Tuesday, January 4, 2011

Ninth Circuit Rules that IJ Cannot Force Noncitizen to Produce Criminal Record Transcript

Rosas-Castaneda v. Holder

United States Court of Appeals for the Ninth Circuit

No 10-70087 (January 4, 2011)

Facts: Mr. Rosas –Castaneda a lawful permanent resident was convicted of attempted transportation for sale of an amount of marijuana weighting more than two pounds in violation of Arizona law ARS 13-1001,13-3405,13-3401, 13-601, 13-702, and 13-801. The Immigration Judge(IJ) found him deportable for a controlled substance crime, but found the record of conviction unclear as to whether the offence was an aggravated felony. The IJ asked Mr. Rosas-Castaneda to submit a copy of his criminal transcript but Rosas-Castaneda refused citing Sandoval-Lua v. Gonzales, 499 F. 3d 1121 (9th Cir. 2007) and argued that he met his burden for relief because the record of conviction did not conclusively prove that his offense constituted an aggravated felony. The IJ denied his application for cancelation of removal and the Board of Immigration Appeals affirmed ruling that the REAL ID modified Sandoval-Lua.

Holding: The Ninth Circuit found that Sandoval-Lua remained good law despite the enactment of the REAL ID. Sandoval-Lua held that under the modified categorical approach, the relevant burden of proof inquiry is whether the judicially noticeable documents establish that the alien’s conviction necessarily was for an aggravated felony. If the record does not establish that the alien was convicted of an aggravated felony, then the alien has carried his burden. The REAL ID act did not change the burden of proof for the modified categorical approach it merely codified the existing law. Therefore, the Real ID Act did not change Sandoval-Lua’s logic, holding, or applicability. Moreover the statutory language of 8 USC 1229(c)(4)(B) does not grant the IJ authority to demand the alien to supplement of record of conviction, but only to request corroboration of testimonial evidence. The Ninth Circuit went on to apply the modified categorical test to the record of conviction and agreed with the IJ’s determination that it was inconclusive and granted Mr. Rosas-Castaneda’s appeal.  EQ


| Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Ninth Circuit Rules that IJ Cannot Force Noncitizen to Produce Criminal Record Transcript: