By: Sarah Flinn The Board of Immigration Appeals recently held that a returning lawful permanent resident may not be regarded as seeking admission to the United States unless one of the exceptions listed in INA § 101(a)(13)(C) applies. Matter of Pena, 26 I&N Dec. 613, 618 (BIA June 16, 2015). The main issue faced by the Board in Matter of Pena is whether Mr. Pena, who was granted lawful permanent resident status on June 5, 2000, could be charged under INA § 212(a) as an arriving alien seeking admission to the U.S. despite the fact that none of the exceptions in § 101(a)(13)(C) [...]
Cardozo clinic defeats aggravated felony charges after years of litigation
By Katie Tinto, Assistant Clinical Professor of Law, Cardozo School of Law On February 2, 2015, an immigration judge in New York City terminated removal proceedings after finding that the government failed to meet its burden of proof that a lawful permanent resident (hereinafter, “Mr. P”) was removable on the grounds of either an aggravated felony theft offense or an aggravated felony fraud offense. Matter of P-F-M- (NYC Immigr. Ct. Feb. 2, 2015). The Kathryn O. Greenberg Immigration Justice Clinic of Cardozo School of Law (IJC) represented Mr. P for over three years, but for Mr. P, a [...]
BIA: Entry based on lying about USC status isn’t “admission”; conviction for making materially false statement to government official is CIMT
The BIA held that a person who enters the United States using a passport obtained after lying about being a United States citizen has not been “admitted” for immigration law purposes, and a conviction for lying to the State Department to receive a passport is a crime involving moral turpitude. Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (Grant, Malphrus, and Mullane, Board members). Board member Grant wrote the panel’s decision. This case involved a non-citizen who entered the USA on a student visa, then obtained a U.S. birth certificate that she used to apply for and receive a U.S. [...]
4 Cir: Trial ct admonishment doesn’t cure attorney’s misadvice
The U.S. Court of Appeals for the Fourth Circuit granted an ineffective assistance of counsel claim where the defense attorney incorrectly told the defendant that deportation would not result from conviction and the trial court provided the usual admonishment about immigration consequences of conviction required by court rules. United States v. Akinsade, No. 09-7554, slip op. (4th Cir. July 25, 2012) (Traxler, Gregory, and Wynn, JJ.). Judge Gregory wrote the majority’s opinion from which Judge Traxler dissented. This case involved an LPR charged with embezzlement by a bank employee, 18 U.S.C. [...]
Ohio App Ct: Padilla claim merits hearing
An intermediate appellate court in Ohio concluded that a claim of ineffective assistance of counsel brought pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010), was sufficiently meritorious that an evidentiary hearing was necessary to determine if a motion to withdraw a guilty plea ought to be granted. State v. Yahya, 2011-Ohio-6090 (Ohio Ct. App. 2011) (Dorrian, Klatt, and Connor, JJ.). Judge Dorrian wrote the panel’s opinion. This case involved an LPR who pleaded guilty to theft, Ohio Rev. Code § 2913.02, on May 25, 2010. Yahya, 2011-Ohio-6090 at ¶ 2. Yahya was subsequently detained [...]
SCOTUS: Fed false tax return crimes are fraud or deceit aggravated felonies
A divided Supreme Court held that two federal crimes relating to filing a false tax return are aggravated felonies. Kawashima v. Holder, 565 U.S. --, No. 10-577, slip op. (Feb. 21, 2012). Justice Thomas wrote the majority opinion and was joined by Roberts, Scalia, Kennedy, Alito, and Sotomayor. Justice Ginsburg’s dissent was joined by Breyer and Kagan. This case involved two LPRs, Akio Kawashima and Fusako Kawashima. Mr. Kawashima was convicted of willfully making and subscribing a false tax return, 26 U.S.C. § 7206(1), and Mrs. Kawashima was convicted of aiding and abetting in the [...]
3 Cir: Probable cause needed to consider returning LPR as seeking admission; aiding & abetting wire fraud is aggravated felony
The U.S. Court of Appeals for the Third Circuit held that an immigration officer must have probable cause to believe that an LPR returning to the United States from a trip abroad has committed an offense listed in INA § 212(a)(2) to determine that the LPR is seeking admission. John Doe v. Attorney General, No. 10-2272, slip op. (3d Cir. Sept. 8, 2011) (Rendell, Smith, and Fisher, JJ.). Judge Smith wrote a majority opinion joined by Judge Fisher. Judge Rendell wrote separately concurring in part and dissenting in part. This case involved an LPR who was paroled into the United States upon [...]
SCOTUS to hear fraud/deceit aggravated felony case
The Supreme Court today granted cert on a case in which the Ninth Circuit held that filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were fraud or deceit aggravated felonies, INA § 101(a)(43)(M)(i). The question presented in Kawashima v. Holder, No. 10-577, the case the Court will hear next term, is: “Whether, in direct conflict with the Third Circuit, the Ninth Circuit erred in holding that Petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in [...]