Criminal and Immigration Law: Defending Immigrants' Rights

In Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) the Ninth Circuit held that the REAL ID Act requires that where the modified categorical approach can be employed, an applicant for relief must prove under that approach that a conviction is not a bar to eligibility for relief.  The applicant may use only evidence from the reviewable record of conviction to do this.  The Ninth Circuit in Almanza-Arenas v. Holder ordered the parties to submit supplemental briefing on the issue of whether the Supreme Court decision in Moncrieffe v. Holder overruled Young on the burden of proof issue.

Thanks to Michael Codner, who wrote the supplemental brief in consultation with the Stanford Immigrant Rights Clinic and Immigrant Defense Project and also to the Stanford Immigration Rights Clinic for submitting amicus on behalf of Immigrant Defense Project, the ILRC, the National Immigration Project and  Federal Defenders of San Diego.

In Chaidez v. United States, 568 U.S. _____, ____S.Ct.____, 2013 WL 610201, (February 20, 2013) the U.S. Supreme Court held that Padilla v. Kentucky, 559 U.S. 356 (2010) was a “new rule” that did not apply retroactively to convictions final before March 31, 2001. In Padilla, the Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen about the immigration consequences of a guilty plea.

Practice Advisory: The BIA held that a violation of a Kansas municipal ordinance is a conviction for immigration purposes despite the lack of appointed defense counsel or right to a jury trial in those proceedings. Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012).

Updated October 2012! A guide to assist public defenders and other to determine the immigration consequences of selected Arizona offenses.

Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012). Section 212(h) of the INA1 is an important waiver of crimes-based grounds of
inadmissibility.

This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.

Eligibility for Waiver in Removal Proceedings under the Former INA § 212(c), Pursuant to Judulang v. Holder

Testimony before an IJ may not be used to characterize an offense, or to link two documents from the record of conviction.  A Ninth Circuit panel has withdrawn a very bad opinion on the modified categorical approach and substituted a substantially better one.

Practice Advisory: California Health and Safety Code § 11357(b) prohibits possession of not more than 28.5 grams of marijuana. After January 1, 2011 it will be treated as an infraction.

"Many Permanent Residents Are Not Subject to the § 212(h) Permanent Resident Bar; The Eleventh Circuit Reaffirms § 212(h) as a Direct Waiver of Deportability; Using § 212(h) When LPR Cancellation is Not an Option" by Kathy Brady

Planes v. Holder (9th Cir. July 5, 2011): Criminal defenders must assume that filing a timely direct appeal of right will not prevent a conviction from having immigration effect. This is a change in the law, created by Planes v. Holder, supra. Advocates will file a petition for rehearing and there is a good chance that this will be granted, and a reasonable chance, although no guarantee, that Planes may be reversed.

"A brief overview of principles governing deference to an agency may be useful to practitioners new to this area. In immigration law, the immigration judge and the BIA may resolve almost all issues presented in an immigration case, and DHS and the AG will address many issues in regulation or other policy rulings." By Kathy Brady.