Examples of Immigration Court Decisions and Briefs on Criminal Convictions

Citizens and Immigrants for Equal Justice et al amicus brief Leocal v. Ashcroft 543 U.S. 1, 125 S.Ct. 377

Citizens and Immigrants for Equal Justice and others argue that the harsh immigration consequences of being classified as an aggravated felony are not intended by the Florida DUI law.

Supreme Court of the United States.

Josue LEOCAL, Petitioner,
v.
UNITED STATES ATTORNEY GENERAL, IMMIGRATION AND NATURALIZATION SERVICE, Respondents.

No. 03-583.
May 10, 2004.
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Deportation by the Board of Immigration Appeals. Solano-Chicas v. Gonzales 440 F.3d 1050

Beware of short lived victory. This case makes clear that if the DHS does not like the decision of the immigration judge granting you relief in immigration court, they can appeal to the Board of Immigration Appeals (“BIA”) and have your victory thrown out. In this case, because the immigrant had such a bad criminal record that included a crime involving moral turpitude, the BIA gladly overturned the immigration judge and ordered him deported.

United States Court of Appeals,
Eighth Circuit.
Angel Abad SOLANO-CHICAS, Petitioner,
v.
Alberto GONZALES, Attorney General of the United States of America, FN1 Respondent.

FN1. Alberto Gonzales has been appointed to serve as Attorney General of the United States, and is substituted as appellee pursuant to Federal Rules of Appellate Procedure 43(c).

No. 04-3373, 04-3755.

Submitted: Nov. 18, 2005.
Filed: March 17, 2006.
Rehearing Denied May 26, 2006.
Background: Alien, a native and citizen of El Salvador, petitioned for review of the decision of the Board of Immigration Appeals (BIA) ordering him removed and denying motion to reopen.
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DUI-Manslaughter is an Aggravated Felony. Santana- Garcia 6th cir opinion

This case resulted in the court holding that a conviction for DUI/Manslaughter was an aggravated felony. This guy had a DUI homicide, was deported and re-entered illegally, and then was caught drunk driving again. Very hard to defend somebody like this who shows no remorse and puts US Citizens in danger, in my opinion.

United States Court of Appeals, Sixth Circuit.

UNITED STATES OF AMERICA Plaintiff-Appellee,
v.
Ismael SANTANA-GARCIA Defendant-Appellant.

No. 98-2234.
April 18, 2000.
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DUI-Manslaughter is not Aggravated Felony. Ursu v INS 9th cir opinion

Here we have a Florida DUI/Manslaughter case that the 9th Circuit states is not an aggravated felony because the statute does not require an intent to injure another person. BUT…. They do claim it is a particularly serious crime and refuse to overturn the immigration judge’s denial of his asylum application.

United States Court of Appeals, Ninth Circuit.

Daniel URSU, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE

Respondent.

No. 99-70678.
I & NS No. A29-388-188.

Submitted Sept. 14, 2001.
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Expunged Convictions and Cancellation of Removal: Opening Brief. Nunez-Reyes v. Holder 602 F.3d 1102 C.A.9,2010

Flavio NUNEZ-REYES, Petitioner, v. Alberto GONZALES, Attorney General
2006 WL 5211813
United States Court of Appeals,Ninth Circuit.

United States Court of Appeals,

Ninth Circuit.

Flavio NUNEZ-REYES, Petitioner,
v.
Alberto GONZALES, Attorney General of the United States, Respondent.

No. 05-74350.

February 7, 2006.

Opening Brief on Petition for Review

Law Office of Ricci & Sprouls, 445 Washington Street, San Francisco, CA, 415 391 2100, Frank P. Sprouls, Attorney for Petitioner.
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Expunged Convictions and Cancellation of Removal: Opinion. Nunez-Reyes v. Holder 602 F.3d 1102 C.A.9,2010

These were the good old days! This was when an expungement could eliminate a crime involving moral turpitude for immigration purposes. The BIA distinguishes between a drug charge and states that an expungement will not prevent the conviction from being used as a basis for deportation proceedings.

