The BIA held that the burden of proof rests with the noncitizen respondent to show that a possession of marijuana with intent to distribute conviction is not an aggravated felony because it involved a “small” amount of the drug, and that the respondent may prove this by using evidence outside the record of conviction. Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (Pauley, Mullane, and Guendelsberger, Board members). Board member Pauley wrote the panel’s decision. This case involved an LPR convicted of possession with the intent to give or distribute less than one-half ounce of [...]
BIA: Gov bears burden of showing that returning LPR seeks admission; accessory after fact is CIMT if underlying crime is
The BIA recently held that the government bears the burden of showing that a returning LPR is seeking admission and that an accessory after the fact conviction involves moral turpitude only if the underlying crime does. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (Pauley, Greer, and Wendtland, Board Members). Board Member Pauley wrote the panel’s decision. This case involved an LPR who was returning from a trip abroad. Matter of Rivens, 25 I&N Dec. at 624. Rivens had previously pleaded guilty to New York’s offering a false instrument for filing offense, NY Penal § 175.30, and [...]
10 Cir: Gov doesn’t have to prove conviction satisfied 6th Amend
The U.S. Court of Appeals for the Tenth Circuit recently held that the government’s burden of proving that a noncitizen is removable does not include a requirement that it show that the underlying criminal conviction satisfied the Sixth Amendment right to counsel. Waugh v. Holder, No. 10-9551, slip op. (10th Cir. June 22, 2011) (Holmes, McKay, and Porfilio, J.). Judge McKay wrote the panel’s decision. This case involved an LPR convicted of unlawful sexual conduct with a minor in Utah. Waugh “argued that the government had to prove, as part of its burden to establish grounds for removal by [...]