JUDICIAL REVIEW HABEAS CORPUS EVEN AFTER REAL ID ACT, HABEAS CORPUS CAN BE USED TO CHALLENGE DETENTION The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of removal, deportation, and exclusion and consolidate such review in the court of appeals. The REAL ID Act, however, did not affect the ongoing availability of habeas corpus to challenge the length or conditions of immigration detention. Since the REAL ID Acts enactment on May 11, 2005, the courts of appeals have uniformly upheld the right to file a habeas corpus petition to challenge the lawfulness of detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005); DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assuming without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9 (6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006) (unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v. Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks to AILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12, 2007

JUDICIAL REVIEW QUESTIONS OF LAW Chen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition question of law for purpose of judicial review is not limited to questions of statutory construction), revising prior opinion, 434 F.3d 144 (2d Cir. 2006). JUDICIAL REVIEW AFTER DEPORTATION Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf JUDICIAL REVIEW BIA JURISDICTION TO ORDER REMOVAL Lazo v. Gonzales, __ F.3d __, 2006 WL 2528553 (2d Cir. Sept. 1, 2006) (where IJ found removability, but granted relief, then BIA reverses grant of relief, BIA has jurisdiction to order noncitizen deported without remand to IJ), following Solano-Chicas v. Gonzales, 440 F.3d 1050, 1053-54 (8th Cir.2006); Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1156 (11th Cir.2003); Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006). Disagrees with MolinaCamacho v. Ashcroft, 393 F.3d 937, 940-41 (9th Cir.2004). JUDICIAL REVIEW ISSUE EXHAUSTION Zhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (We are persuaded, both on the language of 1252(d)(1) and on these authorities, that the exhaustion of 'all administrative remedies available to [an] alien as of right' under 8 U.S.C. 1252(d)(1) does not require - as a statutory matter - that a petitioner for relief from removal raise to the BIA each issue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. 1252(d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of subject matter jurisdiction to consider those issues.). JUDICIAL REVIEW EXTREME HARDSHIP QUESTION UNDER INA 212(i) Zhang v. Gonzales, ___ F.3d ___, 2006 WL 1901014 (2d Cir. Jul. 12, 2006) (judicial review of

whether respondent showed extreme hardship for purposes of adjustment of status under INA 212(i) is barred as a discretionary determination under 8 U.S.C. 1252(a)(2)(B)(i)). JUDICIAL REVIEW JURISDICTION LIMITATION DISCRETIONARY DECISIONS DENIAL OF 212(C) WAIVER Avendano-Espejo v. Department of Homeland Sec., __ F.3d __ (2d Cir. May 11, 2006) (court lacks jurisdiction to review discretionary denial of INA 212(c) relief). http://caselaw.lp.findlaw.com/data2/circs/2nd/0340921p.pdf JUDICIAL REVIEW PETITION FOR REVIEW DISCRETIONARY DETERMINATIONS SUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT REVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONS OF LAW ARE RAISED Bugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denial of adjustment of status and INA 212(h) waiver on discretionary basis not subject to judicial review; REAL ID Act of 2005, 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (codified at 8 U.S.C. 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8 U.S.C. 1252(a)(2)(B)(i)). http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf JUDICIAL REVIEW RELIEF 212(C) RELIEF CANCELLATION OF REMOVAL ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUS Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (court did not have jurisdiction to review determination that alien had abandoned her permanent resident alien status for purposes of 212(c) and cancellation of removal eligibility).JUDICIAL REVIEW JURISDICTION OF BIA TO ORDER REMOVAL James v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006) (while the BIA has jurisdiction to order noncitizen removed when IJ found removability, but granted relief, and the BIA then reverses the grant of relief, the BIA does not have jurisdiction to order removal where the IJ initially found noncitizen was not removable, and the BIA reverses; in such case, BIA must remand to IJ), distinguishing Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), following Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-881 (9th Cir. 2003). JUDICIAL REVIEW RES JUDICATA Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf NOTE: The court here engaged in no analysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), or Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), which specifically prohibit the Government from starting removal proceedings based upon convictions occurring prior to adjustment when the Government was aware of those convictions at the time of adjustment and either granted a waiver (Rafipour), or no waiver was needed since the convictions triggered deportation, but not inadmissibility (Rainford). The noncitizen in this case had 21 total convictions, and had been involved in litigating pro se for a number of years at all court levels.

We have stated clearly and without equivocation that an individual who may be deportable for a given offense, but whose status is adjusted is no longer deportable for that offense. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992); Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978); cf. Matter of V-, 1I&N Dec. 273 (BIA 1942).

Medina v. United States, 993 F.2d 499, 503994, 1003 (5th Cir. 1999).

Moosa v. INS, 171 F.3d

We have held, however, that Congress intended to repeal 212(c) as of April 1, 1997, and that relief under that section is not available to aliens whose removal proceedings were brought after that date. LaraRuiz, 241 F.3d at 943-44. There are two limited exceptions to this rule, but neither helps Montenegro. First, aliens who pleaded guilty to an aggravated felony before AEDPAs enactment may apply for 212(c) relief if they would have been eligible for that relief at the time of their pleas. INS v. St. Cyr, 533 U.S. 289, 326 (2001); Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir. 2000). But this exception does not apply to aliens like Montenegro who chose to go to trial; such aliens did not abandon any rights or admit guilt in reliance on continued eligibility for 212(c) relief. Lara-Ruiz, 241 F.3d at 945; Rankine v. Reno, 319 F.3d 93, 100-02 (2d Cir. 2003) (collecting cases). Second, aliens who conceded deportability before AEDPAs enactment, with the expectation that they could seek waivers under 212(c), remain eligible to applyAnselmo, ID#3105 (1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "covers deportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions." Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc). (2) Although the Board of Immigration Appeals disagrees with the court's holding, the decision of the Ninth Circuit that the EAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of the Ninth Circuit. (3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit.

JUDICIAL REVIEW

HABEAS CORPUS EVEN AFTER REAL ID ACT Okeezie v. Chertoff, __ F.Supp.2d __, 2006 WL 1280962 (W.D. Tex. May 4, 2006) (noncitizen with aggravated felony convictions was denied CAT by BIA on 2/3/05; with passage of REAL ID Act, on 5/11/05, the criminal alien bar to petition for review with the Fifth Circuit was removed, but the petition was automatically untimely; district court held that to apply REAL ID Act denial of habeas corpus jurisdiction in this case would be unconstitutional under INS v. St. Cyr, as noncitizen would have no means to obtain judicial review of removal order

JUDICIAL REVIEW PETITION FOR REVIEW VALIDITY OF CHANGE OF AGENCY POSITION When an administrative agency inexplicably departs from past practices, precedents, and/or established procedures, it abuses its discretion. Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) (BIA abused discretion by changing its position without explanation re: 212(c) tolling period); Gonzalez-Batoun v. INS, 791 F.2d 681 (9th Cir. 1986) (BIA abused discretion when it gave no reason for deviation from past practice); Salehpour v. INS, 761 F.2d 1442 (9th Cir. 1985) (abuse of discretion occurs where agency interpretation is inconsistent with its own regulations); Ke Zhen Zhao v. U. S. DOJ, 265 F.3d 83 (2d Cir. 2000) (an abuse of discretion may be found in those circumstances where the government inexplicably departs from established policies). In Sang Seup Shin v. INS, 750 F.2d 122, 125 (D.C. Cir. 1984), the court noted that although agencies like INS and EOIR do have broad discretion in adjustment cases, they cannot proceed "at whim, shedding [their] grace unevenly from case to case." An agency should explain its departures from settled policies, and it may not unaccountably hold relevant one day considerations it disregarded on another. The INS Operations Instruction 245.5(d) notes that the Service should strive to achieve "more uniform decisions with respect to the exercise of discretion in Section 245 cases." This issue is being adjudicated inconsistently within this District, and inconsistent with INS policy nationwide. JUDICIAL REVIEW JURISDICTION LIMITATION QUESTION OF WHAT IJ MAY CONSIDER IN MAKING PSC DETERMINATION IS NOT DISCRETIONARY DECISION Morales v. Gonzales, ___ F.3d ___, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (question of what evidence IJ may consider in making decision whether conviction constitutes PSC is not a discretionary decision, court jdsn under INA 242 (a)2 (d)).

Motion to reopen after removal and illegal reentry is OK LIN v Gonzales.

