Case Law

Post Conviction Relief

Important July 2016 Ninth circuit decision requiring criminal defense counsel to advise his client that deportation is "virtually certain" if client enters into a plea of guilty to a deportable offense requiring deportation as a matter of law. Affirmative misadvice, in the form of an understatement of the risk of deportation following a plea entry is ineffective assistance of counsel requiring the conviction to be vacated if client would not have entered into the plea if client had been accurately advised as a matter of law...

Rodriguez-Vega Opinion

More Deportations Follow Minor Crimes, Records Show

New York Times article (April 6, 2014).

Recent Case Law in Domestic Violence Assault Convictions and Immigration Consequences

A Felony Assault IV Domestic Violence offense is deportable under INA 237(a)(2)(E)(i). Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) states: The federal statute, as interpreted by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), covers only those crimes involving intentional conduct. Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another, we conclude the federal statute does not apply.

DV Assault Convictions and Immigration Consequences

Western District of Washington "When Released" Class Action

Immigration Judge Jones in Tacoma issued an order certifying the following class:

All individuals in the Western District of Washington who the government asserts or will assert are subject to mandatory detention under 8 U.S.C. § 1226(c) and who were not taken into immigration custody immediately upon their release from criminal custody for an offense referenced in § 1226(c)(1).

And issuing declaratory relief on behalf of the class that the Government shall not subject class members to mandatory detention.

Khoury v. Asher, Case No. C13-1367RAJ, United States District Court, W.D. Washington, Seattle, decided March 11, 2014.

Illegal RE-Entry Win: California PCS 11377 Defense Case Law

Respondent may be able to win the Illegal Re-Entry charges pending against him on the basis that the Immigration Judge mistakenly found him deportable based solely on his admission to Possession of a Controlled Substance (in violation of California Health & Safety Code § 11377). There was no record of conviction presented to the Immigration Judge and nothing in the record from ICE to substantiate the conviction was for a federally controlled substance. A Motion to Reopen on the prior deportation order may succeed as well. The Federal Illegal Re-Entry case should be dismissed if it relies on a 11377 overbroad PCS California Conviction.

Coronado v. Holder (9th Circuit, decided March 14, 2014) Appeal No. 11-72121

A Possession of a Controlled Substance conviction out of California may not be deportable.

Ruiz-Vidal v. Gonzales, 473 F. 3d 1072 (9th Cir. 2007) states a 11377 conviction is not deportable unless the Government can prove from the record of conviction to clear and convincing evidence that the drug conviction was for a substance controlled by the federal controlled substances act.

Villa-Anguiano v. Holder, 727 F. 3d 873 (9th Cir. 2013) a case where a reinstatement order was vacated following a win on the Illegal RE-Entry.

Paulus Defense: LPR had Delivery of a Controlled Substance Conviction. He is now eligible for naturalization.

Matter of Paulus, 11 I & N Dec. 274 (BIA1965) : Where the record of conviction is silent as to the narcotic involved, an alien's conviction of violation of section 11508, Health and Safety Code of California, for selling and delivering a substance and material In lien of a narcotic after having offered to sell and furnish a narcotic, does not constitute a ground of deportability under section 241(a) (11), Immigration and Nationality Act, as amended, since the conviction could have involved a substance which though a narcotic under California law Is not a narcotic drug within the meaning of the immigration laws.

General Judgment

A Padilla win on a case filed outside the Oregon general two year statute of limitations but found to be within Oregon's escape valve for pcr (post conviction relief) filings.

Court found Padilla is not a new rule but an application of Strickland and court was "shocked" counsel did not ask client if he was a US citizen or a permanent resident of the US.

Counsel mistakenly assumed client was US citizen. Client actually entered USA at the age of three. Counsel was sure he told client if he is not a US citizen he could be deported. Counsel always does this when reviewing a plea petition with anyone. DDA said pre Padilla that was good enough. Not good enough says the Court.

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Immigration Consequences of Criminal Convictions

Potential Defenses to Deportation and Post Conviction Relief Caselaw (Caveat: an individualized assessment is necessary to advise any "alien" if "relief" from deportation might be available. This caselaw is not intended to be exhaustive or for any individual to rely on pro se if assessing potential defenses to deportability or the likelihood of prevailing on a post conviction matter).

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Padilla v. Kentucky

Successful continuance motion creating stay of deportation pending litigation of Padilla ineffective assistance claim in the State of Washington court which proved successful. Continuance granted by the Ninth Circuit.

SUBJECT: IMMIGRATION ALERTS

Immigration cases and results of not having an attorney that specialized in immigration law. Mr Conry's written argument for immigrants follows:

U.S. Supreme Court Syllabus
The duty of criminal defense counsel representing an immigrant:

Immigration Defense Project
Padilla Practice Advisory

Here is a link to the case. Padilla v. Kentucky

State of Washington follows Padilla in the Sandoval case

Mar. 17, 2011 - 82175-5 - State v. Sandoval