Kernan v. Cuero, 138 S.Ct. 4 (2017)

An unusual case. The defendant pled guilty to the charge against him and the sentence of 14 years. Subsequently,the prosecutor amended the complaint and added an additional count. The state court permitted it although the sentence was higher. The defendant agreed to the new sentence as explained to him by the judge.

After sentencing, the defendant appealed, the district court affirmed the conviction. The Ninth Circuit reversed the state law (which permits the above process at trial court) and the U.S Supreme Court reversed.

The Justices said no Supreme Court case had held any of its precedent violated this state law or decision on the subject described above. Ninth Circuit reversed.

Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017)

This Ninth Circuit death penalty case is an endless procedural essay on intelligence disability and a review of habeas corpus decisions of state and federal courts. The crime is vicious and brutal deserving execution but the defendant has repeatedly filed claims in various courts challenging the state supreme court and the federal district court. This case is an appeal of the district court to the Ninth Circuit repeatedly remanding and partially confirming. Nowhere near terminating, the case justifies non reviewing.

Maqiuz v. Hedgpeth, 907 f3d 1212 (9th Cir.)

McDonald, an active gang member, committed a robbery of a woman in an area close to gang territory but without any evidence by clothing or statements that he was a member of a gang. At his trial a deputy sheriff testified extensively to McDonald’s membership in the gang and their policy of committing crime to gain territory, add graphics on buildings, and frighten the community.

The prosecution added illegal possession of a weapon and commission of a prior robbery, both enhancements to a sentence of robbery .The state court jury found the defendant guilty of robbery and included the enhancements in the sentence. The California Court of Appeal and state Supreme Court upheld the guilty verdict and sentence. Defendant subsequently filed habeas corpus in federal District Court but the judge confirmed all state court decisions. The defendant filed habeas corpus of this decision and appealed to the Ninth Circuit. The majority of the three judge panel affirmed the verdict but reversed the gang member enhancement.

The court majority (the 9th Circuit panel) decision held the deputy’s testimony insufficient to support the jury verdict of sentence enhancements. The dissenting judge cited federal law-now in a federal case-and Supreme Court precedent to apply AEDPA rules warranting a different result upholding the jury on the gang membership.This 2-1 vote overruled all California courts and the federal district court.


Elisa Menendez & Hector Castellon v. Whitaker (AG) 908 f3d 467

These two cases were consolidated in appeals to the 9th Circuit from BIA decisions of removal of petitioners, both convicted of state crimes in California. The appellate panel, in an academic display of linguistics and rhetoric, applied their conventional categorical rule of comparing the state criminal law rule used by the BIA with the comparable federal rule. The California rule of Penal Code 288 (c) prohibition of sexual molestation of children requires evidence involving moral turpitude. The BIA held P.C. 288 is categorically a crime of  child abuse under Penal Code 647.6. The same charge in federal court is 8 U.S. Code 1227 but the statute  does not use the same term for the crime.

The panel held neither of the two statutes in the state cases cited by the BIA involved moral turpitude or child abuse under federal law. Only after an extensive examination of the elements in state and federal law did the panel hold the BIA used the wrong law and therefore reversed for a rehearing by the BIA.

The concurring judge in these two cases above reviewed a major federal problem not necessarily confined to this BIA case.  In all habeas corpus hearings of state court convictions the federal appellate court compares state law with the comparable federal law.  If the state case law or statute  do not compare, the federal court reverses, in effect, the state courts by applying the law of federal courts on the same subject. The concurring 9th Circuit judge in the three judge panel commented on this practice as it applies not only to habeas corpus in federal review of state court convictions but also hearings of the rule applicable to the BIA.

The court reversed the BIA and ordered a new hearing.

















Immigration 1918


Immigration cases are voluminous, frequently fact specific and and involving rarely used precedent. For that reason we will summarize cases briefly.

Lorenzo v. Sessions, .F.3d 901 (9th Cir. 2018)

Lorenzo filed a petition to appeal the decision of an immigration judge and BIA ordering his deportation. The grounds of appeal were the California statute prohibiting a certain kind of drug differed in content from that of the federal statute and should not be invoked for deporting. The Ninth Circuit panel agreed and reversed.

Using the difference between almost the same item, both of which in violation of federal and state statutes respectively, is not the function of the immigration court.  Immigration courts are not a criminal court but an administrative court to determine whether a petitioner should remain in the United States after committing a crime. Violation of a California statute is a crime warranting sentence. The IJ and the BIA both agreed the California crime warranted deportation.  The Ninth Circuit disagreed, reversed, and remanded.

Orlando Vasquez v. Valle, 2018 DJDAR 7933 (2018)

In a case worse than Lorenzo: The Ninth Circuit panel describes Vasquez-Valle as a native of Mexico in the United States. In other words, an “illegal alien.” Ordered removed by the IJ and BIA, Vasquez petitioned the Ninth Circuit for cancellation of removal on grounds he had been convicted by an Oregon court of witness tampering. Oregon courts held this conduct consisted of moral turpitude and statutorily prohibited. Not in the Ninth Circuit. Moral turpitude must be the federal definition of crime-fraudulent, base, vile or depraved. Therefore, “tampering with a witness” is not a crime of moral turpitude.

This legal definition in a courtroom is another example of an appellate court acting as a criminal court to allow this “citizen of Mexico” to remain in the United States and is incomprehensible.

U.S. v. Garcia Lopez, 903 F.3d 987 (2018)

Lopez pled guilty to the crime of crime of robbery, a “crime of violence” In California, and was subsequently ordered deported by the IJ.  Lopez appealed to the 9th Circuit, and  the court held robbery in California courts differed from the federal definition of the crime and therefore not an “aggravated felony” warranting deportation.

Parada v. Sessions, 902 F.3d 901 (2018)

According to the 9th Circuit, the fear of the applicant’s appeal for asylum based on persecution in his country, and the return of the source of political power, warranted rebutting the government rebuttal of presumption of asylum.

Diaz-Jiminez v. Sessions, 902 F.3d 955 (2018)

The IJ ordered Jiminez deported based on his failure as an alien working as an employee for a private employer to sign a false statement mandatorily required by federal government. The statute was worded to prohibit signing  a false statement, but Jiminez signed no statement at all. So the 9th Circuit on appeal held he committed no crime and no statutory violation.

Nguyen v. Sessions 901 F.3d 1093 (2018)

The BIA ruled that a legal permanent resident could not cancel her removal based on the statutory rule. On appeal the 9th Circuit held the BIA used the wrong rule was applied to the petitioner.