Tag Archives: Statutory Interpretation

DC Post-and-Forfeit Is Not A Conviction For Immigration Purposes

A colleague recently asked me whether the DC post-and-forfeit procedure after arrest is properly considered a conviction under federal and immigration law. The simple answer is that the post-and-forfeit procedure does not equate to a conviction. Continue reading

Lesser Included Offenses and Attempt

In a recent case, the trial judge asked the parties for post-trial briefing on whether Second-Degree Theft is a lesser-included offense of Second-Degree Fraud in DC. A straight-forward question, I thought, and one I believed that the prosecution basically conceded by answering that in its view attempted second-degree theft is a lesser-included offense of second-degree fraud.

Attempt is the prosecution’s catch-all for failure to prove necessary elements (other than intent), and in DC, prosecutors often charge attempt instead of certain felonies to deprive defendants of their rights to a jury trial. The only problem is that the attempt statute, D.C. Code § 22-1803, limits its application to crimes that don’t already have a provision in the Code punishing the attempt. In other words, the attempt statute is not meant to replace more specific attempt offenses, and you can’t attempt to attempt to commit a crime. Continue reading

Is Simple Assault a Crime Involving Moral Turpitude post-Silva-Trevino?

As discussed in a previous post, in Silva-Trevino, ex-Attorney General Mukasey attempted to drastically revise nearly a century of jurisprudence governing the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT).  This post will attempt to answer the question –  when are the Immigration Courts allowed to look beyond the record of conviction to determine whether a conviction for simple assault is a CIMT?

EDIT: After the Fourth Circuit’s recent decision rejecting Silva-Trevino in Prudencio v. Holder, this approach is looking more and more vulnerable to attack.  Check to see whether Silva-Trevino is still good law in your circuit. I discuss the Fourth Circuit decision here.

FURTHER EDIT – IMPORTANT: The Supreme Court’s June 2013 decision in Descamps v. US clarified when the modified-categorical approach is to be used for determining whether a crime is a crime of violence. This has completely changed the Fourth Circuit’s analysis of whether simple assault type crimes will be a crime of violence (and therefore a CIMT). See US v. Royal (4th Cir., Oct. 2013).  I imagine that the situation is changing quickly in other circuits as well.

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11th Circuit Rejects Silva-Trevino Framework for Looking Beyond Record of Conviction in Immigration Cases

Today, the Eleventh Circuit became the latest US Court of Appeals to reject the new Silva-Trevino method for determining whether a crime involves moral turpitude (CIMT).  Silva-Trevino was former Attorney-General Mukasey’s parting shot at immigrants, and it was a doozy.  In Silva-Trevino, AG Mukasey made huge changes to the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT) under the guise of  creating a national standard to resolve what he perceived as an ambiguous statute.  In Sanchez Fajardo, the 11th Circuit held that ex-AG Mukasey’s decision was not entitled to Chevron deference because there was no ambiguity. Continue reading

9th Circuit Reiterates that BIA’s 30-Day Appeals Deadline is Non-Jurisdictional

Please, no one take this as an excuse to blow off the Board of Immigration Appeals deadlines, but the 9th Circuit recently restated its holding that the BIA’s appeals deadline is not jurisdictional, overturning (in that circuit) the BIA’s attempted overruling of circuit precedent.  In a decision found here, the 9th Circuit called the 30-day deadline a “claim-processing rule” rather than a limit on jurisdiction.

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Meeting the “public benefit” standard in FOIA attorney fees cases.

In FOIA attorney fee cases, courts have created a false dichotomy between those requests for information that are in the public interest and those that further a private commercial interest, except those private commercial interests represented by mainstream media.  This distinction fails to consider that the commercial frequently becomes political.  For example, look at what happened when Eller & Co, a South Florida-based terminal and stevedoring company,  raised a stink about becoming “involuntary partner” of DP World – the Dubai Ports World Scandal, ultimately leading to a vigorous debate on issues of national security in our ports.  The purpose of this post is to identify a principle that would allow a corporation or individual not involved in media to satisfy the public interest test for attorney fees.

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Judge Randolph’s Concurrence in Burka v US Dept. of Health and Human Services

I have just started looking into FOIA Attorney Fees, and one thing I had found curious is that even though the statutory provision for attorney fees for FOIA applicants has fewer criteria than other provisions, such as EAJA, the courts have applied additional criteria to FOIA attorney fees, making an application MORE difficult.  I wrote about the statutes here.

It seems I am not alone.  Judge Randolph wrote a concurrence in Burka v. US Dept. of Health and Human Servs., 142 F. 3d 1286 (D.C. Cir. 1998) that raised the same concerns.  His concurrence argues much more eloquently than I could: Continue reading

Plain text readings of EAJA and FOIA fee shifting statutes don’t tell the whole story: the test for FOIA attorney fees.

Although the statute for attorney fee awards in Freedom of Information Act (FOIA) cases has fewer conditions on such awards than the statutes for attorney fee awards in the Equal Access to Justice Act (EAJA), courts have imposed their own conditions on FOIA attorney fees that are stricter than those for EAJA.  In this post, I want to explore the difference between the two statutes and the court decisions dealing with them. Continue reading