Wednesday, November 25, 2009

Ninth Circuit Court of Appeals Asylum Handbook

I recently ran across this handy little pdf file from the Ninth Circuit Court of Appeals which lists all the precedent cases involving asylum, withholding, and claims under the Convention Against Torture and thought I should post it on my blog site.

I will be drafting an opening brief to the Ninth Circuit on a CAT claim involving a Mexican National who was tortured by the drug cartel in a kidnapping for ransom scheme. The IJ and the BIA both conceded that he in fact was tortured, but held that he could safely relocate inside of Mexico. Our argument is that the breakdown of law and order inside of Mexico is so severe that there is no safe location in Mexico where the narco-gangs do not have influence or actual control.

9th Circuit Asylum Precedent Handbook -

Thursday, November 19, 2009

IDENT / IAFIS Screening

I am reading an interesting book about the US Mexican Border, written by Tim Gaynor, a Reuters Reporter who spent years along the border and was named the 2007 Reuters Journalist of the Year for his immigration coverage.

In his book, Tim describes the IDENT system which is used to screen anyone arriving in the US by checking the arriving person's two index fingers against an immigration database. This is the first biometrics system going down a path of ever greater investigation available to all border stations and airports.

Another system also in use behind the scenes is the Automated Fingerprinting Identification System (IAFIS), which is a more thorough check that reads all ten digits and matches them against law enforcement databases. It is about the size of a tissue box. A detainee's thumbs are run over rollers and held against a flat pane of glass on top of the box, where they are photographed by a digital camera. Then all four fingers on each hand are wiped and held up against the glass and are photographed in turn.

"The IAFIS program scans the unrepeatable sequence of nodes and intersections in each of the prints and transforms it into a numerical code. The results are then matched with data held digitally in a live crime database held by the National Crime Information Center (NCIC) that holds information from federal. state, and local law enforcement throughout the US, as well as details on suspects, criminals, and fugitives sought by Interpol." Midnight on the Line, pg. 90.

Monday, November 9, 2009

California Penal Code § 1016.5 - Motion to Vacate Conviction

Just took on a case involving a Salvadorian National who had lawful status in the U.S. under TPS, (Temporary Protected Status). One of the requirements to maintain TPS status is that any alien cannot be convicted of a felony, or two misdemeanors.

Our client received two misdemeanor conviction, one of which was a conviction for Possessing an Assault Weapon, in violation of Penal Code § 12280(b).

We have two questions surrounding this conviction, one was the weapon actually an assault weapon under the statute, and two did our client receive the required advisement of any immigration consequences of taking a plea for possession.

The current state of the law within California was decided in People v. Superior Court (Zamudio), (2000) 23 Cal. 4th 183.In its decision, the California Supreme Court handed down a far-reaching decision concerning any post-conviction motion to vacate a conviction, specifically under Penal Code section 1016.5. The Court held that in order for a defendant to prevail on a motion to vacate, the defendant must show prejudice stemming from the trial court's failure to give the required advise concerning one or more of the 3 potential immigration consequences of a conviction: deportation, exclusion, and denial of naturalization, all in violation of 1016.5.

So our plan is to use a 1016.5 motion to get on the calendar and then to also argue the actual gun in questions was not in fact an assault weapon under the criminal statute.