Murray v. Ashcroft, 321 F. Supp. 2d 385 (D. Conn. 2004), argues that the doctrine of res judicata barred the government from filing additional charges against him following the BIAs August 6, 2002 opinionRes judicata or claim preclusion bars a subsequent action not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac., 94 U.S. 351, 352 (1877); see 18 JAMES WM. MOORE ET AL., MOORES FEDERAL PRACTICE 131.01 (3d ed. 2006). Claim preclusion is sometimes confused with issue preclusion, which bars a subsequent action on an issue that was actually and necessarily determined in the first action. See 18 JAMES WM. MOORE ET AL., MOORES FEDERAL PRACTICE 132.01[1] (3d ed. 2006). ValenciaAlvarez asserts claim preclusion, not issue preclusion, as it is clear that the BIAs decision did not actually and necessarily determine whether the underlying conviction concerned a controlled substance.6

JUDICIAL REVIEW PETITION FOR REVIEW BIA ACTS ILLEGALLY IN DENYING MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER ORDER VACATING CONVICTION Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had

been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes). JUDICIAL REVIEW STREAMLINING Padilla-Padilla v. Gonzales, ___ F.3d ___, 2006 WL 2614167 (9th Cir. Sept. 13, 2006) (because BIA issued a streamlined order, it was required to affirm the entirety of the IJ's decision, including the length of the voluntary departure period granted). http://caselaw.lp.findlaw.com/data2/circs/9th/0273627p.pdf JUDICIAL REVIEW MOTION TO REOPEN BIA NOT BARRED FROM GRANTING MOTION TO REOPEN REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED REGULATION DOES NOT BAR CONSIDERATION OF MOTION TO REOPEN UNDER THOSE CIRCUMSTANCES Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal). JUDICIAL REVIEW ABUSE OF DISCRETION ERROR OF LAW United States v. Almazan-Becerra, ___ F.3d ___, ___, 2006 WL 2129724 (9th Cir. August 1, 2006) ("A district court by definition abuses its discretion when it makes an error of law."), quoting Koon v. United States, 518 U.S. 81, 100 (1996). JUDICIAL REVIEW PETITION FOR REVIEW WAIVER OF ARGUMENT BY FAILURE TO RAISE IT IN OPENING BRIEF United States v. Almazan-Becerra, ___ F.3d ___, 2006 WL 2129724 (9th Cir. August 1, 2006) ("The government tried to save the enhancement at oral argument by pointing to a statement of the counsel of Almazan-Becerra suggesting that the charged conduct involved sales. This argument is waived, however, both for the government's failure to raise it in its opening brief, see Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (on appeal, arguments not raised by a party in its opening brief are deemed waived), and for its failure to raise it before the district court, see Monetary II Ltd. P'ship v. Comm'r, 47 F.3d 342, 347(9th Cir.1995) (As a general rule, an appellate court will not consider arguments which were not first raised before the district court, absent a showing of exceptional circumstances) (internal quotations and citation omitted)."). http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf

JUDICIAL REVIEW PETITION FOR REVIEW COURT OF APPEALS HAS JURISDICTION UNDER REAL ID ACT TO REVIEW QUESTION OF LAW WHETHER BIA APPLIED PROPER LEGAL STANDARD TO DETERMINE WHETHER CRIME WAS PARTICULARLY SERIOUS Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (Court of appeals has jurisdiction under REAL ID Act to review question of law whether BIA applied proper legal standard to determine whether conviction constituted a "particularly serious crime" for purposes of withholding of removal).

JUDICIAL REVIEW PETITION FOR REVIEW DUE PROCESS -- BIAS OF IMMIGRATION JUDGE Reyez-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) (bias of immigration judge her from acting as a neutral fact-finder and prevented her from considering and evaluating evidence relevant to establishing extreme hardship

RELIEF JUDICIAL REVIEW LACHES DOCTRINE IS INAPPLICABLE AGAINST THE GOVERNMENT Savoury v. U.S. Attorney General, ___ F.3d ___, ___, 2006 WL 1426950 (11th Cir. May 25, 2006) (doctrine of laches is inapplicable against government who admitted respondent as LPR despite knowledge of a controlled substances conviction, and later sought to exclude him when he arrived from a trip abroad: "Neither this Court nor the Supreme Court has ever indicated that laches applies against the government. Instead, the Supreme Court has stated that, "[a]s a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest." Hibi, 414 U.S. at 8, 94 S.Ct. at 21. We have gone even further, holding that laches "cannot be asserted against the United States in its sovereign capacity to enforce a public right or to protect the public interest." United States v. Arrow Transp. Co., 658 F.2d 392, 394 (5th Cir. Unit B 1981).The INS does act in the public interest when it enforces the immigration laws of this country. Hibi, 414 U.S. at 8, 94 S.Ct. at 21. That is what happened in this case: after years of failing to do so, the INS finally enforce

Koloamatangi, 23 I. & N. Dec. 548d the immigration laws against Savoury. Laches cannot beasserted to prevent it from doing so.").

Matter of Ayala, 22 I. & N. Dec. 398 (BIA 1998), Matter of T-, 6 I.& N. Dec. 136, 13738 (BIA 1954 Savoury cites the decision in Matter of G-A-, 7 I. & N. Dec. 274 (BIA 1956), where the BIA exercised its discretion to grant 212(c) relief to an alien who had lawfully attained permanent resident status and otherwise met the requirements of that provision. Id. at 276. The special inquiry officer had denied 212(c) relief because he noted that even if it were granted, the respondent would still be subject to deportation under a different section of the INA. Id. at 275. In reversing the denial of 212(c) relief the BIA explained that once it had waived under 212(c) a ground of inadmissibility based on a criminal conviction, a deportation proceeding would not be instituted based on that same criminal conviction, unless the Attorney General revoked the previous grant of relief. Id. That is not what happened here.

Deciding Petitioners nationality claim, no genuine issue of material fact can exist about 7 the claim; otherwise, we must transfer the mater to the district court for resolution. 8 U.S.C. 1252(b)(5)(A)-(B). A genuine issue of fact does exist about whether INS Officer Finnerty actually administered a modified oath of allegiance to Sebastian during his preliminary investigation. This fact, however, is not material: even had Petitioner taken the oath at that time, it would not satisfy the statutory prerequisite for citizenship that Petitioner take the oath of allegiance in open court.See 8 U.S.C. 1448(a) (1988). First Circuits decision in Succar, which held that 8 C.F.R. 245.1(c)(8), the regulation that precludes arriving aliens from seeking adjustment of status in removal proceedings, is invalid. the rationale of Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), hold that the regulation promulgated by the Attorney General, 8 C.F.R. 245.1(c)(8), which precludes arriving aliens from applying for adjustment of status in removal proceedings, is invalid because it is in direct conflict with 8 U.S.C. 1255(a).4The regulation shows that an alien paroled under 8U.S.C. 1182(d) remains an arriving alien regardless of her parole status. The section also creates two exemptions from the definition of arriving alien: 1) aliens paroled into the United States before April 1, 1997, and 2) aliens granted advance parole. However, a plain reading of the regulation clearly shows that both exceptions only exempt these aliens from the definition of arriving alien for the purpose of excluding them from expedited removal proceedings under 8 U.S.C. 1225(b). Accordingly, Delia, as a parolee, was properly deemed an arriving alien within the meaning of section 1.1 q JUD REVIEW applable

1252(a)(2)(D), which states: Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.JUDICIAL REVIEW HABEAS CORPUS EVEN AFTER REAL ID ACT, HABEAS CORPUS CAN BE USED TO CHALLENGE DETENTION The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of removal, deportation, and exclusion and consolidate such review in the court of appeals. The REAL ID Act, however, did not affect the ongoing availability of habeas corpus to challenge the length or conditions of immigration detention. Since the REAL ID Acts enactment on May 11, 2005, the courts of appeals have uniformly upheld the right to file a habeas corpus petition to challenge the lawfulness of detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005);

DeBarreto v. INS, 427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assuming without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App. LEXIS 31388, *9 (6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist. LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006) (unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v. Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks to AILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12, 2007).JUDICIAL REVIEW PETITION FOR REVIEW EXHAUSTION EQUITABLE TOLLING ESTOPPEL DUE PROCESS DaCosta v. Gonzales, __ F.3d __ (1st Cir. May 24, 2006) (court lacks jurisdiction to review claims where BIA was not presented with opportunity to address legal questions raised for the first time on appeal to the circuit court), citing Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005) (circuit courts lack authority "to consider points not squarely raised before the BIA"). http://laws.lp.findlaw.com/1st/051438.html RELIEF JUDICIAL REVIEW NO PETITION FOR REVIEW JURISDICTION TO REVIEW DISCRETIONARY DENIAL THAT DOES NOT PRESENT QUESTIONS OF LAW Elysee v. Gonzales, ___ F.3d ___, 2006 WL 390456 (1st Cir. Feb. 21, 2006) (court of appeals has no petition for review jurisdiction under REAL ID Act to review discretionary denial of cancellation of removal for LPRs, under 8 U.S.C. 1229b(a), where petition fails to present any constitutional or legal questions

JUDICIAL REVIEW AFTER DEPORTATION Spina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf

Edwards v. INS, 393 F.3d 299. Edwards held that, in cases in which an alien accrued more than five years imprisonment subsequent to an INS denial of 212(c) relief on the erroneous ground that AEDPAs amendment or IIRIRAs repeal of that statute applied retroactively, the alien was entitled to nunc pro tunc relief because agency error would otherwise result in an alien being deprived of the opportunity to seek [ 212(c)] relief. Id. at 310-11.6 Hey, state practitioners, we know you regularly seek conditional discharge sentences in all the City/Village/Town courts, especially for non-criminal violation offenses, because of the lack of a term of imprisonment and the lack of supervision that a conditional discharge affords. We know that conditional discharges are regularly offered by prosecutors and imposed by state judges as a way to clear massive New York city, town and village court dockets, and are regularly accepted as a way to quickly resolve a

case and to avoid incarceration. And we know a conditional discharge sentence is one of the most lenient sentences permissible under New York law.

