Crimes & Immigration - Norton Tooby
Crimes & ImmigrationNewsletterJanuary, 2016This Newsletter contains selected recent developments incriminal immigration law occurring during January, 2016. Thefull version , which includes all monthly updates, is availablehere.The coded references following each case summary refer tothe title and section number in our practice manuals in whichthe subject of the recent development is discussed more fully.For example, CD 4.19 refers to N. TOOBY & J. ROLLIN,CRIMINAL DEFENSE OF IMMIGRANTS § 4.19 (2007), withmonthly updates online at NortonTooby.com.Andrew J. Phillips, Esq.EditorINSIDESixth Circuit . 1Seventh Circuit . 2Eighth Circuit . 2Ninth Circuit . 2Tenth Circuit . 6RECENT DEVELOPMENTSSixth CircuitAGGRAVATED FELONY – SEXUAL ABUSEOFA MINOR – UNLAWFUL SEXUALINTERCOURSE WITH A MINOREsquivel-Quintana v. Lynch, 810 F.3d 1019,1025 (6th Cir. Jan. 15, 2016) (Californiaconviction under Penal Code § 261.5(c), forunlawful sexual intercourse with a minor,categorically qualified as a sexual abuse of aminor aggravated felony, under INA §1101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A),giving Chevron deference to the BIAprecedent decision in this case, and decliningto apply the rule of lenity: “Faced with thisambiguity, the Board has interpreted “sexualabuse” by referring to the definition of theterm in 18 U.S.C. § 3509(a)(8). In reRodriguez-Rodriguez, 22 I. & N. Dec. 991,995–96 (BIA1999). That provision defines“sexual abuse” as “the employment, use,persuasion, inducement, enticement, orcoercion of a child to engage in, or assistanother to engage in, sexually explicitconduct or the rape, molestation,prostitution, or other form of sexualexploitation of children, or incest withchildren.” Furthermore, the Board draws its 2015 Law Office of Norton Tooby
ConsultationsSince 1989, the Law Offices of Norton Tooby have offered expert advice and highlysuccessful services to immigration attorneys, criminal attorneys, and clients. Ournationwide law practice assists foreign nationals in avoiding adverse immigrationconsequences of crimes anywhere in the country.Immigration LawyersWe investigate criminal histories nationwide, and analyze them to provide(a) cutting-edge immigration-court arguments why a given convictiondoes not trigger removal, and (b) post-conviction efforts to vacate criminalconvictions to avoid immigration consequences.Criminal LawyersWe investigate criminal and immigration histories nationwide and offerstrategies for obtaining (a) immigration-safe dispositions, and (b) postconviction relief to eliminate immigration damage.IndividualsWe investigate your situation to (a) advise your criminal lawyer what pleawill avoid deportation, (b) advise your immigration lawyer on newimmigration-court arguments to avoid removal, and (c) erase convictionsin criminal court to avoid immigration damage.Testimonials:"If you are an immigration lawyer with a defendant who has criminal issues, you only need toknow two words: Norton Tooby." - Dan Kowalski"Brilliant legal strategies."-Ann Benson, Directing Attorney, Washington Defender Association’s Immigration ProjectFor Mr. Tooby’s biography click here.Interested in our services? Contact our office at (510) 601-1300 or submit our Intake Form tobegin the preliminary review process. Once we receive your Intake Form, we will contact youand let you know if we feel we can help. Consultations can be in person or by phone. Visitwww.NortonTooby.com to download the Intake Form.Law Offices of Norton Tooby 2831 Telegraph Avenue, Oakland, CA 94609T: 510.601.1300 F: 510.595.6772 www.NortonTooby.com
definition of “minor” from 18 U.S.C. §3509(a)(2), which defines a “child” as aperson under eighteen. In re V-F-D-, 23 I. & N.Dec. 859, 862 (BIA 2006).”).CD4:19.87;AF:5.70, A.38, B.73;SH:7.69Seventh CircuitRELIEF – CANCELLATION OF REMOVAL FORLPRS – CONTINUOUS RESIDENCEIsunza v. Lynch, 809 F.3d 791 (7th Cir. Jan. 11,2016) (Illinois conviction of possession of 0.1grams of cocaine, under 720 ILCS 570/410,constituted a controlled substancesconviction, stopped the accrual of continuousresidence to determine eligibility for LPRcancellation of removal under INA § 240A(a),8 U.S.C. § 1229b(a), rejecting the argumentthat respondent’s departure and return tothe United States in 2000 restarted the clockto determine eligibility for cancellation ofremoval under INA § 240A(a), 8 U.S.C. §1229b(a): “The Board reasonably construedthe statute, 8 U.S.C. § 1229b, to find thatcommission of a qualifying drug crimepermanently terminated the accrual of timetoward continuous residency. In Matter ofNelson, 25 I. & N. Dec. 410, 413 (BIA 2011),the Board held that commission of a specifiedcrime was a terminating event ‘after whichcontinuous physical presence or continuousresidence could no longer