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: Nevada attempted possession of stolen vehicle isn’t theft type of aggravated felony
The Board of Immigration Appeals held that Nevada’s attempted possession of a stolen vehicle does not fit within the theft category of aggravated felony. Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) (Pauley, Guendelsberger, and Greer, Board members). Board member Pauley wrote the panel’s decision. This case involved an LPR convicted of attempted possession of a stolen vehicle in violation of Nevada Revised Statutes 193.330 and 205.273. At the time, the statute criminalized possession of a stolen vehicle by a person who “knows or has reason to believe” that the vehicle was stolen. Nev. [...]
Padilla cert petition on SCOTUS conference agenda
The U.S. Supreme Court will consider whether to hear a case about the contours of Padilla v. Kentucky, 559 U.S. 356 (2010), when it meets on Friday. Longtime LPR Isabel Rodríguez is asking the Court to overturn a Texas state court’s conclusion that eligibility for cancellation of removal means her removal was not “truly clear.” Rodríguez v. Texas, No. 13-5860 (U.S.). The lower court decision, Ex Parte Rodríguez, Nos. 04-11-00038-CR, 04-11-00039-CR, 2012 Tex. App. LEXIS 3207 (Tex. Ct. App. April 25, 2012), stemmed from convictions for theft by check and prostitute. According to the Texas [...]
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 [...]
Tex Ct of App: Vacates conviction based on Padilla claim
A Texas intermediate appellate court vacated a conviction based on a Padilla claim where the plea attorney advised the noncitizen defendant about the possibility of deportation. Salazar v. State, No. 11-11-00029-CR, slip op. (Tex. Ct. App. Aug. 31, 2011) (Wright, McCall, and Hill, J.). Justice Hill wrote the panel’s decision. This case involved a high school aged noncitizen defendant who “had been reared in the United States” but had been an LPR for less than five years. Salazar, No. 11-11-00029-CR, slip op. at 3. After helping his friend remove a tailgate from a pickup truck belonging to [...]
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 [...]
9th Circuit: California conviction for receipt of stolen property is aggravated felony
In a decision released this week, the Ninth Circuit Court of Appeals held that a conviction under California's receipt of stolen property statute, Cal. Penal Code § 496(a), categorically constitutes an aggravated felony. Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. (9th Cir. Sept. 14, 2009). Verdugo-Gonzalez, a lawful permanent resident since 1981, was convicted in 2004 of § 496(a) and sentenced to serve sixteen months in prison. Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13264. The IJ found that Verdugo-Gonzalez's conviction constituted an aggravated felony, [...]