Statistical evidence confirms that conditional discharge sentences are given in the overwhelming majority of misdemeanor offenses prosecuted in New York State. (80,000 in the year 2000 and nearly 70,000 in 2001). And, these numbers do not even include the greater number of defendants who received conditional discharge sentences for violation/petty offenses! Compare these numbers to those receiving probation - less than 10,000 in each of the years reported. See Crime and Justice Annual Report 2000 and 2001 at http://criminaljustice.state. ny.us/crimnet/ojsa/cja_00_01/sec3.pdf (last accessed Nov. 15, 2005).

IN THIS ISSUE:United States V. Ramirez, 421 F.3d 159 (2005) - What State Practitioners Need to Know About the Hazards of Conditional Discharges FPD Fall Seminar Announcement United States Court of Appeals Second Circuit ReviewJUDICIAL REVIEW ISSUE EXHAUSTION Zhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (We are persuaded, both on the language of 1252(d)(1) and on these authorities, that the exhaustion of 'all administrative remedies available to [an] alien as of right' under 8 U.S.C. 1252(d)(1) does not require - as a statutory matter - that a petitioner for relief from removal raise to the BIA each issue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. 1252(d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of subject matter jurisdiction to consider those issues.).

JUDICIAL REVIEW PETITION FOR REVIEW DISCRETIONARY DETERMINATIONS SUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOT REVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONS OF LAW ARE RAISED Bugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denial of adjustment of status and INA 212(h) waiver on discretionary basis not subject to judicial review; REAL ID Act of 2005, 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (codified at 8 U.S.C. 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8 U.S.C. 1252(a)(2)(B)(i)). http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf

8 U.S.C. 1255; 8 C.F.R. 245a.2(m)(1); Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir. 1995). The IJ explained that 8 C.F.R.

245a.2(m)(1) contemplates that an alien who obtains advance parole would be readmitted, rather than treated as a newly-arriving alien applying for admission.7Matter of S-O-S-, 22 I. & N. Dec. 107 (BIA 1998); 8 C.F.R. 245a.2(m) (2002JUDICIAL REVIEW PETITION FOR REVIEW -- JURISDICTION LIMITATION STATUTE DOES NOT BAR JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION OF REMOVAL Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under 8 U.S.C. 1229b or for adjustment of status under 8 U.S.C. 1255(i), because they were based on nondiscretionary grounds). http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf JUDICIAL REVIEW STREAMLINING THREE JUDGE PANEL Purveegiin v. Gonzales, __ F.3d __ (3d Cir. Jun. 1, 2006) (court has jurisdiction to review question of whether BIA member responsible for an appeal erred in not referring the appeal to a three-member BIA panel). But see, Guyadin v. Gonzales, __ F.3d __ (2d Cir. May 30, 2006). http://caselaw.lp.findlaw.com/data2/circs/3rd/043797p.pdf

JUDICIAL REVIEW PETITION FOR REVIEW COURT OF APPEALS HAS JURISDICTION TO CONSIDER CLAIMS OF ABUSE OF DISCRETION AND VIOLATION OF DUE PROCESS IN DENIAL OF REQUEST FOR CONTINUANCE OF REMOVAL PROCEEDING Khan v. Attorney General, ___ F.3d ___, 2006 WL 1377054 (3d Cir. May 22, 2006) (court of appeals jurisdiction to consider arguments that BIA erred in affirming denial of request for continuance of removal hearing as abuse of discretion and as a violation of due process).JUDICIAL REVIEW JURISDICTION LIMITATION NO BAR UNLESS REMOVAL ORDER GROUNDED ON LISTED OFFENSE McAllister v. United States Atty Gen., __ F.3d __ (3d Cir. Apr. 10, 2006) (for purposes of jurisdictional bar at 8 U.S.C. section 1252(a)(2)(C), a noncitizen is not "removable for reason of having committed [an enumerated] criminal offense" unless the final order of removal is grounded, at least in part, on one of those enumerated offenses). http://caselaw.lp.findlaw.com/data2/circs/3rd/034513p.pdf JUDICIAL REVIEW PETITION FOR REVIEW DEFERENCE QUESTION WHETHER COURT OF APPEALS OWES ANY DEFERENCE TO BIA STREAMLINING RUBBER STAMP APPROVAL OF IMMIGRATION JUDGE DECISION Ng v. Attorney General, ___ F.3d ___, ___ n.4 (3d Cir. Feb. 7, 2006)(open question whether court of appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration Judge's decision: "We have also previously questioned whether a BIA decision is entitled to deference when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. 1003.1(e)(4). See Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 ["[I]t would seem to be, at the very least, an open question as to whether an IJ's decision affirmed through the streamlining process would be

entitled to Chevron deference . . . [D]eferring to the reasoning of an IJ from which the BIA would be free to depart in other cases would seem highly problematic."); cf. Singh, 383 F.3d at 152 ("[T]he BIA, by affirming without opinion, gave no considered and authoritative agency-wide interpretation of the statute . . . .")). http://caselaw.lp.findlaw.com/data2/circs/3rd/044672p.pdf

JUDICIAL REVIEW -- RES JUDICATA EXCEPTION Duvall v. Attorney General, ___ F.3d ___, 2006 WL 278861 (3d Cir. Feb. 7, 2006) (order granting habeas relief from an order of removal is vacated where a litigation error by the INS, resulting in an adverse determination on the issue of alienage during deportation proceedings, did not preclude the government from thereafter seeking to remove the alien based on subsequent criminal acts). http://caselaw.lp.findlaw.com/data2/circs/3rd/044412p.pdf RES JUDICATA

See Hamdan v. Gonzales, 4 6 25 F.3d 1051, 1059-60 (7th Cir. 2005); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703-04 (6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d (The doctrines of res judicata and collateral estoppel are applicable to administrative proceedings when an agency is acting in a judicial capacity.); cf. Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (applying res judicata to administrative proceedings); Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir. 1997) (same); SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1463-64 (2d Cir. 1996) (same). But cf. Title v. INS, 322 F.2d 21, 23-24 (9th Cir. 1963) (rejecting application of doctrine to preclude alien from relitigating issue of membership in communist party, previously resolved in denaturalization proceedings), rejected by Kairys, 981 F.2d at 939-41, and distinguished by Fedorenko, 19 I. & N. Dec. at 62-64 ([W]e do not violate Congress intent if we apply collateral estoppel .JUDICIAL REVIEW PETITION FOR REVIEW REAL ID ACT REPEALED ALL JURISDICTIONAL BARS TO PETITION FOR REVIEW OF FINAL REMOVAL ORDERS EXCEPT THOSE REMAINING IN 8 U.S.C. 1252 Papageorgiou v. Gonzales, __ F.3d __, 2005 WL 1490454 (3d Cir. June 24, 2005) (agreeing with holding of Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2005 U.S. App. LEXIS 9912 (9th Cir. 2005)). JUDICIAL REVIEW IMMIGRATION JUDGE DECISION CONFLICTED WITH DOCUMENTARY EVIDENCE Zhang v. Gonzales, __ F.3d __ (3d Cir. April 21, 2005) (petition for review granted where Immigration Judge failed to reconcile his decision with the documentary evidence produced by noncitizen respondent). http://caselaw.lp.findlaw.com/data2/circs/3rd/032111p.pdf

JUDICIAL REVIEW RES JUDICATA Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf

JUDICIAL REVIEW GOOD MORAL CHARACTER Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review). CRIME OF MORAL TURPITUDE IMMIGRATION CONSEQUENCES JURISDICTION RESTRICTION Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004) (conviction of one crime of moral turpitude precludes court of appeals from exercising petition for review jurisdiction over final removal order).