accrue.’”).CD4:24.4;AF:2.4;CMT3:3.4Eighth CircuitIMMIGRATION OFFENSES – FALSE CLAIM OFUS CITIZENSHIPREMOVAL PROCEEDINGS –INADMISSIBILITY -- FALSE CLAIM OF USCITIZENSHIPGodfrey v. Lynch, 811 F.3d 1013 (8th Cir. Jan.22, 2016) (noncitizen made false claim of U.S.citizenship on Form I-9, barring adjustmentof status without waiver; DHS submitted acopy of the I-9 in removal proceedings, andrespondent testified that he did notunderstand what a “U.S. National” was, butrather intended for him employer to believehe was a U.S. citizen).CD4:18.10Ninth CircuitCAL POST CON – VEHICLES – NEW PENALCODE § 1203.43 – RESOURCESAs you know, as of Jan. 1, 2016, we have anew form of California post-conviction reliefto benefit immigrants, Penal Code § 1203.43,withdrawal of plea after DEJ dismissal ofcharges. We want to discuss materialsavailable to help you obtain this relief fordefendants, and discuss monitoringimplementation of the new law.As background, a successfully completed DEJis not a conviction for any California purpose,but is a very damaging drug conviction forimmigration purposes -- even after chargeshave been dismissed under Penal Code §1000.3. Section 1203.43 is a simple 2015 Law Office of Norton Tooby
Publication AnnouncementCalifornia Criminal Defense of Immigrants (CEB 2016)By Norton Tooby & Katherine BradyDetailsWe are happy to announce the publication of the new 600-page CEB book,California Crimes and Immigration, written by Norton Tooby and KatherineBrady.This new practice manual was written specifically for California criminal defenseattorneys, to assist them in representing foreign national defendants by (1)preventing the criminal disposition from triggering an immigration disaster, and(2) preventing the immigration status, and an immigration hold, from sabotagingall criminal dispositions that depend on the client actually emerging intofreedom.The heart of the book consists of nine chapters outlining "safe haven" pleas andsentences in general, and in specific areas such as Assault and Battery Offensesand Burglary Offenses. These chapters describe the specific immigration threatsand their antidotes, making it easier for counsel to comply with the Padillarequirement of giving accurate immigration advice at plea, for a wide range ofCalifornia offenses. In addition, safer alternate pleas are offered, that giveequivalent convictions and sentences, but avoid damaging immigrationconsequences.
procedure that should eliminate this"conviction" for immigration purposes. It issimple because a judge can grant 1203.43 onthe papers without a hearing, since the onlyrequired showing is that the court in factdismissed the defendant's charges underPenal Code 1000.3. (If court records are nolonger available, §1203.43(b) provides that adeclaration plus DOJ record can suffice.)While counties must devise procedure, wehope that §1203.43 relief will be as simple asa §1203.4 dismissal.Section 1203.43 eliminates the conviction forimmigration purposes because the basis ofthe plea withdrawal is legal error: the findingthat Penal Code §1000 misadviseddefendants, including all non-citizendefendants, as to the actual consequences ofDEJ when it said that DEJ would not result inthe loss of any legal benefit. Therefore, thedefendant's DEJ guilty plea is legally invalid.The statute explicitly sets out these findingsat 1203.43(a), so a judge need notindependently make or evaluate the findings.Resources for defenders and immigrationadvocatesThree resources appearat www.ilrc.org/resources/New California Drug Law 1203.431) § 1203.43 Practice Advisory for use incriminal and immigration proceedings2) Model motion and proposed order.Pending completion of state forms for §1203.43 -- which might take a year or more -we urge counsel to submit their own motion.Many thanks to Graciela Martinez of the LosAngeles County Public Defender office forcreating a sample motion and order, which isposted here in fillable PDF.3) One-page Fact Sheet, and copy of the textof § 1203.43. This may be useful ineducating others.In addition, goto ect-of-post-conviction-reliefto see a chart that outlines the immigrationeffect of various forms of state postconviction relief, including new § 1203.43.Implementing and monitoringimplementation of § 1203.43. Some of thismay be old news, but we want to suggestthree priorities.1. Share information aboutimplementation. This is a new law and anew type of law. We can work together toaddress local problems in implementation -judges who demand more than is required,prosecutors who object, problems inobtaining contact information for past DEJrecipients. ILRC and others hope to dooutreach to courts and prosecutors aboutthis, and we appreciate suggestions andcontacts. The one-page fact sheet might beuseful.We also can share best practices. Especiallynow as the parties first react to § 1203.43, itwould be great to get in now to answerquestions and establish good practice. Onebest practice: at least one Santa Clara Countyjudge plans to routinely schedule signing the 2015 Law Office of Norton Tooby
