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Amicus Briefs Filed in Nijhawan v. Holder (U.S. Supreme Court: March 2009) ACLU et alAsian American Justice Center et al

Amici Brief:  Dickson v Ashcroft (Second Circuit: November 2002)

IDP’s amicus brief addressed the question of whether New York unlawful imprisonment constitutes a “crime of violence” for designation as an “aggravated felony” under the immigration statute. The brief also addressed the propriety of an Immigration Judge and the Board of Immigration Appeals relying on a presentence report to determine whether a conviction constituted a “crime of violence.”

In Dickson, 346 F2d 44 (2nd Cir. 2003), the Second Circuit ruled that the Board of Immigration Appeals (BIA) may not rely on factual narratives in a pre-sentence report (PSR) to determine the crime for which an alien has been convicted.  New York’s crime of unlawful imprisonment in the first degree, NY Penal Law § 135.10, was divisible into crimes that were categorically grounds for removal (aggravated felony) and others that were not.  The BIA was permitted to consult the record of conviction to determine the specific crime for which petitioner was convicted. However, it improperly relied upon a narrative statement of facts, based on hearsay, contained in the pre-sentence report prepared for petitioner’s criminal proceedings.  IDP was represented by Paul A. Englemayer, Terry A. Maroney and Anjan Sahni of Wilmer, Cutler & Pickering LLP.

In Jobson v. Ashcroft, 326 F3d 367 (2nd Cir 2003), the Second Circuit held that New York Manslaughter in the second degree under New York Penal Law § 125.15(1) was not a crime of violence under 18 USC § 16 and thus not an aggravated felony for immigration law purposes. IDP’s amicus brief had supported that result. IDP was represented by Paul A. Engelmayer and Deirdre D. von Dornum of Wilmer, Cutler & Pickering LLP.

IDP filed this brief in support of the defendant-appellant’s petition for rehearing and petition for rehearing en banc, seeking reconsideration of the Second Circuit’s earlier decision finding that certain misdemeanors may be deemed “aggravated felonies” for illegal reentry sentencing purposes.

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