JUDICIAL REVIEW RES JUDICATA COLLATERAL ESTOPPEL United States v. Castillo-Basa, __ F.3d __, 2007 WL 570326 (9th Cir. Feb. 26, 2007) (doctrine of collateral estoppel, applied in the criminal double jeopardy context, prevents government from charging illegal entrant with perjury where during the initial illegal re-entry prosecution, the government could not find the taped record of the deportation hearing, but later finds the tape after acquittal; The Double Jeopardy Clause does not only bar a second prosecution on the same charge of which a defendant has been previously acquitted (or convicted). It also prevents the government from seeking to prosecute a defendant on an issue that has been determined in the defendant's favor in a prior prosecution, regardless of the particular offense involved in the earlier trial.). In some cases, you may also be able to raise retroactivity concerns based on the length of time that has passed since the plea. The St Cyr Court stated that there is no single test for assessing retroactive effect. Thus, while reasonable reliance is one way of establishing a retroactive effect, retroactivity concerns are also raised when time has passed and the affected individuals have developed interest in repose. See, e.g., United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O'Connor, J., concurring) (describing interests of repose in curbing retroactive legislation). Application of a rule that looks only at the length of domicile at the time of the plea would violate these interests by allowing for mandatory deportation of persons who may have pled guilty to an offense a few years after obtaining their lawful permanent residency, but who attained their seven years of lawful domicile long before the enactment of 1996 laws. ILLEGAL REMOVAL OF UNITED STATES CITIZENS Occasionally, persons are placed in removal proceedings, and even removed, even though they are United States citizens. E.g., Diaz v. Reno, 40 F.Supp. 2d 984 (N.D. Ill.1999) (U.S. citizen who had been ordered summarily excluded from the United States mounts several claims related to summary exclusion after returning to the United States) http://209.85.165.104/search?q=cache:O5C0f5l5kxsJ:www.law.nyu.edu/alumni/laa/lecture/docu

ments/diaz-bivensclaim.pdf+Diaz+v.+Reno&hl=en&ct=clnk&cd=1&gl=us ; Fierro v. INS, 66 F. Supp. 2d 229 (D. Mass. 1999) (court enjoins removal of individual pend-ing resolution of claim to United States citizenship). JRAD: The core notion, in Massachusetts as in many other jurisdictions, is that a nunc pro tunc order is appropriate primarily to correct the record at a later date to make the record reflect what the court or other body actually intended to do at an earlier date but did not sufficiently express or did not get around to doing through some error or inadvertence. Thus, a clerical mistake in a judgment might be corrected nunc pro tunc when discovered later or a franchise sought as of October 1 might be backdated to that date where the application was timely made Perkins v. Perkins, 114 N.E. 713, 713-14 (Mass. 1917). However, it is clear that there are limits on the court's authority to make retroactive revisions to prior orders. In Perkins itself, the court said that "a defect in a judgment, order or decree which expressed exactly the intention of the court at the time when it was made cannot be remedied by a nunc pro tunc entry." Id. at 714.(1)

CA3 Extends St. Cyr to All Individuals Convicted of a Pre-IIRAIRA Aggravated Felony http://www.aila.org/content/default.aspx?docid=21953 The court held that IIRAIRA's repeal of 212(c) cannot be applied retroactively to preclude from relief otherwise eligible persons convicted of a pre-IIRAIRA aggravated felony, whether by plea or by trial, because the repeal attached new legal consequences to the conviction and resulting sentence. (Atkinson v. Att'y Gen. of the U.S., 3/8/07). AILA Doc. No. 07032661 RELIEF NON LPR CANCELLATION Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review

RELIEF NON-LPR CANCELLATION OF REMOVAL JUDICIAL REVIEW Lopez v. Gonzales, ___ F.3d ___ (7th Cir. Oct. 26, 2005) (while calculation of continuous residence is a statutory issue over which the court has jurisdiction, whether the respondent lacks good moral character is a discretionary issue, over which the court lacks jurisdiction). http://caselaw.lp.findlaw.com/data2/circs/7th/042959p.pdf

First CircuitRELIEF WAIVERS 212(H) RELIEF CANCELLATION STOP-TIME RULE Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an immigrant previously . . . admitted . . . as an alien lawfully admitted for permanent residence, even though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore was bound, by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for purposes of cancellation of removal under INA 240A(a), the phrase lawfully admitted for permanent residence to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala because of 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v. Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html RELIEF CANCELLATION STOP TIME RULE IMPERMISSIBLY RETORACTIVE Mulholland v. Ashcroft, __ F.Supp.3d __ (E.D.N.Y. Oct. 25, 2004) (IIRAIRA Stop-Time rule cannot be applied to bar cancellation of removal based upon pre-IIRAIRA conviction of a crime involving moral turpitude). RELIEF 212(c) CANCELLATION STOP-TIME RULE IS NOT TRIGGERED RETROACTIVELY BY A CONVICTION THAT PRECEDED ITS ENACTMENT Gonzalez-Garcia v. Gonzales, ___ F.3d ___, 2005 WL 3047411 (5th Cir. Nov. 16, 2005) (convictions that pre-date the April 1, 1997 effective date of 8 U.S.C. 1229b(d)(1) [cancellation stop-time rule] do not stop the clock for purposes of cancellation of removal [or former INA 212(c)]). http://caselaw.lp.findlaw.com/data2/circs/5th/0460385cv0p.pdf NOTE: This is a very strange decision, in that it assumes that the stop-time rule for cancellation of removal applies to applications for relief under former INA 212(c), and seems to state that cancellation of removal is barred to any LPR convicted of a crime of moral turpitude DETENTION BOND HEARING FOR "ARRIVING ALIENS" RETURNING ON ADVANCE PAROLE Shahwan v. Certoff, ___ F.Supp.2d ___, 2005 WL 3369991 (N.D. Cal. Dec. 12, 2005) (immigration authorities cannot deny bond hearing under 8 C.F.R. 1003.19(h)(2)(i)(B) [no bond hearing for "arriving aliens"], to noncitizen granted "advance parole" pending adjustment of status where the noncitizen was not properly notified that accepting advance parole would result in denial of bond without possibility of hearing).

DETENTION MANDATORY HABEAS CHALLENGE TO OVERLONG DETENTION If the government stayed the IJs bond order based on 8 CFR 1003.19(i)(2), the "automatic stay" regulation, and has not obtained an "emergency stay" from the BIA, under 8 CFR 1003.19(i)(1)), then counsel may be able to follow a successful habeas in the Ninth Circuit. See Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. March 1, 2004).

The term "arriving alien" is not defined in the Immigration and Nationality Act [INA], but is defined by regulation at 8 C.F.R. 1001.1(q): The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-ofentry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.

DETENTION MANDATORY DETENTION INAPPLICABLE TO ARRIVING ALIENS INA 236 applies only to those who have been "arrested on a warrant" issued by the AG (or DHS). See INA 236(a). Arriving aliens are only "detained" under INA 235. They are not "arrested on a warrant." Therefore, INA 236(c) does not apply to arriving aliens. Thanks to Lisa Brodyaga.

If a noncitizen is held past the 48 hours, or is held on the basis of an illegal "investigatory" hold, s/he can sue the custodial facility for false imprisonment. 8 C.F.R. 287.7(a) refers to the purpose of the detainer being ICE seeking custody to arrest and remove because immediate custody by ICE is impracticable. That appears to essentially require an NTA or ICE warrant of arrest as a basis for the detainer, i.e., just like any other detainer from counties or states based on an outstanding warrant. In practice, however, the detainer precedes issuance of an NTA or Warrant of Arrest. 8 C.F.R. 287.7(b) lists officers able to issue a detainer. 8 C.F.R. 287.7(b)(8) includes any other immigration officer needing authority to issue a detainer under INA 287(d)(3), who is given the authority to issue a detainer. This seems to imply that the statutory authority for a detainer flows from INA 287(d), which is limited to noncitizens arrested for controlled substance violations. 8 C.F.R. 287.7(c) requires that state and local law enforcement provide records necessary to determine if issuing detainer/NTA is appropriate. It states the criminal justice agency requesting such action (issuing detainer) shall provide said records. That is, authority flows from INA 287(d) that a detainer only issues when requested by the state or local agency under INA 287(d) not that ICE decides to issue a detainer absent a request. 8 C.F.R. 287.7(d) then allows issuance of the detainer, after a determination by ICE (based on a request from a state and local agency under INA 287(d).

