The U.S. Court of Appeals for the Fifth Circuit recently held that a lawful permanent resident (LPR) inside the United States might be eligible for a waiver of inadmissibility only by applying for adjustment of status. Cabral v. Holder, 632 F.3d 886, No. 09-60386, slip op. (5th Cir. Feb. 2, 2011) (Jones, Dennis, and Clement, J.). Judge Clement wrote the panel’s decision. This case involves an LPR who was convicted of two crimes involving moral turpitude (CIMTs) and found ineligible for a waiver of inadmissibility under INA § 212(h). Under § 212(h), an immigration judge (IJ) acting on behalf [...]
Fed Defenders: Crimes of violence cheat sheet
I recently came across a wonderful resource put together by the Office of the Federal Public Defenders, Western District of Texas—a state-by-state compilation of specific criminal offenses (click on the document titled "Crimes of Violence List") that the Fifth Circuit (with a few additions from other courts) has determined to be a crime of violence or not. Although created to help defense attorneys figure out potential sentencing enhancements facing defendants, it might prove to be a useful starting point for research on COVs arising in a non-sentencing immigration context. [...]
5th Cir: Bar on motion to reopen trumps sua sponte authority
The U.S. Court of Appeals for the Fifth Circuit held that a statutory provision barring motions to reopen overrides a statutory provision allowing an IJ to reopen proceedings sua sponte. Gregoire v. Holder, 2011 WL 754873, No. 09-60254, slip op. (March 4, 2011) (Reavley, Jolly, and Stewart, J.). Judge Jolly wrote the panel’s decision. INA § 240(b)(5)(C)(i) provides that an in absentia order of removal may be removed “upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional [...]
5th Cir: NY sale of controlled substance is not drug trafficking type of aggravated felony
In an unpublished decision released last week, the Fifth Circuit Court of Appeals held that a conviction for criminal sale of cocaine in the second degree, N.Y. Penal § 220.41, does not constitute drug trafficking, a type of aggravated felony. Davila v. Holder, No. 08-60530, slip op. (5th Cir. June 15, 2010) (Higginbotham, Davis, and Benavides). Judge Davis wrote the panel’s opinion. This case involved a citizen of Peru who pleaded guilty to criminal sale fourteen years after becoming an LPR. Davila, No. 08-60530, slip op. at 2. The IJ determined that this conviction constituted an [...]
SCOTUS: Second simple drug possession offense is not aggravated felony unless prosecuted as recidivist offense
In a decision of enormous significance to many thousands of non-citizens, the U.S. Supreme Court announced this week that a second or subsequent simple drug possession offense does not constitute illicit trafficking in a controlled substance unless the subsequent offense was prosecuted in the criminal proceeding on the basis of a prior conviction. Carachuri-Rosendo v. Holder, No. 09-60, slip op. (Jun. 14, 2010) (Stevens, Roberts, Kennedy, Ginsburg, Breyer, Alito, and Sotomayor; Scalia and Thomas concurred in the judgment). Justice Stevens wrote the Court’s opinion. José Ángel [...]
5th Cir: Issue mentioned in Notice of Appeal but not briefed is waived
In a decision released last week, the Fifth Circuit Court of Appeals held that an issue that is mentioned in the Notice of Appeal but is not addressed in a brief subsequently submitted to the BIA is waived. Claudio v. Holder, No. 08-61060, slip op. (March 17, 2010) (Garza, DeMoss, and Clement). Judge Garza wrote the panel’s decision. Marion Claudio, a lawful permanent resident, pleaded guilty to aggravated robbery in violation of Tex. Penal Code § 29.03. Claudio, No. 08-61060, slip op. at 1. Sometime later DHS initiated removal proceedings alleging that Claudio’s conviction constituted a [...]
Article: SCOTUS should overturn 5th Cir Carachuri-Rosendo conclusion that two possession convictions equals aggravated felony
In a Case Comment appearing in the latest issue of the Suffolk University Law Review, Lauren P. Gearty argues that the Supreme Court should disagree with the Fifth Circuit’s holding in Carachuri-Rosendo v. Holder, 570 F.3d 263, 267-68 (5th Cir. 2009) (discussing United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir. 2008)), “that a second possession offense may constitute an aggravated felony regardless of whether an alien is charged or convicted as a recidivist offender.” Lauren P. Gearty, Immigration Law-Second Drug Offense Not Aggravated Felony Merely Because of Possible Felony [...]