defaulted by failure to raise claim in state court).

People v. Mendoza, 42 Cal.4th 686, 171 P.3d 2 (Cal. Nov. 29, 2007) (claim under
Vienna Convention on Consular Rights must be brought in habeas corpus petition, nor
direct appeal; court rejects claim under the Vienna Convention on Consular Rights on
the merits and for lack of claim or proof of prejudice).
Tenth Circuit

304
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting argument that
the INS's failure to apprise him that he was entitled to communicate with Mexican
consular or diplomatic officers under the Vienna Convention and immigration
regulations violates Article 36(1)(b) of the Vienna Convention on Consular Relations
and 8 C.F.R. § 236.1(e), on grounds the argument was waived because he failed to
assert the issue before the IJ, and, in any event, Torres could not show that the
violation resulted in any prejudice).
Other
POST CON RELIEF – GROUNDS – VIENNA CONVENTION VIOLATIONS

Brook, Joshua A. Note. Federalism and foreign affairs: how to remedy violations of the
Vienna Convention and obey the U.S. Constitution, too. 37 U. Mich. J.L. Reform 573-
598 (2004).
POST CON RELIEF – GROUNDS – VIENNA CONVENTION VIOLATIONS

Carter, Linda E. Compliance with ICJ provisional measures and the meaning of review
and reconsideration under the Vienna Convention on Consular Relations: Avena and
Other Mexican Nationals (Mex. v. U.S.). 25 Mich. J. Int’l L. 117-134 (2003).
GROUNDS – VIENNA CONVENTION

Article 36 of the Vienna Convention on Consular Relations (21 U.S.T. 77, TIAS 6820),
can be used to attempt to suppress a confession, or vacate a guilty plea, in a criminal
or immigration case, in light of the LaGrand and Avena decisions. LaGrand Case
(Germany v. U.S.), 2001 I.C.J. 104 (June 27) available at
http://www.icjcij.org/icjwww/idocket/igus/igusframe.htm; Avena and Other Mexican
Nationals (Mexico v. United States of America), 2003 I.C.J. 128,
http:www.icjcji.org/icjwww/ipresscom/ipress2003/ipress2003-45--mus--
20031223.htm (as visited February 5, 2004). Madej v. Schomig, 223 F.Supp.2d 968
(N.D. Ill. 2002), recognizes the impact of LaGrand: "After LaGrand, however, no court
can credibly hold that the Vienna Convention does not create individually enforceable
rights. The International Court of Justice was quite clear on that point, announcing
that 'Article 36, paragraph 1, creates individual rights.' LaGrand Case, 2001 I.C.J. 104,
at P 77." The impact of Avena can be seen by what happened in the capitol case,
Torres v. Mullin, 124 S.Ct. 562 (2003), in which the defendant received a stay, a parole
recommendation for clemency, and a commutation, based on Avena and the VCCR.
Many police departments have incorporated the Vienna Convention's requirement
that the arresting officer inform a noncitizen arrestee of his right to contact his
consulate, so counsel may have the argument that the officer violated his duties
imposed upon him by his own training manual or department regulations as well as
the Vienna Convention.
305

The Washington Defender Association Immigration Project has prepared a description
of non-citizens' rights under Art. 36(b) of the Vienna Convention on Consular Relations
(VCCR), which requires a foreign consulate to be notified when one of its citizens is
being detained by government authorities and what are best practices for ensuring
compliance with the VCCR). Washington Defender Ass'n Immigration Project, Practice
Advisory on the Vienna Convention (available from Ann Benson, Director,
defendimmigrants@aol.com).

In order to forestall claims under Article 36 of the Vienna Convention (VCCR) about
consular notification, Seattle state prosecutors are trying to get defendants to admit
alienage on the record, in court, at arraignment, so the defendant can sign an
acknowledgment of having been advised of the right. (Which seems to violate
Washington State's own advisal law, which says :"It is further the intent of the
legislature that at the time of the plea no defendant be required to disclose his or her
legal [i.e., immigration] status to the court." In case the Supreme Court decides that
the International Court of Justice was right and there is an individually enforceable
right under the VCCR, and it overturns the law of several circuits to hold that there is a
judicially enforceable remedy for a violation of this right, these state-court convictions
will be safe from attack.
§ 6.47 IV. Violations of the Right to an Interpreter
Seventh Circuit
GROUNDS - FLUENCY -- TRANSLATOR

Ememe v. Ashcroft, __ F.3d __ (7th Cir. Feb. 12, 2004) (remand to Immigration Judge
to determine ability to comprehend questioning at credible fear interview where
native Amheric language speaker’s interview was conducted in speaker’s second
language, Italian; such issue goes to resolution of not-directly-contradictory
inconsistencies between credible fear interview and asylum hearing); see also, He v.
Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) ("faulty or unreliable translations can
undermine the evidence on which an adverse credibility determination is based").
Other
BIBLIOGRAPHY
L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE (2d ed. 2007).
CRIMINAL DEFENSE – INTERPRETER

M. Carter-Balske, L. Kay & L. Friedman Ramirez, Use of Foreign Language Interpreters,
306
in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 35 (2d ed.

2007).

M. Marty, Tape Transcription and Translation Guidelines, in L. FRIEDMAN RAMIREZ,
ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 79 (2d ed. 2007).

M. van Naerssen, Language Proficiency and Its Relationship to Language Evidence, in
L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 93 (2d ed.
2007).
§ 6.48 A. The Right to an Interpreter in Criminal Proceedings
Sixth Circuit
POST CON RELIEF – GROUNDS – INTERPRETER

POST CON RELIEF – LANGUAGE/CULTURE – MIRANDA

United States v. Short, 790 F.2d 464 (6th Cir. 1986) (statements by German defendant
found involuntary due to limited language ability and no understanding of US criminal
system). United States v. Garibay, 143 F.3d 534, 537 (9th Cir. 1998) (statements by
Mexican defendant found involuntary due to language and verbal IQ difficulties).
United States v. Castorena-Jaime, 117 F.Supp.2d 1161 (D. Kan. 2000) (defendant’s
understanding of English insufficient to comprehend Miranda warning given). United
States v. Fung, 780 F. Supp. 115 (E.D.N.Y. 1992) (Chinese defendant not given proper
Miranda warning when only asked to read Chinese Miranda card). United States v.
307
Kim, 803 F. Supp. 352 (D. Haw. 1992) (written Miranda warning showing defendant
had circled a number of words he did not understand deemed insufficient given
defendants limited understanding of English). People v. Mejia-Mendoza, 965 P.2d 777,
778-781 (Colo.1998) (Miranda warning given through interpreter insufficient where
interpreter mistranslated warning, did not ask noncitizen if meaning was clear, and
reported to police that defendant had waived rights when defendant had not actually
done so). People v. Jiminez, 863 P.2d 981 (Colo. 1993) (Miranda waiver invalid where
English and Spanish understanding where very limited, and native language did not
have a word for legal "right"). State v. Jenkins, 81 S.W.3d 252 (Tenn. Crim. App. 2002)
(Miranda warning founds in absence of proof that translation of warning was
accurate). State v. Ramirez, 732 N.E.2d 1065 (Ohio Ct. App. 1999) (Spanish translation
of Miranda warning was confusing and incomplete). People v. Diaz, 140 Cal.App.3d
813, 820 (Cal. Ct. App.1983) (if native language lacks single word to describes a
Miranda right, officer must explain the right until sure the defendant fully
understands). State v. Turkenich, 529 N.Y.S.2d 385, 137 A.D.2d 363 (1988)
(interrogation of Russian defendant in hospital found coercive when "accentuated by
the defendant’s recent immigration to the United States from a country with a vastly
different political structure and by his inability to speak or understand the language of
his inquisitor."). United States v. Castorena-Jaime, 285 F.3d 916 (10th Cir. 2002)
(suggesting police should not use co-defendants to translate Miranda warnings).
Ninth Circuit
POST CON RELIEF – GROUNDS – INTERPRETER – INVALID TRANSLATION OF RIGHT TO

JURY TRIAL
United States v. Bailon-Santana, ___ F.3d ___ (9th Cir. Dec. 6, 2006) (invalid jury
waiver since defendant waived jury after attorney translated waiver form he was not
qualified to translate).
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8A8722340251FBF8882570CE008
24A7D/$file/0450079.pdf?openelement
POST CON RELIEF – GROUNDS – PLEA AND SENTENCE -- DUE PROCESS –

IMMIGRATION COURTS NOT REQUIRED TO PROVIDE TRANSLATION OF HEARING
NOTICES
Khan v. Ashcroft, 374 F.3d 825 (9th Cir. July 2, 2004) (due process does not require
immigration courts to translate notice of hearing into a language respondent
understands).
§ 6.49 B. Grounds for Invalidating Conviction for Violation of the

Right to an Interpreter
308
Second Circuit
POST CON – GROUNDS – INTERPRETER

United States v. Leyba, ___ F.3d ___, 2004 WL 1789677 (2d Cir. Aug. 11, 2004)
(counsel required to ensure that non-English speaking defendant understand right to
proceed pro se or seek new counsel, the substance of filed motion, and consequences
of failure to respond to motion before court will rule on the motion).
Eighth Circuit
POST CON RELIEF – GROUNDS – INTERPRETER – DUE PROCESS

Mohamed v. Gonzales, ___ F.3d ___, 2006 WL 3392088 (8th Cir. Nov. 27, 2006)
(respondent's due process rights were not violated by two non-prejudicial one-word
translation failures).
Ninth Circuit
POST CON – INTERPRETER – INCOMPETENCE

Perez Lastor v INS, 208 F.3d 773 (9th Cir. 2000) (evidence of incorrectly translated
words, unresponsive answers by witnesses, and expression of difficulty understanding
are evidence of incompetent interpretation). Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.
1984) (rights to interpreter in immigration proceedings "protected by statute and INS
regulations and very likely by due process as well [were violated] where the
translation of the asylum application was nonsensical, the accuracy and scope of the
hearing translation are subject to grave doubt, appellant misunderstood the nature
and finality of the proceeding, and a credible claim which developed following
translation was not reviewed."). Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930)
("The right to a hearing is a vain thing if the alien is not understood. . . . It is not
unreasonable to expect that, where the services of an interpreter are needed, his
capability should be unquestioned.") United States v Martinez-Gaytan, 213 F.3d 890
(5th Cir. 2000) (testimony of English speaking INS agent regarding Spanish statements
of noncitizen could not be found reliable where the second INS agent who translated
from English to Spanish did not appear and noncitizen could not challenge
competence of the translation). United States v. Nazemian, 948 F.2d 522, 528 (9th Cir.
1991) (INS agent’s testimony regarding statements of noncitizen made through
translator did not violate confrontation clause because translator was a "mere
language conduit.").
POST CON – INTERPRETER – MISCONDUCT

Chacon v. Wood, 36 F.3d 1459, 1464 (9th Cir. 1994) ("When the defendant and his
counsel can communicate only through an intermediary, unprofessional conduct on
the part of the intermediary can render counsel’s assistance wholly ineffective, even if
309
counsel himself is acting in complete accordance with professional standards. ") State
v. Rios, 539 P.2d 900 (Ariz. 1975) ("For defense counsel to cross-examine witnesses,
listen attentively to testimony and objections of the prosecuting attorney and hear
rulings and remarks of the presiding judge and simultaneously render an accurate and
complete translation to his three clients, is an impossible task. The effectiveness of
defense counsel under those circumstances is obviously greatly impaired to the
serious detriment of his clients’ defense.") People v. Chavez, 124 Cal.App.3d 215 (Cal.
Ct. App. 1981) (overruled on other grounds) ("right to an interpreter is effectively
denied when a defense attorney must discharge the function, and…the right to
counsel may be significantly impaired when he does."). United States v. Martinez, 616
F.2d 185, 188 (5th Cir. 1980) ("Where the court was careful to make clear the
defendant had a right to an interpreter, but was assured by defendant’s retained
bilingual counsel that he could translate for the defendant and no objection was
made, there was no abuse of discretion in failing to supply a court-appointed
interpreter.") People v. Wing Choi Lo, 570 N.Y.S.2d 776 (N.Y. Crim. Term. 1991) ("since
the interpreter was a police officer who was clearly an agent of the interrogator and
not someone selected by the defendant to speak on his behalf, the interpreter’s
statements cannot be attributed to the defendant.")
POST CON – INTERPRETER APPOINTMENT

Chacon v. Wood, 36 F.3d 1459, 1464 (9th Cir. 1994) (presence of interpreter necessary
to defendant’s confrontation rights and effective assistance of counsel). United States
v. Lim, 794 F.2d 469, 471 (9th Cir.), cert. denied, 479 U.S. 937 (1986) (defendant who
primarily speaks foreign language has statutory right to court appointed interpreter).
United States v. Cirrincione, 780 F.2d 620 (11th Cir. 1986) ("a defendant in a criminal
proceeding is denied due process when: (1) what is told to him is incomprehensible;
(2) the accuracy and scope of a translation at a hearing or trial is subject to grave
doubt; (3) the nature of the proceeding is not explained to him in a manner designed
to insure his full comprehension; or (4) a credible claim of incapacity to understand
due to language difficulty is made and the district court fails to review the evidence
and make appropriate findings of fact."). U.S. ex rel. Navarro v. Johnson, 365 F. Supp.
676, 683 n.3 (E.D. Pa. 1973) (absence of interpreter is like absence of defendant at
trial). State v. Gonzales-Morales, 979 P.2d 826, 828 (Wash. 1999) (right to have
interpreter based upon Sixth Amendment right to confront witnesses, and to be
present at own trial).
POST-CON – MOTION TO WITHDRAW PLEA – GROUNDS – FAILURE TO UNDERSTAND

CHARGES OR IMMIGRATION CONSEQUENCES OF PLEA
United States v. Zeng, __ F.Supp.2d __, 2007 WL 902380 (N.D.Cal. Mar, 22 2007)
310
(granting motion to withdraw guilty plea where Rule 11 violation occurred because
defendant was prevented, through cultural mores, from interrupting his attorney
during the guilty plea phase, and defendant did not understand the nature of the
charges against him, or the immigration consequences thereof, until he was later able
to read a Chinese translation of the plea agreement).
POST CON – INTERPRETER – PROCEDURE

People v. Rodriguez, 232 Cal. Rptr. 132 (Cal. 1986) (examining whether using one
interpreter for multiple co-defendants violated constitutional rights, or whether error
was "harmless beyond a reasonable doubt"). People v Aguilar, 677 P.2d 1198 (Cal.
1984) (California Constitution grants right to interpreter throughout the entire
criminal proceeding). People v. Resendes, 210 Cal. Rptr. 609 (Cal. Ct. App. 1985) (using
one interpreter for two defendants resulted in ineffective communication with
counsel). People v. Menchaca 146 Cal.App.3d 1019, 1025 (Cal. Ct. App. 1983)
("Nothing short of a sworn interpreter at defendant’s elbow" will satisfy guarantee to
an interpreter throughout criminal proceedings). United States v. Bennett, 848 F.2d
1134 (11th Cir. 1988) (using one interpreter for multiple defendants did not result in
ineffective communication with counsel where court offered to recess proceedings at
any time defendant needed to consult with counsel). United States v. Sanchez, 928
F.2d 1450 (6th Cir. 1991) (nothing in 28 U.S.C. § 1827-28 [Court Interpreter’s Act] or
Sixth Amendment requires each defendant in hearing be provided with personal
interpreter). United States v. Lim, 794 F.2d 469 (9th Cir. 1986) ( "As long as the
defendant’s ability to understand the proceedings and communicate with counsel is
unimpaired, the appropriate use of interpreters in the courtroom is a matter within
the discretion of the district court.")
POST CON – INTERPRETER – FAILURE TO PROVIDE

State v. Natividad, 526 P.2d 730, 733 (Ariz. 1975) ("A defendant who passively
observes in a state of complete incomprehension the complex wheels of justice grind
on before him can hardly be said to have satisfied the classic definition of a waiver . . .
. This would be especially true with a Mexican national during his initial contact with
our judicial system.") People v. Serna, 262 A.D.2d 673 (N.Y. App. Div. 1999) (guilty plea
not knowing or intelligent where defendant unable to communicate with attorney due
to language issues). U.S. ex rel. Negron v. State of New York, 310 F. Supp. 1304
(E.D.N.Y. 1970), aff’d 434 F.2d 386 (2d Cir.1970) (constitutional error to deprive
Spanish speaking defendant of interpreter services). Aleman v. State, 957 S.W.2d 592,
594 (Tex. App. 1997) ("the role of an interpreter is not merely to translate and explain
the proceeding to a non-English speaking defendant, but to also provide that
defendant a voice which can be heard and understood during a criminal proceeding.
The denial of the opportunity to be heard rendered Appellant’s plea of guilty
involuntary and in violation of his constitutional and statutory protections.") Villarreal
v. State, 853 S.W.2d 170 (Tex. Ct. App. 1993) (requirement for interpreter does not
311
distinguish between indigent and non-indigent defendants). Baltierra v. State, 586

S.W.2d 553 (Tex. Crim. App. 1979) (failure to request court interpreter does not waive
right to interpreter). Barrera v. United States, 599 A.2d 1119 (D.C. 1991) The court
concluded that the trial court’s finding of voluntariness took adequate account of the
concerns of "reliability" or "trustworthiness" underlying D.C.’s Interpreter Act.
Although both the detective and the defendant were native Spanish speakers, the
court noted that the statute requires a valid waiver of his or her right to an interpreter
when statements are not made through a qualified interpreter. The court stated that
"[p]olice questioning of suspects who do not speak English poses a special problem of
reliability, whether the procedures used are proper or not." The court remanded the
case for the trial court to reconsider the trustworthiness of the impeaching
statements. People v. Chavez 124 Cal.App.3d 215, 227 (Cal. Ct. App. 1981) (access to
interpreter is a guaranteed right under the California Constitution; waiver of right
must be intelligent and voluntary). State v Rodriguez, 682 A.2d 764, 770 (N.J. Super.
Ct. Law Div. 1996) (waiver of interpreter is effective "only if approved by the [judge]
and made expressly by such individual on the record after opportunity to consult with
counsel and after the [judge] has explained. . .the nature and effect of the waiver. [28
U.S.C.A. § 1827(f)(1)]."). State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984),
overruled in part on other grounds by State v. Koch, 175 Wis.2d 684, 499 N.W.2d 152
(1993) (defendant’s attorney cannot waive right to interpreter; waiver must be made
by defendant in open court). United States v. Urena, 27 F.3d 1487, 1492 (10th Cir.
1994) ("We review the trial court’s determination with respect to the appointment of
an interpreter only for abuse of discretion.").
§ 6.50 V. Other Grounds For Vacating Guilty Pleas
§ 6.51 A. Jurisdictional Defects
CRIME OF MORAL TURPITUDE – CONSENSUAL SEXUAL ACTIVITY IN PRIVATE –

UNCONSTITUTIONALITY OF CRIMINAL STATUTE
Where a state criminal statute penalizes consenting sexual conduct in private
between adults, it is unconstitutional. Lawrence v. Texas, ___U.S. ___ 123 S. Ct. 2472,
2484 (2004). Some state statutes penalize consenting conduct between adults. E.g.,
People v. Dancy, 102 Cal.App. 4th 21, 35 (2002) ("By including a lack of consent
element in the subdivisions setting forth the elements of several types of rape but not
including a lack of consent element in the subdivision setting forth the elements of
rape of an unconscious person, the Legislature obviously made an explicit choice not
to require proof of lack of consent where the victim was unconscious at the time of
the act of sexual intercourse."). A conviction under such an unconstitutional statute
cannot trigger adverse immigration consequences.
312
Other
POST CON NATIONAL – GROUNDS – LACK OF JURISDICTION

It may be possible to vacate an adult court conviction of a defendant who was a
juvenile at the time the offense was committed, on the basis the adult court lacked
jurisdiction over the criminal case. The government may attempt to oppose this
motion by offering evidence of bone scans or dental examinations. An article by
physicians for human rights addresses/discredits bone scans and dental exams for age
determination, citing medical experts on the subject. The article is "From Persecution
to Prison: Health Consequences of Detention for Asylum Seekers" and can be found
at:
http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr1-
toc.html Apparently an expert is of the opinion that the use of bone scans to
determine age is 100% bogus. The bone scan might be able to determine that
someone is six years old, as opposed to 35 years of age, but a bone scan will show no
difference between two people whose age is 10 years apart. From: Stern and Elkind,
L.L.P.
§ 6.52 B. Newly Discovered Evidence
§ 6.53 C. Prosecution Withholding of Exculpatory Evidence
GROUNDS - EXCULPATORY EVIDENCE - FAILURE TO DISCLOSE

Banks v. Dretke, ___ U.S. ___ (February 24, 2004) (concealment of significant
exculpatory or impeachment material in possession of the police or prosecutor is basis
for grant of habeas).
Ninth Circuit
POST CON RELIEF – GROUNDS – PROSECUTION MISCONDUCT

Comer v. Schiro (2006) F.3d (9th Cir. Sept. 13, 2006) (prosecutorial misconduct by
using dehumanizing epithets during closing argument, including references to the
defendant as "filth," a "monster," and "a reincarnation of the devil," did not constitute
a due process violation or render the trial fundamentally unfair).
POST CON RELIEF – PROSECUTORIAL MISCONDUCT

313
POST CON RELIEF – GROUNDS – PROSECUTION FAILURE TO DISCLOSE EXCULPATORY

EVIDENCE
Horton v. Mayle, ___ F.3d ___ (9th Cir. May 10, 2005) (habeas denial vacated, where
prosecution violated defendant's rights under Brady v. Maryland, 373 U.S. 83 (1963),
by failing to disclose an agreement between a witness and the police).
POST CON RELIEF – GROUNDS – PROSECUTION MISCONDUCT

Hays v. Brown, __ F.3d __ (9th Cir. March 07, 2005) (prosecutor's knowing
presentation of false evidence and failure to correct the record violate a criminal
defendant's due process rights).
POST CONVICTION RELIEF - GROUNDS - FAILURE TO DISCLOSE EXCULPATORY

EVIDENCE - PROBATION FILES
United States v. Alvarez, __ F.3d __ (9th Cir. February 25, 2004) (where district court
fails to conduct in camera review of probation files of significant witnesses pursuant
to timely Brady request, conviction will be vacated and case remanded to conduct
review; if files found to contain material information bearing on credibility of
witnesses, court shall release such and order new trial).
§ 6.54 D. Actual Innocence
HABEAS CORPUS - FEDERAL - ACTUAL INNOCENCE IN NON-DEATH CASE

Dretke v. Haley, 124 S.Ct. 1847 (May 3, 2004) (Supreme Court declines to decide
whether "actual innocence" exception applies to noncapital sentencing errors, and
remands case to district court to consider alternative grounds presented).
http://caselaw.findlaw.com/data2/circs/us/021824.pdf
Ninth Circuit
POST CON RELIEF – GROUNDS – INSUFFICIENT EVIDENCE – CONDUCT NOT A CRIME –

BAD CHECKS – NO CRIME WHEN BANK HONORS THEM
Goldyn v. Hayes, ___ F.3d ___ (9th April 11, 2006) ("Petitioner spent 12 years in prison
for conduct that is not a crime. We vacate her conviction pursuant to Jackson v.
Virginia, 443 U.S. 307 (1979)." The conduct was writing checks with insufficient funds
or credit. The alleged victims were the people she wrote checks to (not the bank). The
reason it wasn’t a crime is that her bank had given her a check guarantee card (in
other words, extended credit), and the bank honored every one of the checks she
314
wrote. "On federal habeas, Goldyn presents a simple argument: If the bank was
obligated to cover them, then she can’t have written bad checks." Kozinski ends by
saying: "We are saddened and dismayed that Goldyn spent twelve years behind bars
for conduct that is not a crime – or, at least, is not the crime with which she was
charged.")
POST CON RELIEF – FEDERAL – GROUNDS – INSUFFICIENT EVIDENCE

Smith v. Mitchell, ___ F.3d ___ (9th Cir. Feb. 9, 2006) (reversing denial of a habeas
corpus petition from a conviction for assault on a child resulting in death pursuant to a
claim of constitutionally insufficient evidence where no rational trier of fact could
have found beyond a reasonable doubt that defendant caused the child's death).
POST CON – INSUFFICIENT EVIDENCE – BAD CHECKS - NO CRIME WHEN BANK

HONORS THEM
Goldyn v. Hayes, ___ F.3d ___ (9th Cir. Feb. 1, 2006) (conviction for writing checks
with insufficient funds reversed for insufficient evidence, where defendant had a
check guarantee card (in other words, sufficient credit for the bank to cover the
checks), and the bank in fact honored every one of the checks she wrote: "No rational
trier of fact could have found that Goldyn committed the crime of writing bad checks
as defined by Nevada law. . . . And no rational judicial system would have upheld her
conviction.").
Other
POST-CON – HABEAS CORPUS – ACTUAL INNOCENCE

House v. Bell, __ F.3d __ (Jun. 12, 2006) (defendant successfully made the stringent
showing required by the actual-innocence exception to procedural default rules).
§ 6.55 E. Failure of Charge to State All Elements of Offense
Ninth Circuit
POST CON RELIEF – GROUNDS – FRAUD – MATERIALITY REQUIREMENT MUST BE

ALLEGED IN CHARGE
United States v. Omer, ___ F.3d ___ , 2005 WL 95731 (9th Cir. Jan. 19, 2005) (bank
fraud indictment under 18 U.S.C. § 1344(1)) must allege materiality of the fraud),
citing Neder v. United States, 527 U.S. 1 (1999) (check kiting charge requires intent to
defraud bank).
POST CON – GROUNDS – FAILURE TO SPECIFY ESSENTIAL ELEMENT IN PLEA

315
AGREEMENT
United States v. Patterson, ___ F.3d ___ (9th Cir. Aug. 20, 2004) (failure to specify
amount of marijuana in defendant's plea agreement does not invalidate original plea
agreement where drug quantity is not an essential element of the offense).
APPEALS – FEDERAL – CHALLENGE TO SUFFICIENCY OF INDICTMENT

United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal
challenging whether indictment alleges sufficient facts to state offense because
challenge must await final judgment after trial; appeal does not fit within "collateral
order" exception to rule that only final judgments may be appealed; appeal could not
be treated as mandamus because trial court did not clearly err).
§ 6.56 F. Other Grounds to Vacate Guilty Pleas
POST-CON – GROUNDS – SPEEDY TRIAL ACT

Zedner v. United States, __ U.S. __ (Jun. 05, 2006) (defendant may not prospectively
waive application of Speedy Trial Act; harmless-error review is not appropriate to this
issue). http://laws.lp.findlaw.com/us/000/055992.html

316
317
for this argument.
POST CON RELIEF – GROUNDS – INCOMPETENCY

Panetti v. Quarterman, ___ U.S. ___, 127 S.Ct. 2842 (state court failed to provide
procedures to which petitioner was entitled under the Constitution to prove own
incompetency to be subject to death penalty).
POST CON RELIEF – GROUNDS – JUDICIAL MISCONDUCT – NO APPARENT BIAS SHOWN

Crater v. Galaza, 491 F.3d 1119 (9th Cir. July 7, 2007) (judicial advice to defendant to
take prosecutor’s deal did not display appearance of bias where judge did not have a
pecuniary interest in the case, was not personally embroiled in a controversy with the
defendant, and did not perform incompatible accusatory and judicial roles; judge had
heard testimony of co-defendant and thought it likely defendant would be convicted
of capital murder if he did not accept the plea bargain).
POST CON RELIEF – GROUNDS – VOLUNTARINESS OF PLEA

Doe v. Woodford, 508 F.3d 563 (9th Cir. Nov. 27, 2007) (affirming denial of habeas
corpus over a challenge to the voluntariness of a plea: two-hour period to consider
proposed plea agreement in first-degree murder case did not per se establish
involuntary nature of plea).