GOOD MORAL CHARACTER Where a showing of Good Moral Character is required, the noncitizen must pass two hurdles: First, the applicant cannot have a conviction on the list enumerated in INA 101(f), 8 U.S.C. 1101(f), during the period for which Good Moral Character must be shown, in order to avoid a complete bar to showing GMC. Second, the regulations contain a catch-all provision, 8 CFR 316.10(b)(3)(iii), which includes a much broader group of problems, including a conviction listed on INA 101(f) committed prior to the beginning of the period during which Good Moral Character must be shown. This second hurdle is not a complete bar to showing Good Moral Character. The agency must weigh positive factors against negative factors. Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986).

JUDICIAL REVIEW AFTER DEPORTATION Spina v. Department of Homeland Sec., 470 F.3d 116 (2d Cir. Nov. 28, 2006) (court maintains jurisdiction to review order of removal even after petition has been physically removed from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf

Obioha v. Gonzales, 431 F.3d 400, 408 (4th Cir. 2005). The Board abuses its discretion when it "fails to offer a reasoned explanation for its decision, distorts or disregards important aspects of the aliens claim." Malhi v. INS, 336 F.3d 989, 993JUDICIAL REVIEW PETITION FOR REVIEW -- JURISDICTION LIMITATION STATUTE DOES NOT BAR JUDICIAL REVIEW OF NONDISCRETIONARY OR PURELY LEGAL ISSUES OF ELIGIBILITY FOR CANCELLATION OF REMOVAL Sepulveda v. Gonzales, ___ F.3d ___ (2d Cir. May 4, 2005) (jurisdiction limitation, 8 U.S.C. 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under 8 U.S.C. 1229b or for adjustment of status under 8 U.S.C. 1255(i), because they were based on nondiscretionary grounds). http://caselaw.lp.findlaw.com/data2/circs/2nd/0340643p.pdf NATURALIZATION U.S. "NATIONAL" Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (registering with the Selective Service, taking oath of allegiance, and applying for derivative citizenship, without a grant of such application, is insufficient to confer "national" status).

CITIZENSHIP United States citizenship of the respondent can be raised as a defense to removal. Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995). The government bears the heavy burden of proving alienage through "clear, unequivocal, and convincing evidence." Scales v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000) (quoting Woodby v. INS, 385 U.S. 276, 277 (1966)); see also LopezUrenda v. Ashcroft, 345 F.3d 788, 795 (9th Cir. 2003) (citations omitted); 8 U.S.C. 1229a(c)(3)(A). As the Ninth Circuit has explained, "[t]his burden of proof is much more than a mere preponderance of the evidence. The evidence must not leave the issue in doubt." Lim v.

Mitchell, 431 F.2d 197, 199 (1970) (citation omitted); see also Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995) (noting that the clear and convincing evidence standard is a "heavier burden than the preponderance of the evidence standard") (citation omitted). Because a United States citizen cannot be removed from the country, reliable proof of alienage in a removal proceeding is constitutionally required. As the Supreme Court has long recognized, "[t]o deport one who . . . claims to be a citizen[ ] obviously deprives him of liberty, . . . [and] may result also in loss of both property and life; or of all that makes life worth living." Agosto v. INS, 436 U.S. 748, 753 (1978) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)); cf. Bridges v. Wixon, 326 U.S. 135, 154 (1945) ("[D]eportation . . . visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness."). Thanks to Jennifer C. Chang for this argument.Tovar-Alvarez v. U.S.Attorney General, ___ F.3d ___, 2005 WL 2561503 (11th Cir. Oct. 13, 2005) (noncitizen must participate in public citizenship ceremony in order to fully naturalize PARTICULARLY SERIOUS CRIME Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (IJ erred in relying on facts in a Washington appellate court's opinion to determine whether petitioner's prior conviction was for a particularly serious crime, but a large portion of the facts relied upon applied to offenses for which she was not convicted). http://caselaw.lp.findlaw.com/data2/circs/9th/0570672p.pdf RECORD OF CONVICTION PARTICULARLY SERIOUS CRIME LIMITED TO RECORD OF CONVICTION Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (only the record of conviction and sentencing information may be considered in determining whether Morales's conviction was for a particularly serious crime."), citing In re L-S-, 22 I. & N. Dec. 645, 651 (BIA 1999). RELIEF 212(C)

RELIEF DATE OF PLEA DETERMINES WHETHER IIRAIRA REPEAL OF 212(C) RELIEF BARS RELIEF Alvarez-Hernandez v. Acosta, ___ F.3d ___, ___ n.19, 2005 WL 375683 (5th Cir. February 17, 2005) ("We find that the date of a plea of guilty, and not the date that judgment of conviction is ultimately entered, is determinative of whether the retroactive application of the IIRIRA bar to an aliens claim for 212(c) relief is impermissible under St. Cyr. Accordingly, because he pleaded guilty before the effective date of the IIRIRA, Alvarez is not precluded from seeking 212(c) relief."). RELIEF 212(C) RELIEF RELIANCE INTERESTS Alvarez-Hernandez v. Acosta, ___ F.3d ___, ___ n.19, 2005 WL 375683 (5th Cir. February 17, 2005) ("Our court has recognized the importance placed by the Supreme Court upon protecting the reliance interests of aliens who, prior to the IIRIRA, had waived their trial rights and entered guilty pleas in exchange for an opportunity to apply for 212(c) relief. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 301 (5th Cir. 2002) (The [St. Cyr] Court found that aliens, like St. Cyr, who entered plea agreements with the government before IIRIRA became effective almost certainly relied upon the likelihood of receiving a discretionary waiver of deportation from the Attorney General a possibility that the new IIRIRA provision eliminated - when deciding to forgo their right to a trial.). Other circuits have likewise noted the importance that protecting reliance interests played in the Courts St. Cyr decision. See Ponnapula v. Ashcroft, 373 F.3d 480, 492 (3d. Cir. 2004) ("St. Cyr is principally concerned with the reasonable reliance interests

of aliens who enter into plea agreements as a class."); Rankine v. Reno, 319 F.3d 93, 102 (2d. Cir. 2003) ("The issue of reliance has played a central role in the Supreme Courts and the circuit court s reasoning with respect to the retroactivity of the IIRIRA and AEDPA."); Chambers v. Reno, 307 F.3d 284, 289 (4th Cir. 2002) ("In reaching [its] conclusion, the Court focused on an aliens reasonable reliance on the possibility of discretionary relief under INA 212(c) as one of the most important factors prompting him to forego trial and enter a plea agreement."); Domond v. INS, 244 F.3d 81, 86 (2d. Cir. 2001) (finding that expectation interests of alien in St. Cyr were "especially strong" when his guilty plea was entered before the effective date of the AEDPA, "because an alien is likely to consider the immigration consequences when deciding whether and how to plead")."). RELIEF 212(C) RELIEF ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005) (noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible for INA 212(c) relief under INS v. St. Cyr; following rule that seven years for domicile for 212(c) stops at time of application for 212(c)). RELIEF 212(C) RELIEF NONCITIZEN ERRONEOUSLY ADMITTED AS LPR WAS NOT ELIGIBLE TO APPLY FOR 212(C) RELIEF Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where INS erroneously granted LPR status to noncitizen who had prior aggravated felony conviction, noncitizen was ineligible for 212(c) relief in removal proceedings). RELIEF 212(C) RELIEF LAWFUL DOMICILE UNREVOKED DOMICILE = LAWFUL DOMICILE EVEN IF LPR WOULD NOT HAVE BEEN GRANTED IF CRIMINAL HISTORY HAD BEEN KNOWN While a noncitizen must be a lawful permanent resident to obtain a waiver under INA 212(c), and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen who obtained LPR status though amnesty legalization, even though s/he was not technically qualified because of a criminal offense committed while s/he was a temporary resident, should still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and therefore no fraud could have occurred), and the failure of the INS to rescind the temporary status prior to adjustment bars the INS from denying that they are lawful permanent residents now. But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005). If the government mistakenly granted lawful temporary residence to your client, the government's remedy was to terminate the LTR status. See INA sec. 245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec. 216(BIA 1990). Having failed to terminate, your client is a resident. See INA sec. 246; Matter of Belenzo, 17 I. & N. Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status granted under sec.245 or 249). Under the rescission cases and statute, the U.S. can rescind at any time if a noncitizen received LPR status by fraud. After having LPR status for five years the government can't rescind in the absence of fraud. Even if a noncitizen gets LPR status by fraud, she or he can still apply for 212(c) if she or he gets a 237(a)(1)(H) waiver to forgive the fraud. Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993). See also Perez-Enriquez v. Gonzales, 411 F3rd 1079 (9th Cir 2005). Thanks to Dan Kesselbrenner http://www.ilw.com/immigdaily/cases/2005,1227-arellano.pdf

