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Philipino National Fails to Receive Review for Removal Order

file451297827287.jpgIn the case of Cabantac v. Holder, the defendant, Randy Cabantac, disputed his removal order for possession of methamphetamine. This case has led to considerable consternation among the appellate judges of the Ninth Circuit Court of Appeals, as the ruling did not clarify a pressing issue involving “modified categorical approaches.” This principle is applied when a state law is broader than a similar federal law.

In this case California law was deemed overbroad because it specifically institutes a penalty of removal for possession of methamphetamine but not necessarily other controlled substances. The reigning federal law is the Controlled Substances Act which does not specify removal proceedings for the possession of methamphetamine. Unfortunately a panel of the Ninth Circuit found that the defendant had pled guilty to “possession of methamphetamine,” despite protestations that he had only pled guilty to possession of a controlled substance, an offense that does not result in deportation.

As an experienced immigration attorney, I am dismayed by cases like Cabantac v. Holder, in which a defendant is penalized by an administrative error on the part of the legal counsel. I uphold the highest standards of the legal profession and understand that my clients expect the best possible legal representation.

Randy Cabantac originally was found removable by the presiding Immigration judge, and this decision was affirmed by the Board of Immigration Appeals. A three judge panel of the Ninth Circuit Court of Appeals, led by the Chief Judge Alex Kozinski, heard the appeal and denied the petition of the defendant to reverse the judgment of the BIA.

During the litigation of this case, an abstract indicating Cabantac pled guilty to possession of methamphetamine was introduced into court documents. At the time of review by the BIA, this statement was found among the legal abstract and was a deciding factor in their affirmation of removal.

When this case was presented to the appellate court, however, Cabantac contends that he only pleaded guilty to the less serious offense of possession of a controlled substance. The Ninth Circuit panel determined that if Cabantac truly had pleaded to a different offense, his lawyer should have amended the court document, and, therefore, the appellate court must take the abstract as accurate.

The issue of contention among judges of the Ninth Circuit is that of modified categorical approaches. While federal law is usually an overriding imperative, in cases, where state law includes actions not specified in federal laws, there may be a significant conflict. In the U.S. Supreme Court case of Deschamps v. United States, the high court struck down the use of the modified categorical approach when a crime was well characterized by federal law.

I have been an immigration attorney for many years and view the underlying conflict between state and federal laws as a staple in the profession. Cases like Cabantac v. Holder will test the boundaries between these two government authorities, and it requires considerable legal skill to discern how to avoid such constitutional conflicts which could jeopardize the future of clients.

Lyttle Law Firm, PLLC has been representing clients successfully in the areas of immigration and family law for many years. To learn more about how this firm’s legal professionals can assist you, please call (512) 215-5225.

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