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Thread: HELP, HELP--- 9th circiut court

  1. #1


  2. #2


  3. #3

  4. #4
    this kind of appeals are complicated
    get a good immigration lawyer or find a pro bono lawyers
    the 9th circuit of app has been pro -immigrant is some decision in reversing decision againt the BIA
    but in you case we dont know the story
    what type of felony , does he has a long criminal history or is it his first mistake ??? what kinf of mistake CMT aggravted felony , crime of violence ???
    has far as getting an appeals to obating a waiver , etc...
    they look into
    the statute of the felony he commited m how long he served etc...
    how long he has been in the USA
    hardship factor (do you have kids assets together etc...)

    so bottom line try to get legal assistance because it's not that easy

  5. #5
    that's a crime of violence it will be realy hard to fight
    how long did he served ???

    did he shot, stab , hit someone
    or what it a car accident ???

  6. #6
    Crimes of Violence

    The definition of aggravated felony includes a "crime of violence" as defined in 18 U.S.C. 16, for which the term of imprisonment imposed is at least one year. There is an exception for a "purely political offense." The BIA and courts use a "categorical" definition of crime of violence: the determination is made based on the elements of the statute under which the person was convicted, and not the actual conduct of the accused.

    The definition of the crime of violence aggravated felony for immigration purposes is set out at 18 U.S.C. 16:

    "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

    "(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

    Looking again at the definition of 18 U.S.C. 16, whether an offense is a crime of violence under section 16(a) is usually clear: the offense as defined in the statute must contain as an essential statutory element the use or threat of physical force against person or property. The controversy concerning which offenses should be considered crimes of violence has usually centered on the definition of section 16(b), involving the "substantial risk" that physical force may be "used."

    Felony Offense. Note that 18 U.S.C. 16(a) and 16(b) have different requirements regarding whether an offense must be a felony to be a crime of violence. For an offense to be a crime of violence under 18 U.S.C. 16(b), it must be a felony, rather than a misdemeanor. Thus it is clear that a conviction of burglary, which does not have use of force as an element, must be a felony in order to be a crime of violence under 16(b) and hence an aggravated felony. Section 16(a) does not require an offense with use of force as an element to be a felony in order to be classed as a crime of violence. Thus misdemeanor assault, which does have force as an element, could be a crime of violence under 16(a) and thus be an aggravated felony if a sentence of one year or more is imposed. However, arguably any crime of violence must be a felony in order to be classed as aggravated felony under INA 101(a)(43)(F)." Thus misdemeanor assault with a one-year sentence imposed arguably is not an aggravated felony.

    One Year Sentence.

    A sentence of "at least one year" means a sentence of 365 days or more, rather than requiring a "natural or lunar" year of 365 days plus some hours.

    The time served after a parole violation is included within the "sentence imposed" for purposes of determining whether the offense is an aggravated felony.

    The definition of a "suspended sentence" is governed by federal law and includes all parts of a sentence of imprisonment that are ordered, even though not served, irrespective of the label attached under state law.

    A one-year sentence must be imposed for the offense to be a crime of violence. Criminal defense counsel should ensure that the defendant does not receive a sentence imposed of one year or more for any count that is considered a "crime of violence." For example, one conviction of robbery with an 15-month sentence imposed will be considered an aggravated felony. If there are two convictions for robbery, one with an 11-month sentence, and the other with a six-month sentence, imposed to run consecutively, neither conviction will be considered an aggravated felony since neither received a sentence of one year or more.

  7. #7
    The Following Offenses Have Also Been Held To Be Crimes of Violence:

    Robbery (Penal Code 211)
    Conspiracy (Penal Code 182)
    Involuntary manslaughter (Penal Code 192(b), (c))
    Aiding and abetting (Penal Code 31)
    Driving under the influence (Arizona statute)
    Statutory rape, where the victim was less than 14 years old
    Menancing (N.Y. Stat. 120.14)
    Threat to commit crime of violence (18 Pennsylvania Cons. Stat. 2706 (1998))
    Unlawful possession of an unregistered firearm.

    Some Offenses Found Not to be Crimes of Violence:

    Possession of a firearm
    Driving under the influence (Vehicle Code 23152) +
    Drug trafficking
    Possession of a firearm by a felon (Penal Code 12021)
    Accessory after the fact (Penal Code 32)
    Statutory rape, where the victim was 15 years old
    Criminal mischief (intentional marking of another's property by spray painting graffiti on a building and a fence causing damage over $750).
    Unlawfully carrying firearm in place licensed to sell alcoholic beverages.
    This definition is controlled by federal law. Criminal defense counsel should not confuse the definition of crime of violence under 18 U.S.C. 16 with the definitions used for various state-law sentencing purposes.

  8. #8
    C. Cancellation of Removal

    Conviction of an aggravated felony is a statutory bar to cancellation of removal for permanent residents under INA 240A(a) and for non-permanent residents under INA 240A(b), 8 U.S.C. 1229b(a) and (b).