CERTAIN TO DO SO
318

28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. §
2255 on involuntary plea and ineffective counsel grounds for misadvice concerning
immigration consequences not barred by failure to raise issues on direct appeal);
Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of
deportation consequences of the defendant's sentence was "cause" for the
defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d
109, 111 (D.D.C. 2004) (permitting a procedurally barred § 2255 claim regarding the
voluntariness of a guilty plea made when the petitioner was not properly informed
that deportation was absolute).
Fifth Circuit
POST-CON – GROUNDS – JUDICIAL MISCONDUCT

United States v. Jackson, __ F.3d __ (5th Cir. Jun. 20, 2006) (sentence for possession of
a firearm affirmed over a claim that district court violated constitutional rights by
"threatening" defendant’s girlfriend with criminal prosecution if she took the stand
during sentencing). http://caselaw.lp.findlaw.com/data2/circs/5th/0511094cr0p.pdf
Seventh Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – DENIAL

WHEN COUNSEL IS PRESENT ONLY BY SPEAKERPHONE
Van Patten v. Deppisch, ___ F.3d ___ 2006 WL 162992 (7th Cir. Jan. 24, 2006)
(defense counsel's physical absence from courtroom where his client's guilty plea was
entered constituted structural error resulting in denial of counsel, requiring reversal
without inquiry into prejudice, even though counsel participated by speakerphone).
Ninth Circuit
POST CON RELIEF – FEDERAL – GROUNDS – JURY TRIAL -- FAILURE TO ADVISE

DEFENDANT THAT JURY MUST FIND GUILT BEYOND REASONABLE DOUBT – REVERSAL
REQUIRED WITHOUT SHOWING OF PREJUDICE IF OBJECTION WAS MADE AND
OVERRULED
United States v. Ross, 511 F.3d 1233, ___, (9th Cir. Jan. 14, 2008) (court's failure under
Federal Rule of Criminal Procedure 11 to advise defendant that he may not be
convicted unless government proves its case beyond a reasonable doubt constituted
error, but not plain error requiring reversal: " This was error. Rule 11 provides, in part,
319
that Ross must understand his “right to a jury trial” and “the nature of each charge”
before his guilty plea may be accepted. See Rule 11(b)(1)(C), (G). Because the
reasonable doubt standard of proof is a due process requirement that permeates all
aspects of a criminal trial, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368 (1970), we read Rule 11 as requiring an advisement of the reasonable doubt
standard of proof .FN1 Such an advisement was particularly necessary in this case
because admission to the stated drug quantity exposed Ross to a higher sentence.
United States v. Minore, 292 F.3d 1109, 1113 (9th Cir.2002) (“[B]efore accepting a
guilty plea, the district court must advise the defendant that the government would
have to prove to the jury beyond a reasonable doubt any quantity of drugs that would
expose the defendant to a higher statutory maximum sentence.”); see also 21 U.S.C. §
841(b) (prescribing different statutory maximums for violations involving various
quantities of crack)."), citing Benchbook for U.S. District Court Judges 78 (5th ed.)
(2007) (“Ask the defendant: Do you understand ... that at trial you would be presumed
to be innocent and the government would have to prove your guilt beyond a
reasonable doubt[?]”); accord, United States v. Wagner, 996 F.2d 906, 912 (7th
Cir.1993) ( “Pursuant to [Rule 11,] the court advised the defendants that ... they would
not be convicted unless proved guilty beyond a reasonable doubt.”); United States v.
Bell, 966 F.2d 914, 917 (5th Cir.1992) (“[T]he district court engaged [the defendant] in
the requisite Rule 11 colloquy, advising him of ... the right to a ... public trial by jury at
which the government would have to prove him guilty beyond a reasonable
doubt....”); United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) (“[T]he district
court followed the requirements of Rule 11 by discussing with the defendant ... the
right ... to have the government prove all the elements of the offense beyond a
reasonable doubt ....”).
POST CON RELIEF – FEDERAL – GROUNDS – JURY TRIAL -- FAILURE TO ADVISE

DEFENDANT THAT JURY MUST FIND GUILT BEYOND REASONABLE DOUBT – PREJUDICE
REQUIRED FOR REVERSAL IF NO OBJECTION WAS MADE IN COURT BELOW
United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) (court's failure under
Federal Rule of Criminal Procedure 11 to advise defendant that he may not be
convicted unless government proves its case beyond a reasonable doubt constituted
error, but did not require reversal since no objection was made and defendant did not
satisfy the plain error standard of review, since he was aware the reasonable doubt
standard applied and thus could not show “a reasonable probability that, but for the
error, he would not have entered the [guilty] plea.”), citing United States v.
Dominguez Benitez, 542 U.S. 74, , 76, 124 S.Ct. 2333 (June 14, 2004) (because the
right to withdraw a plea of guilty as a consequence of the District Court's failure to
give one of the warnings required by Federal Rule of Criminal Procedure 11 was not
preserved by timely objection, the plain-error standard of Rule 52(b) applies, with its
requirement to prove effect on substantial rights by showing a reasonable probability
320
that, but for the error, the defendant would not have entered the plea).
POST-CON RELIEF – VINDICTIVE PROSECUTION

United States v. Jenkins, __ F.3d__ (9th Cir. Jul. 17, 2007) (since government could
have prosecuted defendant for alien smuggling well before she presented her theory
of defense at a marijuana smuggling trial, the timing of the charges created the
appearance of vindictiveness, despite government’s assertion that the case against
defendant was much stronger after her in-court admission).
POST CON RELIEF - GROUNDS

Phillips v. Hust, __ F.3d __, 2007 WL 446593 (9th Cir. Feb. 13, 2007) (arbitrary denial
by prison officials of access to materials that prison routinely did made available to
inmates, for the preparation of legal documents, constitutes a denial of an inmate's
right of access to the courts where it results in the loss of a legal claim).
POST CON RELIEF – GROUNDS – VOLUNTARINESS OF PLEA – SHORT TIME TO

CONSIDER OFFER
Busch v. Woodford, ___ F.3d ___, 2007 WL 2429363 (9th Cir. 2007) (plea involuntary
where defendant in first degree murder case was given only hours to consider the
proposed plea agreement).
HABEAS CORPUS - FEDERAL - TOLLING DUE TO PRISON'S FAILURE TO PROVIDE LAW

LIBRARY MATERIALS
Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 7, 2006) (evidentiary hearing required to
determine if prison's failure to provide Spanish-language materials and assistance to
Spanish-speaking inmates constituted extraordinary circumstance justifying tolling of
one-year period for filing federal habeas petition); distinguishes Kane v. Garcia Espitia,
126 S. Ct. 407, 408 (2005) (per curiam) (denial of access to a law library cannot
provide a basis for a pro se petitioner's habeas relief) because Mendoza only involves
the tolling of an AEDPA deadline, not grant of habeas relief.
POST-CON – GROUNDS – ACCESS TO SPANISH MATERIALS

Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 07, 2006) (denial of habeas reversed and
remanded where petitioner had alleged facts which, if true, could entitle him to
equitable tolling with regards to claims that he lacked English language ability, was
denied access to Spanish-language legal materials, and could not procure the
assistance of a translator during running of AEDPA period).
POST CON RELIEF – GROUNDS – INSUFFICIENCY OF EVIDENCE

United States v. Rios, __ F.3d __ (9th Cir. Jun. 02, 2006) (expert testimony that drug
traffickers generally use firearms to further their drug crimes, was not by itself
sufficient to establish that a firearm was possessed in furtherance of a particular drug
321
crime). http://caselaw.lp.findlaw.com/data2/circs/9th/0550000p.pdf
POST CON RELIEF – FEDERAL – HABEAS – GROUNDS – VIOLATION OF PLEA

AGREEMENT
Buckley v. Terhune, ___ F.3d ___ (9th Cir. Mar. 17, 2006) (state court's decision that
the plea agreement provided for imposition of sentence of 15 years to life was
contrary to clearly established Supreme Court law as set forth in Santobello v. New
York, 404 U.S. 257 (1971), and Ricketts v. Adamson, 483 U.S. 1 (1987): plea agreement
was ambiguous; plea agreement was required to be interpreted as providing for a
maximum prison sentence of 15 years; and specific performance of sentencing
provision of plea agreement was proper remedy, where DA's written offer, which
defendant accepted, informed him that he would be sentenced to a maximum of 15
years for second-degree murder, and court agreed; after defendant had initialed the
plea agreement, the prosecutor wrote in "15 years to life" as the recommendation,
but the fact that a 15-year sentence was not a lawful sentence was irrelevant: "that is
the bargain that California made in 1987.").
POST-CON – JURY INSTRUCTIONS

United States v. Alferahin, ___ F.3d ___, 2006 WL 51181 (9th Cir. Jan. 11, 2006)
(conviction of knowingly procuring naturalization contrary to law, in violation of 8
U.S.C. § 1425(a), reversed for ineffective assistance of counsel since jury instructions
were incomplete, and defense attorney declined the court's offer to instruct the jury
on the element of materiality).
POST CON RELIEF – FEDERAL – GROUNDS – INVOLUNTARY PLEA – COURT'S FAILURE

TO INFORM DEFENDANT HE WAS SUBJECT TO MANDATORY FINE UNDER GUIDELINES
United States v. Adams, ___ F.3d ___ (9th Cir. Jan. 3, 2006) (conviction vacated where
guilty plea was not knowing, voluntary and intelligent in light of district court's failure
to inform defendant he was subject to a mandatory fine under the sentencing
guidelines).
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – VIOLATION

OF ATTORNEY-CLIENT PRIVILEGE
Plumlee v. Del Papa, 465 F.3d 910 (9th Cir. 2006) (defendant’s decision to self-
representation not reasonable when decision was forced by ineffective assistance of
prior counsel).
POST CON RELIEF – FEDERAL HABEAS REVIEW OF STATE CONVICTION – RIGHT TO

EVIDENTIARY HEARING
322

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS

Fowler v. Sacramento County, 421 F.3d 1027 (9th Cir. Aug. 31, 2005) (defendant was
improperly precluded from cross-examining accuser in violation of Sixth Amendment
right to confrontation).
POST CON RELIEF – GROUNDS – INSUFFICIENT EVIDENCE

Juan H. v. Allen, ___ F.3d ___ (9th Cir. June 2, 2005) (denial of writ of habeas corpus
reversed where prosecution failed to present evidence that proved guilt beyond a
reasonable doubt that defendant standing next to his brother assisted him in shooting
rival gang member: "During the shooting, Juan H. did not say anything, make any
gestures, or otherwise encourage Merendon. ... The record contains manifestly
insufficient evidence to support the necessary conclusions that Juan H. knew that
Merendon planned to commit the first-degree murders of Ramirez and Magdelano,
and that Juan H. acted in a way intended to encourage or facilitate these killings.
Viewed in a light most favorable to the prosecution, the circumstantial evidence in
this case does not permit any reasonable factfinder to sustain the delinquency
petition of Juan H. on the charges of aiding and abetting first-degree murder and
attempted first-degree murder, as those crimes are defined by California law.").
POST CON RELIEF – SENTENCE – GROUNDS – ALLOCUTION

United States v. Gunning, __ F.3d __ (9th Cir. March 31, 2005) (district court
improperly denied defendant right of allocution when it did not address defendant
and when defendant asked for consideration to his family when setting restitution
payments, "did not even acknowledge those comments.").
POST CON – GROUNDS – PROSECUTORIAL MISCONDUCT -- ARGUING INCONSISTENT

THEORIES
Shaw v. Terhune, ___ F.3d___ (9th Cir. Aug. 10, 2004) (possible due process argument
exists when prosecutor advances factually inconsistent arguments in prosecuting two
co-defendants for "personal use" of weapon although only one could have committed
the crime; argument fails where there is sufficient evidence for jury to convict both
defendants without implicating factual tension). But see generally Donnelly v.
DeChristoforo, 416 U.S. 637, 648-49 (1974) (Douglas, J., dissenting)
POST CON RELIEF – FEDERAL – RULE 32(e) NOW 11(d)(2)(B) – ILLEGAL REENTRY
CONVICTION INVALID SINCE DEPORTATION INVALID BECAUSE OF ST. CYR
RESPONDENT ELIGIBLE FOR 212(C) BUT NOT INFORMED OF THIS BY THE
323
IMMIGRATION JUDGE
United States v. Ortega-Ascanio, ___ F.3d ___, 2004 WL 1575244 (9th Cir. July 15,
2004) (district court committed an error of law, and thus an abuse of discretion, in
denying a F.R.Crim. P. 32(e) (now 11(d)(2)(B)) motion to withdraw a guilty plea in an
illegal reentry case, by applying an incorrect standard: a defendant need not prove
that his plea is invalid in order to meet his burden of establishing a fair and just reason
for withdrawal; where after plea, but before sentence, the Supreme Court decided INS
v. St. Cyr, 533 U.S. 289 (2001), holding that INA § 212(c) relief had been available to
respondent in removal proceedings based on two crime of moral turpitude
convictions, but the immigration judge had failed to inform him of it, and he was not
represented by counsel, and waived appeal).
CRIMINAL DEFENSE – BRADY VIOLATION – D NOT PREJUDICED BY GOV FAILURE TO

DISCLOSE IT HAD REWARDED KEY WITNESS WITH AN ILLEGAL GREEN CARD
United States v. Ross, ___ F.3d ___, 2004 U.S. App. LEXIS 12117 (9th Cir. June 21,
2004) (defendant in drug case was not prejudiced by government's behavior, including
failure to disclose that key informant was rewarded with illegally-obtained permanent
resident status, since "evidence of guilt would have been overwhelming even if
[informant’s] credibility had been demolished.").
AGGRAVATED FELONY – SEXUAL ABUSE OF A MINOR – FEDERAL INTERNET OFFENSE

United States v. Dhingra, 371 F.3d 557 (9th Cir. June 8, 2004) (18 U.S.C. § 2422(b),
using internet to solicit sexual activity from minor, held not facially unconstitutional as
overbroad, vague, or violative of First or Tenth Amendments, for incorporating state
criminal sex offense statutes).
GROUNDS – MENTAL INCOMPETENCE – APPEAL FROM FEDERAL COMMITMENT

United States v. Friedman, ___ F.3d ___ (9th Cir. May 6, 2004) (defendant could
appeal commitment order, as collateral order, after involuntarily commission to
custody of Attorney General after being found incompetent to stand trial).
POST CON – PROSECUTORIAL MISCONDUCT

United States v. Cabrera, 222 F.3d 590, 591 (9th Cir. 2000) (convictions reversed
where detective witness made numerous remarks about stereotypical tendencies of
persons of defendant’s ethnicity; "[t]he fairness and integrity of criminal trials are at
stake if we allow police officers to make generalizations about racial and ethnic groups
in order to obtain convictions. People cannot be tried on the basis of their ethnic
backgrounds or national origin."). United States v. Vue, 13 F.3d 1206, 1212-13 (8th Cir.
1994) (reversible error to allow customs agent’s testimony about tendency of Hmong
people to smuggle opium). United States v. Cruz, 981 F.2d 659, 663-64 (2d Cir. 1992)
(reversible error to allow DEA agent’s testimony about high level of drug activity in
324
Hispanic neighborhood). United States v. Rodriguez Cortes, 949 F.2d 532 (1st Cir.
1991) (reversible error to admit Colombian ID card into evidence to be used to make
generalizations about Colombians and drug trafficking). Guerra v. Collins, 916 F. Supp
620, 629–30 (S.D. Texas 1995) (vacating conviction based upon prosecutor’s
statement that "Mexicans only come to the United States to commit crimes and take
jobs away from US citizens"). State v. Mehralian, 301 N.W.2d 409, 418-19 (N.D. 1981)
(prejudice shown by prosecutor’s questions regarding defendant’s religion and
immigration status). People v. Maria, 194 N.E. 510, 512 (Ill. 1935) (prejudice shown by
prosecutor’s statements that defendant was noncitizen and did not pay taxes).
GUILTY PLEAS – PLEA BARGAIN – COURT'S INVOLVEMENT AS VIOLATION OF DUE

PROCESS
People v. Weaver, 118 Cal.App.4th 131 (April 29, 2004) (due process violated when
presiding judge adopted role as ‘advocate’ in the case in encouraging a plea bargain).
Other
POST CON RELIEF – GROUNDS – JUDICIAL DISPARAGEMENTS

Annot., Remarks or Acts of the Trial Judge Criticizing, Rebuking, Or Punishing Defense
Counsel in Criminal Case As Requiring New Trial or Reversal 62 A.L.R.2d 166.
§ 6.57 VI. State Advisal Statute Violations
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES

As of March, 2008, 28 states have adopted court rules or statutes that require the
court, at plea, to advise the defendant concerning possible immigration
consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004);
Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code § 1016.5 (West 1995); Conn.
Gen. Stat. Ann. § 54-1j (West 1994); D.C. Code Ann. § 16-713 (West 1994); Fla. R.
Crim. P. 3.172(8) (West 1995); Ga. Code Ann. § 17-7-93 (1997); Haw. Hawaii Stat. Ann.
§§ 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8
(2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md.
R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, §29D (West 1994); Minn.
Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. § 46-12-210(1)(f) (1997); Neb.
Rev. St. §29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim.
Proc. Law § 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. § 15A-
1022 (a)(7) (West 1994); Ohio Rev. Code Ann. § 2943.031 (West 1989); Ore. Rev. Stat.
§ 135.385 (2)(d) (1997); R.I. Gen. Laws § 12-12-22 (West 2003); Tex. Code Crim. Proc.
Ann. art. 26.13(a)(4) (West 1994); 13 S.A. § 6565; Wash. Rev. Code Ann. § 10.40.200
325
(West 1995); Wis. Stat. §§ 971.08(1)(c), (2) (West 1994).
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES

As of March, 2008, 28 states have adopted court rules or statutes that require the
court, at plea, to advise the defendant concerning possible immigration
consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004);
Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code § 1016.5 (West 1995); Conn.
Gen. Stat. Ann. § 54-1j (West 1994); D.C. Code Ann. § 16-713 (West 1994); Fla. R.
Crim. P. 3.172(8) (West 1995); Ga. Code Ann. § 17-7-93 (1997); Haw. Hawaii Stat. Ann.
§§ 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8
(2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md.
R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, §29D (West 1994); Minn.
Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. § 46-12-210(1)(f) (1997); Neb.
Rev. St. §29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim.
Proc. Law § 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. § 15A-
1022 (a)(7) (West 1994); Ohio Rev. Code Ann. § 2943.031 (West 1989); Ore. Rev. Stat.
§ 135.385 (2)(d) (1997); R.I. Gen. Laws § 12-12-22 (West 2003); Tex. Code Crim. Proc.
Ann. art. 26.13(a)(4) (West 1994); 13 S.A. § 6565; Wash. Rev. Code Ann. § 10.40.200
(West 1995); Wis. Stat. §§ 971.08(1)(c), (2) (West 1994).
Lower Courts of First Circuit
POST CON RELIEF – GROUNDS -- STATE ADVISAL STATUTES – MASSACHUSETTS

Commonwealth v. Rodriquez, 70 Mass.App.Ct. 721 (Ct. App. Nov. 16, 2007) ("We
agree with the motion judge that because the defendant now also faces immigration
consequences about which she was not warned (denial of readmission), the plain
language of the statute requires that the defendant be permitted to withdraw her
guilty plea. More specifically, we conclude that the defendant's conviction -- a drug-
related "aggravated felony" for purposes of immigration law -- results in the
automatic, and now permanent, denial of readmission to the United States, see 8
U.S.C. § 1182(a)(9)(A) (2000), and that this is an "enumerated consequence" of the
defendant's plea about which she was not warned.").
POST-CONVICTION RELIEF – STATE ADVISAL STATUTE – MASSACHUSETTS

Commonwealth v. Rzepphiewski, 431 Mass. 48, 725 N.E.2d 210 (Mass. 2000)
(reconstructed record, based on affidavit of judge plus court docket, is sufficient to
constitute a record of the giving of the statutory advisal concerning potential
immigration consequences required by Mass. Gen. Laws, ch. 278, § 29D (2004), in
response to defendant's motion to vacate where official records have been destroyed
in regular course of business); see Commonwealth v. Ciampa, 51 Mass. App. Ct. 459,
747 N.E.2d 185, 187 (Mass. App. 2001) (non-contemporaneous record that statutory
warnings had been given sufficient as evidence that state advisal statute had not been
326
violated).
Second Circuit
POST CON RELIEF – AFFIRMATIVE MISADVICE – “MAY” VS. “WILL” RESULT IN

DEPORTATION
United States v. Zhang, ___ F.3d ___, 2007 WL 3071644 (2d Cir. Oct. 23, 2007)
(although deportation was, in fact, nearly unavoidable, representations by court and
prosecutor that defendant faced only possible deportation did not constitute
affirmative misadvice by the court or prosecutor; neither the court nor the prosecutor
are required to describe possible collateral effects of a guilty plea).
“The possibility of discretionary deportation after a guilty plea is a “collateral”

consequence that need not be addressed at the plea hearing. Michel, 507 F.2d at 465-
66. The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) and the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), however, has altered the landscape of immigration law, and deportation
of aggravated felons is now automatic and non-discretionary. 8 U.S.C. §
1227(a)(2)(A)(iii); see also INS v. St. Cyr, 533 U.S. 289, 325 (2001) (referring to
deportation of aggravated felons as “certain”). Nonetheless, several circuits have held
that “automatic” deportation under IIRIRA is still a collateral consequence that need
not be addressed prior to a court's accepting a guilty plea. See El-Nobani v. United
States, 287 F.3d 417, 421 (6th Cir. 2002) (“[I]t is clear that deportation is not within
the control and responsibility of the district court, and hence, deportation is collateral
to a conviction.”); United States v. Amador-Leal, 276 F.3d 511, 516-17 (9th Cir. 2002)
(“[W]hether an alien will be removed is still up to the INS. There is a process to go
through, and it is wholly independent of the court imposing sentence.... Removal is
not part of the sentence.”); and United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir.
2000) (“However ‘automatically’ [the defendant's] deportation ... might follow from
his conviction, it remains beyond the control and responsibility of the district court in
which that conviction was entered and it thus remains a collateral consequence
thereof.”).
"Although we have acknowledged the existence of the issue, United States v. Cuoto,
311 F.3d 179, 190 (2d Cir. 2002), we have not decided whether “automatic”
deportation is a collateral consequence of a guilty plea that need not be mentioned or
a direct consequence that required discussion during the plea proceeding. Once again,
the issue is not before us. As the district court noted, “[w]hether automatic
deportation is a direct or collateral consequence is of no matter in this case because
the court did address deportation at the plea hearing.” Zhang I, 401 F.Supp.2d at 239.
327
We agree.”
CAL POST CON – GROUNDS – STATE ADVISAL STATUTE – PREJUDICE IS SHOWN WHERE
DEFENDANT WOULD NOT HAVE ENTERED PLEA IF PROPERLY ADVISED; NOT
NECESSARY TO SHOW OUTCOME OF TRIAL WOULD HAVE BEEN DIFFERENT
People v. Castro-Vasquez (2d Dist. March 26, 2007) ___ Cal.Rptr.3d ___, 2007 WL
882132 (prejudice from failure to deliver warning required by Penal Code § 1016.5 is
shown where it was reasonably probable defendant would not have pleaded guilty if
properly advised; it was not necessary to show the outcome of the trial would have
been different), following People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183,
210. http://caselaw.lp.findlaw.com/data2/californiastatecases/b192721.pdf
POST CON RELIEF – STATE ADVISAL STATUTE – NEW YORK – COLLATERAL

CONSEQUENCES – DUE PROCESS
People v. DeJesus, __ N.Y.S.2d __, 2006 WL 1408355 (N.Y.City Crim.Ct. May 20, 2006)
("deportation is a collateral, rather than a direct, consequence of a guilty plea and a
defendant who pleads guilty has no constitutional right to be informed of the
immigration consequences of the guilty plea.").
Fourth Circuit
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES – FLORIDA

Green v. State, ___ Fla. App. ___, 2005 WL 156724 (4th Dist. January 26, 2005)
(defendant suffered sufficient prejudice to make motion to withdraw plea on grounds
trial court violated state advisal statute requiring advice to defendant concerning
potential immigration consequences of guilty plea, even though deportation
proceedings have not yet been begun, since possibility of future deportation
proceedings constitutes sufficient "threat of deportation" under Peart v. State, 756 So.
2d 42, 44 (Fla. 2000).)
POST CON RELIEF – TEXAS – STATE ADVISAL STATUTE VIOLATION REVERSAL

Kelley v. State, 2007 Tex. App. LEXIS 8821 (Ct. App. Nov. 6, 2007)(when the trial court
fails to admonish a defendant about the immigration consequences of his guilty plea,
a silent record on citizenship, or a record that is insufficient to determine citizenship,
establishes harm by the standard of Rule 44.2(b).).
POST CON RELIEF – STATE ADVISAL STATUTE

Vannortrick v. State of Texas, 227 S.W.3d 706 (Tex.Crim.App. Jun. 27, 2007) (harm
328
from failure to admonish a defendant about immigration consequences of guilty plea

is shown upon a record that does not mention, or is insufficient to determine the
citizenship of the defendant; failure to admonish resulted involuntary plea).
POST CON RELIEF – STATE ADVISAL STATUTE

Fakeye v. State of Texas, 227 S.W.3d 714 (Tex.Crim.App. Jun. 27, 2007) (failure of trial
court to admonish defendant of immigration consequences of plea was harmful
error).
POST CON – STATE ADVISAL STATUTE – TEXAS

VanNortrick v. State, __ S.W.3d __, __, 2006 WL 1229749, *2 (Tex.App. May 09, 2006)
("[W]hen the record shows a defendant is a non-citizen, but is silent regarding
whether the defendant knew the consequences of his plea, the error is not harmless
because a silent record supports an inference that appellant did not know the
consequences of his plea. ... Here, the record is silent regarding appellant’s status as a
citizen or non-citizen and whether he was aware of the deportation consequences of
his plea.")
POST CON RELIEF – STATE ADVISAL STATUTE – TEXAS

Fakeye v. State, ___ Tex. App. ___, 2006 Tex. App. LEXIS 1072 (2d Dist. Feb. 9, 2006)
(trial court erred in failing to admonish defendant, in connection with his guilty plea,
of the potential immigration consequences of plea in violation of Texas Code of
Criminal Procedure § 26.13(a)(4)).
POST CON – OHIO – IMMIGRATION CONSEQUENCES – STATE ADVISAL STATUTE

ERROR
State v. White, 2005 Ohio 4898; 837 N.E.2d 1246; 2005 Ohio App. LEXIS 4407 (Sept 16,
2005) (court of appeal reversed for abuse of discretion trial court’s denial of motion to
vacate plea based on claim of violation of Ohio state advisal statute pursuant to R.C.
2943.031(D) and Crim.R. 32.1, holding the defendant had no duty to inform the court
of his citizenship status; defendant’s deportation order satisfied the prejudice
requirement, since it showed more than a mere possibility of deportation; the
defendant was not required to raise this issue on direct appeal from the sentence,
since his citizenship status was outside the record on appeal).
POST CON RELIEF – GROUNDS -- STATE ADVISAL STATUTE -- OHIO

State v. Sibai, 2005 Ohio 2730; 2005 Ohio App. LEXIS 2573 (June 2, 2005) (trial court
erred in denying motion to vacate guilty plea, when at the time of the plea, the trial
court failed to provide the advisement pursuant to O.R.C. 2943.031(A) that he was
subject to possible deportation, exclusion from the United States or denial of
329
naturalization).
POST CON – OHIO – GROUNDS -- STATE ADVISAL STATUTE -- COURT TAKING PLEA
NEED ONLY SUBSTANTIALLY COMPLY WITH STATUTE REQUIRING ADVICE ON POSSIBLE
IMMIGRATION CONSEQUENCES OF PLEA
State v. Badawi, ___ ?? ___, 2004 Ohio App. LEXIS 4536 (Ohio Ct. App. Sept. 20, 2004)
(court taking plea need only substantially comply with statute requiring advice on
possible immigration consequences of plea, R.C. 2943.031(A), which provides that
"prior to accepting a plea of guilty or a plea of no contest to an indictment . . .
charging a felony . . ., the court shall address the defendant personally, provide the
following advisement to the defendant that shall be entered in the record of the
court, and determine that the defendant understands the advisement: 'If you are not
a citizen of the United States you are hereby advised that conviction of the offense to
which you are pleading guilty (or no contest, when applicable) may have the
consequences of deportation, exclusion from admission to the United States, or denial
of naturalization pursuant to the laws of the United States.'").
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTE – TIMELINESS – OHIO –

