Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, January 6, 2017

Sixth Circuit on "lawfully" acquired LPR status for naturalization eligiblity

Turfah v. Lynch, __ F.3d __ (6th Cir. 2017) (published)

In this case, Turfah immigrated as a derivative beneficiary of an approved visa petition filed for a parent. Unfortunately, he immigrated 24 days before the principal beneficiary. No one realized the mistake until he applied for naturalization.

USCIS denied his naturalization application and argued that he did not "lawfully" acquire LPR status because he immigrated before, not with or after, the principal beneficiary of the visa petition. He appealed to the district court and lost. The Sixth Circuit affirmed the denial.

The court agreed that even though he was admitted as an LPR, he did not "lawfully" acquire that status. Therefore, he was not eligible for naturalization even though it had been more than five years since his admission.

Hopefully the USCIS will accept the court's suggestion that it work out a solution to what the court called a very sympathetic case. The USCIS has several options available to it.

Wednesday, July 16, 2014

Sua sponte reopening/equitable tolling due to vacatur of conviction

Lisboa v. Holder, No. 12-4237 (6th Cir. Jun. 25, 2014) (unpublished)

Lisboa was removed based on convictions for assault and domestic violence. As part of the plea, he agreed to give up his green card and leave the U.S. Before he could comply, he was detained, ordered removed, and removed.

Following his removal, he successfully challenged his conviction and it was set aside due to a defect in the underlying proceeding. Lisboa then filed a motion to reopen, which the BIA first denied based on the departure bar. After this office successfully challenged the departure bar in the Pruidze case, the 6th Circuit remanded to the BIA. This time, the BIA denied based on a time bar.

The court declined to reach the issue of sua sponte reopening. Instead, it remanded for the BIA to consider an equitable tolling argument.

Interestingly, in this case an unnamed former ICE trial attorney and Lisboa's ex-wife teamed up to file an amicus brief at the BIA urging that his motion be denied.

Wednesday, May 7, 2014

Being forced to concede relief may violate due process

Suarez-Diaz v. Holder, No. 13-3605 (6th Cir. Apr. 30, 2014) (unpublished)

In this case, the court criticized the practice of pressuring respondents to give up claims for relief to receive a continuance or some other benefit. However, it is not a per se due process violation. The court found no due process violation on the facts of this case.

The court also found no abuse of discretion in denying a sixth request for a continuance. The respondent sought a continuance to pursue an administrative appeal of the denial of his Cuban Adjustment Act application. There is no indication in the court's decision as to the status of that appeal.

Sixth Circuit defers to Matter of Y-L-

Luambano v. Holder, No. 13-3881 (6th Cir. Apr. 30, 2014) (unpublished)

In this decision, the court deferred to the AG's decision in Matter of Y-L-, 23 I&N Dec. 270 (AG 2002), which found that drug trafficking convictions are presumptively particularly serious so as to bar an applicant from withholding of removal.

It is unclear why the petitioner conceded that his conviction for delivery of marijuana is an aggravated felony drug trafficking offense, when he could have argued otherwise.

6th Cir on review of CAT claims, denial of venue change

Mendoza-Rodriguez v. Holder, No. 13-4357 (6th Cir. Apr. 25, 2014) (unpublished).

In this case, the court affirmed the denial of CAT relief to a convicted drug dealer who feared retaliation by a Mexican drug cartel due to his perceived cooperation with law enforcement.

The court concluded that most of the issues were immune from review because of his criminal history. Under the limited scope of review, the court could not reweigh the evidence. The court affirmed the denial of his motion to change venue because it did not affect the proceedings or render them fundamentally unfair.

It is not clear if the petitioner pursued relief under the Convention Against Transnational Organized Crime.

Tuesday, February 4, 2014

Sex Abuse of a Minor

USA v. Mateen, No. 12-4481 (6th Cir. Jan. 7, 2014) (published) 

In this criminal sentencing, the court addressed an issue relevant to the sex abuse of a minor aggravated felony ground of removal. In this case, the government sought a sentencing enhancement based on the defendant's prior conviction Gross Sexual Imposition. The government alleged that this qualified as a prior conviction for "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 

The court first applied the the categorical approach and concluded that the state offense must include as an element the age of the victim. The "involving a minor or ward" language modified the sexual abuse, etc., language. In this case, it was clear from the plea colloquy and other documents that the victim was a minor but because the victim's age was not an element of the offense, it did not trigger the sentencing enhancement.