    The predecessor to cancellation of removal for permanent residents was relief under former INA 212(c), 8 U.S.C. 1182(c). For a discussion of relief under INA 212(c) and the U.S. Supreme Court decision of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001), which held the abolition of INA 212(c) relief cannot be applied retroactively to guilty pleas entered before the 1996 IIRIARA Act, see Update to Section "L. Waiver of Deportation (Former 212(c) Relief)."

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  9. #9

    1. In General

    Conviction of an aggravated felony is not at this time a ground of inadmissibility. However, an offense that is an aggravated felony often makes the person inadmissible under some other ground as well. For example, conviction of a drug trafficking aggravated felony is a basis for inadmissibility under the grounds relating to controlled substance conviction and the INS's "reason to believe" that the person is a trafficker. However, if the aggravated felony conviction does not make the person inadmissible under any other ground, or if that ground is waivable, the person may apply for admission. For example, a person convicted of a moral turpitude offense that is also an aggravated felony can waive the offense under INA 212(h), under certain circumstances. A person who is deportable but who is either admissible or inadmissible under a ground that can be waived, is eligible for adjustment of status or immigration through U.S. consular processing abroad.

    This situation may not last. Legislation was introduced but dropped in 1997 to make conviction of an aggravated felony a ground of inadmissibility. There is a good chance that this legislation will be reintroduced and passed at some point in the future.

    2. After Deportation

    A person who has been convicted of an aggravated felony and deported is permanently ineligible to return. A waiver is available in the Attorney General's discretion.

    3. Waiver of Inadmissability Under INA 212(h)

    The INS has discretion to grant a waiver of inadmissibility under INA 212(h) for convictions involving moral turpitude, prostitution, multiple convictions with an aggregate five-year sentence, foreign diplomats asserting immunity, and inadmissibility based on a single conviction of simple possession of 30 grams or less of marijuana. If one of these offenses also amounts to an aggravated felony (e.g., a crime involving moral turpitude which also constitutes a crime of violence with a one year sentence imposed), then 212(h) eligibility depends upon whether the applicant was convicted of the aggravated felony before or after becoming a lawful permanent resident. Conviction of an aggravated felony does not preclude 212(h) relief for applicants who are not permanent residents, or who are lawful permanent residents but were convicted of an aggravated felony before gaining permanent residency.

    In contrast, a person who, since being admitted as a permanent resident, has been convicted of an aggravated felony, is not eligible for relief under INA 212(h). In addition, all permanent resident 212(h) applicants must show seven years between the date they became permanent residents and the date that removal or deportation proceedings were initiated against them. However, a federal District Court in California found this restriction against permanent residents to be unconstitutional.

    Circuit courts, however, have been increasingly rejecting the claim that allowing undocumented aliens with aggravated felony convictions to obtain discretionary relief, while denying it to lawful permanent residents, violates equal protection.

    A federal district court in New York has held that principles of customary international law, as demonstrated by various treaties and human rights declarations, require that a non-citizen be given the opportunity to present the reasons why they should not be deported to an Immigration Judge, rather than be subject to automatic banishment upon conviction of an aggravated felony offense. According to the court, international customary law requires that U.S. officials determine whether deportation of a parent would be in the "best interests" of the child. The least restrictive means to bring the INA into compliance with this customary international law, according to the court, is to extend INA 212(h) relief to all eligible aggravated felons subject to removal, with the possible exception of those convicted of murder, torture, or who are a security threat to the United States.

    Warning: Non-permanent residents brought under expedited administrative removal proceedings for aggravated felony convictions might be unable to apply for INA 212(h) relief.

  10. #10
    St. Cyr's basic holding - that an immigrant who was eligible to apply for 212(c) relief at the time of plea has not lost that eligibility -- extends relief to those who met the following requirements at the time of the entry of the plea:

    (1) They were Lawful Permanent Residents of the United States.
    (2) They had seven years of unrelinquished domicile in the United States.
    (3) They had not actually served five years or more in custody as the result of one or more aggravated felony convictions.
    In addition to these eligibility requirements, the immigrant must establish that s/he merits the favorable exercise of discretion in order to obtain the waiver.

    A conviction that is waived under 212(c) will no longer constitute a ground of deportation, although the INS may join a conviction for a crime of moral turpitude that has been waived with another that has not, to charge deportability for conviction of two CMT offenses.

    What Convictions Can be Waived? Under the Supreme Court's holding, whether the immigrant is now eligible to apply for 212(c) relief depends on the law in effect on the date of the plea.

    In general, any deportable conviction at all can be waived under INA 212(c), except for a firearms or explosives conviction.

    There are several different time periods involved: the nature of the waivable convictions depends on the time period within which the plea was entered:

    If the conviction occurred on or after April 1, 1997, St. Cyr does not require the INS to consider a 212(c) application, since 212(c) was by then completely repealed, and the immigrant was not eligible for that relief at the time of the plea.

    If the conviction pre-dated AEDPA's effective date (April 24, 1996), the immigrant qualifies for 212(c) relief without regard to the restrictions imposed by AEDPA or IIRAIRA. This allows waiver of any conviction at all except a firearms or explosives conviction. Thus, the immigrant pleading guilty during this period can waive any other conviction, including aggravated felony convictions, drug convictions, and convictions of crimes of moral turpitude, assuming all other requirements for 212(c) relief are met.

