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The intersection of criminal law and immigration law

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After regularly updating crimmigration.com from January 2009 until November 2022, I have stopped doing so. I hope you continue to benefit from the blog as an archive. For up-to-date information about my work, visit ccgarciahernandez.com. – César

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5 Cir: AR aggravated assault isn’t crime of violence

The U.S. Court of Appeals for the Fifth Circuit held that a conviction for aggravated assault in Arkansas, Ark. Code § 5-13-204(a)(1), is not a crime of violence. United States v. Esparza-Perez, No. 11-50090, slip op. (5th Cir. May 14, 2012) (Garza, Dennis, and Higginson, JJ.). Judge Higginson wrote the panel’s decision. This case involved an individual convicted of attempted illegal reentry under INA § 276. Had the prior conviction for Arkansas aggravated assault been deemed a crime of violence, Esparza-Perez would have been subject to a sixteen level sentencing enhancement. Esparza-Perez, [...]

Posted by César on July 26, 2012 on 9:00 am 17 Comments
Filed Under: 5th Circuit Court of Appeals, aggravated felony, crime of violence, sentence

5 Cir: Padilla not retroactive

Despite the Supreme Court’s foray into this issue next term, the U.S. Court of Appeals for the Fifth Circuit held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively. United States v. Amer, No. 11-60522, slip op. (5th Cir. May 9, 2012) (Jones, Owen, and Higginson, JJ.). Judge Higginson wrote the panel’s opinion. This case involved an individual whose federal conviction, obtained through a guilty plea, became final on February 24, 2009, approximately thirteen months prior to the date on which the Supreme Court issued Padilla, the landmark decision recognizing that [...]

Posted by César on May 22, 2012 on 9:00 am 5 Comments
Filed Under: 5th Circuit Court of Appeals, Padilla v. Kentucky, post-conviction relief, right to counsel, U.S. Supreme Court

5 Cir: Failure to investigate plausible derivative citizenship claim is ineffective assistance

The U.S. Court of Appeals for the Fifth Circuit granted an ineffective assistance of counsel claim where the defense attorney failed to investigate a defendant’s plausible derivative citizenship claim. United States v. Juarez, No. 09-20764, slip op. (5th Cir. Feb. 24, 2012) (Reavley, Elrod, and Graves, JJ.). Judge Graves wrote the panel’s opinion. This case involves an individual who was born in México and entered the United States with his mother as a six-year-old. Prior to the defendant’s eighteenth birthday, his mother naturalized. In addition, he married a U.S. citizen prior to turning [...]

Posted by César on April 10, 2012 on 9:00 am 11 Comments
Filed Under: 5th Circuit Court of Appeals, Child Citizenship Act, illegal reentry, Padilla v. Kentucky, post-conviction relief, right to counsel

5 Cir: BIA can’t impose due diligence requirement on motion to reopen pre-1992 proceeding

U.S. Court of Appeals for the Fifth Circuit held thatthe BIA cannot impose a due diligence requirement on motions to reopen proceedings that began prior to 1992.  Rodriguez-Manzano v. Holder, No. 09-60795, slip op. (5th Cir. Jan. 9, 2012) (Wiener, Clement, and Elrod, JJ.). Judge Elrod wrote the panel’s decision. This case involved an individual who entered without inspection. He was placed in deportation proceedings in 1987 and ordered deported in absentia in 1988. Almost twenty years later he filed a motion to reopen through new counsel claiming that his original counsel provided [...]

Posted by César on March 6, 2012 on 9:00 am 6 Comments
Filed Under: 5th Circuit Court of Appeals, motion to reopen, right to counsel

5 Cir: Unable to return to USA after removal isn’t habeas “custody”

The U.S. Court of Appeals for the Fifth Circuit held that an individual who sought habeas relief on the basis of an allegedly wrongful removal could not satisfy the “custody” necessary for habeas jurisdiction. Merlan v. Holder, No. 11-20366, slip op. (5th Cir. Dec. 6, 2011) (Higginbotham, Davis, and Elrod, JJ.) (per curiam) (unpublished). Merlan was an LPR who was removed after conceding that a conviction for “organized criminal activity in connection with the commission of auto theft” constituted an aggravated felony. Merlan v. Holder, 2011 WL 1376778, *1 (S.D. Tex. Apr. 12, 2011) (Atlas, [...]

Posted by César on March 1, 2012 on 9:00 am 2 Comments
Filed Under: 5th Circuit Court of Appeals, habeas

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 [...]

Posted by César on February 16, 2012 on 9:00 am 9 Comments
Filed Under: 11th Circuit Court of Appeals, 212(h), 5th Circuit Court of Appeals, adjustment of status, admission, waiver

5 Cir: 212(h) waiver for single marijuana offense available once only

The Fifth Circuit Court of Appeals held that an individual who previously received a waiver of inadmissibility pursuant to INA § 212(h) waiving inadmissibility for a single offense for possession of 30 grams or less of marijuana cannot receive a second such waiver for a separate offense. Rana v. Holder, No. 10-60539, slip op. (5th Cir. Aug. 30, 2011) (Smith, Benavides, and Haynes, J.). Judge Smith wrote the panel’s decision. This case involved an LPR who was convicted in 2003 of possessing less than two ounces of marijuana. Rana, No. 10-60539, slip op. at 2. He was granted a § 212(h) waiver [...]

Posted by César on September 1, 2011 on 9:00 am 6 Comments
Filed Under: 212(h), 5th Circuit Court of Appeals, controlled substance offense, waiver

5 Cir: Right to bear arms doesn’t apply to undocumented; 1st, 4th Amend protections might not apply either

A divided panel of the U.S. Court of Appeals for the Fifth Circuit held that the Second Amendment to the U.S. Constitution does not apply to undocumented individuals. United States v. Portillo-Muñoz, No. 11-10086, slip op. (5th Cir. June 13, 2011) (Garwood, Garza, and Dennis, J.). Judge Garwood wrote the majority opinion joined fully by Judge Garza. Judge Dennis wrote a separate opinion concurring in part, but dissenting on the majority’s main points. This case involved an individual who admitted to entering the United States without inspection. He lived in Texas for approximately 18 months [...]

Posted by César on July 14, 2011 on 9:01 am 1 Comment
Filed Under: 1st Amendment, 2nd Amendment, 4th Amendment, 5th Amendment, 5th Circuit Court of Appeals, Due Process Clause, firearms offense

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