United States Department of Justice
Board of Immigration Appeals

MATTER OF OZKOK

In Deportation Proceedings

A-12150228

Decided by Board April 26, 1988
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Expunged Convictions and Cancellation of Removal: Respondent’s Brief. Nunez-Reyes v. Holder 602 F.3d

United States Court of Appeals,

Ninth Circuit.

Flavio NUNEZ-REYES, Petitioner,
v.
Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 05-74350.

June 5, 2006.
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Expungements for a crime involving moral turpitude. Matter of Ozkok 19 I & N. Dec. 546

Nunez-Reyes v. Holder
602 F.3d 1102
C.A.9,2010.

602 F.3d 1102, 10 Cal. Daily Op. Serv. 4982, 2010 Daily Journal D.A.R. 6001

United States Court of Appeals,

Ninth Circuit.

Flavio NUNEZ-REYES, aka Flavio Reyes, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-74350.

Argued and Submitted Nov. 6, 2009.
Filed April 23, 2010.

Background: Alien, a native and citizen of Mexico, petitioned for review of an order of the Board of Immigration Appeals (BIA) affirming immigration judge's (IJ) decision denying his application for cancellation of removal.
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Failure to specify reason conviction was vacated. Ali v. U.S. Atty. Gen. 443 F.3d 804 C.A.11, 2006

Lawyers who obtain post conviction relief for immigrants must strictly comply with the BIA’s guidelines from In Re Pickering 23 I. & N. Dec. 621. Here, despite winning the fight for order of nolle prosse, the order from the state court judge failed to specify that the reason the conviction was vacated was based on the 6th Amendment guarantee of right to counsel.

United States Court of Appeals,
Eleventh Circuit.
Mohammed Salim ALI, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

No. 05-11258.
March 22, 2006.

Background: Alien, a citizen and native of Pakistan, petitioned for review of Board of Immigration Appeals (BIA) order, No. A75-977-673, denying his motion to reopen removal proceedings.
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Felony DUI and Aggravated Felony: Opening Brief. Leocal v. Ashcroft 543 U.S. 1, 125 S.Ct. 377

In a spirited response to the U.S. Department of Homeland Security’s brief, the attorneys for Leocal assert that DHS are “obfuscating”  - a nice word for using technical arguments and “wordsmithing” to cover up their losing position. The Supreme Court will agree!

Supreme Court of the United States.

Josue LEOCAL, Petitioner,
v.
John D. ASHCROFT, United States Attorney General, and Immigration and Naturalization Service, Respondents.

No. 03-583.

August 18, 2004.
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Felony DUI and Aggravated Felony: Respondent’s Brief. Leocal v. Ashcroft 543 U.S. 1, 125 S.Ct. 377

DHS argues that drunk driving should be considered a crime of violence….they definitely have a point when one thinks about all of the life lost and injuries resulting from drunk driving.  They also have a case that apparently is on point with their argument. However the brief really stalls when they go down the black hole of the argument that the word “use” does not imply an intention is required to be convicted of a crime of violence for the purpose of an aggravated felony.

Supreme Court of the United States.
Josue LEOCAL, Petitioner,
v.
John D. ASHCROFT, Attorney General, et al.

No. 03-583.
July 14, 2004.
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Midwest Immigrant & Human Rights Center amicus brief Leocal v. Ashcroft 543 U.S. 1, 125 S.Ct. 377

Midwest Immigrant & Human Rights Center weighs in with their assertion that the Florida DUI statute should not be considered a crime of violence or an aggravated felony for immigration purposes.

Supreme Court of the United States.

Josue LEOCAL, Petitioner,
v.
John D. ASHCROFT, in his capacity as United States Attorney General, and the Immigration and Naturalization Service, Respondents.

No. 03-583.
May 7, 2004.

Brief of the Midwest Immigrant & Human Rights Center as Amicus Curiae in In Support of Petitioner
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National Association of Criminal Defense Lawyers et al amicus brief Leocal v. Ashcroft 543 U.S. 1, 125 S.C

National Association of Criminal Defense Lawyers, et al argue that the Florida DUI statute must require an intentional use of force to be classified in immigration court as an aggravated felony.

