2020 Law Changes that are Game Changers
Illegal detention by immigration agents leads to suppression of evidence
Ramos v. Louisiana
In 48 states and in federal court, a single juror's vote to acquit is enough to prevent a conviction; Louisiana and Oregon punish people based on 10-to-2 verdicts. Ramos was convicted in a Louisiana court by a 10-to-2 jury verdict and was sentenced to life without parole. The Supreme Court reversed. The Sixth Amendment right to a jury trial, as incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Juror unanimity is a vital common law right. The Court rejected an "invitation" to "perform a cost-benefit analysis on the historic features of common law jury trials and to conclude that unanimity does not make the cut." In overturning its 1972 "Apodaca" decision, the Court stated that the reasoning, in that case, was "gravely mistaken" and "sits uneasily with 120 years of preceding case law." The fact that Louisiana and Oregon may need to retry defendants convicted of felonies by non-unanimous verdicts whose cases are still pending on direct appeal "will surely impose a cost, but new rules of criminal procedure usually do."
Recent Court Highlights:
The 9th circuit decided on January 20th, 2020, that Oregon Robbery in the Third Degree under ORS 164395 where Mr. Lopez Aguilar was sentenced to thirteen months in prison was not an aggravated felony because it is not a categorical theft offense under INA101(A)43(G). The court concluded that Mr. Lopez Aguilar was not removable and reversed decisions by the Immigration Judge as well as by the Board of Immigration Appeals. Mr. Lopez Aguilar had been ordered removed to Guatemala and the court held that the Oregon Robbery Statute is over broad because its "greater breath is evident from its text". The statute is held to be indivisible. Decision attached. We will be supplementing the website with recent positive court cases on an ongoing bases.
We hope all find this helpful and that some may benefit from this.
Post Conviction Relief
Important July 2016 Ninth circuit decision requiring criminal defense counsel to advise his client that deportation is "virtually certain" if client enters into a plea of guilty to a deportable offense requiring deportation as a matter of law. Affirmative misadvice, in the form of an understatement of the risk of deportation following a plea entry is ineffective assistance of counsel requiring the conviction to be vacated if client would not have entered into the plea if client had been accurately advised as a matter of law...
More Deportations Follow Minor Crimes, Records Show
New York Times article (April 6, 2014).
Recent Case Law in Domestic Violence Assault Convictions and Immigration Consequences
A Felony Assault IV Domestic Violence offense is deportable under INA 237(a)(2)(E)(i). Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) states: The federal statute, as interpreted by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), covers only those crimes involving intentional conduct. Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another, we conclude the federal statute does not apply.
DV Assault Convictions and Immigration Consequences
Western District of Washington "When Released" Class Action
Immigration Judge Jones in Tacoma issued an order certifying the following class:
All individuals in the Western District of Washington who the government asserts or will assert are subject to mandatory detention under 8 U.S.C. § 1226(c) and who were not taken into immigration custody immediately upon their release from criminal custody for an offense referenced in § 1226(c)(1).
And issuing declaratory relief on behalf of the class that the Government shall not subject class members to mandatory detention.
Khoury v. Asher, Case No. C13-1367RAJ, United States District Court, W.D. Washington, Seattle, decided March 11, 2014.
Illegal RE-Entry Win: California PCS 11377 Defense Case Law
Respondent may be able to win the Illegal Re-Entry charges pending against him on the basis that the Immigration Judge mistakenly found him deportable based solely on his admission to Possession of a Controlled Substance (in violation of California Health & Safety Code § 11377). There was no record of conviction presented to the Immigration Judge and nothing in the record from ICE to substantiate the conviction was for a federally controlled substance. A Motion to Reopen on the prior deportation order may succeed as well. The Federal Illegal Re-Entry case should be dismissed if it relies on a 11377 overbroad PCS California Conviction.
Coronado v. Holder (9th Circuit, decided March 14, 2014) Appeal No. 11-72121
A Possession of a Controlled Substance conviction out of California may not be deportable.
Ruiz-Vidal v. Gonzales, 473 F. 3d 1072 (9th Cir. 2007) states a 11377 conviction is not deportable unless the Government can prove from the record of conviction to clear and convincing evidence that the drug conviction was for a substance controlled by the federal controlled substances act.
Villa-Anguiano v. Holder, 727 F. 3d 873 (9th Cir. 2013) a case where a reinstatement order was vacated following a win on the Illegal RE-Entry.
Paulus Defense: LPR had Delivery of a Controlled Substance Conviction. He is now eligible for naturalization.
Matter of Paulus, 11 I & N Dec. 274 (BIA1965) : Where the record of conviction is silent as to the narcotic involved, an alien's conviction of violation of section 11508, Health and Safety Code of California, for selling and delivering a substance and material In lien of a narcotic after having offered to sell and furnish a narcotic, does not constitute a ground of deportability under section 241(a) (11), Immigration and Nationality Act, as amended, since the conviction could have involved a substance which though a narcotic under California law Is not a narcotic drug within the meaning of the immigration laws.
General Judgment
A Padilla win on a case filed outside the Oregon general two year statute of limitations but found to be within Oregon's escape valve for pcr (post conviction relief) filings.
Court found Padilla is not a new rule but an application of Strickland and court was "shocked" counsel did not ask client if he was a US citizen or a permanent resident of the US.
Counsel mistakenly assumed client was US citizen. Client actually entered USA at the age of three. Counsel was sure he told client if he is not a US citizen he could be deported. Counsel always does this when reviewing a plea petition with anyone. DDA said pre Padilla that was good enough. Not good enough says the Court.
Click here to view
Immigration Consequences of Criminal Convictions
Potential Defenses to Deportation and Post Conviction Relief Caselaw (Caveat: an individualized assessment is necessary to advise any "alien" if "relief" from deportation might be available. This caselaw is not intended to be exhaustive or for any individual to rely on pro se if assessing potential defenses to deportability or the likelihood of prevailing on a post conviction matter).
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Padilla v. Kentucky
Successful continuance motion creating stay of deportation pending litigation of Padilla ineffective assistance claim in the State of Washington court which proved successful. Continuance granted by the Ninth Circuit.
SUBJECT: IMMIGRATION ALERTS
Immigration cases and results of not having an attorney that specialized in immigration law. Mr Conry's written argument for immigrants follows:
U.S. Supreme Court Syllabus
The duty of criminal defense counsel representing an immigrant:
Immigration Defense Project
Padilla Practice Advisory
Here is a link to the case. Padilla v. Kentucky
State of Washington follows Padilla in the Sandoval case
Mar. 17, 2011 - 82175-5 - State v. Sandoval