The U.S. Court of Appeals for the Ninth Circuit held the generic definition of “conspiracy” used in the aggravated felony definition requires an overt act in furtherance of the conspiracy, but Nevada’s conspiracy offense does not. This discrepancy between the federal generic definition and the state statute means a conviction under the Nevada conspiracy statute is not a conspiracy type of aggravated felony. United States v. García-Santana, No. 12-10471, slip op. (9th Cir. Feb. 20, 2014) (Alarcón, Berzon, and Zouhary, JJ.). Judge Berzon wrote the panel’s opinion. This case involved a woman [...]
BIA: Burden to show possession with intent to distribute isn’t aggravated felony is on respondent; says categorical approach inapplicable
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 [...]
Scholars Sidebar: AZ self-smuggling crime altered fed power over immigration long before SB 1070
In a new article, immigration law scholar Ingrid V. Eagly argues that Arizona changed the face of immigration policing before the state legislature enacted the infamous SB 1070. Ingrid V. Eagly, Local Immigration Prosecution: A Study of Arizona Before SB 1070, 58 U.C.L.A. L. Rev. 1749 (2011). Eagly, a professor at U.C.L.A. School of Law, focuses on a state anti-smuggling statute, Ariz. Rev. Stat. Ann. § 13-2319, enacted in 2005 and its zealous use by local prosecutors against immigrants to argue that “Arizona has already altered federal power over immigration through its control over crime.” [...]
BIA: Conspiracy category of aggravated felony does not require overt act
In a published decision released last week, the BIA held that a state conspiracy conviction may be categorized as a conspiracy type of aggravated felony even if the state statute does not require an overt act for a conviction. Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) (Pauley, Adkins-Blanch, and Guendelsberger). Board Member Pauley wrote the decision for the panel. This case involved an LPR who was convicted of conspiracy to commit robbery in violation of New Jersey Statutes Annotated § 2C:5-2, 15-1, and 12-1b4, and sentenced to a term of imprisonment of 7 years. Matter of [...]