Author Archive | Barry Leiwant

Friday, June 14th, 2019

Second Circuit defines when it is illegal for an immigrant to possess a firearm

On June 13, 2019, the Second Circuit affirmed the gun possession conviction in US v. Balde.

The story of this case began in 2006, when Mr. Balde’s temporary permission to be in the United States legally was revoked while he was visiting his mother in Guinea during her final illness. He returned by way of JFK airport, where he was informed for the first time that his legal status had been cancelled. He was detained, and the government, alleging that he was inadmissible, initiated removal proceedings. Eventually he was ordered removed, but was then released while he challenged his removal.

To make a long story short, in 2015, over seven years after he received a final order of removal, Mr. Balde was involved in a fight in a Bronx delicatessen and allegedly pulled out a gun. He pleaded guilty to one count of unlawful possession of a firearm by …

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Categories: immigration

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Categories: immigration

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Supreme Court issues a new ruling on the definition of generic burglary

In Quarles v. United States, decided on June 10, 2019, a unanimous Supreme Court held that “remaining-in” burglary qualifies as a crime of violence for ACCA purposes even if the defendant does not form the intent to commit a crime in the building or structure until sometime after the unlawful remaining commences.

The petitioner contended that his Michigan conviction for “home invasion” did not constitute a predicate crime of violence under ACCA (18 USC § 924(e)). ACCA defines a crime of violence to include “burglary.” Under the Supreme Court’s 1990 decision in Taylor v. United States, 495 US 575, the generic statutory term “burglary” means any offense that involves the unlawful or unprivileged entry into, or remaining in, a building or structure with intent to commit a crime therein. The issue in Quarles was whether remaining-in burglary occurs only if a person has the intent to commit a …


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Categories: ACCA, burglary, crime of violence

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The Second Circuit has withdrawn its opinion in Thompson v. Barr

On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a).

The panel opinion in Thompson did not discuss whether the fact that a crime can be committed by omission as well as by commission affects whether that offense “has as an element the use, attempted use, or threatened use of physical force.” 18 USC § 16(a). The pro se petitioner did not raise that issue, and it is pending before the Second Circuit in US v. Scott, #18-163 (argued Jan. 10, 2019). This probably accounts for the decision to withdraw the Thompson opinion.…


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Categories: crime of violence, immigration

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Wednesday, March 23rd, 2016

Supreme Court Update – Stun Gun a “Bearable Arm” Protected by the Second Amendment – Caetano v. Massachusetts

In Caetano v. Massachusetts, No. 14-10078, the Supreme Court, in a unanimous per curiam decision, reversed the decision of the Supreme Judicial Court of Massachusetts that a stun gun is not a “bearable arm” protected by the Second Amendment, District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010).  Ms. Caetano was given a stun gun by a friend to use for protection after an altercation with her abusive ex-boyfriend landed her in the hospital. Multiple restraining orders had proved unsuccessful in keeping the boyfriend away.  The next time the boyfriend accosted her, she displayed the stun gun and he went away.

Possession of a stun gun is punishable in Massachusetts by imprisonment of 6 months to 2 1/2 years.  Ms. Caetano raised a Second Amendment claim in the trial court, but it was rejected, and she was convicted.  The …

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Categories: second amendment

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