DUTY TO ACT DID NOT ARISE UNTIL IMMIGRATION CONSEQUENCES OF PLEA BECAME
EVIDENT
State v. Francis, 104 Ohio St.3d 490, 820 N.E.2d 355 (where the immigration-related
consequences of the plea and resulting conviction did not become evident for some
time after the plea was entered, the mere fact over nine years has elapsed from the
date of his plea did not constitute grounds for denying his motion to vacate).
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTE – TIMELINESS – OHIO –

TIMELINESS IS ONLY ONE OF SEVERAL FACTORS TO CONSIDER IN RULING ON A
MOTION TO VACATE BASED ON FAILURE TO GIVE STATUTORY ADVISAL
State v. Francis, 104 Ohio St.3d 490, 820 N.E.2d 355 (the timeliness of a motion to
withdraw a plea pursuant to R.C. 2943.031(D) for lack of statutory advisal concerning
potential immigration consequences of guilty plea was just one of many factors a trial
court was to take into account when considering whether to grant a motion to
withdraw a guilty plea, even where motion was filed nine years after plea: "Depending
on the particular facts, untimeliness will sometimes be an important factor in reaching
a decision on a motion to withdraw. On the other hand, in some cases even a
considerable delay in filing the motion to withdraw will not be a factor supporting a
denial of the motion, such as when the immigration-related consequences of the plea
and resulting conviction did not become evident for some time after the plea was
entered. This is not a situation that requires a bright-line rule. As one of many factors
underlying the trial court's exercise of discretion in considering the motion to
withdraw, timeliness of the motion will be of different importance in each case,
330
depending on the specific facts.").
Seventh Circuit
CONTROLLED SUBSTANCES – ATTEMPTED SIMPLE POSSESSION CONVICTION

EXPUNGED PURSUANT TO A STATE REHABILITATIVE STATUTE CONTINUED TO EXIST AS
A GROUND OF DEPORTATION
Ramos v. Gonzales, ___ F.3d ___, 2005 WL 1618821 (7th Cir. July 12, 2005) (Nebraska
conviction for attempted possession of cocaine, in violation of Neb.Rev.Stat. §§ 28-
201, 28-416 (2003), continued to constitute a "conviction," for removal purposes,
even though it had been expunged pursuant to a rehabilitative statute, Neb.Rev.Stat.
§ 29-2264, resulting in an order stating that "the adjudication previously entered by
this Court is hereby set aside and nullified, and the Court further orders that all civil
disabilities and disqualifications imposed as a result of said adjudication are hereby
removed" and a later order stating rehabilitation had not played a part in the order,
despite an argument that Equal Protection required granting the same effect to this
state court order as would have been granted to an order under the Federal First
Offender Act, 18 U.S.C. § 3607), following Gill v. Ashcroft, 335 F.3d 574, 577-78 (7th
Cir. 2003).
Lower Courts of Seventh Circuit
POST CONVICTION – OHIO – STATE ADVISAL STATUTE

State v. Joseph, __ N.E.2d __ (Ct. App. 7th Dist. 2006) (court of appeal reversed trial
court's denial of motion to vacate guilty plea for violation of state advisal statute
requiring court taking a plea properly to advise the defendant of its immigration
consequences).
Ninth Circuit
POST CON RELIEF – GROUNDS – INSUFFICIENT EVIDENCE

Smith v. Patrick, ___ F.3d ___, 2007 WL 4233693 (9th Cir. Dec. 4, 2007) (no rational
trier of fact could have found beyond a reasonable doubt that petitioner caused the
child's death, and a state court's affirmance of petitioner's conviction for assault on a
child resulting in death was an unreasonable application of Jackson v. Virginia, 443
U.S. 307 (1979)).
POST-CONVICTION RELIEF – STATE REHABILITATIVE RELIEF -- CALIFORNIA

California Penal Code Section 1203.4 has been amended to exclude certain offenders
from relief under the "mandatory" or "nondiscretionary" part of that code section.
331
Now persons convicted of the following offenses, even if they have completed
probation in a flawless manner, will have to petition the court to exercise its
discretion in granting 1203.4 relief. Persons convicted of the following code sections
are affected by this latest statutory revision:
20001 CVC [hit and run driving with personal injury, etc.];
20002 CVC [hit and run driving with property damage only];
23152 CVC [driving a motor vehicle while under the influence of alcohol or drugs];
23153 CVC [driving a motor vehicle while under the influence of alcohol or drugs with
personal injury];
23103 CVC [reckless driving];
23103.5 CVC [reckless driving with alcohol involved];
23104 CVC [reckless driving causing bodily injury];
23105 CVC [reckless driving causing specified bodily injury (unconsciousness;

concussion; bone fracture; protracted loss or impairment of function or a bodily
member or organ; a wound requiring extensive suturing; serious disfigurement; brain
injury; paralysis)];
191.5(b) Penal Code [vehicular manslaughter while intoxicated];
192(c) Penal Code [vehicular manslaughter];
2800.2 CVC [attempting to evade a peace officer while driving recklessly];
2800.3 CVC [willful flight causing death or serious bodily injury];
21651(b) CVC [driving on a highway other than to the right of an intermittant barrier
or a dividing section which separates one or more opposing landes of traffic];
22348(b) CVC [driving a vehicle upon a highway at a speed greater than 100 miles per
hour];
23109(a) CVC [motor vehicle speed contest];

332
23109(c) CVC [motor vehicle exhibition of speed];
23109.1 CVC [engaging in motor vehicle speed contest causing specified bodily
injuries];
31602 CVC [unlawful driving on a public highway for the purpose of transporting
explosives];
23140(a) CVC [driving with a BAC of 0.05 by a person under the age of 21];
23140(b) CVC [driving while UIA (0.05) by a person under the age of 21];
14601 CVC [driving while privileges suspended pursuant to certain offenses];
14601.1 CVC [driving while privileges suspended pursuant to other offenses];
14601.2 CVC [driving while license suspended or revoked for DUI];
14601.3 CVC [habitual traffic offender];
14601.4 CVC [driving with suspended or revoked driver's license resulting in injury to
another person];
14601.5 CVC [driving while privileges suspended for failure to take chemical test or for
driving with specified blood alcohol level].
Thanks to Jerome P. Mullins
Eleventh Circuit
POST CON RELIEF – STATE ADVISAL STATUTES – CORAM NOBIS VACATUR OF STATE
CONVICTION FOR VIOLATION OF STATE STATUTORY RIGHT CEASED TO BE A
CONVICTION FOR PURPOSES OF THE JURISDICTION LIMITATION
Alim v. Gonzales, ___ F.3d ___, 2006 WL 1059322 (11th Cir. Apr. 24, 2006) (Florida
conviction of domestic battery, vacated by grant of coram nobis on grounds of
violation of state advisal statute requiring court accepting plea to warn defendant of
possible immigration consequences, ceased to be a conviction for purposes of barring
jurisdiction over petition for review under 8 U.S.C. § 1252(a)(2)(C), on account of two
convictions of crimes of moral turpitude, even though order did not specify ground of
vacatur, since coram nobis petition did so and was granted), deferring to BIA approach
333
in Matter of Adamiak, 23 I & N Dec. 878 (BIA Feb. 8, 2006).
POST-CON – GROUNDS – STATE ADVISAL STATUTE

State v. Gaston, __ So.2d __, 2007 WL 1753333 (Fla.App. 3 Dist. Jun 20, 2007) (“[t]he
motion must allege, in addition to the lack of a deportation warning, that the
defendant would not have entered the plea if properly advised and that under current
law the plea does render the defendant subject to being removed from the country at
some point in the future.”)
POST CON RELIEF – FLORIDA – STATE ADVISAL STATUTE

Gaston v. State, ___ Fla. ___, 2007 Fla. LEXIS 229 (Feb. 8, 2007) (motion to vacate 10-
year-old conviction on ground court failed to advise defendant of possibility of
deportation requires only an allegation that the plea subjects the defendant to
deportation, rather than a specific threat of deportation, to establish prejudice),
following Green v. State, 895 So. 2d 441 (Fla. 4th DCA 2005), quashed, 944 So. 2d 208,
218 (Fla. 2006).
POST CON RELIEF – STATE ADVISAL STATUTE – FLORIDA – TIME PERIOD FOR FILING
MOTION TO VACATE
State v. Green, ___ Fla. ___ (Oct. 26, 2006) (a Florida criminal "defendant seeking to
withdraw a plea because the trial court did not advise the defendant of the possibility
of deportation as part of the plea colloquy must file a rule 3.850 motion within two
years after the judgment and sentence become final. The motion must allege, in
addition to the lack of a deportation warning, that the defendant would not have
entered the plea if properly advised and that under current law the plea does render
the defendant subject to being removed from the country at some point in the future.
A defendant filing outside the two-year limitation period must allege and prove that
he or she could not have ascertained the immigration consequences of the plea with
the exercise of due diligence within the two-year period. Our holding in this case
reduces the time in which a defendant must bring a claim based on an alleged
violation of rule 3.172(c)(8). Therefore, in the interest of fairness, defendants whose
cases are already final will have two years from the date of this opinion in which to file
a motion comporting with the standards adopted today. In cases now pending in the
trial and appellate courts on this issue, courts should apply the criteria set out herein.
If relief is denied in a case now pending because the defendant has not alleged or
established that he or she is subject to or threatened with deportation, the defendant
should be allowed to refile in compliance with the standards set out in this case within
sixty days of affirmance, denial, or dismissal. All other defendants have two years
from the date their cases become final in which to seek relief under our holding
334
today.").
POST CON RELIEF – FLORIDA

Charles v. State, ___ Fla. App. ___, 2006 Fla. App. LEXIS 1641 (Feb. 10, 2006) (per
curiam) (motion to find guilty plea involuntary, under Florida Rule of Criminal
Procedure 3.850, should have been granted on the ground that defendant was not
advised, as required by Florida Rule of Criminal Procedure 3.172(c)(8), that he could
be subject to deportation as a consequence of his plea, and he established (1) he did
not know the plea might result in deportation, (2) he is "threatened" with deportation
because of the plea, and (3) had he known of the possible consequence, he would not
have entered the plea, since the defendant attached to the motion a notice from the
Immigration and Naturalization Service that Appellant was subject to deportation
based, in part, on being convicted of acts constituting a crime involving moral
turpitude, and an order from an immigration judge denying his requests for asylum
and for withholding of deportation), citing Peart v. State, 756 So. 2d 42 (Fla. 2000);
Payne v. State, 890 So. 2d 284 (Fla. 5th DCA 2004).
POST CON RELIEF – FLORIDA – GROUNDS – STATE ADVISAL STATUTE – FAILURE TO

ADVISE OF POSSIBILITY OF DEPORTATION IS NOT GROUNDS TO VACATE PLEA WHERE
DEFENDANT IS NOT THREATENED WITH IMMEDIATE DEPORTATION; THREAT OF
EXCLUSION IS NOT SUFFICIENT
Florida v. Gaston, 911 So.2d 257 (Fla. Dis. Ct. App. Sept. 28, 2005) ("In Kindelan v.
State, 786 So. 2d 599, 600 (Fla. 3d DCA 2001), we held that following application for
adjustment of immigration status, advice from INS of excludability from the United
States due to a conviction fails to establish a prima facie case for relief, because
"advising a defendant that a conviction constitutes grounds for exclusion from the
United States is not the same as being threatened with deportation as a result of a
plea." This holding is dispositive. See Aparicio v. State, 893 So. 2d 630, 631 (Fla. 3d
DCA 2005) (concluding that a defendant advised by an immigration attorney that he
would be detained if he applied for citizenship failed to establish a prima facie case
because it is not the possibility of immigration consequences, but rather imminent
deportation proceedings that support relief); Saldana v. State, 786 So. 2d 643, 645
(Fla. 3d DCA 2001) (concluding that issuance of a detainer by INS notifying initiation of
investigation did not establish a prima facie case for relief).").
POST CON RELIEF – FLORIDA – ADVISAL STATUTE -- IMMIGRATION CONSEQUENCES

Franco v. State, __ So.2d __ (Fla. Dist. Ct. App. March 30, 2005) (appellant's motion for
post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure,
denied because the allegation that the appellant was not advised of the immigration
consequences of her plea was clearly refuted by the record) Perez v. State, __ So.2d
__ (Fla. Dist. Ct. App. March 30, 2005) (warning that "The law requires that I advise
you that it is possible that the immigration authorities could take some action against
335
you, such as throwing you out of the country. I doubt that will happen, but the
possibility exists. Do you understand that?" found sufficient to fulfilled the
requirements of Florida Rule of Criminal Procedure 3.172(c)(8)).
DC Circuit
POST-CONVICTION RELIEF – STATE ADVISAL STATUTE – DISTRICT OF COLUMBIA

Slytman v. United States, 804 A.2d 1113 (D.C. 2002) (substantial compliance with state
advisal statute sufficed to give defendant sufficient notice of potential immigration
consequences of plea).
Lower Courts of DC Circuit
POST CON RELIEF – STATE ADVISAL STATUTE – DISTRICT OF COLUMBIA

Valdez v. United States, 906 A.2d 284, 2006 D.C.App. LEXIS 498 (D.C. Ct. App. Aug. 31,
2006) (reconstructed record, based on affidavit of judge or other percipient witness,
may be sufficient to constitute a record of the giving of the statutory advisal
concerning potential immigration consequences required by D.C. Code § 16-713
(2001) in response to defendant's motion to vacate where official records have been
destroyed in regular course of business).
Other
POST CON RELIEF – STATE ADVISAL STATUTES – IDAHO COURT RULE REQUIRES STATE
CRIMINAL JUDGES TO ADVISE ALL DEFENDANTS CONCERNING POSSIBLE
IMMIGRATION CONSEQUENCES
Effective July 1, 2007: Rule 11. Pleas.
(d) Other advisories upon acceptance of plea. The district judge shall, prior to entry of
a guilty plea or the making of factual admissions during a plea colloquy, instruct on
the following:
(1) The court shall inform all defendants that if the defendant is not a citizen of the
United States, the entry of a plea or making of factual admissions could have
consequences of deportation or removal, inability to obtain legal status in the United
States, or denial of an application for United States citizenship.
POST CON RELIEF – STATE ADVISAL STATUTE – VERMONT

The governor of Vermont signed an immigration advisement bill into law, effective
Sept. 1, 2006.
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT121.HTM
336
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE -- FAILURE TO ADVISE

DEFENDANT OF COLLATERAL SEX OFFENDER REGISTRATION CONSEQUENCES DID NOT
CONSTITUTE INEFFECTIVE ASSISTANCE – MILITARY COURT
United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) (failure to
inform accused of state sex offender registration requirement as collateral
consequence of court-martial conviction did not constitute ineffective assistance of
counsel so as to render guilty plea to child pornography charges improvident, but for
future cases, the court expects defense counsel to inform the defendant of the federal
sex offender registration collateral consequences of a plea; violation of this
prospective rule will not per se be ineffective assistance, but will be taken into
account in assessing effective assistance).
POST CON RELIEF – GROUNDS – INVOLUNTARY PLEA – COLLATERAL CONSEQUENCES –

FAILURE TO ADVISE DEFENDANT OF COLLATERAL SEX OFFENDER REGISTRATION
CONSEQUENCES DID NOT INVALIDATE GUILTY PLEA – MILITARY COURT
United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) (failure to
inform accused of state sex offender registration requirement as collateral
consequence of court-martial conviction did not render guilty plea to child
pornography charges improvident).

Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (noncitizen whose
firearms conviction was expunged pursuant to section 1203.4 of the California Penal
Code has been "convicted" for immigration purposes; Matter of Marroquin, 23 I&N
Dec. 705 (A.G. 2005), followed.).

Matter of MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005) (a noncitizen whose
firearm conviction was expunged pursuant to California Penal Code § 1203.4 is still
"convicted" for immigration purposes under INA § 101(a)(48)).
POST CON RELIEF – STATE ADVISAL STATUTE – CONNECTICUT

Conn. General Statutes (Rev. to 2003) § 54-1j (a) provides in relevant part: "The court
shall not accept a plea of guilty . . . from any defendant in any criminal proceeding
unless the court advises him of the following: 'If you are not a citizen of the United
States, you are hereby advised that conviction of the offense for which you have been
charged may have the consequences of deportation, exclusion from admission to the
United States, or denial of naturalization, pursuant to the laws of the United States.'"
CRIM DEF – RIGHT NOT TO DISCLOSE IMMIGRATION STATUS POST CONVICTION

RELIEF – STATE ADVISAL STATUTES – RIGHT NOT TO DISCLOSE IMMIGRATION STATUS
337
Arizona rules of criminal procedure contain a state advisal requirement that the court,
before accepting a plea of guilty or no contest, advise every defendant concerning
potential adverse immigration consequences of the plea. These rules also state the
defendant is not to be required to disclose his or her immigration status. After plea,
however, defendants are seen by a presentence report writer, who asks them their
birthplace, mother’s name and birthplace, the father’s name and birthplace. This
information is included in a presentence probation report which is presented to the
judge, and is also used as a basis for notifying ICE of the situation so an immigration
hold can be placed in an appropriate case. The defendant can decline to answer these
questions, if necessary raising a Fifth Amendment privilege against self-incrimination
objection in addition to the rule of court prohibiting the court from inquiring into the
defendant's immigration status. In addition, illegal presence in the United States is
now a statutory aggravating factor for Arizona crimes, which a judge can use to
increase sentence. To aggravate the sentence on this basis, the sentencing judge need
only find the illegal presence aggravating factor by a preponderance, not beyond
reasonable doubt. ICE will no doubt look closely at the status of a person who refused
to answer these questions. It may detain them while they look into the situation.
Thanks to Beth Houck for this analysis. Defense counsel or immigration counsel can
argue that it is unreasonable to assume undocumented status based on alienage
because a person can be in legal status as a nonimmigrant, can be a permanent
resident, can have protection under 8 U.S.C. § 1231(b)(3)(withholding) or
"withholding" or "deferral of removal" under the Convention Against Torture (See 8
CFR § 1208.18). Second, a person in status or who otherwise has the right to remain
in the United States (such as the person with "withholding" or "deferral of removal,"
or even a person granted "deferred action" by immigration authorities) might still
have a Fifth Amendment right to remain silent because of a variety of criminal
offenses in which alienage is an element. Even legal permanent residents sometimes
commit the offense of illegal entry and are subject to prosecution for it. (If a person
makes a weekend visit to Nogales, suffers a lost or stolen wallet, and has a need to get
back to work Monday in the United States, a lawful permanent resident may reenter
illegally for one's job). Alienage is also an element of illegal reentry as well as
other federal offenses. See, e.g., 8 U.S.C. § 911 (false claim to citizenship); 8 US.C.§
1282(c) (alien crewman overstay); 8 U.S.C. § 1304 (18 or over, not carrying
immigration documentation); 8 U.S.C. § 1325 (illegal entry into U.S.); 8 U.S.C. § 1326
(illegal reentry after deportation or removal). A non-citizen’s potential exposure to
criminal prosecution thus gives rise to a Fifth Amendment right against self-
incrimination. See Kastigar v. United States, 406 U.S. 441, 444 (1972); U.S. v. Alderete-
Deras, 743 F.2d 645 (9th Cir. 1984); Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir.
1984). If the person has no prior encounters with immigration officials, does not
reveal his/her birthplace, and is not in possession of foreign identification, ICE will be
unable to complete the paperwork and will not be able to do anything with the
338
person. On the other hand, if the prints match, ICE will do what it would do if the
person confessed to foreign birth. Thanks to Lynn Marcus.
STATE ADVISAL STATUTES

Even though many state advisal statutes are inaccurate in informing some noncitizens
they "may" be deported, when the specific conviction in fact triggers mandatory
deportation, there is no workable judicial advisal that correctly advises all noncitizen
defendants of the exact immigration consequences of a plea, even to an aggravated
felony. For example, a plea to a sexual abuse of a minor misdemeanor might well fall
within the petty offense exception and thus allow a LPR married to a USC to adjust
status to get a new green card and thus avoid deportation as in Matter of Rainford, 20
I. & N. Dec. 598 (BIA (1992) and Matter of Gabrielsky, 20 I. & N. Dec. 750 (BIA 1993).
Thus, in that case, a plea to an aggravated felony would not trigger mandatory
deportation. It would be a serious mistake for the court to misadvise the defendant
that he will absolutely be deported when there is an easy remedy available to protect
against deportation. The court is simply not in any position, without investigating the
actual immigration status and prior criminal history of a defendant, and doing
research on the specific immigration consequences of the new conviction in light of
the prior history, to give the defendant accurate information on the exact immigration
consequences of the new conviction. The immigration consequences of any
criminal disposition depend on (a) the detailed immigration situation of each
individual client, (b) the exact record of conviction in the criminal case, and (c) the
defendant's prior record, as well as (d) certain conduct-based grounds of
inadmissibility, deportability, and bases for relief or waivers in immigration court. This
analysis is beyond the duty or power of the court to give to every noncitizen
defendant. The solution is for criminal defense counsel to do this investigation, obtain
confidential privileged attorney-client information, verify the exact immigration
consequences of each disposition, try to avoid the worst of them if possible, and tell
the client what is going on in a confidential attorney-client conference. It is not in the
client's interest to inform the prosecutor or court of the exact nature (or even
approximate nature) of the confidential and privileged advice defense counsel gives
the defendant. The criminal court will breathe a sigh of relief that this is too
complicated and not their function; courts will likely be happy to leave it to criminal
defense counsel. If the court wants to police defense counsel's performance of their
duty to do this, in order to avoid future IAC claims, the court's question should be
limited to whether counsel has investigated the actual immigration consequences of
the plea and informed the client of them (without specifying what they are) and
leaving it at that. As far as the court's advisal goes, the current version is the best the
court can realistically do: to tell the defendant, "If you are not a U.S. citizen, this plea
might cause your (a) deportation, (b) exclusion, or (c) denial of naturalization or other
immigration benefits."
339
STATE ADVISAL STATUTES – MASSACHUSETTS Chapter 225 of the Acts of 2004
AN ACT RELATIVE TO COURT ADVISEMENT.
Be it enacted by the Senate and House of Representatives in General Court

assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 278 of the General Laws is hereby amended by striking out
section 29D, as appearing in the 2002 Official Edition, and inserting in
place thereof the following section:-
Section 29D. The court shall not accept a plea of guilty, a plea of nolo
contendere, or an admission to sufficient facts from any defendant in any
criminal proceeding unless the court advises such defendant of the
following: "If you are not a citizen of the United States, you are hereby
advised that the acceptance by this court of your plea of guilty, plea of
nolo contendere, or admission to sufficient facts may have consequences of
deportation, exclusion from admission to the United States, or denial of
naturalization, pursuant to the laws of the United States." The court shall
advise such defendant during every plea colloquy at which the defendant is
proffering a plea of guilty, a plea of nolo contendere, or an admission to
sufficient facts. The defendant shall not be required at the time of the
plea to disclose to the court his legal status in the United States.
If the court fails so to advise the defendant, and he later at any time
shows that his plea and conviction may have or has had one of the enumerated
consequences, even if the defendant has already been deported from the
United States, the court, on the defendant's motion, shall vacate the
judgment, and permit the defendant to withdraw the plea of guilty, plea of
nolo contendere, or admission of sufficient facts, and enter a plea of not
guilty. Absent an official record or a contemporaneously written record kept
in the court file that the court provided the advisement as prescribed in
this section, including but not limited to a docket sheet that accurately
reflects that the warning was given as required by this section, the
defendant shall be presumed not to have received advisement. An advisement
previously or subsequently provided the defendant during another plea
colloquy shall not satisfy the advisement required by this section, nor
shall it be used to presume the defendant understood the plea of guilty, or
admission to sufficient facts he seeks to vacate would have the consequence
of deportation, exclusion from admission to the United States, or denial of
naturalization.
340
SECTION 2. Section 1 shall apply to pleas of guilty, pleas of nolo

contendere and admissions to sufficient facts which occur on or after the
effective date of this act. Former section 29D of chapter 278 of the General
Laws shall continue to apply to pleas of guilty, pleas of nolo contendere
and admissions to sufficient facts which occurred before the effective date
of this act.
Approved July 29, 2004.
POST CON – STATE ADVISAL STATUTES

Cal. Penal Code § 1016.5 (West 1995); Conn. Gen. Stat. Ann. § 54-1j (West 1994); D.C.
Code Ann. § 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann.
§ 17-7-93 (1997); Haw. Rev. Stat. § 802E-2 (West 1994); Mass. Gen. Laws Ann. ch. 278,
§29D (West 1994); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie
2001); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. § 46-12-210(1)(f)
(1997); Neb. Rev. St. §29-1819.02 (West 2003), N.M. Dist. Ct. R.Cr.P. 5-303(E)(5)
(1992); N.Y. Crim. Proc. Law § 220.50(7) (McKinney 2001 Cum. Supp. Pamphlet); N.C.
Gen. Stat. § 15A-1022(a)(7) (West 1994); Ohio Rev. Code Ann. § 2943.031(A)
(Anderson 1993); Ore. Rev. Stat. § 135.385(2)(d) (1997); R.I. Gen. Laws § 12-12-22
(West 2003), Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); Wash. Rev. Code
Ann. § 10.40.200 (West 1995); Wis. Stat. Ann. § 971.08(1)(c) (West 1994). [SEPT 3,
2003] Notes: -- DC: time frame unknown -- Florida: general writ of error coram nobis
provision. -- Wisconsin: Possibly may bring the action more than a year from
conviction based on "good cause" ... this is based on the interpretation of the general
statute for post conviction relief. -- Nebraska: time frame unknown
POST CONVICTION RELIEF – ARIZONA – STATE ADVISAL RULE OF COURT

The Arizona Supreme Court amended the rules of criminal procedure to require
judges to advise criminal defendants that their pleas may have immigration
consequences. Arizona Rules of Court, rule 17.2(f)(2004). The court rejected an
express provision requiring the court to vacate a conviction on grounds that the court
failed to comply with the rule, but the new rule leaves open the possibility that a
violation may give grounds to vacate, and at least avoided an explicit provision saying
noncompliance is not a basis on which to vacate the conviction. The new rule provides
that before taking a plea, the court "shall address the defendant personally in open
court, informing him or her of and determining that he or she understands the
following: . . . f. That if he or she is not a citizen of the United States, the plea may
have immigration consequences. Specifically, the court shall state, 'If you are not a
citizen of the United States, pleading guilty or no contest to a crime may affect your
immigration status. Admitting guilt may result in deportation even if the charge is
later dismissed. Your plea or admission of guilt could result in your deportation or
341
removal, could prevent you from ever being able to get legal status in the United
States, or could prevent you from becoming a United States citizen.' The court shall
also give the advisement in this section prior to any admission of facts sufficient to
warrant finding of guilt, or prior to any submission on the record. The defendant shall
not be required to disclose his or her legal status in the United States to the court."
Order Amending Rule 17.2, Rules of Criminal Procedure, Arizona Supreme Court No.
R-03-0025 (June 8, 2004).
STATE ADVISAL STATUTES – NEW MEXICO – PAREDEZ DECISION COMING

The Paredez case was argued on June 23, 2004 before the New Mexico Supreme
Court, to consider issues arising from the current requirement that the court advise
the criminal defendant prior to plea that there "might" be immigration consequences
is not accurate. The current advice is arguably inaccurate in stating deportation might
result, as applied to an aggravated felony mandatory deportation situation. The case
also raises issues involving the necessity of a showing of prejudice that the defendant
would not have pleaded guilty had he known he would have been automatically
deported, and whether this issue should instead be raised by habeas and whether the
record is adequate to find either an involuntary plea or ineffective assistance of
counsel. Thanks to Tova Indritz for this report.
POST CON RELIEF – STATE ADVISAL STATUTE – MASSACHUSETTS M.G.L. c. 278 sec.
29D: § 29D.
Conviction upon plea of guilty, nolo contendere or an admission to sufficient facts;
motion to vacate The court shall not accept a plea of guilty, a plea of nolo
contendere, or an admission to sufficient facts from any defendant in any criminal
proceeding unless the court advises such defendant of the following: "If you are not a
citizen of the United States, you are hereby advised that the acceptance by this court
of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may
have consequences of deportation, exclusion from admission to the United States, or
denial of naturalization, pursuant to the laws of the United States." The court shall
advise such defendant during every plea colloquy at which the defendant is proffering
a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The
defendant shall not be required at the time of the plea to disclose to the court his
legal status in the United States. If the court fails so to advise the defendant, and he
later at any time shows that his plea and conviction may have or has had one of the
enumerated consequences, even if the defendant has already been deported from the
United States, the court, on the defendant's motion, shall vacate the judgment, and
permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or
admission of sufficient facts, and enter a plea of not guilty. Absent an official record or
a contemporaneously written record kept in the court file that the court provided the
advisement as prescribed in this section, including but not limited to a docket sheet
that accurately reflects that the warning was given as required by this section, the
342
defendant shall be presumed not to have received advisement. An advisement

previously or subsequently provided the defendant during another plea colloquy shall
not satisfy the advisement required by this section, nor shall it be used to presume
the defendant understood the plea of guilty, or admission to sufficient facts he seeks
to vacate would have the consequence of deportation, exclusion from admission to
the United States, or denial of naturalization. CREDIT(S) Added by St.1978, c. 383.
Amended by St.1996, c. 450, § 254; St.2004, c. 225, § 1, eff. Oct. 27, 2004.
POST CON RELIEF – GROUNDS – STATE ADVISAL STATUTES MAY REQUIRE VACATING
CONVICTION IF COURT FAILED TO ASCERTAIN DEFENDANT READ AND UNDERSTOOD
CONTENTS OF FORM
It is possible to have the defendant's ability to read English tested, and determine the
grade level at which s/he reads and understands English. The language used for many
of the state advisal statutes, e.g., California Penal Code § 1016.5, warning is quite
difficult, and it takes a reading level of at least 12th grade to understand 70% of the
warning. Microsoft WORD has the ability to compute the Flesch-Kincaid Grade Level
score, which gives the U.S. grade level required to understand a given text, under
Tools, Spelling and Grammar, Options, Grammar, Show Readability Statistics. When
this operation was performed on the Penal Code § 1016.5 text, it produced a
readability score of 12th grade. For a description of the process of challenging a
defendant's competency to understand and waive Miranda rights, and the analogous
question of challenging ability to understand the immigration waiver, see I. Bruce
Frumkin & Alfredo Garcia, Psychological Evaluations and the Competency to Waive
Miranda Rights, THE CHAMPION 12 (Nov. 2003); S. Kassin & G. Gudjonsson, The
Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOLOGICAL
SCIENCE IN THE PUBLIC INTEREST (November 2004). If the defendant's reading grade
level is below the readability score required to understand the warning, it is possible
to argue that the defendant did not understand the warning, and the conviction must
therefore be vacated. See, e.g., People v. Ramirez (1999) 71 Cal.App.4th 519, 522
(Penal Code § 1016.5 advice can be given by means of a form, provided: "The judge
need only determine whether defendant had read and understood the contents of the
form, and had discussed them with his attorney."), quoting In re Ibarra (1983) 34
Cal.3d 277, 285-286.
POST-CON – STATE ADVISAL STATUTES – ALASKA

Ak.R.Crim.P. 11(c)(3)(C) (requiring Alaska state court judges to advise criminal
defendants that a criminal conviction may have adverse immigration consequences).

