Tue - November 9, 2004

DUI IS NOT A CRIME OF VIOLENCE: Leocal v. Ashcroft  543 U. S. ____ (2004) November 9, 2004.


A drunk driving accident is not a "crime of violence" allowing the
government to deport a permanent resident, the Supreme Court ruled in
Leocal v. Ashcroft   543 U. S. ____ (2004) November 9, 2004.


The court ruled unanimously in favor of Josue Leocal, a Florida man
challenging his deportation to Haiti in 2002 after pleading guilty to a
felony charge of drunk driving.

The 11th U.S. Circuit Court of Appeals ruled that the DUI offense was a
"crime of violence" under the immigration statute because he had caused
injury to others.

The Supreme Court disagreed. It said the plain meaning of the statute
suggests that the felony offense must require intent in causing harm -
not mere negligence as in Leocal's case - before immigrants are subject
to the drastic consequence of deportation.

Posted at 06:47 PM     Read More  

Wed - December 10, 2003

INS v. St. Cyr: Supreme Court Allows Criminal Aliens to Apply for Waivers under former Section 212(c)


Courts have jurisdiction under 28 U.S.C. 2241 to decide the
legal issue raised by St. Cyrs habeas petition. (2) Section 212(c)
relief remains available for aliens, like St. Cyr, whose convictions
were obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for 212(c) relief at the time of
their plea under the law then in effect. Certiorari to the United
States Court of Appeals for the Second Circuit No. 00767. June 25, 2001

Posted at 09:35 AM     Read More  

Tue - April 29, 2003

Demore v. Kim: Mandatory Detention Allowed | Custody & No Bond/Bail: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1) (April 29, 2003)


The US Supreme Court declared that lawful permanent residents with
certain criminal convictions can be detained pursuant to INA §236(c)
without an individual bond hearing. The Court, however, also held that §
236(e) does not preclude habeas review of challenges to detention under
§ 236(c) .

The Supreme Court decision in Demore v. Kim applied only to
individuals who conceded deportability and explicitly did not address
the adequacy of the Matter of Joseph hearing, which allows a person to
be released if she or he can demonstrate that the government is
"substantially unlikely to prevail" on the charges of removal. To the
extent possible, non-citizens should not concede deportability and
request a Matter of Joseph hearing. 22 I. & N. Dec. 799 (BIA 1999)
http://callyourlawyers.com/pdfcaselaw/matterofjoseph.pdf

The Immigration Judge may make a determination on whether a lawful
permanent resident “is not properly included” in a mandatory detention
category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before
or after the conclusion of the underlying removal case. If this
threshold bond decision is made after the Immigration Judge’s resolution
of the removal case, the Immigration Judge may rely on that underlying
merits determination.

Posted at 03:35 PM     Read More  

Tue - December 10, 2002

ZADVYDAS v. DAVIS: Indefinite Detention of Aliens Ordered Deported Unconstitutional (June 28, 2001)


The 5-to-4 decision rejected the government's view, as argued by both
the Clinton and Bush administrations, that immigration law authorized
and the Constitution permitted indefinite, even lifelong detention of
immigrants adjudged deportable but unable to be repatriated.

Justice Stephen G. Breyer's majority opinion said that because
interpreting the law in that way would present a "serious constitutional
threat" under the Fifth Amendment's guarantee of due process, the court
would construe the law to permit only "reasonable" detention. Justice
Breyer said that after six months of detention, if deportation did not
seem likely in the "reasonably foreseeable future," the government would
have to come up with special reasons for keeping someone in custody.

Posted at 10:35 AM     Read More  

©