Blast From the Past

I just had to share this vintage footage from my youth, via YouTube. 

I remember seeing Ronnie Montrose at the Keystone Theater in Palo Alto in one of my first concert experiences. He was on fire and gave a great performance. 

Ninth Circuit Holds Theft of a Vehicle is Not Categorically an Aggravated Felony

In United States v. Vidal, (9th Cir. Oct. 10, 2007): the Ninth Circuit Court of Appeals held, 

Theft and unlawful driving or taking of a vehicle in violation of Cal. Vehicle Code § 10851(a) is not categorically an aggravated felony under INA § 101(a)(43)(G) because it may be applied to accessories after the fact. 

Following Plaintiff's guilty plea to violating INA § 276, the district court imposed an eight-level sentence enhancement under USSG § 2L1.2(b)(1)(C), based on Plaintiff's prior conviction for theft and unlawful driving or taking of a vehicle in violation of Cal. Vehicle Code § 10851(a).  USSG § 2L1.2(b)(1)(C)  allows an eight-level enhancement for persons who were "previously deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony." On appeal, the court considered whether a conviction under § 10851(a) constitutes an aggravated felony theft offense within the meaning of USSG § 2L1.2(b)(1)(C) and INA § 101(a)(43)(G).

The Ninth Circuit's defines a generic theft offense as "a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026 (9th Cir. 2005). In Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820 (2007), the Supreme Court held that a "theft offense" under INA §101(a)(43)(G) "includes the crime of 'aiding and abetting' a theft offense" and that therefore, the possibility of conviction as an accomplice under §10851(a) does not render the statute broader than the generic definition. In the present case, the court considered whether the possibility of being convicted under §10851(a) as an accessory after the fact renders the statute categorically broader than the generic theft offense.

The court noted that federal law recognizes accessories after the fact as a category separate from principals and accessories before the fact, which are generally lumped together for purposes of criminal liability. Therefore, the court has held that a prior felony conviction for accessory after the fact to murder for hire does not fall within the generic definition of "crime of violence" for purposes of the career offender enhancement under USSG §4B1.1. United States v. Innie, 7 F.3d 840, 850 (9th Cir. 1993). The distinction is appropriate, given the fact that principals and accessories before the fact have all "played a part in the commission of the crime" while an accessory after the fact "had no part in causing the crime." 2 Wayne R. LaFave, Substantive Criminal law §13.6. To sustain a conviction for accessory after the fact under 18 USC §3, one need only have assisted the principal with knowledge that the offense has already been committed. Therefore, the court concluded, an accessory after the fact to theft cannot be said to have committed all of the elements of a generic theft offense which requires the "criminal intent to deprive the owner of rights and benefits of ownership." Martinez-Perez, 417 F.3d at 1026.

In addition to criminalizing the taking of a vehicle by a principal, Cal. Vehicle Code §10851(a) imposes criminal liability for the "[t]heft and unlawful driving or taking of a vehicle" on "any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing…" of a vehicle. The court explained that California explicitly abrogated the common law distinction between principals and accessories before the fact in 1872. See Cal. Penal Code §971; People v. Collum, 122 Cal. 186, 187 (1898). Like the present §10851(a), California's original theft of a vehicle statute, which was enacted in 1923 similarly extended liability to "[a]ny person who assists in, or is a party or accessory to or an accomplice in, any such stealing." Because the distinction between accessories before the fact and principals was abolished before the enactment of the original vehicle code, the court found that the use of the term "accessory to" in §10851(a) can only refer to accessories after the fact. The court also compared Cal. Penal Code §31, which defines "principals" as "[a]ll persons concerned in the commission of a crime" including aiders and abettors, and Cal. Penal Code §1111, defining "accomplice" as "one who is liable to prosecution for the identical offense charged against the defendant," with Cal. Penal Code §32 which defines "accessory" as one "who, after a felony has been committed, harbors, conceals or aids a principal in such felony…." Therefore, the court noted, California explicitly uses the term "accessory" to refer only to accessories after the fact. The court concluded that the full range of conduct proscribed by §10851(a) does not fall within the scope of the generic definition because whereas the generic definition only encompasses principals, accomplices, and others who incur liability based on pre-offense conduct, §10851(a) also covers accessories after the fact.

The court turned to the modified categorical approach and examined the record of conviction to determine whether Plaintiff's guilty plea to a violation of §10851(a) could necessarily support a conviction for generic theft. The court held that Petitioner's plea pursuant to People v. West, 3 Cal. 3d 595 (Cal. 1970), where the "court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense," did not establish the factual predicate for his conviction. People v. Tuggle, 232 Cal. App. 3d 147, 283 (Ct. App. 1991). Moreover, the record of conviction did not "unequivocally establish that [he] pleaded guilty to all the elements of the generic [theft] offense." Li v. Ashcroft, 389 F.3d 892, 896 n.7 (9th Cir. 2004). The court held that the district court erred in applying the eight-level sentencing enhancement on the basis of Plaintiff's 1994 conviction under Cal. Vehicle Code §18051(a), vacated the sentence and remanded the case for resentencing. Judge Callahan dissented, disagreeing that the word "accessory" in §10851(a) necessarily includes accessory after the fact liability.