Can dismissed charges be considered,

http://209.85.165.104/search?q=cache:ZCl5W02BNSUJ:www.ca3.uscourts.gov/opinarch/05163 2p.pdf+Balogun+v.+Ashcroft,+270&hl=en&ct=clnk&cd=5&gl=us

In United States v. Robinson, 967 F.3d 287 (9th Cir. 1992), the Ninth Circuit concluded that under California law a probation order is not a judgment when the imposition of sentence is suspended. See id. at 293. The Ninth Circuit noted that California law provides: [W]hen a sentencing court grants probation after a conviction, it may suspend the imposition of sentence, in which case no judgment of conviction is rendered, or it may impose sentence and order its execution to be stayed. In the latter case only, a judgment of conviction is rendered. Id. (citing People v.Arguello,381 P.2d 5,6 (Cal.1963)); see also United States v.Haggerty,85 F.3d 403,406 (8th Cir. 1996) (citing Robinson for the proposition that a probation order is not a judgment). In Stallingss case, there was no judgment of conviction entered and the appropriate time for revoking his probation and entering judgment has lapsed. See Cal. Penal Code 1203.3(a) (The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. . . .); see also In re Perez, 418 P.2d 6, 11 (Cal. 1966) (If probation was timely revoked, judgment could be imposed at any time thereafter.); Smith, 90 Cal. Rptr. at 814 (It is also settled that an order revoking probation, to be valid, must be made within the period fixed in the order of probation. If not revoked within that period, the probation terminates automatically on the last day.). Accordingly, no valid judgment has been entered against Stallings and, therefore , the enhanced sentence imposed in reliance upon the California conviction was improper.RELIEF 212(C) RELIEF JURY TRIAL BAR Carranza-de Salinas v. Gonzales, 477 F.3d 200 (5th Cir. Jan. 23, 2007) (noncitizen convicted after jury trial is eligible for relief under former INA 212(c), if the noncitizen can affirmatively establish actual, subjective reliance, i.e., that s/he waited to apply for 212(c) defensively, before an IJ, rather than file affirmatively with the DD); accord, Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004); Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006) (Restrepo reliance or reliance on an affirmative 212(c) possibility-requires an individualized showing of reliance that includes a belief that waiting would improve the chances of obtaining the waiver based on a stronger case of rehabilitation or other equities); see Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) (allowing all convicted after jury trial to apply for 212(c) relief). The Carranza argument can be raised in any circuit, and may be especially promising in the Fourth Circuit. See Olatunji v. Ashcroft, 387 F.3d 383, 389-91 (4th Cir. 2004).

RELIEF 212(C) RELIEF ST CYR 212(C) RELIEF AVAILABLE DESPITE LACK OF ACCRUAL OF SEVEN YEARS DOMICILE BY TIME OF GUILTY PLEA Alvarez-Hernandez v. Acosta, ___ F.3d ___, 2005 WL 375683 (5th Cir. Feb. 17, 2005) (noncitizen alien need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible for INA 212(c) relief under INS v. St. Cyr; following rule that seven years for domicile for 212(c) stops at time of application for 212(c)). RELIEF 212(c) LEAVING UNITED STATES WHILE 212(c) PENDING A noncitizen LPR who leaves the United States during removal proceedings does not abandon a request for INA 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988), LPR respondent was convicted of possession of marijuana, proceedings commenced and LPR conceded deportability as charged in a hearing before the IJ, applied for a 212(c) waiver and the hearing was continued for investigation. Then, the LPR departed the United States for a temporary visit abroad during the course of the pending deportation proceeding in which he had applied for 212(c), and returned to the United States. The IJ terminated proceedings and ruled that the 212(c) waiver application had been abandoned. The BIA held that the IJ erred. The LPR's departure did not interrupt the proceeding, and it could continue, assuming LPR still was deportable on same grounds. The INS did not need to start a new proceeding, but could issue another OSC (NTA) or amend if they chose; and the LPR had not abandoned his application for 212(c). Thanks to Lory Rosenberg for this information. It should be noted, however, that the noncitizen might not be admitted (or admissible) to the United States upon return. See INA 101(a)(13)(C). On the other hand, this could be a strategy for avoiding Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005) issues. RELIEF 212(C) RELIEF GETTING AROUND MATTER OF BLAKE Matter of G-A-, 7 I. & N. Dec. 274 (BIA 1956) (noncitizen in deportation proceedings allowed to apply for INA 212(c) relief where noncitizen had traveled out of the United States after conviction but before the deportation proceedings, on the theory that the INS should not have admitted the person after the conviction without a 212(c) waiver and that an IJ can grant the 212(c) waiver nunc pro tunc to the prior post-conviction/pre-deportation proceedings entry). See also, Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971).RELIEF WAIVERS 212(H) RELIEF CANCELLATION STOP-TIME RULE Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an immigrant previously . . . admitted . . . as an alien lawfully admitted for permanent residence, even though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore was bound, by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for purposes of cancellation of removal under INA 240A(a), the phrase lawfully admitted for permanent residence to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala because of 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v. Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html

Rainford, ID#3191 A respondent who is convicted of criminal possession of a weapon is deportable under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2)(C) (Supp. II 1990); however, such a conviction does not preclude a finding of admissibility in connection with an application for adjustment of status under section 245(a) of the Act, 8 U.S.C. 1255(a) (1988), and it may not serve as a ground of deportability if the respondent's status is adjusted to that of a lawful permanent resident. Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978), followed. Matter of V-, 1 I&N Dec. 293 (BIA 1942), distinguished. Gabryelsky, ID#3213 (1) A waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c) (Supp. IV 1992), may be used in conjunction with an application for adjustment of status by an alien who is deportable for both drug and weapons offenses; thus a lawful permanent resident alien who has been convicted of a weapons violation is not ineligible to apply for adjustment of status and may concurrently apply for section 212(c) relief to waive his deportability arising from his drug conviction. (2) Under the regulations at 8 C.F.R. 245.1(e) (1993), an alien may concurrently apply for adjustment of status and section 212(c) relief. (3) An applicant for adjustment of status is not precluded from concurrently applying for a waiver of inadmissibility under section 212(c) of the Act to waive another deportable offense, even though section 212(c) of the Act would not separately and independently waive all grounds of deportability.

An intent to deceive is not the same as an intent to defraud. In United States v. Regent Office Supply Co., Inc.,88 the Second Circuit Court of Appeals held that "an intent to deceive, and even to induce, may have been shown; but this does not, without more, constitute the 'fraudulent intent' required by the statute."89 Recently, a district court in Missouri, in a bank fraud case, noted that an intent to deceive customers was not the same as an intent to defraud them.90

POST CON RELIEF GROUNDS INEFFECTIVE ASSISTANCE REMEDY RETURN TO PRE-ERROR STAGE OF PROCEEDINGS Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding). http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf POST-CONVICTION NUNC PRO TUNC ORDER EFFECTIVE Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas courts nunc pro tunc correction of internally inconsistent criminal judgment was a proper use of nunc pro tunc under Kansas law; as a correction of record made to properly reflect the original judgement, the nunc pro tunc judgment was properly considered by the BIA, and such consideration does not contradict RenteriaGonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) rule that vacated conviction remains a conviction for immigration purposes).

Second CircuitCRIMES OF MORAL TURPITUDE JUDICIAL RECOMMENDATION AGAINST DEPORTATION REMEDY FOR IAC AT SENTENCE REQUIRES PLACING DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT OCCURRED, INCLUDING ISSUEING VALID JRAD WITHIN REQUIRED PERIOD Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled). In determining whether nunc pro tun relief could be applied in this case, the court looked at the following issues: 1. Statutory bar: "A court may not award equitable relief in contravention of the expressed intent of Congress. See INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA had granted nunc pro tunc relief in the past, and noted that Congress never amended INA 212(c) to bar such grants. Id. 2. When nunc pro tunc relief should be afforded: The court stated generally that "where an agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68." Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration context, the court found that nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was erroneously denied the opportunity to apply the relief due to an error on the part of the agency, and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated that the noncitizen, outside an illegal reentry context, did not need to show that a denial of the relief would result in a denial of due process. 3. What error may nunc pro tunc relief be used to correct: Despite arguments that the doctrine of nunc pro tunc may only be used to correct inadvertent errors, and not to remedy a defect in a judgment order, the court held that in the immigration context nunc pro tunc relief was available to correct such defects in the immigration context. Edwards v. INS, 393 F.3d, at 309 n. 12. POST CON - TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF WASHINGTON STATE Washington v. Littlefair, 112 Wash.App. 749, 51 P.3d 116 (2002) (one-year statute of limitations to bring collateral attack equitably tolled from date of plea until defendant first discovered immigration consequences). TIME LIMIT FOR FILING STATE POST CONVICTION RELIEF - OREGON Benitez-Chacon v. State of Oregon, 178 Or. App. 352 (2001) (petition for post conviction relief subject to two year statute of limitations running from date of final judgment).