343

344
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Chapter 7: Vacating or Reducing the Sentence
§ 7.2 II. Immigration Consequences of Sentence
CRIMINAL DEFENSE – SENTENCE – SENTENCING COURT CAN CONSIDER ILLEGAL

IMMIGRATION STATUS IN IMPOSING SENTENCE IN CRIMINAL CASE
Alire v. State, ___ Ariz. App.2d ___, 2005 WL 189682 (Jan. 28, 2005) (criminal
sentencing court is free to consider defendant's illegal immigration status as a factor
in determining appropriate sentence for criminal conviction for driving under
influence of alcohol).
345
http://www.apltwo.ct.state.az.us/Decisions/CR20040044Opinion.pdf
Other
CRIMINAL DEFENSE – SENTENCE

Daniel M. Kowalski, Sentencing Options for the Deportable Non-Citizen, 8 fed.
Sentencing Rep. 286 (1996).
§ 7.3 A. Definition of "Sentence Imposed"
POST CON – AFTER CONVICTION VACATED – IF THERE IS NO NEW SENTENCE, THERE

IS NO CONVICTION FOR IMMIGRATION PURPOSES
If no sentence has been imposed, the defendant does not have a final conviction for
immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a
criminal conviction may not be considered by the immigration authorities until it is
final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed.
1377 (1956) ("Final judgment in a criminal case means sentence.") (quoting Berman
v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937)); United
States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992)(citing United States v.
Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not
final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571
(6th Cir. 1975) ("Once a sentencing [on a guilty plea] is completed . . . the conviction
is final for deportation purposes.")).
Third Circuit
SENTENCE – CONFINEMENT – HOME DETENTION – ANKLE BRACELET

Ilchuk v. Attorney General of U.S., 434 F.3d 618 (3d Cir. Jan. 17, 2006) (house arrest
with electronic monitoring constitutes "imprisonment" for purposes of deportation
under INA § 237(a)(2)(A), 8 U.S.C. § 1227(a)(2)(A)); Rodriguez v. Lamer, 60 F.3d 745,
749 (11th Cir. 1995) (home confinement may constitute custody); see also Salim v.
Reno, 2000 WL 33115910, at *4-*5 (E.D.Pa. Jan.16, 2001) (finding that a convict
whose sentence was suspended in favor of mental treatment in a state hospital and
later in his home "was sentenced and imprisoned within the meaning of the INA").
Ninth Circuit
SENTENCE – RECIDIVIST ENHANCEMENTS

United States v. Carr, __ F.3d __, 2008 WL 200648 (9th Cir. Jan. 25, 2008)
(Washington felony conviction for violation a protection order, in violation of RCW
26.50.110(5), was a felony for purposes of finding defendant a felon in possession of
a firearm; although violation of a protection order is itself a gross misdemeanor,
346
defendant was convicted under subsection (5), for repeat offenders, and to convict
under (5), the prosecution must prove the prior beyond a reasonable doubt).
NOTE: The court here distinguished United States v. Corona-Sanchez, 291 F.3d 1201
(9th Cir.2002), on the basis that 18 U.S.C. § 921(a)(20) requires that the
determination of whether the conviction is a felony or a misdemeanor be made
according to state law, while in the aggravated felony and federal sentencing
contexts, the categorical approach is used to determine whether the offense would
be a felony under federal law.
SENTENCE – “SENTENCE IMPOSED”

United States v. Gonzales, __ F.3d __, 2007 WL 3244006 (9th Cir. Nov. 5, 2007) (en
banc) (The language "term of imprisonment" in U.S.S.G. § 4A1.2(c)(1) refers only to
certain non-felony sentences for which the defendant actually served a period of
imprisonment.), overruling United States v. Williams, 291 F.3d1180, 1195 (9th Cir.
2002); United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005).
SENTENCE – PAROLE – GUIDELINES DEFINITION

United States v. Benitez-Perez367 F.3d 1200 (9th Cir. May 20, 2004) ("sentence
imposed" for purposes of § 2L1.2(b)(1) means the actual sentence imposed by the
judge; parole [unlike probation] is not to be considered in determination of the
"actual sentence imposed").
SENTENCE – NONPENAL INSTITUTIONS - CREDITS - NEW CHARGES WHILE ON

INSANITY COMMITMENT
People v. Callahan, 144 Cal.App.4th 678 (Nov. 6, 2006) (criminal defendants are not
entitled to conduct credit for time spend in a state hospital). See also People v.
Bruner (1995) 9 Cal.4th 1178, 1191 (prisoner not entitled to credit for presentence
confinement unless he shows that the conduct which led to his conviction was the
sole reason for his loss of liberty during the presentence period); People v.
Buchhalter (2001) 26 Cal.4th 20, 30, n.6 (no conduct credit for time spent in
nonpenal institutions.)
BIA
SENTENCE – DEFINITION – FEES ARE PUNISHMENT

Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008) (costs and surcharges
imposed in Florida deferred adjudication proceeding constitute a form of
“punishment” or “penalty” for purposes of establishing that a noncitizen has
347
suffered a “conviction” within the meaning of INA § 101(a)(48)(A)). Note: the court
here sought to establish a national standard (rather than relying on Florida state
law), and includes amounts paid in restitution as a cost equaling “punishment.”
TEXAS – DEFERRED ADJUDICATION

A theft offense is only an aggravated felony (and therefore, a disqualification for
cancellation), if the sentence imposed was at least one year. Under Texas law,
where deferred adjudication is granted, no sentence is imposed. Therefore, crimes
of violence, theft offenses, and other convictions for which a sentence imposed of
one year is transforms the conviction into an aggravated felony, do not become
aggravated felonies if the defendant received and successfully completed deferred
adjudication without a violation since no sentence of one year or more has been
imposed. But see, Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (Texas deferred
adjudication is a conviction for immigration purposes).
SENTENCE -- SENTENCE TO TREATMENT FACILITY

Sentence to a state mental hospital following conviction of a crime is a “sentence”
for immigration purposes. Matter of V, 7 I. & N. Dec. 242 (BIA 1956). Sentence to a
drug treatment facilities is considered a sentence for purposes of the satisfying the
definition of "convicted." Dunn-Martin v. District Director, 426 F.2d 894 (9th Cir.
1970); Matter of Robinson, 15 I. & N. Dec. 197 (BIA 1975); United States ex rel.
Abbenante v. Butterfield, 112 F. Supp. 324, 326 (E.D. Mich. 1953), aff'd per curiam,
212 F.2d 794 (6th Cir. 1954) (drug addict committed to public health service hospital
was "sentenced to confinement" within the meaning of 8 U.S.C.A. § 1251(a)(4)). But
see, Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (a sentence for primarily
rehabilitative confinement is not necessarily a "sentence to confinement" under §
1251(a)(4)), Matter of M, 8 I & N 256 (BIA 1959).
Other
POST CON RELIEF – SENTENCE – PROBATION VIOLATION

Where a defendant has previously received a sentence of 364 days in custody for an
offense that would be an aggravated felony with a one-year sentence imposed, any
additional custodial sentence imposed as a result of a probation violation would be
added to the original sentence and would transform the conviction into an
aggravated felony. Defense counsel at the probation violation plea bargaining and
sentencing stages should: (1) Ask the court to vacate the original probation
condition imposing the custodial sentence of 364 days;
(2) Enter a waiver of credit for time previously served for the 364 days already
served; and
348
(3) As the court to impose a new probation condition of whatever time in custody
will meet the prosecution and court’s sense of an appropriate additional custodial
sentence for the probation violation. (A new sentence of no more than 180 days in
custody would enable the conviction to qualify under the sentence-imposed
requirement of the Petty Offense Exception to inadmissibility for a crime of moral
turpitude conviction if that is a relevant consideration for the defendant.)
Since the court explicitly vacates (even if not as legally invalid) the original 365
sentence order, that is effectively eliminated for immigration purposes. Matter of
Cota, 23 I. & N. Dec. 849 (BIA 2005); Matter of Song, 20 I. & N. Dec. 136 (BIA 1989);
LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).
§ 7.4 B. Length of "Sentence Imposed"
§ 7.5 1. Aggravated Felonies Requiring 1-Year "Sentence

Imposed"
§ 7.6 a. The 1-Year List
§ 7.7 b. Reduction of Sentence Below 1 Year
§ 7.8 2. Petty Offense Exception to Inadmissibility Requires

Sentence Imposed of 6 Months or Less
Ninth Circuit
CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION

Morales v. Ashcroft, 2004 WL 363432 (9th Cir. February 25, 2004) (unpublished) (IJ
erred in finding that single misdemeanor conviction rendered noncitizen statutorily
ineligible for suspension of deportation where misdemeanor conviction of California
Penal Code § 273.5, corporal injury, fell within petty offense exception of 8 U.S.C. §
1182(a)(2)(A)(ii)(II)).
§ 7.9 a. Petty Offense Exception Generally
§ 7.10 b. Effects of Petty Offense Exception in Specific

Immigration Contexts
§ 7.11 3. A Noncitizen Becomes Inadmissible if Convicted of

2 or More Offenses for Which the Aggregate Sentences to
Confinement Totaled 5 Years or More
349
§ 7.12 4. Mandatory Detention is Triggered if a Noncitizen is

Deportable for 1 Conviction of a Crime of Moral Turpitude for
Which a Sentence of 1 Year or More Has Been Imposed
§ 7.13 5. Restriction on Removal (Formerly Withholding of

Deportation) Requires a Noncitizen to Avoid an Aggregate Sentence
of 5 Years or More for Aggravated Felony Conviction(s)
§ 7.14 6. A Conviction is Considered a Misdemeanor, for

Purposes of Adjustment of Status, if the State Designates It as a
Misdemeanor and the Sentence Imposed is 1 Year or Less, Even If
the Maximum Sentence is Greater
§ 7.15 C. Length of Actual Confinement
§ 7.16 1. To Be Eligible for the Waiver of Deportability Under

Former INA 212(c), the Noncitizen Must Avoid Service of 5 Actual
Years or More in Custody for Aggravated Felony Conviction(s)
§ 7.17 2. A Noncitizen is Disqualified from Showing Good

Moral Character if Actually Confined as a Result of Criminal
Convictions for a Total of 180 Days or More
§ 7.18 3. Situations That Require Good Moral Character
§ 7.19 D. Naturalization May Not Be Granted if the Applicant is

Currently on Probation or Parole
§ 7.20 E. The Sentencing Judgment, Which Forms Part of the

“Record of Conviction,” Can Lead to Adverse Immigration
Consequences
POST CON RELIEF -- UNCONSTITUTIONAL PRIOR CONVICTION - MAY NOT BE USED

TO ENHANCE SENTENCE
A prior conviction resulting from an uncounseled guilty plea for which there was an
invalid waiver of counsel may not be used to enhance a later offense where the
prior conviction resulted in incarceration. See Baldasar v. Illinois, 446 U.S. 222
(1980); Nichols v. United States, 511 U.S. 738 (1994).
§ 7.21 F. Immigration Consequences of Reducing the Level of the

Offense from Felony to Misdemeanor
350
CAL POST CON – WOBBLER – SENTENCE ENHANCEMENT

People v. Feyrer, 151 Cal.App.4th 506 (Cal.App. 2 Dist. May 29, 2007) (trial court
may reduce a felony “wobbler” offense to a misdemeanor despite the admission of
an enhancement that a defendant inflicted great bodily injury in the commission of
the offense).
§ 7.22 1. The Most Recent Sentence Determines the

Immigration Consequences of the Conviction
Ninth Circuit
SENTENCE – GUIDELINES – WOBBLER – REDUCED SENTENCE IS USED FOR

GUIDELINES CALCULATIONS
United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a defendant is
convicted of an alternative "felony-misdemeanor" or "wobbler," the alternative
sentence ultimately executed is the one to be used in guidelines calculations).
§ 7.23 2. The Felony/Misdemeanor Distinction in Immigration

Law
§ 7.24 3. Some Crimes of Violence are Aggravated Felonies

Only if the Conviction is a Felony
Second Circuit
AGGRAVATED FELONY – CRIME OF VIOLENCE – 18 U.S.C. § 16(b) – FELONY --

MASSACHUSETTS MISDEMEANOR CONVICTION OF ASSAULT ON OFFICER
CONSTITUTED FELONY UNDER FEDERAL DEFINITION OF FELONY SINCE MAXIMUM
TERM OF IMPRISONMENT EXCEEDED ONE YEAR
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007)
(Massachusetts conviction of assault on police officer, under Massachusetts General
Laws chapter 265, section 13D, with suspended two-year sentence to imprisonment,
constituted felony for purposes of being a crime of violence aggravated felony, as
defined under 18 U.S.C. § 16(b), since the court applied the federal definition of
felony, 18 U.S.C. § 3559(a), and the maximum term of imprisonment for the offense
of conviction was in excess of one year: "Regardless of how Massachusetts law
defines it, we are obligated to apply the federal-law definition of a felony. Cf. United
States v. Campbell, 167 F.3d 94, 97 (2d Cir.1999) (observing that “[t]he immigration
laws contain no provision ... indicat[ing] that they are to be interpreted in
accordance with state law,” and holding that whether a person has been convicted
351
of an aggravated felony within the language of 8 U.S.C. § 1326(b)(2) “is necessarily ...
a question of federal, not state, law, despite the fact that the predicate offense and
its punishment are defined by the law of the State” (internal quotation marks
omitted)).").
Fifth Circuit
FELONY CLASSIFICATION
United States v. Alfaro-Hernandez, __ F.3d __ (5th Cir. Jun. 16, 2006) (felony
classification of defendant’s underlying offense, for purposes of sentence imposed
upon revocation of defendant's supervised release on a conviction for
transportation of an illegal alien, is determined by the underlying statute of
conviction, not the Guidelines range as calculated by the district court).
http://caselaw.lp.findlaw.com/data2/circs/5th/0540327cr0p.pdf
Tenth Circuit
FELONY/MISDEMEANOR DEFINITION
United States v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. Aug. 8, 2006) (Colorado
conviction for assault in the third degree, in violation of Colo.Rev.Stat. § 18-3-204,
although labeled by the State as a misdemeanor, is a felony for illegal re-entry
sentencing purposes since the maximum possible punishment for the offense is 18
months).
§ 7.25 4. A State First-Offense Controlled Substances

Possession Conviction Must Be a Felony in Order to Be Considered
an Aggravated Felony
Second Circuit
SENTENCE – DATE OF CONVICTION – SENTENCE REQUIRED TO CONSTITUTE

CONVICTION
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA § 101(f)(8), 8 U.S.C. §
1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that,
under the plain meaning of the definition of “conviction” in 8 U.S.C. §
1101(a)(48)(A), the entry of a “formal judgment of guilt . . . by a court” occurs when
judgment is entered on the docket, not when a defendant pleads guilty."); see Perez
v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is
the date of either sentencing or entry of judgment on the docket); Abimbola v.
Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence
constitutes a conviction under the INA, and noting that “Congress focused the
sanction of removal on a criminal conviction as opposed to an admission of guilt”);
352
Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New
York state conviction mitigated by a Certificate of Relief is still a conviction under the
INA because the defendant “entered a plea of guilty, and the court entered a formal
judgment of guilt”).
Ninth Circuit
AGGRAVATED FELONY – DRUG TRAFFICKING

Cazarez-Gutierrez v Ashcroft, 356 F.3d 1015 (9th Cir. 2004), decision withdrawn
presumably on jurisdictional grounds (9th Cir. April 26, 2004). In Cazarez-
Gutierrez, the Ninth Circuit held that a state felony simple possession conviction was
not an aggravated felony in immigration proceedings, unless it was a conviction of
possession of flunitrazepam (a date-rape drug) or more than five grams of crack
cocaine, which are aggravated felony convictions under federal law.
In summary, we hold that a state drug offense is not an

aggravated felony for immigration purposes unless it is punishable
as a felony under the CSA or other federal drug laws named in the
definition of "drug trafficking crime," or is a crime involving a
trafficking element. Cazarez-Gutierrez's offense, possession of
methamphetamine, is not punishable as a felony under federal law
and involves no trafficking element. Therefore, his offense is not an
aggravated felony for immigration purposes, and the BIA erred in
finding Cazarez-Gutierrez statutorily ineligible for cancellation of
removal. Accordingly, we grant his petition and remand to the BIA
to consider whether the IJ abused his discretion by granting Cazarez-
Gutierrez cancellation of removal. Cazarez-Gutierrez v Ashcroft, 356
F.3d 1015, 1027 (9th Cir. 2004), decision withdrawn presumably on
jurisdictional grounds (9th Cir. April 26, 2004).
The court concluded that a different test was possible for immigration purposes,
than is the rule for illegal reentry sentencing cases, and the better view uses a
uniform national test based on whether the conviction would have been a felony if
the case had been prosecuted in federal court. Under this test, because simple
possession is a misdemeanor under federal law, even a state felony possession
offense would be judged a "misdemeanor" if prosecuted in federal court, and is
therefore not an aggravated felony. Since Cazarez has been withdrawn, criminal
defense counsel should assume that the law reverts to what it was before the
Cazarez-Gutierrez opinion. The BIA rule holds that a state felony conviction for
simple possession is an aggravated felony, but even multiple state misdemeanor
convictions for simple possession are not. See Matter of Yanez-Garcia 23 I. & N. Dec.
390 (BIA 2002); Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002). If the
353
Ninth Circuit holds it has no petition for review jurisdiction in Cazarez, the case
would go to federal district court on habeas corpus under 28 U.S.C. § 2241 to decide
the same issue of whether the felony state conviction for simple possession is an
aggravated felony for immigration purposes. Even under the BIA rule, it is still
possible, in the Ninth Circuit, to eliminate all adverse immigration consequences of a
first felony or misdemeanor conviction for simple possession by "rehabilitative
relief" such as, in California, withdrawal of plea under deferred entry of judgment,
Proposition 36, or expungement pursuant to Penal Code § 1203.4. See Lujan-
Armendariz v INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo,
22 I. & N. Dec. 512 (BIA 1999). This is also true for a first conviction of giving away a
small amount of marijuana. See 21 U.S.C. § 841(b)(4). In Criminal Court. Until the
Ninth Circuit issues a new ruling, criminal defense counsel should act conservatively
and assume that a felony simple possession will be held an aggravated felony in
immigration proceedings. Counsel should advise and assist clients to eliminate an
existing first felony conviction for simple possession, by obtaining rehabilitative
relief. Counsel should attempt to defer pleading to a new felony simple possession
(unless it is a first offense that can quickly be eliminated by rehabilitative relief), or
plead to a different offense. Alternatives include misdemeanor simple possession
and offenses such as accessory after the fact, being under the influence, being in a
place where drugs are used, possession of paraphernalia, or possession of an
unidentified controlled substance. If it is crucial to avoid an aggravated felony, the
person may decide to plead up to statutes that include solicitation or "offering" to
commit a drug offense, such as Calif. Health & Safety Code §§ 11352(a), 11360(a)
and 11379(a), which would not be held to be drug trafficking aggravated felonies, or
even controlled substances convictions. See United States v. Rivera-Sanchez, 247
F.3d 905 (9th Cir. 2001); "Note: Drug Offenses" at the Quick Reference Chart at
www.ilrc.org/Cal_DIP_Chart_by_section.pdf. In Immigration Court. Immigration
counsel should continue to argue that the original decision in Cazarez-Gutierrez was
decided correctly, or ask for a continuance pending the Ninth Circuit's decision.
§ 7.26 5. Felony-Misdemeanor Offenses that are Treated As,

or Reduced To Misdemeanor Offenses Do Not Constitute Aggravated
Felonies as Long as They Would Be Misdemeanors Under Federal
Law
§ 7.27 6. 1 Felony Conviction Disqualifies an Immigrant from

Eligibility for a Number of Immigration Benefits
§ 7.28 a. The Legalization Program
§ 7.29 b. "Special Agricultural Worker" (SAW)

354
Legalization Program
§ 7.30 c. Family Unity Program
§ 7.31 d. Temporary Protected Status
§ 7.32 e. Political Asylum
§ 7.33 f. Restriction on Removal, Formerly Withholding of

Deportation
§ 7.34 7. Effect of a Felony Conviction on Criminal Sentences
§ 7.35 G. Reduction of Maximum Sentence To or Below 1 Year
POST CON RELIEF – WASHINGTON – SENTENCE REDUCTION

State v. Quintero-Morelos, 133 Wn. App. 591, 2006 Wash. App. LEXIS 1301 (Jun. 22,
2006) (trial court had discretion, under CrR 7.8, to grant a motion to vacate
judgment imposing sentence of 365 days, in order to impose one of 364 days, to
avoid aggravated felony mandatory deportation, on the basis of "excusable neglect .
. . in obtaining a judgment . . . ." based on defense counsel's failure to inform the
sentencing court of defendant's noncitizen status), distinguishing State v. Cortez, 73
Wn. App. 838, 871 P.2d 660 (1994).
CRIM DEF – ARGUMENT THAT IT'S OK TO TAKE FEDERAL IMMIGRATION

CONSEQUENCES INTO ACCOUNT
A court does not circumvent federal law by vacating a deportable sentence, to
impose a non-deportable equivalent sentence, when informed of the immigration
consequences. State v. Quintero-Morelos, 133 Wn. App. 591, ___, 2006 Wash. App.
LEXIS 1301 (June 22, 2006) ("We simply are not prepared to hold that a state
sentencing judge exercising traditional sentencing discretionary authority runs afoul
of the Supremacy Clause by imposing a sentence of one day less than a year to avoid
the defendant's deportation by federal authorities. The judge here is not
circumventing federal law. He is simply acknowledging the obvious; federal law has
the potential to influence the actual punishment visited upon a criminal defendant
in state court. E.g., State v. Jamison, 105 Wn. App. 572, 591, 20 P.3d 1010 (2001).
State court judges often make decisions mindful of federal implications. See, e.g., In
re Marriage of Glass, 67 Wn. App. 378, 391-392, 835 P.2d 1054 (1992) (considering
adverse [federal] tax consequences when adjusting [state] maintenance award).").
355
§ 7.36 1. Petty Offense Exception United States Permanent

Residents Non-Lawful Permanent Residents
SENTENCING - BLAKELY AND THE FEDERAL SENTENCING GUIDELINES – MAXIMUM

SENTENCE
United States v. Booker, 125 S.Ct. 738, 73 USLW 4056 (Jan. 12, 2005) (Sixth
Amendment as construed by Blakely v. Washington, 542 U.S. ___ (2004), applies to
the Federal Sentencing Guidelines because they are mandatory; advisory provisions
would not implicate the Sixth Amendment, because judges may exercise broad
discretion in imposing a sentence within a statutory range). The Supreme Court
held that "[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt." (Slip opn., first part, p. 20.) Justice Breyer wrote the
second part (the remedial portion) (joined by Rehnquist, O'Connor, Kennedy, and
Ginsburg) which concluded that the statute which makes the sentencing guidelines
mandatory (18 U.S.C. § 3553(b)(1)) and the section that provides for de novo
appellate review of sentences outside the Guidelines (3742(e)), violate the Sixth
Amendment and must be severed from the rest of the Sentencing Reform Act of
1984. With this modification, the Guidelines are effectively advisory, requiring the
court to consider Guidelines ranges (sec. 3553(a)(4)) but permitting it to tailor the
sentence in light of other statutory concerns (sec. 3553(a)). The decisions are
binding on all cases that are currently on direct review.
Fifth Circuit
IMMIGRATION OFFENSES – NONCITIZEN IN POSSESSION OF FIREARM – BOOKER

SENTENCING REMAND
United States v. Villegas, __ F.3d __, 2005 WL 627963 (5th Cir. March 17, 2005) (case
remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005),
to determine whether four level enhancement to 18 U.S.C. § 922(g)(5) conviction
sentence was proper upon court finding that firearm possession was in connection
with use of fraudulent immigration documents).
Ninth Circuit
POST CON RELIEF – SENTENCE – REMAND FOR RESENTENCE – BOOKER ILLEGAL

REENTRY – SENTENCE – BOOKER REMAND
United States v. Hernandez-Hernandez, ___ F.3d ___ (9th Cir. Dec. 16, 2005)
(sentence following a guilty plea conviction for illegal reentry is affirmed and a
limited remand pursuant to Ameline is granted where district court properly applied
356
prior convictions with regards to sentence enhancement).