Cert Denied

Unfortunately, last Monday the Supreme Court denied my cert petition with a one line denial notice, strictly pro forma. Now the clients, Palestinians are without any legal recourse. 

I remember the son, asking us at our last meeting, if joining the military would halt their deportation. To the best of my knowledge, I believe so, but I cannot confirm it. 

On another note, the July Bar Exam complete statistics were released this week and USF was fourth in the state, beating both Boalt Hall (U.C. Berkeley) and Hastings (U.C. Tenderloin), as well as Santa Clara, McGeorge, Pepperdine, and  Loyola. Only Stanford, USC, and UCLA by only 1% beat USF. The U.C. system is slipping bigtime. 

Ninth Circuit Holds BIA Abused its Discretion in Denying Motion to Reopen Based on Ineffective Assistance of Counsel

In the instant petition, the record demonstrates that former counsel filed a boilerplate brief to the BIA that resulted in Petitioner not receiving meaningful review. The BIA abused its discretion when it failed to presume prejudice and instead required Petitioner to demonstrate that she suffered prejudice. Grigoryan v. Keisler, (9th Cir. Nov. 19, 2007).

This is a nice decision that almost creates a per se finding of IAC whenever counsel fails to file and brief an appeal from a decision in immigration court. This circuit is in stark contrast with the Seventh Circuit, where in Stroe v. INS, 256 F.3d 498 (7th Cir. 2001), Justice Posner writes in the majority opinion, dicta language that questions whether an alien in deportation proceedings, because it is essentially civil in nature, has any constitutional right to due process necessitating effective assistance of counsel. Now the DOJ seems to have circulated  a memo throughout their Office of Immigration Litigation ("OIL") to challenge any IAC claim on the basis of no constitutional right to counsel under the 5th Amendment, waiting for case to take up to the Supreme Court.  

Constitutional Tipping Point

"As nightfall does not come all at one, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be aware of change  in the air - however slight - lest we become unwilling victims of  the darkness." Justice William O. Douglas.

This quote struck me as being highly relevant today as the truth about the CIA's interrogation techniques of so-called "terror suspects" and the destroyed video tapes that documented this torture swirls around the news coupled together with water-boarding for all suspects.

"Despite the mystique that surrounds it, and the understandable impulse to treat it as aberrant behavior beyond politics, torture is not particularly complicated or mysterious. A tool of the crudest kind of coercion, it crops up with great predictability whenever a local despot or a foerign occupier lacks the consent needed to rule: Marcos in the Philippines; the Shah in Iran; Saddam in Iraq; the French in Algeria; the Israelis in the occupied  territories; the U.S. in Iraq and Afghanistan.

The widespread abuse of prisoners is a virtual foolproof indication that politicians are trying to impose a system - whether political,religious, or economic - that is rejected by large numbers of people they are ruling."

Klein, Naomi,  The Shock Doctrine: The Rise of Disaster Capitalism, Metropolitan Books, 2007, pg. 125.

Supreme Court Grants Certiorari to Resolve Whether a Motion to Reopen Tolls Voluntary Departure

In Dada v. Gonzales, 207 Fed. Appx. 425, No. 06-60180 (5th Cir. Nov. 28, 2006) (per curiam), Petitioner filed a motion to reopen for adjustment of status two days prior to the expiration of his voluntary departure period. Petitioner also asserted that he was "withdraw[ing] his request for voluntary departure and [was] instead accept[ing] an order of deportation." On February 8, 2006, the BIA denied Petitioner's  motion, finding him  statutorily ineligible for adjustment of  status as a result of his failure  to voluntarily depart within the time period granted. INA  § 240B(b).   In an unpublished opinion, the Fifth Circuit rejected Petitioner's  argument that the filing of a motion to reopen automatically tolls the voluntary departure period, found the BIA's interpretation  of the relevant statutes "reasonable," and denied the petition for review. The Supreme Court denied certiorari on the issue as to whether a person can avoid the consequences  of failing to comply with a voluntary departure order by seeking to withdraw the request for relief, but granted  certiorari on  the tolling  issue.

The Court's decision in Dada will resolve a circuit split on the issue. Four circuits have found that the filling of a motion automatically tolls the voluntary departure period. See Kanivets v. Gonzales, 424 F.3d 330 (3rd Cir. 2005); Sidikhouya v. Gonzlaes, 407 F.3d 950 (8th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325 (11th Cir. 2006).  Two court, including the Fifth Circuit in a separate published opinion, have concluded otherwise. See Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006), petition for cert. pending, No. 06-1252 (filed Mar. 22, 2007); Banda-Ortiz v. Gonzlales, 445 F.3d 387 (5th Cir. 2006), cert. denied, 127 S.Ct. 1874 (2007). 

Second Supreme Court Certiorari Petition

Recently file our second petition for certiorari to the Supreme Court in another deportation proceeding where the government denied our client's application for asylum.  

The specific issue here is whether the prior counsel's representation was ineffective when the counsel was a co-conspirator in an international asylum fraud ring, paid by the asylum broker who was indited, and convicted by an inter-departmental sting operation. 

On appeal before the 4th Circuit, the government moved to exclude all references to the facts and arguments surrounding this criminal activity and the court granted the motion to strike, completely emasculating our client's arguments.  

The application for a stay of the mandate is currently pending before the circuit rider for the 4th, Chief Justice Roberts.