1203.43 order immediately after dismissingcharges for a completed DEJ.If sharing implementation news with thegroup is a problem for any reason, feel freeto just contact me.2. Identify past DEJ non-citizen recipientsand notify them about the new relief.Almost (see below) every non-citizen whocompleted DEJ successfully has a deportabledrug conviction, whether they know it or not.It is a great service to find them so they canfix that.Many offices are having the Prop 47 teamwork on this. A "best practice" tip: In SantaClara County the probation departmentprovided defenders with information on the9,000 persons (citizen and noncitizen) whohave successfully completed DEJ since its1997 inception.For defendants who didn't complete DEJ orshow up for their hearing -- could they comein from the cold and ask to continue withDEJ? If so, they ultimately could benefitfrom § 1203.43. It has no bar based uponinitial failures or passage of time.3. Consider the change to DEJ as you adviseregarding current drug charges. DEJ stillis not a great plea option for a noncitizenwho has a first-time possessory drug charge.A noncitizen who has no drug priors wants tofight for a better alternative disposition,hopefully a non-drug offense, in light of thefact that they don't have any drug priors anda drug conviction is so very damaging toimmigrants. For alternate pleas orstrategies, see the practice advisory citedabove, and see the defender article Note:Drug Charges, updated November 2015,at http://www.ilrc.org/files/documents/8.pdfEven with Penal Code § 1203.43, DEJpresents two dangers to immigrantdefendants. First, as always the defendantcould fail to complete DEJ requirements andend up with a drug conviction. Second, evena successful noncitizen defendant may bevulnerable to removal proceedings duringthe 18 to 36-month DEJ period. In otherwords, DEJ likely will be treated as aconviction until the day that § 1203.43 reliefis granted. A few exceptions are describedbelow.But if the only alternative is a straight drugconviction, DEJ is by far the better option dueto § 1203.43. If the person can get throughthe DEJ period with successful performanceand without being removed, they can get §1203.43 relief and they will have noconviction for immigration purposes,backdated to the original guilty plea.Immigration counsel will argue that anyremoval proceedings should be continued togive the person a chance to complete DEJ(see Practice Advisory), altho unfortunatelymany immigrants have no counsel inremoval proceedings.Finally, several offenses other than simplepossession are eligible for DEJ treatment; seePenal Code § 1000. These include in somecircumstances Health & Safety Code §§11358 and 11368, which are aggravatedfelonies for immigration purposes. If a pleato these offenses can't be avoided, DEJ offersa tremendous possible benefit. 2015 Law Office of Norton Tooby
Best practice for pleading to DEJ:If possible, get an unconditionally suspendedfine or fee, and/or in the case of a permanentresident or refugee who is not yetdeportable, plead to an unspecified"controlled substance." See furtherdiscussion at "Exceptions" below.In all cases: Try to obtain an 18 rather than36-month DEJ period. Advise the defendantthat it is crucial to complete the program,stay out of trouble, not travel outside the U.S.,and generally avoid immigration authoritiesuntil the period is over and they havereceived the § 1203.43 order. Say you willfile for the order. Advise the defendant tocontact an immigration attorney and getthem on retainer just in case the person isever detained or put in removal proceedingsduring this period. There are strongarguments that immigration court shouldcontinue the removal proceedings to give theperson a chance to finish DEJ, but thedefendant probably will need an immigrationlawyer to make those arguments, since thislaw is new to immigration judges as well.Advice on these arguments for immigrationlawyers is in the Practice Advisory citedabove.Exceptions to DEJ as a Conviction. There area few circumstances in which DEJ is not adangerous drug conviction for immigrationpurposes.1. A permanent resident (green cardholder) who is not already deportable for aconviction, and who pleads in DEJ (or regularproceedings) to Health & Safety Code §11377 that involves an unspecified"controlled substance" is not deportable forimmigration purposes and is not at riskduring the DEJ period. This is becauseimmigration authorities cannot prove thatthe conviction involved a federally-definedcontrolled substance for deportabilitypurposes. Counsel must carefully ensurethat the specific substance is not mentionedanywhere in the reviewable record; see Note:Drug Charges, cited above.Unfortunately, under current law this doesnot work for a defendant who isundocumented person or an alreadydeportable permanent resident, unless therecord specifies that khat or chorionicgonadoptrin was involved in 11377. SeeNote: Drug Charges.2. DEJ is not a "conviction" for immigrationpurposes if the only penalty imposed is anunconditionally suspended fee or fine.See Retuta v. Holder, 594 F.3d 1181 (9th Cir.2010). This is because, for a conviction toexist for immigration, there must be apenalty. 