The U.S. Court of Appeals for the Fifth Circuit held that Florida’s cocaine delivery offense is not a drug trafficking type of aggravated felony because, unlike federal law, it does not require, as an element of the crime, showing that the defendant knew that the substance was a controlled substance. Paez Sarmientos v. Holder, No. 13-60086, slip op. (5th Cir. Feb. 12, 2014) (Reavley, Prado, and Owen, JJ.). Judge Owen wrote the panel’s opinion. This case involved an LPR who pleaded guilty to delivering cocaine in violation of Florida Statute § 893.13(1)(a)(1). After finding that Paez [...]
11 Cir: FL possession of cannabis with intent to sell or deliver isn’t drug trafficking aggravated felony
The U.S. Court of Appeals for the Eleventh Circuit held that a Florida conviction for possession of cannabis with the intent to sell or deliver, Fla. Stat. § 893.13(1)(a)(2), is not a drug trafficking type of aggravated felony. Donawa v. U.S. Attorney General, No. 12-13526, slip op. (11th Cir. Nov. 7, 2013) (Martin, Jordan, and Suhrheinrich, JJ.). Judge Martin wrote the panel’s decision. Michael Vastine, a professor at St. Thomas University School of Law and past guest blogger on crImmigration.com, successfully argued on Mr. Donawa’s behalf. This case involved an LPR convicted of the [...]
BIA: Cuban adjustment of status constitutes admission for § 237 removal purposes
The BIA held that an individual whose status was adjusted from parolee to lawful permanent resident pursuant to the Cuban Refugee Adjustment Act of 1966 was dmitted for purposes of removal under INA § 237(a). Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011) (Grant, Malphrus, and Mullane, Board members). Board member Grant wrote the panel’s decision. This case involves a Cuban citizen who was paroled into the United States and adjusted his status under the CRAA (often referred to as the Cuban Adjustment Act or CAA). Guillot subsequently was convicted of trafficking in cannabis and [...]
11 Cir rejects Silva-Treviño moral turpitude framework
The U.S. Court of Appeals for the Eleventh Circuit recently rejected the framework for determining whether a crime involves moral turpitude announced in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008). Sanchez Fajardo v. Att’y Gen., Nos. 09-12962 and 09-14845, slip op. (11th Cir. Oct. 12, 2011) (Barkett, Marcus, and Restani, JJ.). Judge Barkett wrote the court’s opinion. This case involved an LPR who was convicted of false imprisonment under Florida Stat. § 787.02. After leaving the United States and returning through the Miami airport, DHS initiated removal proceedings charging him [...]
11th Cir: Fed extortionate extension of credit isn’t categorically crime of violence; might be under modified categorical approach
The U.S. Court of Appeals for the Eleventh Circuit held that making an extortionate extension of credit in violation of 18 U.S.C. § 892(a) is not categorically a crime of violence type of aggravated felony. Accardo v. U.S. Atty. General, No. 09-15446, slip op. (11th Cir. March 10, 2011) (Carnes, Pryor, Cox). [Also available in html at Law.com.] The Court added that the BIA failed to apply the modified categorical approach, however, so rather than disposing of the case outright the Court remanded with instructions to apply the modified categorical approach. Judge Carnes wrote the panel’s [...]
4th & 11th Circuits on definition of conviction
Two federal courts of appeal have issued published decisions interpreting the definition of “conviction” found at INA § 101(a)(48)(A). The Fourth Circuit concluded that deferred adjudication in Virginia is not necessarily a conviction. Crespo v. Holder, No. 09-2214, slip op. (4th Cir. Jan. 11, 2011) (Shedd, Duncan, and Hamilton). In contrast, the Eleventh Circuit concluded that a guilty plea followed by a finding of guilt and credit for time served constitutes a conviction. Mejia Rodriguez v. U.S. Dep’t of Homeland Security, No. 09-14273, 2011 WL 9573 (11th Cir. Jan. 4, 2011) (Carnes, [...]