Thursday, December 08, 2005

Cuevas-Gaspar, No. 03-73562 (12-7-05). This immigration opinion has two interesting holdings with 1326 applicability. First, the 9th (Tashima) holds that burglary under the Washington State statute is not a crime of moral turpitude. The 9th reasoned that breaking and entering might be, or might not be, a morally reprehensible act; it depends on the mischief or crime you intend to commit once you cross the threshold. Entering a barn, for example, to play poker in an illegal gambling foray is different from entering a home to commit a serious crime. The state statute is overbroad in that it make breaking and entering with intent to do another crime a burglary, and so under Taylor's categorical approach, a burglary by itself is not a crime of moral turpitude. However, under Shepard's modified approach, the colloquy for the offense plea read that he accompanied someone who burglarized, and who took things from a home, and so that made it a crime of moral turpitude. The 9th noted that the petitioner did not raise the issue of whether an accomplice differed from a principal, and so that issue was left for another day. Petitioner then sought to cancel removal under 8 USC 1229b because his parents had lawfully been admitted to the US and were legal permanent residents for the continuous residence requirement (7 years) and their status could be imputed to him. He could only have the 7 years if their time was imputed to him. This was an issue of first impression, although the 9th in Lepe-Guitron, 16 F.3d at 1024, had imputed residency of parents to their minor children under 212(c). The 9th does so for 1229b as well. In a well reasoned and comprehensive opinion, the 9th looks at the statute, the policy implications, and the agency's interpretation. The 9th notes that children in the immigration context have always been saddled with the parents' decision (i.e. the fact that parents mess up in residency and leave the US affects the kids too), and that a contrary interpretation would treat LPRs worst than nonpermanent residents. Legislative intent would also favor such an interpretation. Petitioner does get relief. In dissent, Fernandez said "bah humbug," disagreeing with the majority's holding that burglary under the state statue was overbroad; he would find that it was a crime of moral turpitude because of the violation of the dwelling. He also would adhere to the strict reading of the statute that the person himself had to be in the US for a continuous 7 years, irrespective of parents. He ends his dissent with: "It is not for us to listen to the susurrant promptings of our own convictions rather than the stentorian proclamations of the legislature."

US v. Monzon, No. 03-30497 (12-7-05). This is another example of what could go wrong in a plea colloquy. Here the defendant plead to a count of distribution and use of a gun. The statement in the colloquy was that he basically had the gun in his room because he got it cheap. There was no connection between the gun and the drugs. The 9th reverses the conviction. It held that such a plea colloquy was Rule 11 error, and that it affected defendant's rights because such a plea made him ineligible for safety valve. It was reversed and remanded. In dissent, Callahan makes the point that the defendant got a windfall, and that the plea should be vacated and the charges reinstated. The parsing, to her, doesn't make sense. She also questions the so-called prejudice.


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