By Sarah Flinn Sergio Meza filed an action under Utah state law for ineffective assistance of counsel after learning of the immigration consequences for his no contest plea to two drug charges pursuant to a plea in abeyance agreement. Meza v. State, 2015 WL 4878268, at *1 (Utah Aug. 14, 2015). Mr. Meza asserted that he had a right to relief under the Post-Conviction Remedies Act of Utah (PCRA) due to the ineffective assistance of counsel, namely, the failure of his attorney to advise him of the immigration consequences of his plea. Id. The Supreme Court of Utah ultimately concluded that Mr. [...]
Taking the Fight to the State Legislature: Small Changes, Big Impacts for Non-Citizens
By Michael Mehr In California, as in many other states, a defendant charged with a minor drug offense, is offered Deferred Entry of Judgment: plead guilty to the offense, complete a diversion program, and upon successful completion criminal charges are dismissed. The defendant is told the “arrest will be deemed never to have occurred” and that the plea can never be used to deny her any “benefit.” But the reality is far different: under federal immigration law, a plea of guilty paired with any form of restraint or punishment, including completion of a diversion program, is a “conviction” for [...]
Mellouli Matters: Exploring The Categorical Approach Through Three Legal Comparisons
By Jennifer Lee Koh 4-0. 0-4. Over the past decade, the government has lost four times in a row in its defense of federal immigration laws that exact harsh immigration consequences upon noncitizens with minor drug convictions. Beginning in 2006 with Lopez v. Gonzales, 549 U.S. 47 (2006), the Supreme Court held that a single drug possession offense does not constitute an aggravated felony under the immigration laws. In Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the Court found that a second drug possession offense, absent a charge of recidivism, fails to rise to the level of an [...]
BIA Grants Administrative Closure Pending Direct Appeal of Criminal Conviction
By Alex Sheppard In a decision published Friday, April 17, 2015, the Board of Immigration Appeals (BIA) chose to follow its prior opinion in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and found that, where warranted, removal proceedings may be delayed. Matter of Montiel, 26 I&N Dec. 555 (BIA 2015). In Matter of Montiel, the BIA granted a motion to administratively close immigration proceedings because a direct appeal of the respondent’s criminal conviction remains pending in the Ninth Circuit. Id. This decision was issued despite the Ninth Circuit’s ruling that finality of a [...]
State v. Kona: Defining the contours of state convictions
By Joseph T. Burke Issa Kona is a good man who made a mistake that has continued to haunt him for nine years. Issa is 47 years old, immigrated to Cleveland, Ohio from Palestine 12 years ago, has been married for 18 years with four daughters, owns his own house and is a fabricator for a locally owned granite company. In 2006, he paid for a window at a national box store, but walked out with both the window and a $79.93 battery charger. While in the parking lot he allegedly struggled with store security – a key fact in dispute. In Ohio, the elements of robbery, Ohio R.C. 2911.02, are [...]
5 Cir: Rejects Silva-Trevino
The U.S. Court of Appeals for the Fifth Circuit rejected the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), expanding the analytical framework by which immigration courts determine whether an immigrant has been convicted of a crime involving moral turpitude. Silva-Trevino v. Holder, No. 11-60464, slip op. (5th Cir. Jan. 30, 2014) (Benavides, Owen, and Southwick, JJ.). As a result, immigration courts in the Fifth Circuit must use the categorical approach and modified categorical only when determining whether an immigrant has been convicted of a CIMT. [...]
BIA: Michigan youthful offender adjudication is a conviction
The BIA recently held that an individual whose criminal prosecution was adjudicated through Michigan’s youthful offender process was convicted for purposes of immigration law. Matter of V-X-, 26 I&N Dec. 147 (BIA 2013) (Pauley, Guendelsberger, and Greer, Board Members). Board Member Pauley wrote the panel’s decision. This case involved an individual who received asylum in 2004. Three years later he was prosecuted on several drug-related charges. Importantly, he fell within Michigan’s “youthful trainee” designation, Mich. Comp. Laws § 762.11, which, according to the BIA, “means that the [...]
Is not guilty by reason of insanity an immigration conviction?
A former student recently asked me about the immigration law implications of being found not guilty by reason of insanity. Specifically, the student wanted to know whether this was a “conviction” for immigration law purposes? Having never encountered this situation before, I was unsure. Frankly, I’m still not sure, but here are my thoughts. The starting point seems to have to be the INA’s two-pronged definition of “conviction,” INA § 101(a)(48)(A). I’ll start with the second prong because I think that’s usually going to be easier to examine. INA § 101(a)(48)(A)(ii) requires that “the judge [...]