§ 7.37 a. Admissibility; the Ability to Enter the United

States
§ 7.38 b. Cancellation of Removal for Lawful Permanent

Residents
§ 7.39 c. Cancellation of Removal for Non-Lawful

Permanent Residents
§ 7.40 d. Good Moral Character
§ 7.41 e. Lawful Permanent Resident Status
§ 7.42 f. Naturalization
§ 7.43 g. Registry
§ 7.44 h. Suspension of Deportation
§ 7.45 i. Violence Against Women Act
§ 7.46 j. Voluntary Departure at End of Removal

Proceedings
§ 7.47 k. Reduction from Felony to Misdemeanor Changes

Maximum Sentence to 1 Year, Qualifying for the Petty Offense
Exception
§ 7.48 2. Reduction of Maximum Sentence Below 1 Year to

Avoid Removal for 1 Conviction of a Crime of Moral Turpitude
SENTENCING - BLAKELY AND THE FEDERAL SENTENCING GUIDELINES – MAXIMUM

SENTENCE
United States v. Booker, 125 S.Ct. 738, 73 USLW 4056 (Jan. 12, 2005) (Sixth
Amendment as construed by Blakely v. Washington, 542 U.S. ___ (2004), applies to
the Federal Sentencing Guidelines because they are mandatory; advisory provisions
would not implicate the Sixth Amendment, because judges may exercise broad
discretion in imposing a sentence within a statutory range). The Supreme Court
held that "[a]ny fact (other than a prior conviction) which is necessary to support a
357
sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt." (Slip opn., first part, p. 20.) Justice Breyer wrote the
second part (the remedial portion) (joined by Rehnquist, O'Connor, Kennedy, and
Ginsburg) which concluded that the statute which makes the sentencing guidelines
mandatory (18 U.S.C. § 3553(b)(1)) and the section that provides for de novo
appellate review of sentences outside the Guidelines (3742(e)), violate the Sixth
Amendment and must be severed from the rest of the Sentencing Reform Act of
1984. With this modification, the Guidelines are effectively advisory, requiring the
court to consider Guidelines ranges (sec. 3553(a)(4)) but permitting it to tailor the
sentence in light of other statutory concerns (sec. 3553(a)). The decisions are
binding on all cases that are currently on direct review.
Fifth Circuit
IMMIGRATION OFFENSES – NONCITIZEN IN POSSESSION OF FIREARM – BOOKER

SENTENCING REMAND
United States v. Villegas, __ F.3d __, 2005 WL 627963 (5th Cir. March 17, 2005) (case
remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005),
to determine whether four level enhancement to 18 U.S.C. § 922(g)(5) conviction
sentence was proper upon court finding that firearm possession was in connection
with use of fraudulent immigration documents).
§ 7.49 3. Alphabetical Checklist of Applicable Immigration

Contexts
§ 7.50 III. Obtaining an Effective Order Vacating or Reducing a

Sentence
POST-CON – REDUCTION OF SENTENCE

State v. Quintero-Morelos, 133 Wn. App. 591 (Jun. 22, 2006) ("The day following
sentencing, the judge decided to reduce the sentence by one day, which prevented
the defendant's federal deportation, because defense counsel failed at the time of
the original sentencing to inform the judge that the defendant was subject to
deportation. The question presented is whether the judge had discretionary
authority to set aside the judgment on the ground of neglect or carelessness of
defense counsel. We conclude that he did and we affirm that exercise of
discretion.").
358
Eleventh Circuit
SENTENCE – SENTENCE IMPOSED

Hernandez v. U.S. Att’y Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008)
(twelve month suspended sentence, and one year probation, is a sentence imposed
of one year, even if probation is later revoked and the defendant required to serve
22 days in jail).
BIA
POST CON RELIEF – SENTENCE – VACATION OR REDUCTION OF SENTENCE IS

EFFECTIVE FOR IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S
REASONS FOR GRANTING IT
Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to
modify or reduce a criminal sentence nunc pro tunc is entitled to full faith and credit
by the Immigration Judges and the Board of Immigration Appeals, and such a
modified or reduced sentence is recognized as valid for purposes of the immigration
law without regard to the trial court's reasons for effecting the modification or
reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing
Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales,
465 F.3d 263 (6th Cir. 2006).
Other
CRIMINAL DEFENSE – SENTENCE

M. Shein, Cultural Issues in Sentencing, in L. FRIEDMAN RAMIREZ, ED., CULTURAL
ISSUES IN CRIMINAL DEFENSE 625 (2d ed. 2007).
POST CON RELIEF – WASHINGTON STATE – MODIFYING SENTENCE

The DHS attorneys in Washington state have been arguing that a sentence
modification is not valid under Washington law based, inter alia, upon their
(erroneous) analysis that the district court lacked jurisdiction to modify the
sentence. However, IJ Kandler appears to have bought their analysis, holding
that even under Mattter of Song and it's predecessor decisions, the sentence
modification order must be valid under state law. Even though DHS is wrong in their
argument, IJ Kandler is correct that BIA precedent requires valid state law orders in
order for PCR to be effective. Additionally, the DHS has attacked the validity of
the PCR sentence modification saying that it doesn't comport with Washington's
PCR exceptions to one year time limit on PCR motions (in this case, a Rule 7.8(b)
motion (CrRLJ 7.8(b), Washington's rule-based version for a writ of coram nobis,
359
which is no longer available here)). And even if it did, DHS says, modifying the
sentence for immigration purposes does not fall within the scope of any of the five
permissible grounds for modifying a sentence or vacating a conviction under the
applicable Rule 7.8(b) (1. mistakes, inadvertence, surprise, excusable neglect or
irregularity in obtaining a judgment or order; 2. newly discovered evidence which by
due diligence could not have been discovered in time to move for a new trial under
rule 7.5; 3.fraud, misrepresentation, or other misconduct of an adverse party; 4. the
judgment is void; or 5. any other reason justifying relief from the operation of the
judgment.) Their argument against the exceptions to the 1 year time limits is
bogus in light of a case that permits equitable tolling (State v. Littlefair). However,
their other argument - that such sentence modifications aren't permitted under the
grounds of 7.8(b) was recently given traction by Quintero-Morelos, __ P.2d __, 2004
Wash. App. LEXIS 2340 (Wa. Ct. App. Oct. 2004). Fortunately, this incorrectly
decided appeal was withdrawn a month later (appellate attorney failed to file a
brief) and is no longer available for citation. However, the appeal continues and the
Washington Association of Prosecuting Attorneys will certainly move again to
publish the bad decision. BOTTOM LINE: There are usually plenty of legal bases -
or at least some non-immigration-equities related basis - for modifying the sentence
(e.g. ineffective assistance of counsel to not deal with immigration issue at original
sentencing). I certainly recommend - at least for Washington state practitioners - to
be aware of the current state of flux and exercise care in getting sentence
modification orders. Ann Benson, Directing Attorney
§ 7.51 A. Vacating the Conviction Vacates the Sentence
Ninth Circuit
POST-CONVICTION RELIEF – WHERE ONE CONVICTION AMONG TWO OR MORE IS

REVERSED ON APPEAL, CASE SHOULD BE REMANDED FOR RESENTENCING
United States v. Latu, ___ F.3d ___ (9th Cir. March 19, 2007) (where one conviction
is vacated on appeal, case should be remanded for resentencing on remaining
counts), citing United States v. Bennett, 363 F.3d 947, 955 (9th Cir. 2004) (“When a
defendant is sentenced on multiple counts and one of them is later vacated on
appeal, the sentencing package comes unbundled. The district court then has the
authority to put together a new package reflecting its considered judgment as to the
punishment the defendant deserved for the crimes of which he was still convicted.”)
(citations, alterations and internal quotation marks omitted).
§ 7.52 B. Vacating the Original Sentence on a Ground of Legal

Invalidity
360
§ 7.53 C. Obtaining an Order Modifying the Original Sentence
§ 7.54 D. Modifying a Sentence Under a State Rehabilitative

Statute
§ 7.55 IV. Procedural Vehicles for Vacating or Reducing the

Sentence
§ 7.56 A. Direct Appeal from Sentence
Ninth Circuit
POST CON RELIEF – SENTENCE – PARTIAL REMAND

United States v. Fifield, ___ F.3d ___, 2005 WL 3556912 (9th Cir. Dec. 30, 2005)
(sentences for being a felon in possession of a firearm and an unlawful user of a
controlled substance in possession of a firearm remanded to determine whether the
district court would have imposed a different sentence if it had known that the
sentencing guidelines were advisory).
POST CON – APPEAL – FEDERAL -- WAIVER OF RIGHT TO APPEAL SENTENCE

United States v. Smith, ___ F.3d ___ (9th Cir. Nov. 23, 2004) (waiver of appeal valid
where waiver was knowingly and voluntarily made).
§ 7.57 B. Petition for Writ of Habeas Corpus
§ 7.58 C. Non-Statutory Motion to Vacate Sentence
§ 7.59 D. Petition for a Writ of Error Coram Nobis
POST CON RELIEF – VIRGINIA – CORAM VOBIS – SENTENCE REDUCTION GRANTED

FOR IMMIGRATION PURPOSES AFTER CUSTODY EXPIRED SINCE DEFENDANT HAD NO
REASON TO SUSPECT THE PROBLEM EARLIER – INEFFECTIVE ASSISTANCE OF
COUNSEL – AFFIRMATIVE MISADVICE
Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18, 2006)
(granting writ of coram vobis, reducing sentence from two years to 360 days,
thereby entitling petitioner to discretionary relief in the immigration courts, after
custody had expired, since petitioner had no reason to suspect the advice was faulty
any earlier than when he was placed into removal proceedings upon returning to
361
the United States).
§ 7.60 E. Motion to Correct Void Sentence
§ 7.61 F. Commutation or Correction of Sentence
§ 7.62 G. Motion to Modify Probationary Sentence
§ 7.63 H. Motion to Shorten Probation
§ 7.64 I. Shortening Parole
§ 7.65 V. Grounds to Vacate the Sentence
Tenth Circuit
POST CON RELIEF – FEDERAL – SENTENCE – GROUNDS – COURT’S FAILURE TO

ADDRESS DEFENDANT’S ARGUMENT REQUIRES REMAND AND RESENTENCING
United States v. Sanchez-Juarez, ___ F.3d ___, 2006 WL 1165967 (10th Cir. May 3,
2006) (court of appeal vacated and remanded sentence, because of district court’s
failure to address defendant’s argument at sentencing).
§ 7.66 A. Choice of Ground
§ 7.67 1. Any Ground Will Do
§ 7.68 2. Immigration-Related Grounds
§ 7.69 3. Non-Immigration Related Grounds
§ 7.70 B. Relationship Between Grounds to Vacate Convictions

and Grounds to Vacate Sentence
§ 7.71 1. Vacating Conviction Vacates Sentence
§ 7.72 2. Many Conviction Grounds Apply at Sentence
§ 7.73 3. Court Must Reaffirm Validity of Plea at Time of

Sentence
§ 7.74 C. Violations of the Right to Counsel

362
§ 7.75 1. The Right to Counsel
§ 7.76 2. Ineffective Assistance of Counsel
Ninth Circuit
POST CONVICTION RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – ORIGINAL

COUNSEL CANNOT RAISE OWN INEFFECTIVENESS; EXCEPTION TO STATE STATUTE OF
LIMITATIONS WHERE IT TAKES MORE TIME TO SEE IF IAC CLAIM EXISTS
Leavitt v. Arave, ___ F.3d ___ (9th Cir. June 14, 2004) (original counsel cannot raise
own ineffectiveness; exception therefore exists to state post-conviction relief
statute of limitations where more time is necessary for independent counsel to
determine whether IAC claim exists).
§ 7.77 3. Immigration-Related Ineffective Assistance
§ 7.78 a. Failure to Investigate the Facts
Third Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE

TO INVESTIGATE MITIGATING EVIDENCE
Outten v. Kearney, 464 F.3d 401 (3rd Cir. 2006) (trial counsel failed to conduct
reasonably competent investigation into the potential mitigation).
Sixth Circuit

Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006) (counsel failed to conduct any
mitigation investigation or present any mitigation evidence the court).

Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006) (counsel failed to conduct a
thorough investigation or presentation of defendant’s social history or available
mitigation).

Dickerson v. Bagley, 453 F.3d 690 (6th Cir. 2006) (counsel failed to investigate and
363
present mitigating evidence).
Ninth Circuit

TO INVESTIGATE – FAILURE TO REVIEW IMPORTANT RECORDS
Frierson v. Woodford, 463 F.3d 982 (9th Cir. 2006) (defendant was prejudiced by
ineffective assistance of counsel which resulted from counsel’s failure to review
important records).

STANDARDS FOR CRIMINAL JUSTICE – FAILURE TO INVESTIGATE OR PRESENT
MITIGATING EVIDENCE
Correll v. Ryan, 465 F.3d 1006 (9th Cir. 2006) (defense counsel’s failure to
investigate or present mitigation at penalty phase required reversal of death
sentence, despite personal knowledge of several mitigating factors).
§ 7.79 b. Failure to Present Mitigating Information
POST CON RELIEF – SENTENCE – GROUNDS – STATE CAN CONSTITUTIONALLY LIMIT

INNOCENCE-RELATED EVIDENCE AT SENTENCING TO THAT PRESENTED AT THE GUILT
TRIAL
Oregon v. Guzek, ___ U.S. ___ (Feb. 22, 2006) (Constitution does not prohibit a state
from limiting innocence-related evidence a defendant can introduce at a sentencing
proceeding to the evidence introduced at the original trial).
CRIMINAL DEFENSE – SENTENCE POST CON RELIEF – SENTENCE – GROUNDS –

INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO INVESTIGATE OR ARGUE
MITIGATION
Tennard v. Dretke, ___ U.S. ___, 124 S.Ct. 2562, 2570 (2004) (error to exclude
mitigating evidence from sentencing proceeding on relevance grounds if it tends
logically to prove or disprove some fact or circumstance which a factfinder could
reasonably deem to have mitigating value).
First Circuit
POST CON RELIEF – SENTENCE – GROUNDS – FEDERAL SENTENCE NOT UNLAWFUL

FOR FAILURE TO TAKE INTO ACCOUNT PENDING DEPORTATION OF DEFENDANT
United States v. Meran, ___ F.3d ___, 2006 WL 2615152 (1st Cir. Sept. 13, 2006) (per
curiam) (federal sentence not unlawful for failure to take defendant's pending
deportation into account).
364
Ninth Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE COUNSEL – FAILURE TO MITIGATE

Frierson v. Woodford, ___ F.3d ___ (9th Cir. Sept. 14, 2006) (prejudicial ineffective
assistance of counsel found in failing to investigate and present important mitigation
evidence at the penalty phase of a trial, failing to review juvenile court records, and
failing to challenge a key mitigation witness's assertion of his privilege against self-
incrimination at the penalty trial).

TO PROVIDE ADEQUATE RECORDS TO EXPERT
Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) (defense counsel was ineffective in
failing to provide defense psychiatrist with records necessary for proper preparation
of expert).
POST CON – GROUNDS – PLEA – SENTENCE – INEFFECTIVE COUNSEL – FAILURE TO

INVESTIGATE CHILDHOOD ABUSE
Boyde v. Brown, __ F.3d __ (9th Cir. April 21, 2005) (death sentence vacated where
counsel was ineffective since he failed to investigate mitigating childhood abuse).
POST CON – SENTENCE – INEFFECTIVE SENTENCE – FAILURE TO INVESTIGATE

MITIGATION
Boyde v. Brown, __ F.3d __ (9th Cir. April 5, 2005) (counsel rendered ineffective
assistance when he failed to fully investigate and present evidence of`physical abuse
of defendant and sexual abuse of his sisters, and failed to object to prosecution's
inadmissible evidence).

FAILURE TO MITIGATE
to the killing.").
POST CON RELIEF – WASHINGTON – SENTENCE REDUCTION

365
State v. Quintero-Morelos, 133 Wn. App. 591, 2006 Wash. App. LEXIS 1301 (Jun. 22,
2006) (trial court had discretion, under CrR 7.8, to grant a motion to vacate
judgment imposing sentence of 365 days, in order to impose one of 364 days, to
avoid aggravated felony mandatory deportation, on the basis of "excusable neglect .
. . in obtaining a judgment . . . ." based on defense counsel's failure to inform the
sentencing court of defendant's noncitizen status), distinguishing State v. Cortez, 73
Wn. App. 838, 871 P.2d 660 (1994).
CRIM DEF – ARGUMENT THAT IT'S OK TO TAKE FEDERAL IMMIGRATION

CONSEQUENCES INTO ACCOUNT
A court does not circumvent federal law by vacating a deportable sentence, to
impose a non-deportable equivalent sentence, when informed of the immigration
consequences. State v. Quintero-Morelos, 133 Wn. App. 591, ___, 2006 Wash. App.
LEXIS 1301 (June 22, 2006) ("We simply are not prepared to hold that a state
sentencing judge exercising traditional sentencing discretionary authority runs afoul
of the Supremacy Clause by imposing a sentence of one day less than a year to avoid
the defendant's deportation by federal authorities. The judge here is not
circumventing federal law. He is simply acknowledging the obvious; federal law has
the potential to influence the actual punishment visited upon a criminal defendant
in state court. E.g., State v. Jamison, 105 Wn. App. 572, 591, 20 P.3d 1010 (2001).
State court judges often make decisions mindful of federal implications. See, e.g., In
re Marriage of Glass, 67 Wn. App. 378, 391-392, 835 P.2d 1054 (1992) (considering
adverse [federal] tax consequences when adjusting [state] maintenance award).").
§ 7.80 c. Failure to Research the Law
§ 7.81 d. Failure to Correct Error of Fact or Law
§ 7.82 e. Failure to Assist in Withdrawal of Plea
§ 7.83 f. Failure to Advise About Appeal
§ 7.84 4. Examples of IAC Concerning Immigration

Consequences of Sentence
Other
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE – FAILURE TO ADVICE

DEFENDANT CONCERNING IMMIGRATION CONSEQUENCES
Justman, Rob A. Comment. The effects of AEDPA and IIRIRA on ineffective assistance
of counsel claims for failure to advise alien defendants of deportation consequences
366
of pleading guilty to an "aggravated felony". 2004 Utah L. Rev. 701-737.

John F. Fatino, Ineffective Assistance of Counsel: Identifying the Standards and
Litigating the Issues, 49 S. Dak. L. Rev. 31 (2003).

Bogdan, Attila. Guilty pleas by non-citizens in Illinois: immigration consequences
reconsidered. 53 DePaul L. Rev. 19-66 (2003).
§ 7.85 a. Moral Turpitude Offenses
§ 7.86 b. Length of Sentence of Incarceration
§ 7.87 c. Aggravated Felonies
§ 7.88 d. Anticipating Post-Conviction Relief
§ 7.89 e. Other Examples
§ 7.90 5. Other Examples
Ninth Circuit
POST CON RELIEF – HABEAS – GROUNDS – INSUFFICIENT EVIDENCE TO SUPPORT

SENTENCE ENHANCEMENT
Garcia v. Carey, ___ F.3d ___, 2005 WL 107090 (9th Cir. Jan. 20, 2005) (grant of
habeas relief affirmed where there was constitutionally insufficient evidence to
support the imposition of gang and gun sentencing enhancements).
§ 7.91 D. Substantive Constitutional Guarantees
§ 7.92 1. Cruel or Unusual Punishment
Ninth Circuit
POST CON RELIEF – SENTENCE – FEDERAL – GROUNDS – ABUSE OF DISCRETION IN

SETTING CONDITIONS
United States v. Napier, __ F.3d __ (9th Cir. Sept. 19, 2006) (district court erred in
imposing nonstandard conditions of supervised release after sentence and abused
367
its discretion in imposing condition requiring drug treatment because there was no
evidence of drug abuse; defendant had a Sixth Amendment right to be present at
sentencing, and adding conditions after the sentencing was over violated that right.
§ 7.93 2. Unconstitutionally Vague Sentence Statute
§ 7.94 3. Ex Post Facto Violations
Second Circuit
EX POST FACTO – CONTROLLING DATE – LAST DATE OF THE OFFENSE ALLEGED IN

THE CHARGE
comment (n.2) (for Ex Post Facto purposes, controlling date is the last date of the
offense, as alleged in indictment).
§ 7.95 4. Vindictive Sentencing
Other
POST CON – GROUNDS – CONVICTION – SENTENCE

The sentencing court may not sentence the defendant more harshly for exercising
the constitutional right to jury trial, or threaten the defendant with harsher
punishment to coerce a plea. In re Lewallen, 23 Cal.3d 274, 278-281 (1979) (court
commits judicial misconduct and violates due process by threatening the defendant
with a sentence in excess of the plea bargain sentence if he goes to trial, or by
sentencing him more harshly for exercising constitutional right to trial by jury); Ryan
v. Com’n on Judicial Performance, 45 Cal. 3d 518, 534 (1988) (judge removed from
the bench in part for using harsh sentencing as a punishment for going to trial). See
also Schaffner v. Greco, 458 F.Supp. 202 (S.D.N.Y. 1978) (trial judge’s bias during trial
and repeatedly trying to coerce defendant to plead guilty invalidated the guilty
plea).
§ 7.96 5. Withholding of Exculpatory Evidence
§ 7.97 6. Breach of Plea Agreement at Sentence
§ 7.98 7. Other Guarantees
§ 7.99 E. Due Process Rights in the Sentencing Hearing

368
§ 7.100 1. Right to Jury Determination of Facts Increasing

Maximum Sentence
POST CON RELIEF -- SENTENCE -- BOOKER REVERSAL OF CALIFORNIA DETERMINATE

SENTENCING LAW
Cunningham v. California, ___ U.S. ___ (Jan. 22, 2007) (California's determinate
sentencing law violates defendant's right to trial by jury under Sixth and Fourteenth
Amendments by placing sentence-elevating factfinding within the judge's province).
SENTENCING - FAILURE TO SUBMIT FACTOR TO JURY IS NOT STRUCTURAL ERROR

Washington v. Recuendo, __ U.S. __ (Jun. 27, 2006) (failure to submit firearm
enhancement to jury, in violation of Blakely v. Washington, 541 U.S. 296 (2004), is
not structural error requiring reversal without showing of prejudice).
Note: Justice Stevens, in dissent, points out that the majority did not reach the issue
whether Blakely errors are structural because they deprive defendants of sufficient
notice regarding the charges they must defend against. So that argument is still
available.
POST CON RELIEF – SENTENCE – GROUNDS OF INVALIDITY – IMPOSITION OF

GREATER SENTENCE BASED ON FACTS BEYOND THOSE ADMITTED DURING PLEA OR
FOUND DURING TRIAL
Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New
Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that
increases potential punishment over statutory maximum constitutes an element of
the offense and must be found true by the jury; relevant "statutory maximum" is not
maximum sentence judge may impose after finding additional facts, but maximum
judge may impose without any additional findings). If, as in Washington State, a
statute establishes a maximum possible sentence for violation of the statute, but
that maximum may not be reached solely upon a finding that the basic elements of
the offense have been committed, but rather can only be reached upon a finding of
additional factors, the "statutory maximum" for the offense for Apprendi purposes
is not the absolute maximum, but only the maximum the judge can imposed absent
a finding of the additional factors. To impose up to the absolute maximum sentence,
the additional factors must be established by a jury, or admitted by the defendant in
a guilty plea. In the immigration context, this may limit the legacy INS’s ability to
establish that a given crime has "maximum possible sentence" is a sentence of
which a certain period "may be imposed." See, e.g. INA § 212(a)(2)(A)(ii)(II) (petty
offense exception where maximum possible does not exceed one year); INA §
237(a)(2)(A)(i) (crime of moral turpitude where sentence of one year or more may
be imposed); INA §§ 101(a)(43)(J), (Q), (T). Where this case is applied in the
369
future, however, where additional factors have been found by the jury, or admitted
by the defendant, the record of conviction that may be examined by an Immigration
Judge in determining whether a conviction falls within a ground of removal will likely
contain additional factual information with which the legacy INS can prove its case.
GROUNDS – SENTENCE – REQUIREMENT THAT JURY, NOT JUDGE, FIND EXISTENCE

OF AGGRAVATING FACTORS IS NOT RETROACTIVE
Schriro v. Summerlin, 124 S.Ct. 2519 (June 24, 2004) (the rule of Ring v. Arizona, 536
U.S. 548 (2002), requiring the jury, rather than a judge, to find the existence of an
aggravating factor, does not apply retroactively to cases already final on direct
review, because it was not a "watershed rule of criminal procedure.").
Third Circuit
BOOKER – WITHDRAW OF GUILTY PLEA

United States v. Remoi, __ F.3d __, 2005 WL 845884 (3d Cir. April 13, 2005)
(Supreme Court decision in Booker constitutes a "fair and just" reason to withdraw
any plea that was entered before the date of that decision).
Ninth Circuit
POST CON RELIEF – SENTENCE – GROUNDS -- BOOKER

United States v. Mercado, ___ F.3d ___, 2007 WL 136702 (9th Cir. Jan. 22, 2007)
(Booker has not abrogated previous rule allowing sentencing courts to consider
conduct underlying acquitted criminal charges).
POST CON -- SENTENCE – GROUNDS -- FEDERAL -- BLAKELY -- DEFENDANT'S

ADMISSIONS CAN BE THE BASIS FOR SENTENCE ENHANCEMENT
United States v. Labrada-Bustamante 428 F.3d 1252 (9th Cir. Nov. 10, 2005) (neither
Apprendi nor Blakely is violated when court's determination of drug quantity for
sentencing was based on defendant's own testimony: "the statutory maximum for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant." Blakely v.
Washington (2004) 124 S.Ct. 2531, 2537).
IMMIGRATION OFFENSES – ALIEN SMUGGLING – SENTENCE – BOOKER CRIMINAL

LAW & PROCEDURE, SENTENCING
United States v. Gonzales-Flores, __ F.3d __ (9th Cir. Aug. 12, 2005) (sentence for
alien smuggling remanded where sentence was enhanced under a mandatory-
guideline regime based on facts not admitted nor proved to a jury beyond a
370
reasonable doubt).
POST CON – GROUNDS – SENTENCE – VIOLATION OF JURY TRIAL RIGHT TO ENHANCE

SENTENCE ON BASIS OF FACTS NOT CHARGED AND ADMITTED OR FOUND TRUE BY
JURY
United States v. Ameline, ___ F.3d ___ (9th Cir. July 21, 2004) (court of appeals
vacated federal sentence because district court violated defendant's right to have
facts underlying his sentence found beyond a reasonable doubt under Blakely,
holding federal sentencing guidelines unconstitutional).
POST CON RELIEF - GROUNDS - CONVICTION - SENTENCE - VALIDITY - RIGHT TO JURY

DETERMINATION OF FACT INCREASING MINIMUM SENTENCE - GUILTY PLEA DOES
NOT ADMIT QUANTITY
United States v. Thomas, ___ F.3d ___ (9th Cir. Jan. 26, 2004) (guilty plea which did
not admit drug quantity could not be used to set minimum sentence on basis of
possession of more than 50 grams; due process requirement that the drug quantity
be pleaded in the indictment, submitted to a jury, and proved beyond a reasonable
doubt, does not transform drug quantity into an element of the offense that a
defendant necessarily admits when pleading guilty).
Tenth Circuit
BOOKER ILLEGAL REENTRY REMAND

United States v. Trujillo-Terrazas, __ F.3d __, 2005 WL 846230 (10th Cir. April 13,
2005) (sentence of 41 months imprisonment for illegal reentry found to be plain
error in light of Blakely and Booker).
ILLEGAL REENTRY – SENTENCE – BOOKER

United States v. Gonzales-Huerta, __ F.3d __, 2005 WL 807008 (10th Cir. April 8,
2005) (plain error not found where district court, in relied solely on defendant's
prior convictions or on facts that he admitted, and imposed what it regarded as
mandatory punishment at lowest end of Sentencing Guidelines range).
Eleventh Circuit
ILLEGAL REENTRY – SENTENCING – BOOKER

United States v. Orduno-Mireles, __ F.3d __, 2005 WL 768134 (11th Cir. April 6,
2005) (for illegal reentry sentencing purposes, fact of prior conviction is not a fact
that must be admitted by defendant or proven before a jury beyond a reasonable
doubt; Apprendi exception for recidivist enhancements makes Blakely and Booker in
371
applicable enhancement for prior aggravated felony conviction).
Other
POST CON – GROUNDS – SENTENCE – BLAKELY

For useful updates on the extensive litigation after the Blakely decision of the United
States Supreme Court, see http://blakelyblog.blogspot.com/2004/07/tuesday-
morning-news.html http://sentencing.typepad.com/
http://www.legalaffairs.org/howappealing/2004_07_01_appellateblog_archive.html
#109092599628736116
§ 7.101 2. Judicial Awareness of Discretion
§ 7.102 3. Notice and Opportunity to Be Heard
§ 7.103 4. Allocution
Ninth Circuit
POST CON RELIEF – SENTENCE – GROUNDS – ALLOCUTION – NO RIGHT OF

ALLOCUTION ON LIMITED REMAND FOR RESENTENCING – CRIMINAL LAW &
PROCEDURE, SENTENCING
United States v. Silva, 472 F.3d 683 (9th Cir. Jan. 3, 2007) (defendant does not have a
right to allocute during a limited remand to the district court from a sentencing
appeal). http://caselaw.lp.findlaw.com/data2/circs/9th/0550871p.pdf
§ 7.104 5. Right to Accurate Information
§ 7.105 6. Right Against Use of Unreliable Hearsay
§ 7.106 7. Right Against Use of Improper Evidence
Other
POST CON – GROUNDS – SENTENCE – JUDICIAL MISCONDUCT TO CONSIDER

