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In an unpublished decision released last week, the Fifth Circuit Court of Appeals held that a conviction for criminal sale of cocaine in the second degree, N.Y. Penal § 220.41,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 [...]