SCOTUS

CLICK TO READ Pereida v. Wilkinson, Docket # 19-438

 Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Pereida did not contest. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonpermanent residents to prove, among other things, that they have not been convicted of specified criminal offenses. § 1229b(b)(1)(C). While his proceedings were pending, Pereida was convicted of a crime under Nebraska state law. Analyzing whether Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Because Nebraska had charged Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Pereida’s conviction was likely not for the crime of operating an unlicensed business, and thus the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Pereida stood convicted of violating. But because Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.

Under the INA, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. An alien has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

This was a 5-3 decision.

COURT OF APPEALS

No decisions reported.

FIRST DEPARTMENT

No reversals reported.

SECOND DEPARTMENT

CLICK TO READ People v. Leo Tapia, Docket # 2011-02784

Appeal of a guilty plea to Criminal Possession of a Controlled Substance in the Fifth Degree in 2010, case remitted to allow Defendant the opportunity to move to withdraw his guilty plea.  Defendant and a co-defendant (Vidalis) were charged with drug possession.  At a joint plea hearing, the court posed a question directly to “Mr. Vidalis,” asking if the codefendant understood that he could be deported if he entered a plea of guilty, to which the codefendant answered in the affirmative. The court then stated to the Defendant, “Mr. Tapia; do you understand that?” The defendant answered in the affirmative.  The court then individually asked the codefendant and the Defendant if they had fully discussed “the immigration consequences of this case with your attorney,” to which the defendant answered in the affirmative. However, the court did not specifically instruct the defendant, who required a Spanish interpreter to understand the court and had only a sixth-grade education, that he could be deported if he entered a plea of guilty, nor did the court use the words “deported” or “deportation” in any statement posed directly to the Defendant.

Even though this claim was unpreserved for appellate review, the Second Department held in the interest of justice, Defendant should be allowed to move with withdraw his plea since he was not adequately advised of immigration consequences.

CLICK TO READ People v. Shaheed D. Fellos, Docket # 2018-01297

Appeal of a guilty plea to Assault in the First Degree; case remitted for further proceedings on Defendant’s motion to withdraw his guilty plea.

After pleading guilty, Defendant appeared at sentencing and stated he wanted to withdraw his plea, claiming he was coerced by counsel.  The court relieved counsel and assigned a new lawyer to represent Defendant.  The new attorney later advised the court that a motion to withdraw the plea would be frivolous.  The court then adjourned the case several times for Defendant to retain prior counsel, but Defendant never hired a new lawyer, and the court sentenced him while he was still represented by the second assigned lawyer.

The Second Department held that Defendant’s right to counsel was adversely affected, and he received ineffective assistance of counsel, when his counsel took a position adverse to his.  As a result, he is entitled to be represented by new counsel with respect to his motion to withdraw his guilty plea.

THIRD DEPARTMENT

No reversals reported.

FOURTH DEPARTMENT

No decisions reported

SECOND CIRCUIT

CLICK TO READ United States v. Gerald Scott, Docket # 18-163

Appeal by the Government from an order pursuant to 28 U.S.C. § 2255, vacating the Defendant’s 22-year sentence for Hobbs Act robbery and related firearms crimes and resentence to time served, 11 years and 3 months.  The District Court concluded that it had mistakenly applied the Armed Career Criminal Act and the Career Offender Guideline under § 4B1.1, in determining Scott’s initial sentence because two prior convictions relied on as predicates for those enhancements were for Manslaughter in the First Degree under Penal Law § 125.20(1), which the District Court ruled is not a categorical “violent felony” or “crime of violence” under ACCA or the Sentencing Guidelines. 

The majority reversed, adopting the Government’s argument that Manslaughter in the First Degree is a categorical violent felony or crime of violence because a person can be guilty of that crime—whether by commission or omission—only if he (a) causes death, while (b) intending to cause at least serious bodily injury, and the Supreme Court has stated that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” in United States v. Castleman, 572 U.S. 157, 169 (2014).

Order reversed and remanded.

* This case was argued en banc, and there were dissenting opinions.

CLICK TO READ Vasquez v. Maloney, Docket # 20-1070

This is a § 1983 case. 

On January 5, 2015, police officers stopped Plaintiff as he and his daughters walked out of a Target store at the Palisades Center Mall. They detained him and frisked him for weapons. The officers admittedly had no reason to think he had committed a crime, but one officer speculated that there “might be” a warrant for Vasquez’s arrest. Put into legal terms, the officers clearly lacked any facts giving them “reasonable suspicion” that Vasquez was involved in criminal activity (much less carrying a dangerous weapon) or wanted for a crime.

Plaintiff sued for Fourth Amendment violations, and the Defendant police officers moved for summary judgment, which was denied.  The Second Circuit affirmed denial of summary judgment, finding that Defendants were not entitled to qualified immunity because clearly established law prohibits detaining and frisking a person without a warrant, probable cause, or reasonable suspicion of criminal activity.

This case is going to trial, or settlement.  Cha-ching.

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THIS WEEK’S SEARCH TERMS (TAGS)

crime of moral turpitude, deportation, immigration consequences, Criminal Possession of a Controlled Substance in the Fifth Degree, Assault in the First Degree, motion to withdraw guilty plea, ineffective assistance of counsel, Hobbs Act robbery, 28 U.S.C. § 2255, Armed Career Criminal Act, Career Offender, Manslaughter in the First Degree, qualified immunity, Fourth Amendment