INAPPROPRIATE FACTORS AT SENTENCE
At sentencing, the court sometimes makes legal errors. In addition, the judge
sometimes takes into account inappropriate considerations in imposing sentence, to
which counsel must object or the error is normally waived. See People v. Scott, 9
Cal.4th 331, 353 n.16 (1995)(defense counsel’s failure to object to sentencing errors
bars raising those errors on appeal except for errors considered jurisdictional). For
example, it is judicial misconduct to make negative remarks about the defendant
372
being on welfare and fathering children out of wedlock. People v. Bolton, 23 Cal.3d
208, 217 (1979). The court may not threaten to have the defendants castrated.
United States v. Duhart, 496 F.2d 941 (9th Cir. 1974) (judge stated he could put
defendant in same room with husbands of sex offense victims and possibly cut
"something" out of the defendant’s body).
§ 7.107 8. Improper Victim Impact Evidence
§ 7.108 9. Prosecutorial Misconduct
§ 7.109 10. Right to Individualized Consideration
Ninth Circuit
POST CON RELIEF – SENTENCING – GROUND – POST-BOOKER – STATEMENT OF

REASONS
United States v. Carty, __ F.3d __ (9th Cir. July 17, 2006) (district court must provide
some articulation of its consideration of section 3553(a) factors and explanation of
reasons underlying its sentence selection).
SENTENCING - FEDERAL – SENTENCE ENHANCEMENT

United States v. Staten, __ F.3d __ (9th Cir. Jun. 7, 2006) (enhancements resulting in
disproportionate, albeit advisory, guidelines sentences must find support in facts
established by clear and convincing evidence).
SENTENCING - GUIDELINES ARE NOT PRESUMPTIONS BUT STARTING POINTS

United States v. Zavala, ___ F.3d ___ (9th Cir. 2006) (court violated Booker by
presuming that the advisory Sentencing Guideline calculation set forth the proper
range for sentencing; advisory guidelines are a "starting point," not a presumption).
SENTENCING - GUIDELINES ARE NOT PRESUMPTIONS BUT STARTING POINTS

United States v. Zavala, ___ F.3d ___ (9th Cir. 2006) (court violated Booker by
presuming that the advisory Sentencing Guideline calculation set forth the proper
range for sentencing; advisory guidelines are a “starting point” not a presumption).
§ 7.110 11. Mental Incompetence at Sentence
§ 7.111 12. Judicial Bias or Misconduct
§ 7.112 13. Exclusion of Relevant Information
GROUNDS - EXCULPATORY EVIDENCE - FAILURE TO DISCLOSE

Banks v. Dretke, ___ U.S. ___ (February 24, 2004) (concealment of significant
373
exculpatory or impeachment material in possession of the police or prosecutor is

basis for grant of habeas).
Ninth Circuit
POST CONVICTION RELIEF - GROUNDS - FAILURE TO DISCLOSE EXCULPATORY

EVIDENCE - PROBATION FILES
United States v. Alvarez, __ F.3d __ (9th Cir. February 25, 2004) (where district court
fails to conduct in camera review of probation files of significant witnesses pursuant
to timely Brady request, conviction will be vacated and case remanded to conduct
review; if files found to contain material information bearing on credibility of
witnesses, court shall release such and order new trial).
Other
POST CON RELIEF – SENTENCE – GROUNDS – DEPRIVATION OF RIGHT TO

MEANINGFUL CONSIDERATION OF MITIGATING EVIDENCE
Abdul-Kabir v. Quarterman, ___ U.S. ___ (2007) (habeas denial reversed where
there was a reasonable likelihood that a state trial court's instructions prevented
jurors from giving meaningful consideration to constitutionally relevant mitigating
evidence); Brewer v. Quarterman, ___ U.S. ___ (2007) (same)..
§ 7.113 14. Other Due Process Violations
Ninth Circuit
POST CON RELIEF – FEDERAL – SENTENCE – RIGHT TO BE SENTENCED BY ORIGINAL

JUDGE AFTER REVERSAL
United States v. Lence, ___ F.3d ___ (9th Cir. Jul. 27, 2006) (criminal defendant has
right to be resentenced by original sentencing judge on remand following Booker
error). http://caselaw.lp.findlaw.com/data2/circs/9th/0530236p.pdf
POST CON RELIEF – SENTENCE – GROUNDS – REVOCATION OF PROBATION FOR

FAILURE TO INCRIMINATE HIMSELF AS PART OF SEX OFFENDER TREATMENT HELD
VIOLATIVE OF FIFTH AMENDMENT
United States v. Antelope, ___ F.3d ___, 2005 WL 170738 (9th Cir. January 27, 2005)
(revocation of defendant's supervised release, due to his refusal to incriminate
himself as part of his sex offender treatment, violates his Fifth Amendment right
against compelled self-incrimination).
374
POST CON RELIEF – SENTENCE – RESTITUTION ORDER – INVALID FOR INSUFFICIENT

EVIDENCE
United States v. Doe 374 F.3d 851 (9th Cir. July 06, 2004) (amount of restitution
imposed must reflect the losses of identified victims).
POST CONVICTION RELIEF - GROUNDS - SENTENCE - COURT MUST STATE REASONS

FOR SENTENCE CHOICE
United States v. Delgado, __ F.3d __ (9th Cir. February 10, 2004) (Sentencing court
failure to state in open court reasons underlying sentence imposed violated 18
U.S.C. § 3553(c)).
§ 7.114 F. Other Sentence Defects
§ 7.115 1. Invalid Prior Conviction
Ninth Circuit
ALMANDAREZ-TORRES DOES NOT APPLY WHERE NATURE OF CRIME CHANGES

United States v. Rodriguez-Gonzalez, __ F.3d __ (9th Cir. Feb. 19, 2004)
(Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior offense may be used
to increase sentence even if omitted in Government pleading), does not apply when
the earlier offense operated not merely to increase defendant's sentence, but to
transform his second offense from misdemeanor to felony).
http://www.ilw.com/lawyers/immigdaily/cases/2004,0227-Rodriguez.pdf
§ 7.116 2. Illegal Sentence
Ninth Circuit
POST-CONVICTION RELIEF – SENTENCE – POST-CONVICTION RULING THAT EARLIER

SENTENCE HAD BEEN ILLEGAL
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006)
(Arizona court order imposing a twelve-month sentence, for Arizona misdemeanor
conviction of "theft by control of property with a value of $250 or more," in violation
of A.R.S. §§ 1301802(A)(1), (C), arguably would not constitute a one-year sentence
imposed for removal purposes since the state at the time of sentence designated
the conviction a misdemeanor, and under Arizona law the maximum term of
imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707,
375
rendering the twelve-month sentence illegal on its face, requiring remand to the BIA
to consider the issue in the first instance).
Eleventh Circuit
SENTENCING - SUPERVISED RELEASE CANNOT BE TOLLED UPON DEPORTATION

United States v. Okoko, __ F.3d __, 2004 WL 728864 (11th Cir. April 6, 2004) (period
of supervised release as condition of parole cannot be tolled by district court during
any period of absence from the United States subsequent to deportation, to resume
if deported noncitizen later illegally reenters the United States).
§ 7.117 3. Lack of Presentence Report
§ 7.118 4. Unreasonable Delay in Imposition of Sentence
§ 7.119 5. Other Sentence Defects
Ninth Circuit
POST-CON – SENTENCING – GROUNDS – JUVENILE

United States v. Juvenile Male, 470 F.3d 939 (9th Cir. Dec. 14, 2006) (Federal
Juvenile Delinquency Act applies to a juvenile's re-sentencing after revocation of
probation, as well as the initial sentencing, so district court committed plain error by
re-sentencing the juvenile under the adult sentencing scheme).
§ 7.120 VI. Post-Conviction Reduction of Felony to Misdemeanor
§ 7.121 A. Motion to Reduce a Felony to a Misdemeanor
§ 7.122 1. Basic Requirements
§ 7.123 2. Definition of Reducible Offenses
§ 7.124 3. The Required Sentence
§ 7.125 a. Generally
§ 7.126 b. A Sentence to State Prison — Even if Execution

Is Suspended — Disqualifies the Defendant from Reducing the
Offense to a Misdemeanor
376
§ 7.127 4. Standard for Granting the Reduction
§ 7.129 6. Timing of the Motion of Probation
§ 7.130 7. The Court's Jurisdiction to Grant a Motion to

Reduce Continues After the Termination
§ 7.131 8. The Court's Jurisdiction to Grant a Motion to

Reduce Continues After the Conviction Has Been Expunged
§ 7.132 9. Review of Grant or Denial of Motion to Reduce
§ 7.133 VII. Motion to Reduce a Misdemeanor to an Infraction
§ 7.134 A. Definition of Misdemeanor Conviction
§ 7.135 B. Immigration Contexts in Which the Client Benefits

from Reducing Misdemeanors to Infractions
§ 7.136 C. Criminal Benefits of Reducing Misdemeanors to

Infractions
§ 7.137 D. Motion Under California Penal Code 17(d) to Reduce

Certain Misdemeanors to Infractions
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Chapter 8: State Rehabilitative Relief
First Circuit
CONVICTION – PUERTO RICO TREATED LIKE A STATE

Puerto Rico is considered equivalent to a state, for purposes of determining
whether a noncitizen was convicted of a crime for deportation purposes,
giving the same effect to its judicial decrees as if they were orders of a state
court and the same effect to its legislative enactments as it would to state
statutes. Herrera-Inirio v. INS, 208 F.3d 299, 304 n.1 (1st Cir. 2000) (citing 28
U.S.C. § 1738 (extending full faith and credit doctrine to Puerto Rico); 48
U.S.C. § 734 (providing that, unless otherwise specified, federal statutes
applicable to states apply to Puerto Rico)); see also Cruz v. Melecio, 204 F.3d
378
14 (1st Cir. 2000). Persons born in Puerto Rico are United States citizens,
although there are some issues if the birth date was prior to 1941. INA § 302,
8 U.S.C. § 1402.
Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – DEFERRED ENTRY OF

JUDGMENT
United States v. Valerio, __ F.3d __ (9th Cir. Mar. 28, 2006) (federal
conviction for being a felon in possession of a firearm is affirmed despite the
claim that he was not a convicted felon at all, because his deferred imposition
of sentence and subsequent discharge under state law invalidated that
status).
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FEDERAL EX FELON WITH

GUN CHARGE DISMISSED SINCE ARIZONA CIVIL RIGHTS, INCLUDING RIGHT TO
POSSESS FIREARMS, HAD BEEN FULLY RESTORED
United States v. Simpson, __ F.3d __ (9th Cir. Mar. 27, 2006) (federal
indictment charging defendant with being a felon in possession of a firearm is
dismissed where defendant's civil rights had been fully restored and nothing
in Arizona law expressly prohibited defendant from possessing a firearm
following the end of his probation).
Other
POST CON RELIEF – STATE REHABILITATIVE RELIEF – PRIOR NO-PLEA

DIVERSION DOES NOT DISQUALIFY NONCITIZEN FROM LUJAN EXPUNGEMENT
"At no time shall a defendant be required to make an admission of guilt as a
prerequisite for placement in a pretrial diversion program" Cal. Penal Code §§
1001.3 et seq. Therefore, under the statutory definition of conviction INA §
101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), diversion under the California "no-
plea" diversion statute does not constitute a conviction. See Matter of
Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California
no-plea diversion, held not to be a conviction under Matter of Ozcok, 19 I. &
N. Dec. 546 (BIA 1988)). A prior no-plea California diversion disposition
therefore does not disqualify a noncitizen from eligibility for FFOA treatment
under Lujan of a subsequent possession conviction. A disposition of diversion
that did not require a plea of guilty or no contest and does not constitute a
conviction under 8 U.S.C. § 1101(a)(48)(A). In addition, this disposition does
not constitute "a disposition under this subsection." Federal First Offender
Act, 8 U.S.C. § 3607(a).
379
§ 8.2 II. Immigration Effects of State Rehabilitative Relief
§ 8.3 A. General Rule: State Rehabilitative Relief Does Not

Eliminate the Immigration Consequences of a Conviction
POST CON RELIEF – STATE REHABILITATIVE RELIEF – INEFFECTIVE TO

ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES, AS DISTINGUISHED
FROM A CONVICTION THAT HAS BEEN VACATED ON THE MERITS
Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115 (1983) (Federal
firearms disabilities applied with respect to one who pled guilty to a State
offense punishable by imprisonment for more than one year, even if the
record of the State criminal proceeding was subsequently expunged following
a successfully served term of probation: “expunction under state law does
not alter the historical fact of the conviction, . . . does not alter the legality of
the previous conviction[,] and does not signify that the defendant was
innocent of the crime to which he pleaded guilty”); United States v. Smith, 96
F.3d 1350, 1351 (11th Cir. 1996) (per curiam); United States v. Mejias, 47 F.3d
401, 403-404 (11th Cir. 1995); see also United States v. Norbury, 492 F.3d
1012, 1014-1015 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824
(6th Cir. 2006).
Second Circuit
POST CON RELIEF – CONVICTION – EFFECTIVE ORDER – NONCITIZEN REMAINS

CONVICTED FOR IMMIGRATION PURPOSES EVEN IF A STATE CONVICTION HAS
BEEN VACATED UNDER A REHABILITATIVE STATUTE
("the BIA has reasonably concluded that an alien remains convicted of a
removable offense for federal immigration purposes when a state vacates the
predicate a conviction pursuant to a rehabilitative statute."), citing Pickering
v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006), vacating Matter of Pickering,
23 I. & N. Dec. 621 (BIA 2003); Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th
Cir.2006); Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005); Ramos v.
Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza v. Ashcroft, 396
F.3d 1125, 1129 (10th Cir. 2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262,
1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.
2001); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000), and following
Sanusi v. Gonzales, 474 F.3d 341, 342-43 (6th Cir. 2007) (“We deny the
petitions for review on the ground that the state court's vacation of Sanusi's
conviction was ineffective for immigration purposes because it was done
solely for the purpose of ameliorating the immigration consequences to
380
petitioner.”) (citing Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Ali v. Ashcroft,
395 F.3d 722, 728-29 (7th Cir. 2005).

Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may
not take administrative notice of facts without affording other party to rebut
the inferences drawn from those facts).
EXPUNGEMENT – FALSE STATEMENT FOR IMMIGRATION BENEFIT

Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007) (the
fact that applicant stated that he had not been arrested [after prior indication
that he had] was not an intentional misstatement to the government where
applicant could have believed that the expungement of the records of those
arrests meant that he could state to the government that he had no longer
been arrested). http://bibdaily.com/pdfs/Szpak%207-25-07.pdf
Fifth Circuit
POST CON – EXPUNGEMENT— FOREIGN

Danso v. Gonzales, 489 F.3d 709 (5th Cir. June 15, 2007) (rejecting equal
protection argument that noncitizen’s British expungement should be given
effect for immigration purposes where noncitizen could hypothetically have
availed himself of the expungement procedures set forth in the Federal First
Offenders Act (FFOA)).
POST-CONVICTION RELIEF – LUJAN EXPUNGEMENT – EXPUNGEMENT OF

SECOND CONVICTION EFFECTIVE WHERE FIRST CONVICTION NOT FINAL AT
TIME OF SECOND CONVICTION
Smith v. Gonzales, ___ F.3d ___, 2006 WL 3012856 (5th Cir. Oct. 24, 2006)
(for purposes of the Controlled Substances Act, a conviction does not become
final until time for direct appeal and time for discretionary review have
elapsed).
NOTE: This case can be cited to support the position that a second controlled
substances offense may be expunged under Lujan in the Ninth Circuit as long
as the first conviction had not become final by the time of the second
conviction.
CONVICTION – DEFERRED ADJUDICATION – TEXAS – DEFERRED

ADJUDICATION CONSTITUTES A CONVICTION FOR IMMIGRATION PURPOSES
381
Salazar-Regino v. Trominski, ___ F.3d ___ (5th Cir. June 30, 2005) (Texas
deferred adjudication following guilty plea to felony possession of marijuana
constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8
U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal
under the BIA law in place at the time the plea of guilty was entered),
following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999).
Seventh Circuit
POST CON RELIEF – CONVICTION VACATED PURSUANT TO EXTRAORDINARY

MOTION FOR NEW TRIAL, FOLLOWED BY DISMISSAL OF CHARGES, REMAINED
A CONVICTION FOR IMMIGRATION PURPOSES SINCE NONCITIZEN FAILED TO
ESTABLISH THAT CONVICTION HAD BEEN VACATED BASED ON A
PROCEDURAL OR SUBSTANTIVE DEFECT IN THE UNDERLYING CRIMINAL
PROCEEDINGS
Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar. 22,
2006) (per curiam) (Georgia conviction of two counts of child molestation,
followed by the granting of an extraordinary motion for a new trial, and the
State of Georgia's motion to nolle prosse charges, continued to constitute a
conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), for removal
purposes, since noncitizen failed to establish that conviction had been
vacated based on a procedural or substantive defect in the underlying
criminal proceedings; noncitizen bears burden to show conviction was
vacated on a basis of legal invalidity). This decision violates the long-standing
rule that the government bears the burden of establishing by clear and
convincing evidence every fact necessary to prove deportability. Woodby v.
INS, 385 U.S. 276 (1966).
Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – REHABILITATIVE RELIEF

DOES NOT ELIMINATE CONVICTION FOR PURPOSES OF IMPOSING FEDERAL
CONTROLLED SUBSTANCE SENTENCE ENHANCEMENT
committed after a prior conviction for a felony drug offense has become final,
so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D) is made
under federal law, not state law; under federal law: "An expunged or
dismissed state conviction qualifies as a prior conviction if the expungement
or dismissal does not alter the legality of the conviction or does not represent
382
that the defendant was actually innocent of the crime."), following Dickerson
v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845
(1983).

ARGUMENT THAT STATE REHABILITATIVE RELIEF ANALOGOUS TO THE
FEDERAL FIRST OFFENDER ACT ELIMINATES QUALIFYING CONVICTIONS FOR
committed after a prior conviction for a felony drug offense has become final,
so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D) is made
under federal law, not state law; under federal law: "An expunged or
dismissed state conviction qualifies as a prior conviction if the expungement
or dismissal does not alter the legality of the conviction or does not represent
that the defendant was actually innocent of the crime."), following Dickerson
v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845
(1983).
POST CON RELIEF – STATE REHABILITATIVE RELIEF – STATE EXPUNGEMENT

STATUTE DOES NOT HAVE TO BE EQUIVALENT TO FFOA TO ELIMINATE
IMMIGRATION CONSEQUENCES OF CONVICTION
Under Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994), the state
expungement statute does not have to be identical to the FFOA: "We
rejected this narrow approach in Garberding v. INS, 30 F.3d 1187, 1190 (9th
Cir. 1994). Garberding involved Montana's expungement statute, which was
not limited to first-time simple drug possession offenses but allowed
expungement of a broad range of more serious offenses. Id. at 1189.
Considering Garberding's challenge on Equal Protection grounds, we
concluded that the INS had no rational basis for treating her differently
simply because Montana's statute covered a broader range of offenses than
did the FFOA, id. at 1190-91, and held that "persons who received the benefit
of a state expungement law were not subject to deportation as long as they
could have received the benefit of the federal Act if they had been
prosecuted under federal law." Chavez-Perez v Ashcroft, 386 F.3d 1284, 1288
(9th Cir. 2004). This interpretation accepted in Matter of Manrique, 21 I. & N.
Dec. 58, 64 (BIA 1995), which requires only that the defendant be a simple
possession first offender and that a "court has entered an order pursuant to a
state rehabilitative statute under which the alien's criminal proceedings have
been deferred pending successful completion of probation or the
proceedings have been or will be dismissed after probation." Matter of
Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995). Therefore, the statute
383
expungement statute need not be equivalent to the FFOA if the conduct

could have been covered under the FFOA if the case had been prosecuted in
federal court, and rehabilitative treatment resulting in dismissal was granted.
Thanks to Jonathan Moore.
BIA
CONVICTION – FOREIGN CONVICTION NEED NOT BE RETURNED UNDER ALL

US CONSTITUTIONAL PROCEDURAL GUARANTEES
In Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court
procedures under Ore. Rev. Stat. § 153.076, did not constitute a conviction
for immigration purposes, since the proceedings do not allow a jury trial,
right to court-appointed counsel, or proof beyond a reasonable doubt),
overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication
of petty theft under a municipal ordinance, on a standard of preponderance
of the evidence, constituted a conviction for immigration purposes), the BIA
held a finding of petty theft under Oregon minor offense procedure did not
constitute a conviction for immigration purposes, since it was not a criminal
proceeding in which the normal procedural rights, such as jury trial, the right
to appointed counsel, and the presumption of innocence were not respected.
The Board, however, distinguished foreign convictions: "[N]othing in our
decision should be taken as asserting that a foreign conviction must adhere
to all the requirements of the United States Constitution applicable to
criminal trials, including that relating to the requisite standard of proof.
Rather, we find that Congress intended that the proceeding must, at a
minimum, be criminal in nature under the governing laws of the prosecuting
jurisdiction, whether that may be in this country or in a foreign one." (Id. at
___ [footnote omitted].) The Board also indicated: "We have found that
Congress intended other limitations with respect to the recognition of foreign
convictions for immigration purposes, holding, inter alia, that a foreign
conviction must be for conduct recognized as criminal by United States
standards in order to be deemed a crime under the immigration laws. See
Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981); Matter of McNaughton, 16
I&N Dec. 569 (BIA 1978), aff'd, 612 F.2d 457 (9th Cir. 1980).
CONVICTION – MILITARY OFFENSES – NO JURY TRIAL RIGHT

Convictions rendered by minor military informal procedures, such as
Captain's Mast, should not be considered as criminal convictions for
immigration purposes, since the most fundamental criminal procedures
guaranteed under the U.S. Constitution are not respected. See Matter of
Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(en banc)(guilty finding of
384
third-degree theft, in violation of Ore. Rev. Stat. § 164.043, by court under

procedures of Ore. Rev. Stat. § 153.076, punishable by a maximum fine of
$600 but no jail at all, does not constitute a conviction under INA §
101(a)(48)(A), INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), since the
proceedings do not allow a jury trial, right to court-appointed counsel, or
proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59
(BIA 1958)(police court adjudication of petty theft under a municipal
ordinance, on a standard of preponderance of the evidence, constituted a
conviction for immigration purposes). This reasoning may extend as well to
the findings of courts martial, in which the right to jury trial is not respected.
CONVICTION – REQUIREMENT OF A CRIME

Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court
procedures under Ore. Rev. Stat. § 153.076, did not constitute a conviction
for immigration purposes, since the proceedings do not allow a jury trial,
right to court-appointed counsel, or proof beyond a reasonable doubt),
overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication
of petty theft under a municipal ordinance, on a standard of preponderance
of the evidence, constituted a conviction for immigration purposes). In
California, certain misdemeanor offenses, notably petty theft in violation of
Penal Code § 484(a), 488, can be prosecuted as misdemeanors or infractions.
Penal Code §§ 17(d), 19.8 (giving list of offenses). The infraction is similar to
the Oregon petty offense procedure held in Eslamizar not to be a conviction
in several important respects: (1) "An infraction is not punishable by
imprisonment." Penal Code § 19.6.
(2) "A person charged with an infraction shall not be entitled to a trial by
jury." (Ibid.)
(3) There is no right to the assistance of court-appointed counsel. (Ibid.)
There is one difference, however: The defendant must be proved guilty
beyond a reasonable doubt. See Penal Code § 19.7 (. . . all provisions of law
relating to misdemeanors shall apply to infractions including . . . burden of
proof."). On balance, however, the California infraction procedure cannot
be said to be a criminal procedure since no punishment of incarceration is
permissible, there is no right to jury trial, and there is no right to the
assistance of court-appointed counsel if the defendant is unable to afford
counsel. In Eslamizar, the Board en banc held "that by 'judgment of guilt'
Congress most likely intended to refer to a judgment in a criminal proceeding,
that is, a trial or other proceeding whose purpose is to determine whether
the accused committed a crime and which provides the constitutional
safeguards normally attendant upon a criminal adjudication." (Id. at ___.)
Even though the burden of proof for an infraction is beyond a reasonable
385
doubt, that single factor should be insufficient to convert a proceeding

without the right to a jury trial, without the right to appointed counsel, and
for which no jail sentence is permissible, into " judgment in a criminal
proceeding, that is, a trial or other proceeding whose purpose is to determine
whether the accused committed a crime and which provides the
constitutional safeguards normally attendant upon a criminal adjudication."
(Ibid.) Therefore, an infraction under California law should not be considered
a criminal conviction, for immigration purposes, under Eslamizar.
Other
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FIREARMS CONVICTION

IS NOT ELIMINATED BY CALIFORNIA EXPUNGEMENT FOR DEPORTATION
PURPOSES
Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) (federal definition
of "conviction" at INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) (2000),
encompasses convictions, other than those involving first-time simple
possession of narcotics, that have been vacated or set aside pursuant to state
rehabilitative relief statute for reasons that do not go to the legal propriety of
the original judgment, and that continue to impose some restraints or
penalties upon the defendant's liberty, so a noncitizen whose firearms
conviction was expunged pursuant to California Penal Code § 1203.4(a)
remains "convicted" for immigration purposes).
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FIREARMS CONVICTION

IS NOT ELIMINATED BY CALIFORNIA EXPUNGEMENT FOR DEPORTATION
PURPOSES
Matter of Luviano, 23 I. & N. Dec. 718 (AG Jan. 18, 2005) (firearms conviction
expunged pursuant to California state rehabilitative relief statute, Penal Code
§ 1203.4(a), remained a conviction for immigration purposes under the
statutory definition of conviction, INA § 101(a)(48)(A), 8 U.S.C. §
1101(a)(48)(A)).
POST CON RELIEF – EXUNGEMENT POST CON RELIEF – EFFECTIVE ORDER

VACATING CONVICTION
James A.R. Nafziger & Michael Yimesgen, The Effect of Expungement on
Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930 (2003).
POST CON RELIEF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION –

IMMIGRATION EFFECT
There is a question whether a CMT conviction, for which a JRAD was validly
obtained before November 29, 1990, can trigger deportation for multiple
386
CMT convictions when combined with a later (or earlier) second CMT.
Immigration counsel could argue that under the former statute, still
enforced, deportation cannot be based on a CMT for which a JRAD was
granted. The government can argue that the CMT for which a JRAD was
granted forms one CMT of a two-CMT deportation ground. They could
analogize to those cases that hold if a noncitizen has CMTs that trigger
deportation, and then respondent obtains a waiver of deportation for them
under former INA § 212(c) waiver, and the client suffers another CMT
conviction, the old waived CMT can be combined with the new CMT
conviction to trigger deportation for multiple CMTs. The waiver does not
eliminate the old CMT. It merely waivers deportation for that ground and that
ground only. The two-CMT deportation ground is a different ground, and
both CMT convictions continue to exist, and so can trigger deportation. The
question would be whether counsel can distinguish those 212(c) cases.
SAFE HAVEN – STATE REHABILITATIVE RELIEF – PRIOR FOREIGN CONVICTION

DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT
The Federal First Offender Act, 18 U.S.C. § 3607(a)(1), does not permit an
expungement if the defendant has prior to the commission of the current
offense suffered a conviction under "Federal or State" law. This provision
does not include foreign convictions as a disqualification for this relief.
§ 8.4 B. Exception: Federal First Offender Act
POST CON RELIEF – STATE REHABILITATIVE RELIEF – IIRAIRA NEW DEFINITION

OF CONVICTION DID NOT IMPLIEDLY REPEAL THE FEDERAL FIRST OFFENDER
ACT
E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379,
102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial
interpretation of a statute and to adopt it when it re-enacts a statute without
changing it).
“Congress is presumed to be aware of an administrative or judicial

interpretation of a statute and to adopt that interpretation when it re-enacts
a statute without change, see Albemarle Paper Co. v. Moody, 422 U.S. 405,
414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin
Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead
Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920);
2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited
(4th ed. 1973). So too, where, as here, Congress adopts a new law
incorporating sections of a prior law, Congress normally can be presumed to
387
have had knowledge of the interpretation given to the incorporated law, at

least insofar as it affects the new statute.” Lorillard v. Pons, 434 U.S. 575,
580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978).
"This rule is based on the theory that the legislature is familiar with the
contemporaneous interpretation of a statute . . . . Therefore, it impliedly
adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and
Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v. United
States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate Co., 283
U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943); Allen v.
Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New Materials High
Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir. 1998), reh'g denied, in
banc suggestion declined (Jan. 28, 1999) and cert. dismissed, 120 S.Ct. 394
(1999).
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102
S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE STATUTE
ANALYSIS – CONJUNCTIVE CHARGES United States v. Garcia-Medina, ___ F.3d
___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale
or transportation of a controlled substance, in violation of Health & Safety
Code § 11352(a), properly triggered 16-level sentence enhancement for
illegal reentry after deportation since charging to which plea was entered
listed offenses in the conjunctive, and plea of guilty was entered to every
offense listed within the counts of conviction).
NOTE: This decision appears to contradict the decision in Malta-Espinoza v.

