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Supreme Court says gap in conviction records hurts migrant

In a split decision issued today, the U.S. Supreme Court announced that gaps in conviction records created by state courts should be treated against migrants who are required to show that they haven’t been convicted of certain types of crimes. The decision, Pereida v. Wilkinson, No. 19-438 (March 4, 2021) (previewed here), split the Court along ideological lines, with Justice Gorsuch writing the majority opinion and Justice Breyer leading Justices Sotomayor and Kagan in dissent. Justice Barrett didn’t participate in this case, resulting in a five to three vote. The majority and dissenters [...]

Posted by César on March 4, 2021 on 10:43 am 2 Comments
Filed Under: ACCA, burden, cancellation of removal, categorical approach, crime involving moral turpitude, U.S. Supreme Court

Dream Act of 2017 crime bars

With much fanfare, Senators Richard Durbin (D-Illinois) and Linsey Graham (R-South Carolina) introduced a revamped version of the Dream Act yesterday. White House officials have already said that the president is unlikely to support it. But with a president who shifts positions constantly, it’s worth taking seriously the prospect that the Dream Act of 2017, S. 1615, moves forward. As with the earlier version of the Dream Act that came a handful of votes away from landing on President Obama’s desk and with DACA, the Dream Act of 2017 would exclude people who have encountered the criminal [...]

Posted by César on July 21, 2017 on 12:59 pm 1 Comment
Filed Under: cancellation of removal, Congress, controlled substance offense, crime involving moral turpitude, DREAM Act, illegal entry, illegal reentry, proposed legislation, term of imprisonment, waiver

BIA creates rebuttable presumption for cancellation of removal applicants

By Alex Sheppard On October 28, 2015, the Board of Immigration Appeals (BIA) decided the companion cases Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015), and Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), both of which addressed the burden of proof that rests on cancellation of removal applicants who are demonstrating continuous physical presence, a requirement for non-lawful permanent residents seeking this form of relief from removal. In the decisions, the BIA held that “[W]here an alien had the right to appear before an Immigration Judge, evidence that photographs [...]

Posted by César on February 2, 2016 on 4:00 am Leave a Comment
Filed Under: Board of Immigration Appeals, burden, cancellation of removal, guest blogger

9th Circuit: Physical Presence Stops Accruing Upon Receipt of Notice to Appear

By Sarah Flinn A recent decision by the U.S. Court of Appeals for the Ninth Circuit followed the trend set by the Second, Fourth, Sixth, and Seventh Circuits in determining that continuous physical presence for purposes of cancellation of removal stops accruing when the petitioner receives a Notice to Appear (NTA), regardless of whether the notice includes a date and location for the removal hearing. Moscoso-Castellanos v. Lynch, No. 12-72693, 2015 WL 5933279, at *3 (9th Cir. Oct. 13, 2015). Jorge Mario Moscoso-Castellanos, a native and citizen of Guatemala, arrived in the United States [...]

Posted by César on January 14, 2016 on 4:00 am Leave a Comment
Filed Under: 9th Circuit Court of Appeals, cancellation of removal, guest blogger, stop-time rule

5 Cir rejects BIA’s limitations on marijuana personal use exception

The U.S. Court of Appeals for the Fifth Circuit recently pushed back against the BIA’s efforts to expand the range of low-level drug offenses that can result in removal. In Flores Esquivel v. Lynch, No. 13-60326 (5th Cir. October 1, 2015), a divided panel of the Fifth Circuit took issue with the Board’s narrow construction of a key exception to the controlled substance offense basis of deportation. This case involved an LPR convicted of two misdemeanor possession of marijuana crimes in Texas: one in 2003 and the other in 2011. The first consisted of getting caught as an 18-year-old with a [...]

Posted by César on November 17, 2015 on 4:00 am Leave a Comment
Filed Under: 5th Circuit Court of Appeals, cancellation of removal, controlled substance offense, personal use exception

BIA: NTA stops time for cancellation of removal only if it’s used to launch removal proceedings

The BIA recently returned to a critical and deceptively complicated part of cancellation of removal, the stop-time rule, with a fairly narrow but important decision. Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015). Migrants are eligible for relief from removal if they can meet certain durational requirements, among other criteria. Lawful permanent residents must be able to show that they have continuously resided in the United States for at least seven years. INA § 240A(a)(2). Other migrants must show that they have been continuously physically present in the United States for at least ten [...]

Posted by César on August 27, 2015 on 4:00 am Leave a Comment
Filed Under: Board of Immigration Appeals, cancellation of removal, stop-time rule

9 Cir: Shifts longstanding drug paraphernalia case law to follow Supreme Court

The U.S. Court of Appeals for the Ninth Circuit recently held that a drug paraphernalia conviction constitutes a controlled substance offense only if the conviction involved a substance criminalized by federal drug laws. Madrigal-Barcenas v. Lynch, No. 10-72049, slip op. (9th Cir. August 10, 2015). In doing so, the Ninth Circuit adjusted a robust body of case law to conform with the U.S. Supreme Court’s decision in Mellouli v. Lynch, 135 S. Ct. 2828 (2015), a case that I and a team of guest bloggers covered in detail on crImmigration.com. This case involved a migrant convicted of possession [...]

Posted by César on August 25, 2015 on 4:00 am Leave a Comment
Filed Under: 9th Circuit Court of Appeals, cancellation of removal, categorical approach, controlled substance offense

5th Circuit: Border wave-through is an admission for cancellation purposes

By Sarah Flinn A recent decision by the U.S. Court of Appeals for the Fifth Circuit held that admission to the U.S. is met by a physical wave through the port of entry by an immigration official. Further, in relation to the INA provision governing cancellation of removal for lawful permanent residents, § 240A(a), the wave-through admission is valid for all immigrants, whether documented or not. Tula Rubio v. Lynch, No. 14-60183, slip op. (5th Cir. May 21, 2015). In 1992, in very common circumstances, Ramiro Constantino Tula Rubio, age 4, entered the United States as a passenger in a car [...]

Posted by César on August 6, 2015 on 4:00 am Leave a Comment
Filed Under: 5th Circuit Court of Appeals, admission, cancellation of removal, guest blogger

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