The court next applied the modified categorical approach. The factual basis for the conviction is relevant only to the extent that it assists the court in identifying which alternative elements of the statute were violated. Although the judgement did not identify the specific subsection that was violated, it did narrow down the possibilities and none of those possibilities include age as an element.The court would not rely on or consider factual material in the charging documents or the plea colloquy because it was not essential to the guilty plea or an element of the offense.

6th Circuit on credibility determination, stays of removal

Slyusar v. Holder, No. 13-3071 (6th Cir. Jan. 30, 2014) (published).

In this published decision, the Sixth Circuit addressed several issues relating to an asylum claim.

First, the court upheld an adverse credibility determination in an asylum and withholding of removal claim from Ukraine. The discrepancies included employment history, date of entry, possession of a Ukrainian passport at entry, prior marriages, and attempts to file an asylum claim. Although these do not necessarily go to the heart of the claim, they were sufficient to support the adverse credibility finding under the REAL ID Act.

Second, the court denied a motion for stay of removal. While the motion became moot upon the denial of the petition for review, the court addressed the 4 factors for a stay. The court found there would be irreparable harm (second prong). Addressing the third prong (harm to government) and fourth prong (public interest), the court noted these merge in immigration cases and stated that the public has an interest in not wrongfully removing a noncitizen, especially to a country where she will be harmed.

However, when the petition for review involves an adverse credibility determination, the court seemed to suggest that the noncitizen can never meet the first prong, a substantial likelihood of success, because the court cannot review the merits of the asylum claim if the BIA's decision rested solely on the credibility determination. "In effect, the REAL ID Act forecloses stays of removal to asylum-seekers who have received adverse credibility determinations by constructively preventing them from proving eligibility for such relief." This is quite troubling for future litigants seeking to avoid removal to the country of persecution.

In closing, the court cautioned agency adjudicators from making adverse credibility determinations that rest on issues unrelated to the heart of the claim because of hurdles those applicants face on review and the possibility that this would punish applicants for their trauma.

BIA on reopening for same sex marriage

In re Manuel Lopez-Rivera, A089-235-276, 2014 WL 347695 (BIA Jan. 3, 2014) (unpublished)

The noncitizen filed an untimely motion to reopen following the Supreme Court's decision on the Defense of Marriage Act in U.S. v. Windsor. The noncitizen sought reopening based on his same-sex marriage and pending I-130 petition. The BIA declined to reopen sua sponte because there was insufficient evidence that the marriage was bona fide.

BIA on reopening for provisional waiver

In re Daniel Romero-Tello, A200-297-980, 2013 WL 6921581 (Dec. 31, 2013 BIA) (unpublished).

The noncitizen filed a timely motion to reopen. He sought administrative closure so he could file an I-601A unlawful presence provisional waiver. The BIA denied the motion because he is subject to a final order of removal and is therefore ineligible for the waiver (although he would be eligible if the motion was granted). The BIA noted that the regulations do not provide for reopening on this basis.

The noncitizen also sought reopening and reconsideration because his U.S. citizen wife's visa petition was approved. The BIA denied the motion because, when it first decided the appeal, there was no proof the I-130 was approved. The noncitizen failed to file this proof before the appeal was denied despite having over 3 months to do so.

Thursday, December 19, 2013

Sixth Circuit recognizes concept of sham divorce

Bazzi v. Holder, No. 12-3759 (6th Cir. Dec. 19, 2013) (unpublished)

In this case, the noncitizen allegedly lied about whether he had truly divorced his wife in Lebanon before applying for an immigrant visa in the 2B category in 1989.  He was found to have been involved in a sham divorce and was denied a visa.  A few  years later, his ex-wife and their six children immigrated to the U.S. in a petition filed for her as an unmarried child.  They are now citizens.