Gonzales, 478 F.3d 1080, 2007 WL 624532 (9th Cir. March 2, 2007) (where
the statute is framed in the disjunctive, e.g., harassment or following is
sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g.,
harassment and following, establishes conviction of harassment, or following,
or both, because a plea of guilty admits only the elements of the charge
necessary for a conviction and does not establish more than would have been
established by a jury verdict of guilty on the charge), following United States
v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852
F.2d 434, 441 (9th Cir.1988) (“Where a statute specifies two or more ways in
which an offense may be committed, all may be alleged in the conjunctive in
one count and proof of any one of those acts conjunctively charged may
establish guilt.”).
The court based its reasoning on the following analysis:

388
In California, a guilty plea admits every element of the offense charged,

People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837
(Cal.1981), including all accusations and factors comprising the charge
contained in the pleading. People v. Palacios, 56 Cal.App.4th 252, 257, 65
Cal.Rptr.2d 318 (Cal.Ct.App.1997); see People v. Tuggle, 232 Cal.App.3d 147,
154, 283 Cal.Rptr. 422 (Cal.Ct.App.1991) (“By pleading guilty as charged [to
an information worded in the conjunctive, charging, “robbery by means of
force and fear”], appellant necessarily admitted the force allegation and
cannot now escape the consequences of that admission.”) (emphasis added).
Thus, “a plea of guilty means guilty ‘as charged’ in the information, and by it
‘all averments of fact are admitted.... The effect is the same as if the
defendant had been tried before a jury and had been found guilty upon
evidence covering all material facts.’ “ Arenstein v. Cal. State Bd. of
Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357 (Cal.Ct.App.1968)
disapproved on other grounds by Barber v. Long Beach Civil Serv. Comm'n, 45
Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4 (Cal.Ct.App.1996) (citations omitted).
Accordingly, by pleading guilty to counts one and two as worded, in the

conjunctive, Garcia-Medina admitted to several offenses committed on at
least two occasions. It is uncontested that most of these offenses qualify as
drug trafficking for the purposes of section 2L1.2. Garcia-Medina did not
clarify his plea before the California trial court; instead, he admitted every
offense listed in the charging document and cannot now escape the
consequences of his admission. See People v. Guerrero, 44 Cal.3d 343, 355-
356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988).
United States v. Garcia-Medina, __ F.3d __, __, 2007 WL 2317381 at *3 (8th

Cir. Aug. 15, 2007).
Fifth Circuit
CONVICTION – DEFERRED ADJUDICATION IS CONVICTION – FEDERAL FIRST

OFFENDER ACT
Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004) (petition
for review denied, despite contention that deferred adjudication for drug
possession did not constitute conviction for immigration purposes by analogy
to the Federal First Offender Act).
Ninth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF IS INEFFECTIVE TO

389
ELIMINATE CONVICTION FOR PURPOSES OF CONSTITUTING A PRIOR

CONVICTION UNDER THE FEDERAL CONTROLLED SUBSTANCES ACT
United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007) (state
conviction constitutes prior conviction under federal Controlled Substances
Act even if state court expunged conviction by granting state rehabilitative
relief); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006) (same);
United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003)(same); United
States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997) (same); United
States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993) (same).
POST CON RELIEF – STATE REHABILITATIVE RELIEF – SIMPLE POSSESSION –

FEDERAL FIRST OFFENDER ACT
Aguiluz-Arellano v. Gonzales, ___ F.3d ___, 2006 WL 1133327 (9th Cir. May 1,
2006) (petitioner’s conviction for being under the influence of a controlled
substance did not fall within the scope of the Federal First Offender Act
(FFOA), as he had a prior drug conviction).
POST CON RELIEF - FEDERAL FIRST OFFENDER ACT

United States v. Gonzalez, ___ F.3d ___ (9th Cir. April 22, 2004) (where
defendant suffered no sentence enhancement, district court correctly applied
"preponderance of evidence" rather than "clear and convincing" standard
when court denied request for special probation under 18 U.S.C. § 3607).
Tenth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FEDERAL FIRST

OFFENDER ACT – CONVICTION EXCLUDES EXPUNGEMENTS
Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) ("[T]he First
Offender Act, 18 U.S.C. § 3607, permits the expungement of first-time simple
drug-possession offenses for all purposes, including immigration
adjudications. As the Ninth Circuit noted in Lujan-Armendariz, there is no
reason to suppose that Congress repealed the First Offender Act sub silentio.
It thus makes sense to read the § 1101(a)(48)(a) definition to exclude
expungements.").

deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301 (“Without
390
entering a judgment of guilt or conviction, [the court may] defer further

proceedings and place the person on probation for a term not to exceed five
(5) years.”), was not equivalent to expungement under Federal First Offender
Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction under INA §
101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes).
JUDICIAL REVIEW – PETITION FOR REVIEW – EXHAUSTION DOCTRINE –

FAILURE TO EXHAUST IS EXCUSED IF RESPONDENT CAN SHOW MISCARRIAGE
OF JUSTICE, SUCH AS WHERE CONVICTION ON WHICH DEPORTATION IS
BASED DOES NOT CONSTITUTE AN AGGRAVATED FELONY
Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (court of
appeal can reach claim that controlled substances conviction does not
constitute an aggravated felony, under Lopez, even though respondent failed
to exhaust before the IJ or BIA because the law was clear against him, under
the miscarriage of justice exception to the exhaustion doctrine of 8 U.S.C. §
1252(d)(1)), following Marrero Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir.
2004); see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Goonsuwan v.
Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001) (habeas petitioner's failure to
exhaust may be excused “when administrative remedies are inadequate” but
not where administrative procedures exist to reopen petitioner's case)
(internal quotation marks omitted); Sousa v. INS, 226 F.3d 28, 32 (1st Cir.
2000) (“Even where statutes impose an exhaustion requirement the Supreme
Court has, despite the rhetoric of jurisdiction, carved out exceptions.”); Singh
v. Reno, 182 F.3d 504, 511 (7th Cir. 1999) (finding that an exception exists to
address “certain constitutional due process claims”).
BIA
POST-CONVICTION – EFFECT OF EXPUNGEMENT

Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second
possession conviction can constitute aggravated felony, under INA §
101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000), even if court expunged first
state conviction pursuant to a State’s rehabilitative procedures), citing United
States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v.
Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d
777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81
(5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir.
1993).
§ 8.5 C. Exception: State FFOA Analogues in the Ninth

Circuit
391
POST CON RELIEF – STATE REHABILITATIVE RELIEF – EFFECTIVE IF ELIGIBLE

FOR FFOA TREATMENT AND EXPUNGEMENT IS IN PROCESS PURSUANT TO A
COURT ORDER
In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of
Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), the noncitizen's conviction
had been expunged at the time of the lower court ruling. Since then, the
Ninth Circuit has not ruled in a case in which an expungement or deferred
dismissal process was in progress, but not yet completed. Nevertheless, the
Ninth Circuit has suggested that if a noncitizen is in such a process, s/he can
argue that the DHS cannot deport on the basis of the conviction-pending-
expungement. In Lujan, the court stated:
Construing the statute as determining the time at which a conviction occurs,

as a general matter, would leave open the question whether the Act
precludes deportation of an alien who has received a deferred adjudication
but has not yet had his proceedings expunged because he has not completed
his term of probation and therefore has not yet satisfied a judge that
dismissal of the offense is warranted. Our review of the history and purpose
of the Act strongly suggests that such a person is protected by the Act’s
provisions, and our analysis of the law regarding repeals by implication
suggests that no implied repeal occurred in that respect either. (Whatever
the case, the result would be applicable to first-time drug possession
offenders prosecuted under state statutes, as well.) However, we need not
resolve this issue in order to decide the petitions for review before us. In both
cases here, the pertinent findings had already been expunged before the BIA
decisions were issued. Id. at 746 n.28.
The Ninth Circuit more affirmatively states this position in Chavez-Perez v.

Ashcroft, 386 F.3d 1284 (9th Cir. 2004), but again in dictum:
We express no opinion about whether this reasoning would apply with equal
force to the situation the Lujan-Armendariz court specifically identified,
where an alien has a finding of guilt on his record but the actual conviction is
deferred pending successful completion of probation. See 222 F.3d at 746
n.28 (referring to 'deferred adjudication' statutes). Aliens sentenced under
such schemes do not have a “conviction” on their record at any time during
probation. However, because we are not faced with that situation here, that
question must continue to remain open for another day. Id. at 1293
(emphasis added).
In Chavez-Perez v. Ashcroft, 386 F.3d 1284, 2004 WL 2389907 (9th Cir. Oct.
392
27, 2004), the court held that although an Oregon expungement would erase
a simple possession conviction, the immigration authorities may remove
noncitizen from the United States before the expungement has been granted.
The Ninth Circuit, in dicta, distinguished between the situation in which the
noncitizen had not yet made any attempt to begin expungement (as in
Chavez-Perez), and the situation in which the noncitizen is in process of
obtaining an expungement by court order.
Thanks to John Vawter.
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FIRST OFFENSE DRUG

CASES – OPEN QUESTION IN SIXTH CIRCUIT
Shurney v. INS, 201 F.Supp.2d 783, 794 (D. Ohio 2001) ("The question before
this Court is not whether Lujan-Armendariz should be adopted in this Circuit;
the question presented in this proceeding is whether, in light of Lujan-
Armendariz, Shurney has a good faith basis to contest his removal and,
hence, has a protectible liberty interest in objecting to detention pending
removal. Since the Sixth Circuit has yet to rule on Shurney’s contention and
another Circuit Court has ruled in a manner favorable to Shurney, this Court
cannot conclude that Shurney’s argument is frivolous.").
Seventh Circuit
CONVICTION – VACATED ON POST-CONVICTION RELIEF – EFFECTIVENESS OF

ORDER VACATING CONVICTION – SEVENTH CIRCUIT AFFIRMS PICKERING
RULE-POST CON RELIEF – EFFECTIVE ORDER
Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (according Chevron
deference to, and affirming rule of Matter of Pickering, 23 I. & N. Dec. 621,
624 (BIA June 11, 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th
Cir. 2006), that if a court amends an alien's conviction for reasons solely
related to rehabilitation or immigration hardships, as opposed to responding
to procedural or substantive defects in the underlying criminal proceedings,
then the alien remains "convicted" for immigration purposes).
POST CON RELIEF – EFFECTIVE ORDER VACATING CONVICTION – ILLINOIS

ORDER AMENDING FELONY CONVICTION OF POSSESSION WITH INTENT TO
DISTRIBUTE THC TO MISDEMEANOR POSSESSION OF MARIJUANA WAS
INEFFECTIVE TO ELIMINATE THE FORMER CONVICTION FOR REMOVAL
PURPOSES, SINCE IT WAS NOT BASED ON A GROUND OF LEGAL INVALIDITY
Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (Illinois order amending
393
felony conviction of possession with intent to distribute THC, in violation of

Wis. Stat. § 961.41(1m)(h)(1), to misdemeanor possession of marijuana was
ineffective to eliminate the former conviction for removal purposes, since it
was not based on a ground of legal invalidity).
Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – CONTROLLED SUBSTANCES – STATE

REHABILITATIVE RELIEF
Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007)
(a noncitizen may not obtain a Lujan expungement for immigration purposes
on a second offense were the noncitizen has already been given “pretrial
diversion” treatment on a prior offense, even though “pre-trial diversion”
does not require the noncitizen to enter a plea of guilty to a controlled
substances offense).
POST-CON – STATE REHABILITATIVE STATUTES – LUJAN – CONVICTION MUST

BE EXPUNGED TO AVOID REMOVAL
Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Oct. 27, 2004) (although
Oregon expungement would erase simple possession conviction, if granted,
the immigration authorities may remove noncitizen before expungement is
granted; court distinguished between situation where, as here, noncitizen
had not yet made any attempt to begin expungement, and where the
noncitizen is in process of obtaining an expungement by court order).
Tenth Circuit

deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301 (“Without
entering a judgment of guilt or conviction, [the court may] defer further
proceedings and place the person on probation for a term not to exceed five
(5) years.”), was not equivalent to expungement under Federal First Offender
Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction under INA §
101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes).
BIA
STATE REHABILITATIVE RELIEF – DRUG CASES – NINTH CIRCUIT – LUJAN

WORKS DESPITE PRIOR NO-PLEA DIVERSION DISMISSAL
394
"At no time shall a defendant be required to make an admission of guilt as

a prerequisite for placement in a pretrial diversion program" Cal. Penal Code
§ 1001.3 et seq. Therefore, under the definition of conviction found at 8
U.S.C. § 1101(a)(48)(a), diversion under the California statute in effect at the
time petitioner received the disposition does not constitute a conviction. See
Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to
California diversion, held not to be a conviction under Matter of Ozcok, 19 I.
& N. Dec. 546 (BIA 1988)). A prior no-plea California diversion disposition
therefore does not render a noncitizen disqualified from eligibility for FFOA
treatment of a subsequent possession conviction. A disposition of diversion
that did not require a plea of guilty or no contest and does not constitute a
conviction under 8 U.S.C. § 1101(a)(48)(a). In addition, this disposition does
not constitute "a disposition under this subsection [8 U.S.C. § 3607(a)]."
Other
EXPUNGEMENT - EFFECT ON INADMISSIBILITY

People who can benefit from rehabilitative relief eliminating a conviction
under Lujan also are protected from being held inadmissible for having made
an admission, because of a longstanding BIA rule that where a case is
addressed in criminal proceedings and a disposition results that is less than a
conviction, the person cannot be found inadmissible for having "admitted"
the offense. Neither the prior guilty plea, or even a subsequent admission to
INS official, will make them inadmissible for admitting the elements of the
offense. See California Criminal Law and Immigration (2004), § 3.8. Thanks
to Kathy Brady, ILRC for this analysis.
POST CON RELIEF – EXPUNGEMENT – SIMPLE POSSESSION

The literal requirements of the Federal First Offender Act are: 18 U.S.C. §
3607 (a) Pre-judgment Probation: If a person found guilty of an offense
described in section 404 of the Controlled Substances Act (21 U.S.C. 844) (1)
has not, prior to the commission of such offense, been convicted of violating
a Federal or State law relating to controlled substances; and (2) has not
previously been the subject of a disposition under this subsection. Under this
language, it may be possible to obtain a Lujan safe expungement where two
simple possession acts and convictions exist if, (1) at the time of commission
of the second possession offense, the defendant had not yet been convicted
of the first, and (2) both convictions are expunged at the same time. Thanks
to Ann Benson for this analysis.
STATE REHABILITATIVE RELIEF - FEDERAL FIRST OFFENDER ACT - PRIOR NO-

PLEA DIVERSION MAY DISQUALIFY IMMIGRANT FROM LUJAN TREATMENT OF
395
EXPUNGEMENT OF SECOND CASE

Criminal defense counsel should not count on a defendant being considered
eligible for Lujan treatment of a conviction following a second arrest for
possession or another qualifying offense, where the defendant previously
received a no-plea diversion dismissal of a previous drug charge. Immigration
counsel, however, can argue that a no-plea diversion is not a prior treatment
"under this subdivision," so it does not disqualify the defendant from FFOA
treatment of a second case.

LUJAN
The Lopez decision uses a uniform federal standard to determine whether a
possession conviction constitutes an aggravated felony, and uses the federal
criminal drug statutes to set the bar. Counsel outside the Ninth Circuit can
argue that this decision strengthens the Ninth Circuit’s reasoning in Lujan for
the argument that state possession offenses expunged under state law that
would have hypothetically qualified for FFOA treatment should be considered
expunged for immigration purposes.
§ 8.6 1. Qualifying Offenses
BIA
POST CON – STATE REHABILITATIVE RELIEF – LUJAN DECISION ERASES

QUALIFYING FIRST OFFENSE CONTROLLED SUBSTANCES CONVICTION IF
RESPONDENT WOULD HAVE BEEN ELIGIBLE FOR FFOA TREATMENT EVEN IF
NO STATE EXPUNGEMENT WAS OBTAINED
The BIA has held in two recent non-precedent decisions that actual
expungement of a first-offense conviction of possession of a controlled
substances is not required, before removal proceedings will be terminated,
because Lujan and Manrique suggest that a conviction does not constitute a
deportable controlled substances conviction if the respondent would have
been eligible for treatment under the Federal First Offender Act if prosecuted
in federal court, even if a state expungement has not yet actually been
obtained and the defendant remains on probation. Matter of Vallesteros,
2004 WL 1739143 (BIA June 29, 2004)(non-precedent decision); Matter of
Ceredon, 2004 WL 1739162 (BIA June 29, 2004) (non-precedent decision).
Other
POST CON RELIEF – STATE REHABILITATIVE RELIEF – NINTH CIRCUIT RULE –

EXPUNGEMENTS OF MULTIPLE SIMULTANEOUS QUALIFYING FIRST DRUG
396
CONVICTIONS ARE EFFECTIVE FOR IMMIGRATION PURPOSES

A noncitizen who pleads guilty to more than one qualifying offense is eligible
for FFOA treatment provided s/he is not disqualified under the FFOA by a
prior drug conviction or by a prior grant of FFOA treatment to eliminate a
prior conviction. 18 U.S.C. § 3607(a) does not state that a defendant is
ineligible under the FFOA if the defendant has more than a "single offense."
Instead, the statute states that Federal First Offender treatment is available
to a person found guilty of "an offense" described in section 404 of the
Controlled Substances Act provided that prior to the commission of such
offense the person has not been convicted of a law related to controlled
substances and has not previously been the subject of the FFOA. The plain
and unambiguous words of the statute do not exclude from FFOA treatment
a defendant convicted of two or more offenses at the same time provided the
other conditions apply. Giving the words of the statute their ordinary and
plain meaning the respondent qualifies for FFOA treatment. As to the first
count to which respondent pleaded guilty, respondent is definitely eligible for
FFOA treatment because he had no controlled substance convictions prior to
the commission of the offense in this case nor did he have any previous
disposition under the FFOA (or a state equivalent). As to the second count he
pleaded guilty to, respondent is also definitely eligible for FFOA treatment
because he had no controlled substance convictions prior to the commission
of the offense in this case nor did he have any previous treatment under the
FFOA (or a state equivalent). Under well-established rules of statutory
construction, this court need go no further in interpreting the FFOA since the
statute is clear and unambiguous. American Tobacco v. Patterson, 456 U.S.
63, 68 (1982): "In construing a statute, we assume the legislative purpose is
expressed by the ordinary meaning of the words used. [Citation omitted]
Absent a clear expressed legislative intention to contrary, the plain language
of the statute is ordinarily conclusive." If Congress intended to limit the
applicability of the FFOA to only a single offense ("one" offense) the first time
a person was prosecuted for a controlled substance violation, Congress would
have stated that a disposition under the FFOA was only available to a person
found guilty of only "one" offense, or "one count," or "the first time the
person committed any offense," or to "a single offense." The words "an
offense" are not the same as "one offense." The word "an" is an indefinite
article which is used as the equivalent of the word "a" before a vowel. (The
American Heritage Dictionary of the English Language (4th Ed.) (2000).) To
exclude more than one offense, there would have to be an appropriate
adjective to describe the noun, such as "one" offense or a "single" offense.
For the FFOA to exclude a person convicted of two or more offenses with no
prior controlled substance convictions and no prior FFOA treatment, the Act
397
would have to have words of limitation modifying the word "offense." Any
such words would necessarily be adjectives, not indefinite articles. For
example, the government contends that the words of the statute "an
offense" excludes "two offenses." But the word "two" is an adjective which
describes or limits the word "offense." The word "one" is also an adjective,
but that word is not used in the Act to describe or limit the word "offense."
"Had Congress intended the narrow construction [urged upon it by one of the
parties] it could have expressly so provided. It did not, and it would be
improper for us to introduce an additional requirement on our own." United
States v. Hunter, 101 F3d 82, 85 (1996); Smith v. United States, 508 U.S. 223
(1993). If the court believes that the language of the Act is somehow
ambiguous, then the court can look at legislative intent of this section which
was enacted in the Drug Control Act of 1970. The House Report states:
In the case of a first prosecution for the offense of possession, the bill
provides that if the defendant is found guilty or pleads guilty, the judge may,
in lieu of entering a judgment of guilty Place the accused person upon
probation. 3 U.S. Cong. & Admin. News ‘70-72. [Emphasis added.]
Clearly, there is a difference between "first prosecution" and "one

offense." The legislative history suggests that the first time the defendant
comes before the criminal justice system for a controlled substance offense,
the person is eligible to receive FFOA treatment. Since this is a remedial
statute, it is to be interpreted liberally. Logan v. Davis, 233 U.S. 613, 628
(1914); Riggs v. Government Employees Fin. Corp., 623 F.2d 68, 70 (1980).
The evident intent of Congress in providing a chance for FFOA treatment for
the first time offender would be frustrated if a defendant charged with two
counts with no prior convictions and no prior treatment under the Act was
disqualified from eligibility for the remedial effects of the statute on account
of the offender’s first encounter with the criminal justice system. In
addition, if the words of the statute are deemed ambiguous, the court must
interpret the words of the statute in accordance with The Dictionary Act. (1
U.S.C. § 1 et. seq.). This section provides, in pertinent part, that "[i]n
determining the meaning of any Act of Congress unless the context indicates
otherwise[,] words importing the singular include and apply to several
persons, parties, or things . . . ." (1 U.S.C. § 1 (West 1997)) [Emphasis added].
Thus, the word "offense" in 18 U.S.C. § 3607(a) can be read in the plural as
"offenses." Read this way, there is no confusion at all in the statute and
respondent prevails. Where a statute is ambiguous, the rule of lenity also
requires that the statute be interpreted to benefit the class of person’s
benefited by the statute. The Supreme Court of the United States has made it
clear that where a criminal statute is ambiguous, as to the substantive ambit
398
of criminal prohibitions or the penalties they impose, that "The rule of lenity"
applies. United States v. Batchelder, 442 U.S. 114, 121 (1979); Simpson v.
United States, 435 U.S. 6, 14-15 (1978). "This policy of lenity means that the
court will not interpret a federal criminal statute so as to increase the penalty
that it places on an individual when such an interpretation can be based on
no more than a guess as to what Congress intended." (Ladner v. United
States, 358 U.S. 169, 178 (1958)). Finally, respondent’s reading of the
statute is consistent with other parts of the Federal Controlled Substances
Act. Conviction of two or more offenses for violation of the Controlled
Substances Act in the same proceeding is only a misdemeanor, provided
there were no prior convictions for any Controlled Substances violations,
rather than a felony under 21 U.S.C. § 844(a). However, conviction of a
possession offense after a prior controlled substance conviction is a felony. A
felony is defined as any offense punishable with a maximum of more than
one year in prison. (18 U.S.C. § 3159). The section denoting the punishment
for possession of a controlled substance is 21 U.S.C. § 844(a). This section
provides, in relevant part:
Any person who violates this subsection may be sentenced to a term of

imprisonment of not more than 1 year, . . . except that if he commits such
offense after a prior conviction . . . he shall be sentenced to a term of
imprisonment for not less than 15 days but not more than 2 years . . . .
It would be anomalous to read the FFOA read differently or more strictly

than the section on punishment for controlled substance violations. In both
sections, Congress was concerned with "prior convictions" and did not specify
any limitation on the number of offenses in the first prosecution and
conviction. Thanks to Michael Mehr for this argument.
§ 8.7 2. Qualifying Types of Relief
§ 8.8 3. Disqualification from Effectiveness of Relief
Tenth Circuit
POST CON RELIEF – STATE REHABILITATIVE RELIEF – FOREIGN RELIEF –

CONVICTION FOR POSSESSION OF MARIJUANA CONSTITUTED INADMISSIBLE
CONTROLLED SUBSTANCES CONVICTION, EVEN THOUGH FOREIGN
REHABILITATIVE RELIEF HAD BEEN GRANTED, SINCE DEFENDANT HAD BEEN
PLACED ON TWO YEARS PROBATION, SINCE FEDERAL FIRST OFFENDER ACT
PROVIDED FOR ONLY ONE YEAR PROBATION
399
Elkins v. Comfort, ___ F.3d ___ (10th Cir. Dec. 21, 2004) (affirming denial of
adjustment of status on account of Korean conviction of possession of
marijuana, with two-year probation term, since Federal First Offender Act
provided for only one-year probation term, so conviction still existed to
trigger ground of inadmissibility).
http://laws.lp.findlaw.com/10th/031184.html
§ 8.9 4. Multiple Simultaneous Qualifying Convictions
§ 8.10 D. Exception: Foreign FFOA Analogues in the Ninth

Circuit
§ 8.11 E. Prospects for this Rule in Other Circuits
Eleventh Circuit
STATE REHABILITATIVE RELIEF – EFFECT OF EXPUNGMENT

Resendiz-Alcaraz v. United States Att’y General, __ F.3d __ (11th Cir. Sept. 10,
2004) (expunged controlled substance conviction still a conviction for
§ 8.12 F. Even Where State Rehabilitative Relief is

Effective to Eliminate a Conviction, the Underlying Conduct
Can be Considered as a Negative Discretionary Factor
§ 8.13 III. Protecting the Client Before Relief is Available
§ 8.14 A. Immigration Court
§ 8.15 1. Obtaining a Continuance
Other
FIREARMS OFFENSE – STATE REHABILITATIVE RELIEF DOES NOT ELIMINATE

FIREARMS CONVICTION FOR DEPORTATION PURPOSES
Matter of Luviano, 23 I. & N. Dec. 718 (AG Jan. 18, 2005) (firearms conviction
expunged pursuant to California state rehabilitative relief statute, Penal Code
§ 1203.4(a), remained a conviction for immigration purposes under the
statutory definition of conviction, INA § 101(a)(48)(A), 8 U.S.C. §
1101(a)(48)(A)).
400
§ 8.16 2. Seeking Appellate Review
§ 8.17 B. Criminal Court
§ 8.18 1. Avoiding a Final Conviction
§ 8.19 2. Expediting Rehabilitative Relief
§ 8.20 IV. Rehabilitative Relief in Different Jurisdictions
Other
POST CON – EXPUNGEMENT – UTAH

Utah expungements are governed by Utah Crimnal Code Title 77, § 18-11,
which does not allow expungements of offenses Utah calls (a) capital felony,
(b) first degree felony, (c) second degree forcible felony, or (d) any sexual act
against a minor.
§ 8.21 V. Judicial Recommendations Against Deportation
Second Circuit
POST-CON RELIEF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION

WORKS FOR AGGRAVATED FELONIES
Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (judicial
recommendations against deportation prevent deportation based upon an
aggravated felony conviction as well as convictions of crimes of moral
turpitude).
POST-CON – JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS

FOR AGGRAVATED FELONIES – RETROACTIVITY
Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (deportation may be
avoided even as a result of new aggravated felonies, created after repeal of
JRAD statute: “[J]ust as respondents may rely on IIRIRA's expanded definition
of aggravated felony to argue petitioner's deportability on that ground,
petitioner may rely on the same definition to claim JRAD protection from
deportation on that ground.”).
POST CON RELIEF – JUDICIAL RECOMMENDATION AGAINST DEPORTATION –

IMMIGRATION EFFECT – ELIMINATES CMT AND AGGRAVATED FELONY
CONVICTIONS AS GROUNDS FOR DEPORTATION
A JRAD prevents deportation on account of an aggravated felony. Nguyen v.
401
Chertoff, 501 F.3d 107, 113 (2d Cir. 2007); Probert v. United States, 737
F.Supp. 1010 (E.D. Mich. 1989) (JRAD available to offender whose aggravated
felony controlled substance conviction was on appeal, since only thirty days
were allowed within which to seek a JRAD, and by not limiting JRADs only to
crimes of moral turpitude, Congress intended court to have an opportunity to
determine which aggravated felonies should be the basis for deportation).
This is because the JRAD statute stated it prevented deportability under the
statute that provided both CMTs and AFs constituted grounds of
deportability. (Former INA 237(a)(4).) United States v. Hovsepian, 359 F.3d
1144 (9th Cir. 2004) (en banc), does not hold a JRAD does not prevent
deportation on account of an AF. Hovsepian was charged with deportability
under the firearms and destructive devices grounds, not the aggravated
felony ground. The JRAD is effective to prevent deportation on the
aggravated felony ground.
The JRAD statute applied both to the moral turpitude and the aggravated
felony deportation grounds, in that it waived deportability under former INA
§ 237(a)(4), which included both CMT and AF. (See Nguyen v. Chertoff, 501
F.3d 107, 113 (2d Cir. 2007), and cases cited.) Mr. Nguyen' obtained a JRAD
for a CMT that later was retroactively made an aggravated felony. The Second
Circuit did not adopt the government's anti-retroactivity argument that the
JRAD does not waive the AF conviction because the conviction was not
classified as an AF at the time the JRAD was issued. The most extensive
discussion of JRADs is found in N. Tooby, J. Rollin & J. Foster, CRIMES OF
MORAL TURPITUDE §§ 10.12-10.20 (3d ed. 2008).
Ninth Circuit
POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF – GOVERNMENT

BEARS BURDEN OF PROOF THAT ORDER VACATING CRIMINAL CONVICTION
WAS INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES
(government has burden of proof by clear and convincing evidence that order
vacating conviction was ineffective to eliminate conviction for immigration
purposes when respondent made motion to reopen removal proceedings
after conviction had been vacated; because order was ambiguous as to
whether it had been based on a ground of invalidity, government could not
meet its burden of proof, and BIA abused its discretion in denying motion to
reopen).
POST CON RELIEF – EFFECTIVE ORDER – BURDEN OF PROOF – JUDICIAL

402
RECOMMENDATION AGAINST DEPORTATION – BURDEN ON GOVERNMENT

TO PROVE RESENTENCING GRANTED SOLELY TO ENABLE COURT TO ISSUE
TIMELY JRAD OR ELSE JRAD WOULD BE HELD EFFECTIVE
Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all presumptions normally
operating in favor of the judgment operate in favor of the validity of a Judicial
Recommendation Aagainst Deportation, and the burden is on the
government to prove the criminal resentencing was granted solely to enable
the court to issue a timely JRAD or else the JRAD would be held effective).