Non-discretionary actions,

however, and purely legal determinations made by the agency, remain subject to judicial review. See, e.g., Sepulveda v. Gonzales, 407 F.3d 59, 63 (2d Cir. 2005) ([Section]1252(a)(2)(B) does not bar judicial review of nondiscretionary, or purely legal, decisions. . . .). Determination of eligibility for adjustment of status unlike the granting of adjustment itself is a purely legal question and does not implicate agency discretion. The determination at issue here, whether a prior conviction precludes eligibility for adjustment of status, was also at issue in Sepulveda. In that case, the Second Circuit held that statutory restrictions on the jurisdiction of district courts to hear challenges to removal orders and other discretionary actions do not affect the district courts jurisdiction to determine whether [the statutory provision] is applicable, e.g., whether the petitioner is in fact an alien, whether he has in fact been convicted, and whether his offense is one that is within the scope of [one of the enumerated sections]. Sepulveda, 407 F.3d at 63 (citing Santos-Salazar v. U.S. Dept of Justice, 400 F.3d 99, 104 (2d Cir. 2005)). The determination at issue here is precisely such a determination: whether under the applicable statutory language as interpreted by the BIA, Pinho was convicted so as to render him ineligible for adjustment of status. This is a legal question, not one committed to agency discretion. The agency action at issue here was final and nondiscretionary, it adversely affected Pinho, and it has not been made non-reviewable by statute. Under the APA, therefore, Pinho is entitled to judicial review of the AAOs decision.13 Because the District Court had jurisdiction to review the AAO decision, we have jurisdiction over this appeal under 28 U.S.C 1291. We exercise plenary review of the District Courts statutory interpretation, but afford deference to a reasonable interpretation adopted by the agency. See Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003). It is the agencys burden, however, to establish the facts supporting inadmissibility by clear, unequivocal and convincing evidence. See Sandoval v. INS, 240 F.3d 577, 581 (7th CirPOST CON RELIEF TEXAS DISTRICT COURTS DISTINGUISH RENTERIA Toledo-Hernandez v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tx.) (Renteria-Gonzalez, 322 F.3d 804 (5th Cir. 2003), inapplicable to convictions vacated on constitutional grounds); Hernandez-Arguello v. Winfrey, No. SA-03-CA-0823-RF (W.D. Tx. 2004) (Same).

POST CONVICTION RELIEF ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST CONVICTION PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlyin g judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's guilt.")

POST CONVICTION RELIEF FEDERAL MOTION TO WITHDRAW PLEA STANDARD OF REVIEW -- ABUSE OF DISCRETION ERROR OF LAW United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 (9th Cir. July 15, 2004) ("This Court reviews a district court's denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001) (en banc). A district court abuses its discretion when it makes an error of law. See id.; see also Koon v. United States, 518 U.S. 81, 100 (1996) ("A district court by definition abuses its discretion when it makes an error of law.")).POST CON RELIEF APPEAL WAIVER OF APPEAL IN PLEA AGREEMENT DOES NOT BAR COLLATERAL ATTACK RAISING ERRORS IN MEANS BY WHICH PLEA AGREEMENT WAS REACHED Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (waiver of appeal in plea agreement does not bar collateral attack raising errors in means by which plea agreement was reached: "'There is no general bar to a waiver of collateral attack rights in a plea agreement.' Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)). 'However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been produced, here, the plea agreement.' Id. (citations omitted). Where, as here, a petitioner claims a violation of Rule 11 or the ineffectiveness of trial counsel, the Second Circuit has stated that he is not barred under the terms of the plea agreement from bringing a petition to vacate the conviction based on the legal shortcomings of the process in which the waiver was obtained. See id. at 196. Accordingly, the Court will address 'the merits of [the] petition notwithstanding [the petitioner's] general waiver of the right to collaterally attack his conviction.' Id. at 193; see also Lebron v. United States, 267 F. Supp.2d 325, 328 (E.D.N.Y. 2003).").

HABEAS CORPUS - FEDERAL - EXHAUSTION Baldwin v. Reese, 124 S.Ct. 1347 (March 2, 2004) (ineffective assistance of counsel claim not "fairly presented" where petitioner did not complain that ineffective assistance violated federal law; state supreme courts not required to read lower appellate opinions before deciding whether

to grant a hearing, courts should be able to rely exclusively on briefs to alert them to issues). Use Note: The Court gave some guidance on presenting issues of federal law in state courts: "A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'" From this statement, it appears that the Court is indicating that a defendant can "federalize" an issue simply by making any reference to "federal law."POST CON TENNESSEE CORAM NOBIS State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A writ of error coram nobis lies "for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial." T.C.A. 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995

CONVICTION FINALITY OF CONVICTION FIFTH AND SEVENTH CIRCUITS DO NOT FOLLOW GENERAL RULE In most circuits, convictions in criminal cases are not considered sufficiently final to permit the initiation of deportation proceedings if an appeal is pending or they are still subject to appeal. Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh Circuits. See Moosa v. INS,171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).HABEAS CORPUS - FEDERAL - NO EXHAUSTION Galvan v. Alaska Department of Corrections, 397 F.3d 1198 (9th Cir. Feb. 9th 2005) (petitioner failed to fairly present federal ineffective assistance of counsel claim before highest state court when her petition to the Alaska Supreme Court made only passing mention (in distinguishing a state case) of the Sixth Amendment and of federal cases; "Briefing a case is not like writing a poem, where the message may be conveyed entirely through allusions and connotations. Poets may use ambiguity, but lawyers use clarity. If a party wants a state court to decide whether she was deprived of a federal constitutional right, she has to say so."). http://caselaw.lp.findlaw.com/data2/circs/9th/0335083p.pdf

POST CON RELIEF FEDERAL SUCCESSIVE HABEAS Hamilton v. Newland, 374 F.3d 822 (9th Cir. July 01, 2004) (district court erred in treating defendants motion as successive habeas petition rather than FRCP 60(b)(6) motion). http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf POST CON FEDERAL GROUNDS INVOLUNTARY PLEA CLAIM NOT BARRED BY FAILURE TO RAISE ON DIRECT APPEAL Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal

POST CON FEDERAL CAUSE AND PREJUDICE FOR NOT RAISING GROUNDS ON DIRECT APPEAL GROUNDS Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred 2255 claim regarding the voluntariness of a guilty plea made when the petitioner was not properly informed that deportation was absolute).POST CON HABEAS FEDERAL STATUTE OF LIMITATIONS Isley v. Arizona Dept. of Corr., __ F.3d __ (9th Cir. Sept. 15, 2004) (petition for habeas corpus granted where state petition for post-conviction relief was pending within the meaning of 28 U.S.C. section 2244(d)(2) and entitled defendant to toll one year statute of limitation period for filing federal postconviction relief). http://caselaw.lp.findlaw.com/data2/circs/9th/0315858p.pdf POST CON HABEAS FEDERAL STATUTE OF LIMITATIONS TOLLING FILING OF STATE POST CONVICTION RELIEF PETITION Chavis v. Lemarke, ___ F.3d ___ (9th Cir. Aug. 27, 2004) (district court dismissal of federal habeas corpus petition as untimely reversed since statute of limitations was tolled due to filing of state habeas petitions). http://caselaw.lp.findlaw.com/data2/circs/9th/0117072p.pdf

After unsuccessfully attempting to withdraw his plea in state court, Mr. Broomes sought habeas relief from the federal courts pursuant to 28 U.S.C. 2241, arguing his state court conviction was obtained in violation of his Sixth Amendment right to effective assistance of counsel. The magistrate judge issued an order indicating Mr. Broomes must file a petition under 28 U.S.C. 2254 to

challenge a state court conviction. Mr. Broomes thereafter raised the same claim under 2254.(2) Based on a magistrate judge's recommendation and over Mr. Broomes' objection, the district court denied the petition because this circuit had previously rejected a similar argument in Varela v. Kaiser, 976 F.2d 1357 (10th

Cir. 1992).