8 USC § 1101(a)(48)(A). It appearsfrom Retuta that the education program, N/Aattendance, or other DEJ requirements arenot a penalty for this purpose, and the onlypenalty in DEJ is the fee or fine. If it is notpossible to get the fine unconditionallysuspended, another protection would be toask the judge not to order payment of anyfine or fee until later in the DEJ period, ifsuch a thing is possible. Arguably, until thefine is ordered, there is no convictionbecause there is no penalty.3. In the Ninth Circuit alone, a DEJ frombefore July 15, 2011 is not a conviction forimmigration purposes if it meets these 2015 Law Office of Norton Tooby
California Criminal Defense of Immigrants Newsletter(CEB 2016)By Norton ToobyContinuing Education of the Bar began publishing our California Criminal Defense ofImmigrants E-Newsletter. This newsletter covers the relevant national immigration law thataffects criminal defense of immigrants in California, as well as the California law on thesubject. The case summaries and other developments are cross-referenced to the relevantsections of the new CEB practice manual, California Criminal Defense of Immigrants, sothe newsletter will serve as a cumulative indexed update for the current edition to thepresent on an ongoing basis. You may subscribe to this newsletter from ContinuingEducation of the Bar.The Law Offices of Norton Tooby continues to publish monthly online updates to the3000-page, three-volume Criminal Defense of Immigrants, along with all of our otherpractice manuals, through our Premium Web Updates. These updates are keyed to ourpractice manuals, making it easy for you to check each month to see if a new developmenthas occurred concerning your particular issue, ensuring you are aware of the most recentlegal authorities on each topic.While this office no longer publishes the California Post-Conviction Relief for Immigrantsnewsletter, those interested may obtain the same content, and more, by subscribing to thenew CEB newsletter, California Criminal Defense of Immigrants E-Newsletter. In additionto the California developments on post-conviction relief for immigrants, this newslettercovers other topics of great importance to immigrants, including safe havens that can beused as replacement convictions when a problematic conviction is vacated, and the actualimmigration consequences of the most common California convictions, which areespecially useful in establishing ineffective assistance of counsel grounds for relief.
conditions: it was for simple possession orpossession of paraphernalia (but not use);the person had no drug priors and no priorpretrial drug diversion; and the person didnot violate probation or DEJ conditions. Infact, any "rehabilitative relief" such as Prop36 dismissal, Penal Code § 1203.4 dismissal,etc. will have the same benefit if it meets theabove requirements.CD4:24.6;AF:2.6;CMT3:3.6Thanks to Katherine Brady.CCDOI 20.37ATenth CircuitRELIEF – CANCELLATION OF REMOVAL FORNON-LPRS – CONTINUOUS PHYSICALPRESENCE REQUIREMENTGutierrez-Orozco v. Lynch, 810 F.3d 1243(10th Cir. Jan. 21, 2016) (noncitizen did nothave ten years continuous physical presence,as required to be eligible for cancellation ofremoval for non-Lawful PermanentResidents, under INA § 240A(b), 8 U.S.C. §1229b(b), even though the IJ found thenoncitizen’s testimony was credible;“credibility alone is not determinative underthe guidelines governing an IJ's evaluation ofan applicant's testimony in a removalproceeding: ‘[T]he immigration judge willdetermine whether or not the testimony iscredible, is persuasive, and refers to specificfacts sufficient to demonstrate that theapplicant has satisfied the applicant's burdenof proof,’ weighing ‘the credible testimonyalong with other evidence of record.’ 8 U.S.C.§ 1229a(c)(4)(B) . . . .”). 2015 Law Office of Norton Tooby
residence to determine eligibility for LPR cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a), rejecting the argument that respondent's departure and return to the United States in 2000 restarted the clock to determine eligibility for cancellation of removal under INA § 240A(a), 8 U.S.C. §
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