The modified categorical approach is categorically modified in the 9th Circuit

Sunday, August 14th, 2011

On August 11, 2011, the 9th Circuit Court of Appeals published another en banc blockbuster, U.S. v. Aguila-Montes de Oca authored by Judge Jay Bybee. The case addresses the modified categorical approach of statutory analysis. The use of the approach arises when a court needs to figure out if a state criminal conviction fits a federal definition of say, a crime of violence or a burglary or a crime of domestic violence or sexual abuse of a minor or a…

Two different outcomes on reopening based on vaguely distinguishable facts.

Sunday, July 24th, 2011

The courts of appeal perennially must deal with the issue of ineffective assistance of counsel. The issue is whether a case should be reopened if an attorney made a mistake in the case. The issue highlights a conflict between two conflicts in law in general – an interest in finality versus an interest in fairness. The interest in finality is that a case must end at some point. An alien has his day in court and he has his appeals….

The Ninth Circuit Advantage is Waning

Sunday, July 25th, 2010

At immigration lawyer conferences, it is not unusual to hear attorneys speaking on the arcana of immigration law to comment on the Ninth Circuit. Those from it gloat about how the law is “better” there for foreigners and those not from it bemoan that they are not there. Quite often attorneys will call me from parts of the country outside of the Ninth Circuit asking if it would be advantageous for a client to move here. It sometimes is, or…

If you leave, there’s no coming back.

Sunday, March 7th, 2010

In 2005, immigration lawyers were all embroiled in advocacy and outrage over REAL ID legislation pending in Congress. The media covered the major purpose of the bill, requiring the states to issue drivers licenses and other identification only to documented aliens. The fact that undocumented aliens now cannot get drivers licenses or renew existing licenses in most states is attributable to the REAL ID Act. Immigration lawyers were not that involved in ID issues. Rather there were other aspects of…