    For pleas occurring between April 24, 1996 and April 1, 1997 (the effective date of IIRAIRA's 212(c) bar), 212(c) may waive only
    (a) deportation on account of a conviction of one crime involving moral turpitude, committed within five years of admission, or

    (b) deportation on account of two convictions of crimes of moral turpitude where only one or neither carried a potential maximum sentence of one year or more.

    AEDPA eliminated 212(c) relief for aggravated felonies, drug convictions, or any other conviction-based ground of deportation except those CMT-based grounds listed above for pleas entered on or after April 24, 1996. All current aggravated felonies bar 212(c) relief during this period except those added by IIRAIRA.

    One federal district court in New York has questioned whether principles of international law require that the date of the offense, rather than plea, be controlling for non-retroactivity purposes. The same court also suggested that circuit court decisions allowing 212(c) relief only where the conviction pre-dated the 1996 Act were wrongly decided under principles of ex post facto analysis, stating that "it defies common experience to characterize deportation of an alien such as petitioner as anything other than punishment for his crimes."

    Does St. Cyr Extend to Immigrants Whose Convictions Resulted from "Slow Pleas of Guilty" or Convictions at Court or Jury Trial? There is no reason why this relief should not also be available to immigrants who entered no contest pleas, as well as guilty pleas. Similarly, although St. Cyr is quite specific in extending this relief to those who entered a plea, and some of the reasoning is grounded on factors specific to plea agreements, the Court certainly did not hold that a person convicted as a result of a jury trial or no context plea is precluded from eligibility for 212(c) relief. Those issues were not raised or decided in St. Cyr. Logic requires that 212(c) relief should also be extended to those who chose a jury or court trial in reliance on the availability of 212(c) relief in the event of a conviction.

    The clearest example would be a "slow plea" agreement, in which the defendant waives the rights to jury trial and confrontation, and submits the charges to a court trial by allowing the judge to read the police report or on the basis of other stipulated facts or materials. This functions exactly as a plea agreement, except that it is technically a court trial, and virtually all the same waivers are required as for a guilty plea. In terms of the St. Cyr analysis, the "slow plea" procedure is completely indistinguishable from a guilty plea. The only procedural difference is that the defendant enjoys full appellate rights after entry of a slow plea, and this should make no difference in the outcome.

    Even though a jury or court trial involves less savings of prosecutorial and public expense than a plea bargain, the reasoning that it is unfair to disturb settled expectations of eligibility for 212(c) relief by IIRAIRA's retroactive 212(c) bar applies fully to immigrants convicted after trials. St. Cyr obviously did not decide this question, and any implications from the decision on this issue constitute dictum, which does not bind lower courts. If 212(c) relief were retroactively denied to an immigrant convicted after jury trial, that would unfairly penalize those who exercise their right to jury trial, as compared to those who enter a plea. There is authority in other contexts finding it unconstitutional to force a defendant to abandon one constitutional right to secure another. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The courts therefore should not burden the free exercise of the right to jury trial with this penalty, and St. Cyr should be extended to those whose convictions resulted from slow pleas, court trials, and jury trials. It is equally unfair to disturb their settled expectations of eligibility for 212(c) relief as it is to disturb them of those whose convictions resulted from pleas.

    Is Section 212(c) Relief Available Where the Defendant Did Not Have Seven Years Unrelinquished Domicile When the Plea Was Entered? A noncitizen who entered a plea of guilty less than seven years after adjusting status to lawful permanent resident should still be considered eligible to apply for INA 212(c) relief, even though, unlike the petitioner in INS v. St. Cyr, s/he had not by the date of plea accrued the full "lawful unrelinquished domicile of seven consecutive years."

    In an unpublished decision digested in the July 23, 2001 edition of Interpreter Releases (Vol. 78, P. 1205), the BIA ruled that, under the Second Circuit's holding in INS v. St. Cyr, 229 F.3d 406 (2d Cir. 2000), an alien need not have accrued seven years' unrelinquished domicile at the time of his plea agreement in order to qualify to apply for 212(c) relief. The Board reasoned, "[t]he Service often waits several years after an alien is convicted to place him in proceedings and the proceedings often take several years after an alien is convicted to complete." In reply to the Service's argument that a respondent without the required seven years' unrelinquished domicile could not reasonably have relied on 212(c) availability, the Board stated it did not "believe that the Second Circuit requires an alien to show specific reliance on the availability of section 212(c) relief." 78 Interpreter Releases 1205, 1207. This reasoning should apply with equal force to the Supreme Court's decision because the high court adopted the Second Circuit's reasoning with little embellishment.

    While unpublished decisions do not bind the Board absolutely, if an agency decides to depart from its earlier interpretation, it must confront the issue and explain why the change is reasonable. Since no change in law or difference in circumstances justifies a departure from this line of reasoning, it should be followed. This argument was developed by Paul Zoltan.

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