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BIA rejects retroactive application of California sentencing change

By Kim Langona In Matter of Velasquez-Rios, issued on October 4, 2018, the Board of Immigration Appeals (BIA or the Board) concluded that federal law, rather than state law, must be used to determine the immigration consequences of a state conviction. 27 I&N Dec. 470, 474 (BIA 2018). Thus, a 2014 California legislative enactment that “retroactively lowered the maximum possible sentence” for a state conviction “from 365 days to 364 days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of [the Immigration and Nationality Act] to a past conviction for a crime involving [...]

Posted by César on January 29, 2019 on 4:00 am Leave a Comment
Filed Under: Board of Immigration Appeals, crime involving moral turpitude, guest blogger, local immigration policing, sentence

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 [...]

Posted by César on January 8, 2015 on 4:00 am Leave a Comment
Filed Under: conviction, guest blogger, Ohio state court, post-conviction relief, sentence, state court, Uncategorized

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 [...]

Posted by César on February 6, 2014 on 9:00 am 4 Comments
Filed Under: Board of Immigration Appeals, controlled substance offense, drug trafficking, illicit trafficking, sentence

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 [...]

Posted by César on February 7, 2013 on 9:00 am 11 Comments
Filed Under: Colorado state court, conviction, Ohio state court, post-conviction relief, sentence, state court

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, [...]

Posted by César on July 26, 2012 on 9:00 am 17 Comments
Filed Under: 5th Circuit Court of Appeals, aggravated felony, crime of violence, sentence

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 [...]

Posted by César on March 23, 2010 on 10:00 am 5 Comments
Filed Under: aggravated felony, Board of Immigration Appeals, crime of violence, sentence, term of imprisonment

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