By Matthew Meyers In 2009, Thomas Royal was convicted of unlawful possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the trial court found that Royal was an armed career criminal, as defined by the Armed Career Criminal Act (“ACCA”). This finding triggered a minimum sentence of fifteen years. On appeal, the Fourth Circuit reversed his sentence. The court held that, in light of the recent Supreme Court decision Descampsv. United States, 133 S. Ct. 2276 (2013), the district court had misapplied the ACCA. Royal also appealed his conviction because [...]
4 Cir: Adjustment isn’t admission for 212(h) waiver; waiver applicant vindicated
By Guest Blogger Toni Maschler This week, the U.S. Court of Appeals for the Fourth Circuit reversed a decision “pretermitting” (denying due to ineligibility) the application for relief from inadmissibility under INA § 212(h) due to an aggravated felony conviction. Mendoza Leiba v. Holder, slip op. No. 11-1845 (4th Cir. Nov. 9, 2012). Mr. Mendoza’s petition for review was granted, reversing the earlier decisions of the Immigration Court and Board of Immigration Appeals. Mr. Mendoza, a Salvadoran married to a U.S. citizen and the father of five U.S. citizen children, had been placed in removal [...]
4 Cir: Trial ct admonishment doesn’t cure attorney’s misadvice
The U.S. Court of Appeals for the Fourth Circuit granted an ineffective assistance of counsel claim where the defense attorney incorrectly told the defendant that deportation would not result from conviction and the trial court provided the usual admonishment about immigration consequences of conviction required by court rules. United States v. Akinsade, No. 09-7554, slip op. (4th Cir. July 25, 2012) (Traxler, Gregory, and Wynn, JJ.). Judge Gregory wrote the majority’s opinion from which Judge Traxler dissented. This case involved an LPR charged with embezzlement by a bank employee, 18 U.S.C. [...]
4 Cir: Calling ICE during routine traffic stop doesn’t violate 4th Amendment
The U.S. Court of Appeals for the Fourth Circuit determined that no unconstitutional seizure occurred where a local police officer took time to call ICE to verify the authenticity of a permanent residence card during an otherwise routine traffic stop. United States v. Guijon-Ortiz, No. 10-4518, slip op. (4th Cir. Nov. 10 2011) (Gregory, Davis, and Keith, JJ.). Judge Davis wrote panel’s opinion. This case involved a stop by a West Virginia sheriff’s deputy of a pickup truck traveling at 66 miles per hour in a 65 mile per hour zone. After trailing the truck for some undisclosed time, [...]
4 Cir: Rejects Silva-Treviño moral turpitude framework
Following a growing list of courts of appeals, the U.S. Court of Appeals for the Fourth Circuit rejected Matter of Silva-Treviño’s framework for determining whether a crime involves moral turpitude. Prudencio v. Holder, No. 10-2382, slip op. (4th Cir. Jan. 30, 2012) (Traxler, Shedd, and Keenan, JJ.). Judge Keenan wrote the panel’s majority opinion; Judge Shedd dissented. This case involved an LPR who pleaded guilty to contributing to the delinquency of a minor, Va. Code § 18.2-371. Applying Silva-Treviño’s three-part framework, the IJ held that this offense constituted a CIMT; the BIA [...]
4 Cir: Inconclusive record of conviction fails Cancellation burden
The U.S. Court of Appeals for the Fourth Circuit recently held that an LPR failed to meet his burden of proof to show that he was not convicted of an aggravated felony because the record of conviction was inconclusive on this point. Salem v. Holder, No. 10-1078, slip op., 2011 WL 1998330 (4th Cir. May 24, 2011) (Traxler, King, and Diaz, J.). Judge Diaz wrote the panel’s decision. This case involved an LPR who was convicted of petit larceny, Va. Code Ann. 18.2-96, among other offenses. He conceded removal for having been convicted of two or more crimes involving moral turpitude, INA § [...]
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, [...]
4th Circuit: Crime may be a particularly serious offense even though it’s not an aggravated felony
In a decision published last week, the Fourth Circuit Court of Appeals held that a crime that is not an aggravated felony may nonetheless be considered a “particularly serious offense” or “particularly serious crime” (PSC) for purposes of Withholding of Removal and asylum eligibility. Gao v. Holder, No. 07-2070, slip. op (4th Cir. Feb. 23, 2010) (Traxler, Wilkinson, and Michael). The Fourth Circuit also held that a crime that is not a PSC on its face, may rise to the level of a PSC if it implicates national security. Judge Wilkinson wrote the panel’s unanimous opinion. This case concerns a [...]