People v. Paredes, 72 Cal.Rptr.3d 867 (Cal.App. 4 Dist. Feb. 26, 2008)
(agreement of state to JRAD does not constitute an express or implied
promise that the conviction will not render the noncitizen deportable; the
fact that the federal immigration laws changed retroactively to make 1987
manslaughter conviction deportable as an aggravated felony not sufficient to
show that the original 1987 plea agreement had been violated).
§ 8.22 A. Immigration Effects
§ 8.23 1. Deportation Grounds Excused
§ 8.24 2. Varieties of Immigration Effects
§ 8.25 3. Foreign JRADs Ineffective
§ 8.26 4. Continuing Validity of Pre-1990 JRADs
§ 8.27 B. Procedure
§ 8.28 1. Notice to Immigration Authorities
§ 8.29 2. Timing of Effective JRAD
§ 8.30 C. Ineffective Assistance of Counsel in Failing to

Seek JRAD
§ 8.31 1. Ground to Vacate Sentence
§ 8.32 2. Remedy to Allow Timely JRAD

403
Second Circuit
POST CON RELIEF – GROUNDS – INEFFECTIVE ASSISTANCE OF COUNSEL –

REMEDY FOR IAC REQUIRES PLACING DEFENDANT IN POSITION S/HE WOULD
HAVE OCCUPIED IF ERROR HAD NOT OCCURRED, INCLUDING STAYING TIME
DEADLINES
Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable
nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as if
he were applying at the time his removal order became administratively final,
which was before he had served five actual years in custody and thereby
became disqualified for this relief; court did not reach question of whether
statute compelled this result or whether five-year sentence bar was
analogous to a statute of limitations which could be equitably tolled). In
determining whether nunc pro tun relief could be applied in this case, the
court looked at the following issues: 1. Statutory bar: "A court may not
award equitable relief in contravention of the expressed intent of Congress.
See INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210
(1988)." Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The
court identified cases where the BIA had granted nunc pro tunc relief in the
past, and noted that Congress never amended INA § 212(c) to bar such
grants. Id. 2. When nunc pro tunc relief should be afforded: The court
stated generally that "where an agency error would otherwise be
irremediable, and where the plaintiff has been deprived of a significant
benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App. D.C. 381,
829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc
pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at
667-68." Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration
context, the court found that nunc pro tunc relief should be available were
the noncitizen has demonstrated that s/he was erroneously denied the
opportunity to apply the relief due to an error on the part of the agency, and
that, but for nunc pro tunc relief, the denial of relief would be irremediable.
The court stated that the noncitizen, outside an illegal reentry context, did
not need to show that a denial of the relief would result in a denial of due
process. 3. What error may nunc pro tunc relief be used to correct:
Despite arguments that the doctrine of nunc pro tunc may only be used to
correct inadvertent errors, and not to remedy a defect in a judgment order,
the court held that in the immigration context nunc pro tunc relief was
available to correct such defects in the immigration context. Edwards v. INS,
393 F.3d, at 309 n. 12.
404
Ninth Circuit

Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir.
Jan. 30, 2004) (UNPUBLISHED) (BIA violated due process by waiting six years,
until after law had changed to respondent’s detriment, to review Immigration
Judge’s originally erroneous finding that expunged misdemeanor weapons
conviction constituted conviction for immigration purposes). The BIA must
generally apply the law in place at the time the BIA conducts its review. Ortiz
v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999). However, that rule is not absolute
where the error effectively denied the noncitizen a meaningful hearing under
the law existing when the hearing was held. See, e.g., Guadalupe-Cruz v. INS,
240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (BIA's failure to correct IJ's
error was defect requiring application of law in effect at time of initial
hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural
defect resulting in the loss of an opportunity for statutory relief requires
remand for a hearing under former law); Castillo-Perez v. INS., 212 F.3d 518,
528 (9th Cir. 2000) (ineffective assistance of counsel before IJ required
remand for application of law existing at the time of original hearing). Where
the BIA’s failure to timely remedy an IJ's error denies respondent the benefit
of the law in effect at the time of the original hearing, the only meaningful
remedy is to give the respondent a hearing under the law that would have
applied, had the BIA not delayed his appeal. Guadalupe-Cruz, 240 F.3d at
1212.
§ 8.33 D. Retroactivity of Repeal of JRAD Authority
Fifth Circuit
POST-CONVICTION RELIEF - JRADS ISSUED BEFORE IMMACT90 REMAIN

EFFECTIVE - RENTERIA INCORRECT ON THIS POINT
Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. Feb. 27, 2003) (amending
opinion on denial of rehearing) ("[P]re-enactment JRAD's remain effective.
Thus, the INS could not have deported Renteria-Gonzalez for the offenses
specified in the JRAD even after enactment of the [Immigration] Act [of 1990
which abolished future grants of JRADs]).
Argument Against Renteria: The Renteria panel misconstrued section 505
of the Immigration Act of 1990, Pub. L. No. 101-649, § 505, 104 Stat. 4978,
5050 (1990) ("1990 Act") as rescinding all JRADs. Cf. Renteria, supra, at *11.
Section 505(b) provides, to the contrary,
405
EFFECTIVE DATE. The amendments made by subsection (a)

[repealing the JRAD provision] shall take effect on the date of
the enactment of this Act [November 29, 1990] and shall
apply to convictions entered before, on, or after such date.
We do not dispute that "it is well settled that Congress has the authority to
make past criminal activity a new ground for deportation." Ignacio v. INS, 955
F.2d 295, 298 (5th Cir. 1992) (citations omitted). See also United States v.
Bodre, 948 F.2d 28, 32 (1st Cir. 1991), cert. denied, 503 U.S. 941 (1992).
However, Congress’ use of plain language referring to convictions, not JRADS,
entered before, on or after the 1990 Act, must control. Greyhound Corp. v.
Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978)(reiterating that the starting
point in construing a statute is the language itself); United States v. Wong Kim
Bo,472 F.2d 720, 722 (5th Cir. 1972) (per curiam) ("words are to be given
their natural, plain, ordinary and commonly understood meaning unless it is
clear that some other meaning was intended"). The express language in
section 505(b) of the 1990 Act makes the amendment repealing JRADs
applicable retroactively to convictions. This reading is underscored by both 8
C.F.R.§ 240.10(d) of the removal regulations and § 240.48(c) of the
regulations applicable to deportation proceedings commenced prior to April
1, 1997, in which the Attorney General has provided expressly that, The
alien shall provide a court certified copy of a Judicial Recommendation
Against Deportation (JRAD) to the immigration judge when the
recommendation shall be the basis of denying any charges brought by the
Service. . . . No JRAD is effective against a charge of deportability under
former section 241(a)(11) of the Act, or if the JRAD was granted on or after
November 29, 1990. Id. (emphasis added). These regulations plainly
recognize the repealer, but authorize giving effect to a JRAD granted prior to
November 29, 1990.[FN1] [FN1] See also Kurzban, Immigration Law
Sourcebook, 8th Ed. (2002), at 150 (citing INS ImmAct Wire No. 5, McNary,
Comm, (Nov. 28, 1990)); Legomsky, Immigration and Refugee Law and Policy,
3d Ed. (2002), at 537. The regulations clearly reflect the view of the agency
that the repealer did not rescind all JRADs.[FN2] [FN2] It should go without
saying that the INS is bound by such regulations. 8 U.S.C. § 1103(a)(3). But cf.
Resp. Br. at 17 (arguing both that the JRAD was ineffective because it did not
apply to the grounds charged for Renteria-Gonzalez’ deportation, and
because the statute was repealed before he was charged with being
deportable). Similarly, none of the out-of-circuit decisions cited by the
panel stand for the proposition that a pre-November 29, 1990 JRAD is no
longer effective. Cf. Renteria, supra, at *12, n. 5. The cited decisions involve
two cases, United States v. Bodre, supra, and United States v. Koziel, 954 F.
406
2d 831 (2d Cir. 1992), in which a defendant sought a JRAD after November
29, 1990, arguing that it should be available to a pre-November 1990
conviction, and one case, United States v. Yacoubian, 24 F. 3d 1 (9th Cir
1994), in which deportability was charged on a ground of deportability
independent of the conviction for which a JRAD previously had been issued.
Bodre v INS, supra, involved a defendant who had been convicted before
November 29, 1990 and was awaiting a ruling on a JRAD that had been filed
on November 26, 1990. In rejecting Bodre’s argument that, as applied to
crimes committed before the effective date, the repealer violated the
Constitutional prohibition of ex post facto laws," id. at 33, the First Circuit
ruled that section 505 "repealed the sentencing judge’s power to issue
JRADs," and "applied ‘to convictions entered before. . .’ November 29, 1990."
Id. at 30 (emphasis added). United States v. Koziel, supra, involved the denial
of JRADs where the provision was repealed after the aliens' criminal conduct
occurred, but before they pled guilty and were sentenced. Id. The Second
Circuit ruled that "there is no ex post facto impediment to Congress's making
the abolition of JRADs applicable to convictions for conduct engaged in
before the enactment of the repealer." Id. at 834-35 (emphasis added).
Likewise, in United States v. Yacoubian, supra, the Ninth Circuit recognized
that "under the JRAD and the law at the time of the JRAD's issuance in 1989,
the defendant would not have been deportable based upon any of his
convictions," id. at 7-8 (finding that "deportation was sought on grounds
different from those as to which the JRADs were effective."). The Fifth Circuit
appears to have previously understood that the language in section 505
related to convictions, not JRADs, entered before, on and after November 29,
1990. See Ignacio v. INS, supra, at 298 (comparing the retroactive language
eliminating an automatic stay for aliens having aggravated felony convictions
to the similar language relating to convictions in section 505). Moreover, in
United States v. Castro, 26 F.3d 557, 558, reh’g denied, 38 F.3d 759, (5th Cir.
Tex. 1994), the Fifth Circuit remanded an ineffective assistance of counsel
claim relating to a 1984 failure to seek a JRAD, finding that Castro "was
entitled to have the sentencing court consider a JRAD," and that "there is a
reasonable probability that such relief would have been granted if a request
had been made." Id. at 562-63. It cannot be the case that the Fifth Circuit
previously viewed section 505 as rescinding all JRADS or there would have
been little purpose to its reversing and remanding in Castro. Since that time,
the court has not indicated a different view in the JRAD context. United
States v. Flores-Ochoa, 139 F.3d 1022, (5th Cir. Tex. 1998) (distinguishing
United States v. Castro because it was based on a "specific statutory option"
and on the strength of the case on its merits). In sum, the panel
misapprehended the retroactive effect of section 505, which applies
407
expressly to convictions entered prior to the November 29, 1990 effective

date of the 1990 Act, not to JRADs. Cf. Renteria, supra, at *11-12. A timely
issued JRAD covers aggravated felony convictions under 8 U.S.C.
1252(a)(2)(A)(iii) and precludes reliance on the conviction at issue as a basis
for deportability or inadmissibility. Bodre v. INS, supra, at 30 ("[b]efore
November 29, 1990, a convicted alien could seek relief from Section
1251(a)(2)(A)(iii)'s mandatory deportation requirement by seeking a JRAD
under 8 U.S.C. § 1251(b)(2)"). See also United States v. Probert, 737 F. Supp.
1010, 1012 (E.D. Mich. Nov 15, 1989). Similarly, a conviction that is the
subject of a pre-November 29, 1990 JRAD would not bar judicial review under
either the temporary or the permanent rules, which apply only where an
alien is deportable by reason of having committed a covered offense. IIRIRA §
304(C)(4)(G), 8 U.S.C. § 1252(a)(2)(C) (emphasis added).[FN3] [FN3] See also
Probert v. INS, 954 F. 2d 1253, 1255 (6th Cir. 1992) (reasoning that a 1989
JRAD preventing the INS from deporting Probert based on his drug conviction,
also precluded mandatory detention under either version of 8 U.S.C. §
1252(a)(2)) Accordingly, the panel discussion indicating that the
retroactive effect of the language in section 505 extends to JRADs granted
before November 29, 1990, and that all JRADs are rescinded, must be
corrected. THIS IS FROM RENTERIA AMICUS PETITION FOR REHEARING
§ 8.34 1. Effective Date of Repeal
§ 8.35 2. Congressional Intent in Light of St. Cyr
§ 8.36 3. Ex Post Facto Argument
Second Circuit
EX POST FACTO – CONTROLLING DATE – LAST DATE OF THE OFFENSE

ALLEGED IN THE CHARGE
comment (n.2) (for Ex Post Facto purposes, controlling date is the last date of
the offense, as alleged in indictment).
§ 8.37 E. Government May Not Attack Validity of JRAD in

Immigration Court
§ 8.38 VI. Executive Pardon
Other
408
POST CON – PARDON – SELECTIVE SERVICE PARDON – VIETNAM WAR

The 1977 presidential pardon for violations of the Military Selective Service
Act specifically applies to eliminate the commission of such violations as
grounds of inadmissibility. Implementation of Presidential Proclamation No.
4483 and Executive Order No. 11967 (both effective Jan. 21, 1977), 42 Fed.
Reg. 59562 (Nov. 18, 1977). This pardon was cited in Matter of Rahman, 16 I.
& N. Dec. 579 (BIA 1978), regarding President Ford's pardon of Vietnam era
draft dodgers, particularly regarding LPRs who returned on or before June 1,
1978.
§ 8.39 A. Immigration Effects of a Pardon
Other
PARDON ARGUABLY ELIMINATES ALL CONVICTION-BASED GROUNDS OF

DEPORTATION (AND INADMISSIBILITY?)
The INA suggests that a pardon issued by the chief executive of a state or
the President of the United States defeats deportability only for the specific
grounds listed in the statute: convictions of crimes of moral turpitude,
aggravated felonies, and high speed chase. INA § 237(a)(2)(A)(v), 8 U.S.C. §
1227(a)(2)(A)(v). The Department of Justice Office of Legal Counsel (OLC) has
published a formal opinion stating that when the President grants a pardon,
the pardoned offense cannot be used as a basis to establish a noncitizen's
deportabiilty regardless of the ground of deportation. See
http://www.usdoj.gov/olc/pardon3.19.htm. The OLC relies on Article II,
section 2 of the Constitution, which authorizes the President "to grant
Reprieves and Pardons for Offenses against the United States, except in cases
of impeachment". The only limitation on the President's pardon authority is
in "cases of impeachment". Since the Constitution itself enumerates the
Executive's pardon authority, it violates the Separation of Powers for
Congress to try to impose limits on the effect of the pardon through
legislation. The author of the OLC Memo, Walter Dellinger, concluded as
follows:
Based on the foregoing analysis, we believe that a

deportation order authorized by § 1251(a)(2) is a
consequence of a conviction that is precluded by a full and
unconditional presidential pardon. Section 1251(a)(2) does
not render a person deportable based on the conduct in
which he or she engaged. Rather, this provision establishes
an additional penalty that attaches solely because of the
conviction. Thus, a person who engaged in the conduct
409
prohibited by the relevant criminal statutes but was never

convicted of the crime would not be deportable on the basis
of this provision; the authority to deport hinges completely
on the fact of conviction. Therefore, a presidential pardon
would preclude the imposition of the penalty.
Former INA § 1251(a)(2) included the drug, moral turpitude, aggravated

felony and firearm conviction grounds of deportability. The subject of the
OLC memorandum expressly covered all criminal grounds in former INA §
1251(a)(2). Presidential pardons are extremely rare. If only recipients of
Presidential pardons, as opposed to state pardons, are not deportable for the
pardoned offense, the argument would apply to only a handful of people.
There are special arguments in the Ninth Circuit to prevent the
government from deporting a noncitizen for a criminal offense pardoned by
the chief executive officer of a state. In Lujan-Armendariz v. INS, 222 F.3d 728
(9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA
1999), the Ninth Circuit held that it violated equal protection of the laws to
allow noncitizens whose offenses qualified for treatment under the Federal
First Offender Act, but who had their convictions expunged under state laws,
to be subject to removal on account of those offenses. In the Ninth Circuit's
view, "aliens may not be treated differently based on the 'mere fortuity' that
they happen to have been prosecuted under state rather than federal law, or
under different state laws, as there is no rational basis for distinguishing
among the affected groups. Paredes, 36 F.3d at 811-12; Garberding, 30 F.3d
at 1191." (Id. at ____). Ignoring a valid state pardon when a Presidential
pardon would insulate a noncitizen from deportability creates the same kind
of "mere fortuity" that the Ninth Circuit found unacceptable in Lujan,
Paredes, and Garberding. Congress' attempt to limit the presidential power in
violation of the separation of powers may render the entire statute
unconstitutional. Noncitizens in all states may therefore argue that the
statute limiting pardoning authority is unconstitutional in its entirety. Under
this argument, any state pardon would forgive any ground of deportability,
notwithstanding the statutory language to the contrary, because the attempt
to limit presidential pardon authority invalidates the entire statute. Thanks to
Ben Caspar and Dan Kesselbrenner for this argument.
§ 8.40 1. Qualifying Deportation Grounds
§ 8.41 2. Immigration Benefits
§ 8.42 3. Nature of Effective Pardon

410
§ 8.43 4. Foreign Pardons Ineffective
§ 8.44 B. Experience in Particular States
POST CON RELIEF – FLORIDA – STATE ADVISAL STATUTE

Payne v. State, ___ Fla. App. ___, 2004 WL 2633459 (November 19, 2004)
(reversing trial court's summary denial of motion for post-conviction relief
filed under Florida Rule of Criminal Procedure 3.850 on grounds plea of guilty
was involuntary because court failed to inform defendant that deportation
was a possible consequence of his plea, and remanding for an evidentiary
hearing because the present record does not conclusively show a lack of
prejudice). "Florida Rule of Criminal Procedure 3.172(c)(8) provides that,
when accepting a plea, a trial court must determine that the defendant
understands that, if he is not a citizen of the United States, the plea could
subject [*4] him to deportation. To obtain post-conviction relief based on a
Rule 3.172(c)(8) violation, a defendant must establish that: (1) he did not
know the plea might result in deportation; (2) he is "threatened" with
deportation because of the plea; and, (3) had he known of the possible
consequence, he would not have entered the plea. Peart, 756 So. 2d at 47.
BIA
TEXAS – DEFERRED ADJUDICATION

A theft offense is only an aggravated felony (and therefore, a disqualification
for cancellation), if the sentence imposed was at least one year. Under Texas
law, where deferred adjudication is granted, no sentence is imposed.
Therefore, crimes of violence, theft offenses, and other convictions for which
a sentence imposed of one year is transforms the conviction into an
aggravated felony, do not become aggravated felonies if the defendant
received and successfully completed deferred adjudication without a
violation since no sentence of one year or more has been imposed. But see,
Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (Texas deferred adjudication is
a conviction for immigration purposes).
Other
POST CON RELIEF – ORDER VACATING CONVICTION – IMMIGRATION EFFECT

OF GOVERNMENT APPEAL FROM ORDER VACATING CONVICTION – OREGON
The DHS has argued that a conviction still exists in Oregon, despite the trial
court's order vacating a conviction on a ground of legal invalidity, where the
411
prosecution is appealing the grant of post-conviction relief. O.R.S § 138.610

states: "An appeal taken by the State stays the effect of the judgment or
order in favor of the defendant, so that the release agreement and security
for release is held . . . but if in custody the defendant may be released . . . ."
The DHS argues therefore, a conviction still exists under Oregon law until the
defendant wins on appeal.
CONVICTION – STATE ALTERNATIVE DISPOSITION – NEW YORK – "ACD" DOES

NOT CONSTITUTE A CONVICTION FOR IMMIGRATION PURPOSES
An "Adjournment in Contemplation of Dismissal" or "ACD" is an immigration
neutral disposition in that it is a pre-plea disposition in which the prosecution
eventually dismisses the case after a specified period of time (usually 6
months or a year) without ever taking any plea on the issue of guilt or making
any determination. During the ACD period, the criminal case is open. Since
foreign nationals who fail to comply with ACD face criminal consequences,
the Service is likely to treat applicants on ACD as potentially subject to
immigration consequences and deny applications on the basis that there is no
certainty that they will satisfactorily comply with the program. The means of
contesting this characterization may be proof that failure to comply with ACD
will only result in an immigration-neutral result. Do individuals who fail to
comply end up with a new arraignment at which to fight their original charge,
or does it result in a slow plea in which the judge decides guilt or innocence
on the basis of the police reports alone? ACDs almost always result in
dismissals. The worst thing that can happen is that the case is back on the
calendar and is tried.
POST CON RELIEF – TEXAS – PARDON

Refer to http://www.tdcj.state.tx.us/bpp/ for info Texas pardons.

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JUDICIAL REVIEW – QUESTIONS OF LAW

JUDICIAL REVIEW – RES JUDICATA

We have held, however, that Congress

HABEAS CORPUS EVEN AFTER REAL ID ACT

JUDICIAL REVIEW – PETITION FOR REVIEW – VALIDITY OF CHANGE OF AGENCY POSITION

Motion to reopen after removal and illegal reentry is OK LIN v Gonzales.

Murray v. Ashcroft, 321 F. Supp. 2d 385 (D. Conn.

JUDICIAL REVIEW – STREAMLINING

JUDICIAL REVIEW – ABUSE OF DISCRETION – ERROR OF LAW

JUDICIAL REVIEW – PETITION FOR REVIEW – WAIVER OF ARGUMENT BY FAILURE TO RAISE IT IN

JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS

RELIEF – JUDICIAL REVIEW – LACHES DOCTRINE IS INAPPLICABLE AGAINST THE GOVERNMENT

Matter of Ayala, 22 I. & N. Dec. 398 (BIA 1998),

Matter of T-, 6 I.& N. Dec. 136, 137–38 (BIA 1954

Savoury cites the decision in

Matter of G-A-, 7 I. & N. Dec. 274 (BIA

JUD REVIEW applable

JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS

RELIEF – JUDICIAL REVIEW – NO PETITION FOR REVIEW JURISDICTION TO REVIEW DISCRETIONARY

JUDICIAL REVIEW – AFTER DEPORTATION

ny.us/crimnet/ojsa/cja_00_01/sec3.pdf (last accessed Nov. 15, 2005).

FPD Fall Seminar Announcement

United States Court of Appeals Second Circuit Review

JUDICIAL REVIEW – ISSUE EXHAUSTION

JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONS SUCH AS DENIAL OF

§ 245a.2(m)(1) contemplates that an alien who obtains

JUDICIAL REVIEW – STREAMLINING – THREE JUDGE PANEL

JUDICIAL REVIEW – PETITION FOR REVIEW – COURT OF APPEALS HAS

JUDICIAL REVIEW – JURISDICTION LIMITATION – NO BAR UNLESS REMOVAL ORDER GROUNDED ON

JUDICIAL REVIEW -- RES JUDICATA EXCEPTION

RES JUDICATA See Hamdan v. Gonzales, 4 6 25 F.3d 1051, 1059-60 (7th

(“The doctrines of res judicata and collateral estoppel are

JUDICIAL REVIEW – IMMIGRATION JUDGE DECISION CONFLICTED WITH DOCUMENTARY EVIDENCE

JUDICIAL REVIEW – RES JUDICATA

JUDICIAL REVIEW – GOOD MORAL CHARACTER

JUDICIAL REVIEW – RES JUDICATA – COLLATERAL ESTOPPEL

ILLEGAL REMOVAL OF UNITED STATES CITIZENS

ments/diaz-bivensclaim.pdf+Diaz+v.+Reno&hl=en&ct=clnk&cd=1&gl=us ; Fierro v. INS, 66

The core notion, in Massachusetts as in many other

Perkins v. Perkins, 114 N.E. 713, 713-14 (Mass. 1917). However,

RELIEF – NON LPR CANCELLATION

RELIEF – NON-LPR CANCELLATION OF REMOVAL – JUDICIAL REVIEW

RELIEF – WAIVERS – 212(H) RELIEF – CANCELLATION – STOP-TIME RULE

RELIEF – CANCELLATION – STOP TIME RULE IMPERMISSIBLY RETORACTIVE

RELIEF – 212(c) – CANCELLATION – STOP-TIME RULE IS NOT TRIGGERED RETROACTIVELY BY A

DETENTION – BOND HEARING FOR "ARRIVING ALIENS" RETURNING ON ADVANCE PAROLE

DETENTION – MANDATORY DETENTION – INAPPLICABLE TO ARRIVING ALIENS

GOOD MORAL CHARACTER

JUDICIAL REVIEW – AFTER DEPORTATION

Obioha v. Gonzales, 431 F.3d 400, 408 (4th

NATURALIZATION – U.S. "NATIONAL"

PARTICULARLY SERIOUS CRIME

RELIEF – 212(C) RELIEF – RELIANCE INTERESTS

RELIEF – 212(C) RELIEF – ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF

RELIEF – 212(C) RELIEF – GETTING AROUND MATTER OF BLAKE

An intent to deceive is not the same as an intent to defraud. In United States v.

POST-CONVICTION – NUNC PRO TUNC ORDER EFFECTIVE

CRIMES OF MORAL TURPITUDE – JUDICIAL RECOMMENDATION AGAINST

however, and purely legal determinations made by the agency,

[the statutory provision] is applicable, e.g., whether the

POST CON RELIEF – TEXAS DISTRICT COURTS DISTINGUISH RENTERIA

POST CONVICTION RELIEF – ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST

Fernandez-Ruiz v. Gonzales, _ F.3d _, 2006 WL 3302660 (9th

Cardoso-Tlaseca v. Gonzales, F.3d , 2006 WL 2390298 (9th Cir.

Cardoso-Tlaseca v. Gonzales, F.3d , 2006 WL 2390298 (9th Cir.