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In Borden, the Supreme Court held that reckless conduct is not a crime of violence. A “crime of violence” as defined in 18 USC 16(a) is an aggravated felony if a year or more sentence is imposed (8 USC § 1101(a)(43)(F)) and is a deportable “crime of domestic violence” if the defendant and victim are proved to share a qualifying domestic relationship (8 USC 1227(a)(2)(E)(i)). Here the Supreme Court considered a federal sentencing enhancement that uses a definition of “crime of violence” that is identical to the immigration definition at 18 USC § 16(a). It found that a crime of [...]

In Pereida, the Supreme Court Alters the Modified Categorical Approach See Pereida v. Wilkinson,  141 S.Ct 754  (March 4, 2021), overruling Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc).  See also ILRC, Pereida and California Offenses at www.ilrc.org/crimes (forthcoming). In Pereida v. Wilkinson, the Supreme Court addressed how certain criminal convictions are evaluated in immigration proceedings, under the “modified categorical approach.” The majority opinion misconstrued and rewrote sections of the modified categorical approach, and characterized it as a factual rather than legal question. See the discussion of the debate in the dissent as well as advisories such [...]

February 2021 Case Update Ninth Circuit denies Rehearing in Velasquez-Rios, Affirms Limit on 364-day Misdemeanors. Velasquez-Rios v. Wilkinson, No. 18-72990, (9th Cir. Feb. 24, 2021), denying petition for rehearing and reconsideration, and amending opinion, of Velasquez-Rios v. Barr, Desai v. Barr, 979 F.3d 690 (9th Cir. Oct. 28, 2020), which affirmed Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018). Since January 1, 2015, California Penal Code § 18.5 has provided that no California misdemeanor has a potential sentence of more than 364 days. Effective January 1, 2017, PC § 18.5(a) has provided that this 364-day top applies retroactively to [...]

Unpublished BIA Decision Indicates Some Pushback to Cal. P.C. § 1203.43 Vacaturs (Though Other BIA Panels Have Fully Honored P.C. § 1203.43)  The BIA issued an unpublished decision about Cal. P.C. § 1203.43 after an amicus invitation and oral argument. The ILRC filed an amicus brief (thanks to Prof. Jennifer Koh) and Kathy Brady argued the case. The good news is that the decision does not say that § 1203.43 vacaturs are ineffective for Pickering purposes. The bad news is that it establishes that, if the respondent is seeking relief, the respondent needs to prove that they were misinformed of the immigration consequences of the DEJ guilty plea. The short summary is that the decision says [...]

Ninth Circuit Holds Cal. P.C. § 484 Is CIMT, but Indicates Strong Possibility of En Banc Rehearing  Silva v. Barr, No. 16-70130/17-73272 (9th Cir. 2020)  In Silva v. Barr, No. 16-70130/73272 (9th Cir. 2020), a panel of the Ninth Circuit reaffirmed in another published opinion that conviction under Cal. P.C. § 484 is categorically a CIMT. But wait! The panel explained that they only ruled this way because they felt bound by existing Ninth Circuit precedent, but that if they were “writing on a clean slate” they would have found that P.C. § 484 does not require an intent to permanently deprive an owner of property and thus [...]

Detainer Case Headed to Ninth Circuit on Expedited Schedule: Gonzalez v. ICE, No. 20-55175 (9th Cir. 2020) ICE has appealed a district court order substantially restricting one of its main detainer-issuing facilities from continuing to issue certain categories of detainers. We previously wrote about the district court’s order in Gonzalez v. ICE. See our blog post below for more details about the district court’s order. The two principal holdings are that ICE violates the Fourth Amendment by: Issuing detainers based solely on electronic database information—where there is no removal order, no ongoing proceedings, and no prior interview—because the Court found [...]

This blog provides news about decisions that affect California criminal offenses, between updates of the California Quick Reference Chart. See also the Top of the Ninth blog by Merle Kahn, which is a more in-depth analysis of a range of immigration decisions, at www.topoftheninth.com ********* In Pereida v. Barr, U.S. Supreme Court to Decide Relief Eligibility Issue the Ninth Circuit Recently Resolved Favorably in Marinelarena v. Barr:  Whether removable immigrants convicted under divisible statutes are eligible for relief where “record of conviction” documents are inconclusive  Summary: In Pereida v. Barr, No. 19-438 (2019), the most recent cert grant in a long line of “categorical approach” cases, the Court will decide whether a noncitizen convicted under an “overbroad” [...]

California Court of Appeals (unpublished) upholds legality of Pen C § 1203.43 against challenge by Los Angeles DA, in Villegas v. Superior Court Los Angeles (B294683, Second Appellate District, Nov. 19, 2019), available at https://www.leagle.com/decision/incaco20191119043. For a discussion of Pen C § 1203.43 and how it is used, see, e.g., ILRC, N.2 Definition of Conviction (April 2019) at www.ilrc.org/chart. In an outlier case, Los Angeles Judge Kathleen Blanchard refused to grant a request for a Pen C § 1203.43 order for a qualifying applicant, because she found that, despite the clear language in § 1203.43, the dismissal of Mr. Villegas’ [...]

Nevada drugs are not federal “controlled substances. Because the Nevada controlled substance schedule is overbroad and indivisible, no conviction that references that schedule is a controlled substance offense for immigration purposes. Villavicencio v. Sessions, No. 13-74324 (9th Cir. Sept. 11, 2018). California robbery, Pen C § 211, is an AF as theft, but not as a crime of violence, if a sentence of a year is imposed. Matter of Delgado, 27 I&N Dec. 100 (BIA 2017) (is an AF as theft), US v. Garcia-Lopez (9th Cir. September 2018) (it is not an AF as a crime of violence under 18 USC [...]

Big win! Ninth Circuit reverses Young rule on burden of proof. See Marinelarena v. Barr (9th Cir. July 18, 2019) (en banc) at at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/18/14-72003.pdf. The ILRC will soon publish a practice advisory on Marinelarena; check www.ilrc.org/crimes. Marinelarena is a great win for our side. It protects noncitizens who are must apply for immigration relief – for example, undocumented people, or permanent residents who are deportable – and who were convicted under a “divisible” statute, if their record of conviction is vague as to which crime under the statute they were convicted of. This is especially useful for California drug offenses. [...]