Bazzi entered without inspected a few years later and applied for adjustment of status, possibly as the parent of an adult USC child.  He was denied on the grounds that he was inadmissible as the result of fraud in sham divorce/1989 immigrant visa proceedings.

The court upheld this finding and in the process also recognized the concept of sham divorces in immigration law. 

Detainers against U.S. citizens does not violate clearly established liberty right

Ortega v. ICE, No. 12-6608 (6th Cir. Dec. 10, 2013) (published)

In this case, a USC was sentenced to home confinement as part of a driving under the influence conviction.  ICE issued a detainer against him, purportedly because his name and birth date resembled that of a noncitizen who had been removed.  Apparently there was not a fingerprint match but that did not matter.  As a result, he was imprisoned for four days before being released.

His lawsuit was dismissed on qualified immunity grounds because there was no clearly established right to be free from unnecessary imprisonment as a result of an improperly issued detainer.  This will only encourage further such erroneous detainers.

Tuesday, November 26, 2013

District Court rejects Rojas

Rosciszewski v. Adducci, __ F. Supp. 2d __, 2013 WL 6098553 (E.D. Mich. Nov. 14, 2013).

The district court found that the meaning of "when released" in 236(c) is plain therefore did not the defer to the BIA's interpretation of that provision in Matter of Rojas.  Because the LPR was not taken into custody immediately upon, or within a reasonable period of time after, his release from criminal custody, mandatory detention did not apply.

The court found the government's position was not substantially unjustified so it denied EAJA fees.

Tuesday, November 12, 2013

Reinstatement of Removal

Ruiz v. Holder, No. 12-3900 (6th Cir. 2013) (unpublished).

The issue in this reinstatement case was whether the noncitizen timely complied with the voluntary departure order.  If he did, then there is no order to reinstate.  If he did not, the order can be reinstated because he reentered without inspection.

The court found that it had jurisdiction over the reinstatement challenge even though Ruiz did not sign the Notice of Intent form or indicate an intention to challenge the reinstatement request administratively.  This is not a required remedy that has to be exhausted because it is not an administrative remedy.

The court found that the streamlined reinstatement process does not violate due process.  The court acknowledged the difficult road to challenge a reinstated order because judicial review is limited to the administrative record and if the noncitizen does not submit documents to ICE, the record will be thin on review.

The court found no prejudice because it concluded that it did not  matter if he complied with the voluntary departure order because he later entered without inspection.  This raises the question of what order is being reinstated if there was only a voluntary departure order, not a removal order.  This also raises the question of whether the deprivation of the right to apply for cancellation of removal results in prejudice even if the relief is discretionary (see St. Cyr).

Notice to former counsel does not equal notice to party

Lampe v. Kash, No. 12-4487 (6th Cir. 2013) (published)

In this bankruptcy case, the matter for which the attorney represented the client ended 8 years ago.  Notice of bankruptcy proceedings sent to the former attorney is not notice to the client because it is not reasonably likely that notice will reach the client, not the best way to reach the client, and the attorney is no longer the agent of the client or obligated to pass notice on to her.

This is not an immigration case but the comments about sufficiency of notice may help in that context.

Tuesday, September 24, 2013

BIA on reopening for DACA or provisional ULP waiver

In two separate unpublished decisions, the BIA denied motions to reopen to allow noncitizens to seek administrative closure for DACA or for a provisional unlawful presence waiver.

In re Heron-Morales, A097-550-281, 2013 WL 5208969 (BIA Aug. 12, 2013) (Memphis) - noncitizen filed motion to reopen sua sponte for administrative closure so she could then apply for an I-601A provisional unlawful presence waiver.  The BIA denied the motion, finding that she is ineligible for a provisional waiver because she is subject to a final order (circular reasoning at its best).  The BIA also found no regulatory basis for reopening for this purpose.

In re Guzman-Vargas, A205-005-710, 2013 WL 5208911 (BIA Aug. 5, 2013) (Detroit) - noncitizen filed motion to reopen for administrative closure based on pending DACA application.  He was ineligible for DACA at the time of the removal order because he had not yet completed the educational requirements.  He apparently meets them now but his DACA application has not been approved.

