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Ninth Circuit rules immigration judges can’t deport based on alleged facts a criminal judge or jury never found

In Olivas-Motta v. Holder, __- F.3d ___ (9th Cir. May 17, 2013)  the Ninth Circuit became the fourth circuit court of appeals to reject the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 287 (AG 2008), which permitted immigration courts to find some immigrants who have been convicted of crimes removable on the basis of alleged facts about their criminal conduct that were never established in the criminal case.  (The Third, Fourth and Eleventh Circuits had previously rejected Silva-Trevino while the Seventh and Eighth had upheld it).

IDP, joined by partner organizations including the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo Law School, prepared and filed an amicus brief in the case pointing out how re-trying criminal cases in immigration court is deeply unfair to immigrants, who are often detained and lack counsel and who may have accepted plea bargains specifically to avoid immigration consequences.  The court’s decision adopted several of IDP’s arguments concerning why the Silva-Trevino rule misunderstood Congress’ intent in making deportation hinge on a “conviction” for removable conduct.


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