POST CON RELIEF HABEAS MOOTNESS AFTER DEPORTATION DISQUALIFICATION FROM NATURALIZATION CONSTITUTES CONTINUING DAMAGE SUFFICIENT TO PREVENT MOOTNESS EVEN AFTER DEPORTATION State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (as a likely collateral consequence of the conviction, the noncitizen's ability to petition for naturalization is gravely impaired, so the issue is not moot and subject matter jurisdiction is not a bar to the defendant's present appeal from denial of a motion to withdraw the plea). POST CONVICTION RELIEF HABEAS IMMIGRATION DEPORTATION DOES NOT MOOT HABEAS The fact that a noncitizen has been deported does not moot his habeas petition. His future ineligibility for readmission to the United States preserves his Article III standing. See Shittu v. Elwood, 204 F. Supp. 2d 876, 878 (E.D. Pa. 2002); Johnson v. Department of Justice, (Not Reported in F.Supp.2d), 2004 WL 1240695 (E.D. Pa. June 3, 2004).VEHICLE FEDERAL HABEAS MOOTNESS Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of noncitizen while appeal of district court dismissal of habeas petition was pending in court of appeal did not deprive district court of habeas jurisdiction on remand, and case was not moot, but district court lacked authority to grant any relief beyond vacating defective deportation order. POST CON RELIEF HABEAS CORPUS FEDERAL REMAND FOR EVIDENTIARY HEARING Earp v. Ornoski, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (claim of ineffective assistance for failure to investigate mitigating circumstances merited evidentiary hearing).

POST CON RELIEF HABEAS FEDERAL REVIEW OF STATE CONVICTION PRECLUDED SINCE STATE PETITION REJECTED BY STATE COURT AS UNTIMELY IS NOT PROPERLY FILED UNDER 28 U.S.C. 2244(d)(2), AND THEREFORE DOES NOT TOLL THE 1-YEAR AEDPA STATUTE OF LIMITATIONS FOR FILING A FEDERAL HABEAS CORPUS PETITION Pace v. DiGuglielmo, ___ U.S. ___, 2005 WL 957194 (April 27, 2005) (federal habeas review of state conviction precluded since state petition rejected by state court as untimely is not properly filed under 28 U.S.C. 2244(d)(2), and therefore does not toll the 1-year AEDPA statute of limitations for filing a federal habeas corpus petition). http://laws.findlaw.com/us/000/03-9627.html HABEAS CORPUS -- FEDERAL -- INSUFFICIENT FEDERALIZATION Castillo v. McFadden, 370 F.3d 882 (9th Cir. June 1, 2004) (defendant must give state notice that he is bringing federal constitutional claims by referring in appellate briefs to specific provisions of the federal constitution or citing to federal law; raising federal arguments in trial motions insufficient). See Baldwin v. Reese, 125 S.Ct. 1347, 1350 (2004). The court stated that the concluding sentence that stated petitioner's rights under the Fifth, Sixth and Fourteenth Amendments were violated was a "conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal

theory, was the first time Castillo's brief used the words 'due process' or 'Fifth Amendment.'" Note thoughtful and powerful dissent by Judge Hawkins, pointing out that petitioner did cite federal cases in his argument court erred in treating defendants motion as successive habeas petition rather than FRCP 60(b)(6) motion). http://caselaw.lp.findlaw.com/data2/circs/9th/0215972p.pdf

POST CON RELIEF FEDERAL -- CORAM NOBIS GROUNDS INEFFECTIVE ASSISTANCE OF COUNSEL AFFIRMATIVE MISADVICE United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (affirmative misadvice by defense counsel concerning immigration consequences of disposition of criminal case constitutes ineffective assistance of counsel where counsel said deportation was not a serious possibility, and in fact it became a near certainty.

POST CON RELIEF FEDERAL -- CORAM NOBIS STATUTE OF LIMITATIONS AEDPA STATUTE OF LIMITATIONS FOR 2255 RELIEF DID NOT APPLY TO CORAM NOBIS United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (one-year AEDPA statute of limitations for filing a motion to vacate a judgment under 28 U.S.C. 2255 did not apply to the filing of a petition for a writ of error coram nobis after custody had expired in the federal criminal case).

POST CON RELIEF CORAM NOBIS NEED TO PETITION FOR CORAM NOBIS DIRECTLY IN FEDERAL COURT Resendiz v. Kovensky, ___ F.3d ___, ___ & n.3, 2005 WL 1501495 (9th Cir. June 27, 2005) (district court did not commit error in failing to consider 28 U.S.C. 2241 habeas to be a petition for coram nobis, because this issue had not been raised in the district court and petitioner provided no authority suggesting that the district court might have a duty to sua sponte raise the issue), distinguishing United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005), in which the Ninth Circuit held that coram nobis relief was available under similar circumstances, because here the petitioner did not file coram nobis in the district court). The court in Resendiz rejected a claim that the district court should have sua sponte construed the petition as a petition for coram nobis, instead of habeas corpus: "Resendiz argues that the district court should not have construed his petition as one under 2241, but instead should have construed it as a writ of coram nobis, even though Resendiz never asked the court to do so. Because Resendiz did not contend below that his petition should be construed as a writ of coram nobis, and because he provides no authority suggesting that the district court might have a duty to sua sponte raise the issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.1992) ("As a general rule, an appellate court will not hear an issue raised for the first time on appeal."). In footnote 3 to this quotation, the Resendiz court stated: "Our recent decision in United States v. Kwan, No. 03-50315, 2005 WL 1119652 (9th Cir. May 12, 2005), in which we held that coram nobis relief was available under similar circumstances, does not affect our decision. Unlike Kwan,

Resendiz did not petition the district court for the writ of coram nobis, but argued instead that the court should have so construed his habeas petition sua sponte following Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) ('We construe the intent of Congress's restoration under the Real ID Act rubric of 'constitutional claims or questions of law' to encompass the same types of issues that courts traditionally exercised in habeas review over Executive detentions'DRAKES V ZIMINSKY (DRAKES 249) The meaning of forgery in federal law is ambiguous. Congress has never specifically defined forgery, although it has used the term in numerous statutes outlawing various acts. In some of these statutes, Congress did not specify the requisite culpable intent. See, e.g., 18 U.S.C. 485 (prohibiting forgery of coins or bars in denominations greater than five cents). In at least twenty other statutes, however, Congress specified that an intent to defraud is required. In four of those statutes, Congress used the term #147;forgery together with the phrase #147;with intent to defraud, seemingly indicating that the two need not be joined. See, e.g., 18 U.S.C. 471 (prohibiting forgery of federal obligations ); 18 U.S.C. 500 (prohibiting forgery of postal service money orders #147;with intent to defraud). Thus, in Congress view, it may well be [*10] possible to commit #147;forgery without #147;fraud, or at least fraud in the ordinary sense of misrepresentation for material gain. See United States v. Cowan, 116 F.3d 1360, 1361-63 (10th Cir. 1997) (had Congress intended to make the intent to defraud an element of 18 U.S.C. 505, it would have done so expressly).

POST CON RELIEF - GROUNDS - IAC - REMEDY Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir. Jan. 30, 2004) (UNPUBLISHED) (BIA violated due process by waiting six years, until after law had changed to respondents detriment, to review Immigration Judges originally erroneous finding that expunged misdemeanor weapons conviction constituted conviction for immigration purposes). The BIA must generally apply the law in place at the time the BIA conducts its review. Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999). However, that rule is not absolute where the error effectively denied the noncitizen a meaningful hearing under the law existing when the hearing was held. See, e.g., Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (BIA's failure to correct IJ's error was defect requiring application of law in effect at time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural defect resulting in the loss of an opportunity for statutory relief requires remand for a hearing under former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th Cir. 2000) (ineffective assistance of counsel before IJ required remand for application of law existing at the time of original hearing). Where the BIAs failure to timely remedy an IJ's error denies respondent the benefit of the law in effect at the time of the original hearing, the only meaningful remedy is to give the respondent a hearing under the law that would have applied, had the BIA not delayed his appeal. Guadalupe-Cruz, 240 F.3d at 1212. POST CON NEW MEXICO CASE CITATION State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's attorney has "an affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status.").

POST CON RELIEF GROUNDS INEFFECTIVE COUNSEL -- TIMELINESS RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.") POST CON RELIEF - IOWA - IMM CON - FAILURE TO FILE MOTION TO SET ASIDE PLEA FOR COURT'S FAILURE TO GIVE IMMIGRATION WARNING State v. Saqib, ___ Iowa App. ___, 2004 WL 433967 (March 10, 2004) (trial counsel ineffective by failing to file motion in arrest of judgment to challenge guilty plea on grounds that neither written plea of guilty nor in-court colloquy informed defendant that guilty plea might affect immigration status; failure to move in arrest of judgment does not bar challenge to guilty plea if failure to file motion in arrest of judgment resulted from ineffective assistance).

Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz duri