Friday, August 2, 2013

BIA on Aggravated Assault, MCL 750.81a

Matter of Sangchul Lee, 2013 WL 3899749, A200-298-115 (BIA July 5, 2013) (unpublished).

The BIA held that aggravated assault, MCL 750.81a is not categorically a CIMT.  It specifically does not require the use of a weapon and it requires an intent less than an intent to commit murder or great bodily harm less than murder.

The BIA remanded for a modified categorical approach.

CA6 on Particular Social Group and Social Visibility

Umana-Ramos v. Holder, No. 12-4274 (CA6 July 30, 2013) (published)

In this resistance to gang recruitment case, the Court clearly adopted the BIA's particular social group test, which requires a showing of particularity and social visibility.  The Court did so with a caveat - social visibility is not to be taken literally (there is no on-sight visibility requirement).  Rather, it means that individuals with a shared characteristic must be perceived as a group in the society at issue. 

Friday, July 26, 2013

CA6 on "murder" under the INA, Matter of M-W-

Wajda v. Holder, No. 12-3978 (CA6 July 23, 2013) (unpublished).

The court affirmed the BIA's decision in Matter of M-W-, 25 I&N Dec. 748 (BIA 2012).  It answers the question of who M-W- is.

He failed to file a petition for review from the BIA's decision, instead choosing to file a motion to reconsider and then petitioning for review from that.  So the court did not review the published decision, only that decision on the motion to reconsider.

The argument that the court considered was whether the BIA's decision finding second degree murder to be "murder" under the INA was foreclosed by another circuit court decision finding that vehicular homicide was not a "crime of violence."  These are separate categories of offenses so the court found that there was no inconsistency. 

There were better arguments but they were not properly pursued.

CA6 on jurisdictional/claim processing rules, deference

Shweika v. USCIS, No. 12-1645 (CA6 July 25, 2013) (published)

This case involved an appeal from a district court decision dismissing a 1421(c) naturalization appeal.  The district court found that it lacked jurisdiction because the applicant failed to exhaust his administrative remedies by walking out of an administrative naturalization appeal interview.

This decision is of note for several reasons, including:

1. Its discussion of jurisdictional limitations versus claim processing rules and how to determine which is which.  This can help in other cases, such as those involving a failure to file a timely appeal or motion.

2. Its determination that the regulations are not owed deference because the federal court, not the agency, gets to determine the scope of the court's jurisdiction.

Thursday, April 25, 2013

False claim to USC dooms wife of attorney

Martial-Emanuel v. Holder, No. 12-3903 (6th Cir. Apr. 22, 2013) (unpublished).

In this case, the court affirmed the denial of non-LPR cancellation of removal because of an insufficient showing of hardship.  The foreign national and USC spouse are from Canada.

The decision is notable in that the foreign national was ineligible for adjustment of status because she claimed to be a U.S. citizen on an I-9 and registered to vote so she could renew her driver's license.

In another decision, Yemula v. Holder, No. 12-3858 (6th Cir. Apr. 22, 2013) (unpublished), the foreign national was found by the USCIS to ineligible for adjustment because he claimed to be a citizen on two I-9s.  The IJ did not sustain the 212(a)(9)(C) charge because the I-9 was ambiguous.  Nevertheless, the IJ found him ineligible for adjustment of status on this basis because he had the burden of proving his eligibility for relief.  The noncitizen was doomed in part by his own admissions to falsely claiming to be a U.S. citizen.

Monday, March 4, 2013

Shackling of female detainees in labor

Villegas v. Metro. Gov't of Nashville, No. 11-6031 (6th Cir. Mar. 4, 2013) (published)

This was not directly an immigration case as it involved an action for damages against state and local agencies that shackled the plaintiff while she was giving birth and during the post-partum recovery period.

She was detained following an arrest for driving without a license because there was an ICE hold against her as the result of her re-entry following a removal.  Because of the ICE detainer, she was classified at a security level that resulted in her being shackled.

Late-filed administrative appeal is not a jurisdictional bar

Abraitas v. U.S., No. 12-3747 (6th Cir. Mar. 4, 2013) (published)

This is a tax case but it discusses an issue that comes up in immigration cases - does the failure to timely seek administrative review deprive the court of jurisdiction over a petition for review?

