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Briefs & Decisions

Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) (categorical approach, drug trafficking aggravated felony ground, social sharing of marijuana)

Carachuri-Rosendo v. Holder, 560 U.S. 563  (2010) (categorical approach, drug trafficking aggravated felony ground, multiple simple possession convictions)

Nijhawan v. Holder, 557 U.S. 29 (2009) (categorical approach, circumstance-specific inquiry, fraud aggravated felony ground)

Lopez v. Gonzales, 549 U.S. 47 (2006) (categorical approach, drug trafficking aggravated felony ground)

Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2012) (en banc) (state-expunged first-time drug possession dispositions, definition of “conviction”)

  • Brief of Amici Curiae IDP et al. in Support of Petitioner in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2012) (en banc). Amici argued that the Ninth Circuit should reaffirm its prior ruling in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) that state-expunged first-time drug possession dispositions should not be deemed convictions for immigration purposes.

Mckenzie v. Mukasey, No. 08-0763 (2d Cir. 2008) (conviction “finality” rule)

Immigration Detention and INA 236(c)

  • Brief of Amici Curiae in Support of Petitioner in Gomez v. Napolitano (2d Cir. 2011) (prepared by pro bono counsel Washington Square Legal Services) (challenging Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001) subjecting certain deportable immigrants to mandatory detention on the basis of criminal custody occurring after the detention statute’s effective date, no matter how long ago the criminal custody ended).
  • Amicus Brief  Garcia v. Shanahan (Second Circuit: December 2009):  This government appeal from the grant of habeas corpus to a long-time lawful resident was the first Second Circuit case raising the issue of whether the BIA’s decision in Matter of Saysana, 24 I. & N. Dec. 602 (BIA 2008) represented a correct interpretation of the mandatory detention statute. Saysana’s reasoning subjected certain deportable immigrants to mandatory detention on the basis of any criminal custody occurring after the detention statute’s effective date, whether or not the arrest results in a conviction of any kind.  IDP filed an amicus brief to highlight the real-world import of this drastic view, which requires detention without bond of long-term immigrants who have been living and working in the community for ten years or more.  The brief also explains how, given ICE’s well-documented practice of transferring detainees far from their place of initial detention, the Saysana rule also affects immigrants’ ability to contest their removal and seek relief for which they are eligible. Federal courts had so far uniformly rejected Saysana’s reasoning, and shortly after this brief was submitted, the First Circuit also rejectedthe BIA’s Saysana ruling in the habeas brought by Mr. Saysana himself.  The government suspended its appeal of Mr. Garcia’s case and others raising the same issue.  In June of 2010, the BIA receded from its Saysana decision in Matter of Garcia Arreola, 25 I. & N. Dec. 267 (BIA 2010).

“Crimes of Violence”

Dickson v. Ashcroft, 346 F.2d 44 (2d Cir. 2003)Amici Brief (represented by Paul A. Englemayer, Terry A. Maroney and Anjan Sahni of Wilmer, Cutler & Pickering LLP). 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, 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.

Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003). Amici brief (represented by Paul A. Engelmayer and Deirdre D. von Dornum of Wilmer, Cutler & Pickering LLP). In Jobson, 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.

U.S. v. Pacheco, 225 F.3d 148 (2d Cir. 2000). Amici brief. 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.

Identity Theft

Flores-Figueroa v. United States, 556 U.S. 646 (2008). Amicus Brief. On December 22, 2008, IDP joined other immigrant advocacy organizations and religious-based relief organizations in filing a legal brief challenging overbroad federal criminal prosecutions of immigrant workers picked up in immigration workplace raids under federal aggravated identity theft statute (18 U.S.C. Section 1028A).

Naturalization

Nolan v. Holmes, 334 F.3d 189 (2d Cir. 2003). Amicus Brief. This brief addresses the question of whether immigrants who serve the United States during time of war and who are honorably discharged are required to meet the Immigration and Nationality Act Section 316 good moral character requirement before they may naturalize as U.S. citizens under the special INA Section 329 naturalization procedure for wartime veterans.  Amici, including IDP, were represented by Nancy Morawetz, Abigail S. Hendel and Katharine J. Knaus of NYU Law School’s Immigrant Rights Clinic.

212(c) Relief and Retroactivity

Ferguson v. Holder (U.S. Supreme Court: October 2009)—IDP filed this amicus brief along with the Immigrant Legal Resource Center, the National Immigration Project of the National Lawyers Guild, and the National Association of Criminal Defense Lawyers, in support of a petition asking the Supreme Court to grant review in this case challenging the refusal of the U.S. Court of Appeals for the Eleventh Circuit to extend to individuals convicted after trial the protection of the Supreme Court decision in INS v. St. Cyr.

Bell v. Ashcroft (Second Circuit: May 2004)—IDP, with the National Association of Criminal Defense Lawyers, submitted an amicus brief in Bell v. Ashcroft to address the question of whether the 2001 Supreme Court decision in INS v. St. Cyr requires that the Second Circuit revisit the question of whether 1990 immigration law amendments barring relief from deportation for persons convicted of aggravated felonies for which they served more than five years in prison should be applied to individuals who agreed to plead guilty to deportable offenses prior to the 1990 amendments.  Amici were represented by Paul A. Engelmayer and Verity Winship of Wilmer, Cutler & Pickering LLP.

Ponnapula v. Ashcroft (Third Circuit: November 2003)—In Ponnapula v. Ashcroft, 373 F.3d 480 (3rd Cir. 2004), the Third Circuit Court of Appeals extended to individuals who were convicted after trial the Supreme Court decision in INS v. St. Cyr, which held that 1996 immigration law amendments barring relief from deportation should not be applied to individuals who agreed to plead guilty to deportable offenses prior to the amendments.  IDP, with the National Association of Criminal Defense Lawyers, had submitted a brief inPonnapula urging such extension.  IDP and NACDL were represented by Paul A. Engelmayer, Christopher J. Meade and Katherine R. Goldstein of Wilmer, Cutler & Pickering LLP.

Taylor v. Holder (Fourth Circuit: December 2012)—IDP joined the National Immigration Project of the National Lawyers Guild in filing this amici briefarguing that the federal government is wrong to apply retroactively the cancellation of removal eligibility “clock-stop” rule – enacted by Congress in 1996 – to pre-1996 criminal conduct.  Under the clock-stop rule, an applicant for cancellation of removal must show that he or she has continuously resided in the U.S. for seven years prior to commission of certain offenses triggering deportability.  The brief argues that the U.S. Supreme Court’s decisions in Vartelas v. Holder and Judulang v. Holder preclude the government from continuing to apply this rule retroactively to pre-1996 offenses.

Amici Brief:  Pottinger v. Reno (2nd Circuit 2000)

This brief addresses the question of whether there is impermissible retroactive effect when the government applies 1996 immigration amendments (AEDPA) barring relief from deportation to individuals whose criminal convictions or conduct underlying the removal charge preceded enactment of these amendments.

Amici Brief: Zgombic v. Farquharson (2nd Circuit 2000)

This brief addresses whether there is impermissible retroactive effect when the government applies 1996 immigration amendments (AEDPA and IIRIRA) barring relief from removal to an individual whose criminal conduct underlying the removal charge preceded enactment of these amendments.

Amici Brief:  Calcano-Martinez v. INS (2nd Circuit 1998)

This brief addresses whether there is impermissible retroactive effect when the government applies 1996 immigration amendments (AEDPA and IIRIRA) barring relief from removal to individuals whose criminal convictions or conduct underlying the removal charge preceded enactment of these amendments.  The Supreme Court decision is at 533 US 348 (2001).

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