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 [...]
Commutations unlikely to help immigrants
Last week, Deputy Attorney General James Cole announced that President Obama is likely to ramp up the number of commutations he issues for drug offenses. While commendable, presidential commutations are unlikely to help immigrants avoid removal. In a speech to the New York State Bar Association, Deputy AG Cole noted the futility of relying on incarceration to punish low-level drug offenders. “Over half of the federal prison population is there for drug offenses,” he said. “Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a [...]
CO Supreme Ct: Motion to withdraw available for ineffective assistance claim based on deferred judgment
The Colorado Supreme Court held that noncitizens trying to challenge a deferred judgment based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), may do so under the state’s rule for motion to withdraw pleas but they may not seek review of the judgment and sentence because none exists. Kazadi v. People, No. 11SC264, slip op. (Colo. Dec. 20, 2012) (Hobbs, J., writing for the court; Bender, C.J., dissenting). Deferred judgment, the court explained, essentially holds the criminal proceeding in abeyance. As such, no conviction or sentence is entered. In the court’s words, “a deferred judgment is a [...]
5 Cir: AR aggravated assault isn’t crime of violence
The U.S. Court of Appeals for the Fifth Circuit held that a conviction for aggravated assault in Arkansas, Ark. Code § 5-13-204(a)(1), is not a crime of violence. United States v. Esparza-Perez, No. 11-50090, slip op. (5th Cir. May 14, 2012) (Garza, Dennis, and Higginson, JJ.). Judge Higginson wrote the panel’s decision. This case involved an individual convicted of attempted illegal reentry under INA § 276. Had the prior conviction for Arkansas aggravated assault been deemed a crime of violence, Esparza-Perez would have been subject to a sixteen level sentencing enhancement. Esparza-Perez, [...]
BIA: Jail time imposed after probation violation counts as original sentence; willful infliction of corporal injury of spouse is crime of violence
In a published decision released last week, the BIA held that a term of imprisonment imposed after a probation violation is considered part of the penalty imposed for the original underlying conviction rather than a penalty imposed for a separate offense. Matter of Perez Ramirez, 25 I&N Dec. 203, 205 (BIA 2010) (Filppu, Cole, and Pauley). The BIA also held that California’s willful infliction of corporal injury on a spouse, Cal. Penal Code § 273.5(a), is a crime of violence type of aggravated felony. Matter of Perez Ramirez, 25 I&N Dec. at 208. Board Member Pauley wrote the opinion for [...]