The court found that the rules governing administrative review are claims processing rules that are not jurisdictional.  However, the failure to exhaust administrative remedies through the filing of a timely administrative appeal does deprive the court of jurisdiction.

Reinstatement of removal

Juarez-Chavez v. Holder, No. 11-4224 (6th Cir. Feb. 19, 2013) (unpublished)

In this case, ICE reinstated a prior removal order.  The alien filed a timely petition for review.  The basis for the challenge was that the prior order, which was a stipulated order, was not done voluntarily, etc., and that the procedure whereby IJ's sign off on stipulated orders without further review violates due process.

The court rejected both arguments.  The court declined to review the underlying order because such challenge was untimely. This could close off the door to any challenges to defective orders that are being reinstated, but the court did allow for an as-applied challenge in the appropriate case, such as where a timely challenge to the underlying order was not possible due to ineffective assistance of counsel or government misconduct.

False statement to SBA is a CIMT

Novatchinski v. Holder, No. 10-3873 (6th Cir. Mar. 4, 2013) (unpublished)

The court found that making a false statement to the SBA, in violation of 15 USC 645(a) is a CIMT because it involves deceiving government officials.

Friday, February 8, 2013

Female Iraqi women with pro-Western tendencies in dress and looks

Abdulbaki v. Holder, No. 12-3012 (6th Cir. Feb. 1, 2013) (unpublished, available through PACER)

The Court reversed the BIA and remanded this Iraqi woman's asylum case.  The court found that this is a particular social group.  "[W]omen who refuse to conform to a government’s gender-specific laws and
repressive social norms or who do not adhere to a female dress code may satisfy the Board’s definition
of a particular social group if the alien’s opposition to the norm or code 'is so profound that she would
choose to suffer the severe consequences of noncompliance,' showing that her beliefs are fundamental
to her identity and conscience."

Victims should not have to be willing to suffer martyrdom before being able to claim persecution.
The concurrence questioned whether the ten percent threshold was too high.

Two Crimes of Violence cases

USA v. Sanford, No. 11-1847 (6th Cir. Dec. 4, 2012) (published)

In Sanford, the Court found that simple assault/domestic violence under MCL 750.81(2) is a "crime of domestic violence" under 18 USC 921(a)(33)(A) (relating to possession of firearms by prohibited individuals) because it requires "violent force ... capable of causing physical pain or injury."  On appeal, the defendant tried to challenge this but the Court deemed the argument waived because this argument was successfully made in other circuits.  This implies that the Court's holding should be read as an endorsement of the classification of simple assault/domestic violence in Michigan as a crime of domestic violence.  Rather, to the contrary, the Court found the argument waived because it was such a good argument that it should obviously have been made at the trial court level.

USA v. Stout, No. 10-6163 (6th Cir. Feb. 5, 2013) (published)

Second degree escape under Kentucky law is a crime of violence under 18 USC 16(b).  (a) did not apply because the statute did not require the use or threatened use of physical force.  (b) applied because there was a substantial risk that physical force against the person or property of another may be used. Escape from a secured facility (as opposed to failing to appear for something) is an active crime requiring intentional conduct on the part of the offender. There is a clear possibility of detection and confrontation during the course of escape.  Judge Donald dissented because the offense involved an unarmed prisoner climbing a wall and crawling through a hole in a gate that was already there.

Wednesday, January 16, 2013

Lifers ineligible for early release for deportation

Chico-Polo v. Department of Corrections, No. 307804 (Mich. Ct. App. Jan. 8, 2013) (published)

There is also a concurring opinion.

MCL 791.234b allows qualified inmates who have served at least 1/2 of the minimum sentence and have been ordered removed to request a transfer to ICE custody for purposes of removal.  The Court held that this does not apply to inmates who receive a life sentence because there is no court-imposed minimum sentence, even though the legislature has made them eligible for parole after 20 years.

