Friday, January 05, 2007

US v. Jimenez-Ortega, No. 06-50007 (1-5-07). A defendant might lie on the stand, but did it really matter? Defendant was charged and convicted of importation drugs, and testified somewhat incredibly at trial. The court found his testimony so outlandish that he gave an adjustment for obstruction. The 9th (per curiam) remanded, reasoning that an obstruction adjustment requires a finding of materiality, and the court here failed to make such a finding. The 9th had two divergent sets of precedents, but elected to follow US v. Jimenez, 300 F.3d 1166 (9th Cir. 2002), which had followed the Supremes in US v. Gaudin, 515 US 506 (1995), where materiality must be decided by a trier of fact and was not a purely legal issue.

Lin v. Gonzales, No. 04-73860 (1-5-07). There is no bar against moving to reopen a deportation proceeding under 8 USC 1231(a)(5) only applies to a pending or present proceeding and is not a bar for all time. Once a removal is completed, the petitioner can try to reopen it in another proceeding. The ambiguity of the statute's present tense supports this.


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