Supreme Court of the United States.

Josue LEOCAL, Petitioner,
v.
John ASHCROFT, Attorney General of the United States, et al., Respondent.

No. 03-583.
May 10, 2004.
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No immigration waiver for marijuana drug conviction with enhancement. In re Martinez-Zapata 24 I. & N. Dec. 424

In re Martinez-Zapata 24 I. & N. Dec. 424

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE MIGUEL ANGEL MARTINEZ-ZAPATA, RESPONDENT

Decided December 19, 2007
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Oregon violation not criminal conviction. In re Eslamizar 23 I. & N. Dec. 684

In re Eslamizar
23 I. & N. Dec. 684

A “judgement of guilt” entered by courts in Oregon is not a conviction for immigration purposes if the proceeding does not require the burden of proof and procedural safeguards required in criminal courts. For this reason, the third degree theft “violation” did not qualify as a conviction for purposes of removal for two crimes involving moral turpitude.

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE HADI ESLAMIZAR, RESPONDENT

Decided October 19, 2004

An alien found guilty of a “violation” under Oregon law in a proceeding conducted pursuant to section 153.076 of the Oregon Revised Statutes does not have a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).
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Possession of Cocaine and Cancellation of Removal. Lopez v. Gonzales 549 U.S. 47, 127 S.Ct. 625

Supreme Court of the United States

Jose Antonio LOPEZ, Petitioner,
v.
Alberto R. GONZALES, Attorney General.

No. 05-547.
Argued Oct. 3, 2006.
Decided Dec. 5, 2006.

Background: After alien, a permanent legal resident, had been convicted of South Dakota felony offense of aiding and abetting the possession of cocaine, the Board of Immigration Appeals (BIA) ordered his removal. Alien appealed. The United States Court of Appeals for the Eight Circuit, 417 F.3d 934, affirmed. Certiorari was granted.
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Welfare fraud is an aggravated felony. De Vega v. Gonzales 503 F.3d 45

Welfare fraud by a lawful permanent resident is considered an aggravated felony De Vega v. Gonzales 503 F.3d 45 C.A.1,2007.

Welfare fraud by a lawful permanent resident is considered an aggravated felony if the amount taken is more than $10,000, and no waiver is available. Any travel outside the U.S. will trigger the inadmissibility ground.

United States Court of Appeals,
First Circuit.
Digna Perez DE VEGA, Petitioner,
v.
Alberto GONZALES, Attorney General, Respondent.

No. 06-1813.
Submitted April 4, 2007.
Decided Sept. 17, 2007.

Background: Alien, a citizen of the Dominican Republic and a lawful permanent resident of the United States, appealed order of the Board of Immigration Appeals (BIA) which affirmed order for her removal.
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— Domestic Assault Not a Crime Involving Moral Turpitude. In re Sejas 24 I. & N. Dec. 236

This case before the BIA is a big win for this immigration lawyer and his client. The BIA reviews the Virginia statute relating to domestic assault and battery and concludes that the client’s conviction is not necessarily a crime involving moral turpitude. Since he was a permanent resident being deported for this crime, the court dismissed the proceedings and he was allowed to remain a permanent resident.

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE LIBER REMBERTO SEJAS, RESPONDENT

FILE A91 540 618 - ARLINGTON

Decided July 25, 2007
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— Felony DUI and Aggravated Felony: Opinion. Leocal v. Ashcroft 543 U.S. 1, 125 S.Ct. 377

In its decision the Supreme Court holds that felony Driving Under the Influence in Florida is not a “crime of violence” and is therefore not an aggravated felony. They point out the DHS’s argument around the word “use” is without merit and is an obvious ploy to try to shine light on a “red herring” or an issue that is not really at the heart of the matter. NEVER GIVE UP THE FIGHT for the client’s right to due process and for the fair use of language in the law.

Supreme Court of the United States

Josue LEOCAL, Petitioner,
v.
John D. ASHCROFT, Attorney General, et al.

No. 03-583.

Argued Oct. 12, 2004.
Decided Nov. 9, 2004.
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