No derivatives for Withholding of Removal

Camara v. Holder, No. 11-4043 (6th Cir. Jan. 15, 2013) (published)

The Court denied the appeal filed by the spouse of an applicant granted withholding of removal.  The principal applicant and the spouse were in consolidated removal proceedings but the spouse never filed or made a claim for relief until a second BIA appeal.  The principal applicant was granted withholding based on female genital mutilation (the asylum claim was time-barred).

The spouse should have much earlier in the process made an independent claim for relief but for some reason he or his attorney failed to realize that there are no derivative beneficiaries for withholding of removal.  The Court rejected a challenge to the statute and agreed that he did not make out a prima facie claim for protection.

Changed Country Conditions

Zhang v. Holder, No. 11-4251 (6th Cir. Dec. 18, 2012) (published)

In this case, the court reversed the BIA's denial of a motion to reopen.  The asylum applicant, a Chinese national, sought to reopen based on her changed conditions relating to her religion, Catholicism, and coercive population control in Fujian.

The Court found fault with the BIA's decision for several reasons. First, although the BIA stated that if found the region and sect to be relevant to the issue of persecution, it did not explain why the distinction between leader and layman was pertinent.  Thus, the decision lacked a rational explanation.

Second, the BIA should not have dismissed unsworn statements from individuals who were unaffiliated with any government institution.  These can constitute evidence if they are otherwise reliable and credible.  The BIA should have considered the credibility of the statements. 

The Court affirmed the BIA's decision with respect to coercive population control, a challenge to the adverse credibility determination, and its refusal to exercise its sua sponte authority.

Thursday, November 15, 2012

Cancellation of Removal - hardship review

Navarro v. Holder, No. 10-4558 (6th Cir. Nov. 14, 2012) (unpublished)

In this Mexican nonLPR cancellation of removal case, the only issue was whether his removal would cause exceptional and extremely unusual hardship to his wife and children.

The court rejected the argument that the IJ and BIA committed legal error by mischaracterizing the evidence by discounting the seriousness of the children's illnesses and failing to understand the totality of the financial hardship.  He also argued that the BIA and IJ misapplied precedent decisions in weighing and assessing evidence.  The court declined to second-guess the BIA and IJ.

The court remanded to allow the BIA to reinstate voluntary departure because it mistakenly failed to do so before.

There was a spirited dissent.

Ohio assault on a police officer is crime of violence

US v. Evans, No. 11-3460 (6th Cir. Nov. 15, 2012) (published)

In this criminal sentencing case, the court found that an Ohio conviction for assault on a police officer is a crime of violence because it requires the use of force: it is violated by knowingly causing or attempting to cause physical harm to another."  Even a scratch requires sufficiently violent force to qualify as a crime of violence. It also presents a serious potential risk of physical injury.

This decision conflicts with McMurray, which the Court distinguishes and dismisses as dicta, so how these cases will be decided remains to be seen.

FGM and well-founded fear

Lo v. Holder, No. 10-3497 (6th Cir. Nov. 8, 2012) (published)

In this FGM case from Senegal, the female applicant suffered past persecution based on two attempts to subject her to genital mutilation.  The BIA found that the birth of her daughter in the U.S., and the resultant fear that the daughter could be subjected to FGM, constituted an exceptional circumstance excusing the late-filed application.

The question was whether she had a well-founded fear of persecution.  The court agreed with the BIA that she did not.  First, she "aged out" in that she was too old to be a target of FGM. Second, FGM is in decline in Senegal.  Third, her husband belongs to a tribe and religion that does not practice FGM, so she could safely relocate to an area of Senegal where she would not be in danger.

The court also rejected her claim based on her fear that her daughters would be subjected to FGM.  Distinguishing the Court's decision in Abay, the Court noted that the family could live in an area and with a tribe that does not practice FGM, and the daughters are U.S. citizens who could remain in the U.S. with guardians or other family members.

This "painful" result, as the court suggests it is, should have been considered for humanitarian asylum because separating this family would seem to constitute "other serious harm."  One wonders why this claim was not presented or considered since the female applicant suffered past persecution.

Tuesday, November 6, 2012

TN misdemeanor domestic violence not a "crime of violence"

USA v. Castleman, No. 10-5912 (6th Cir. Sept. 19, 2012) (published)

The court denied the government's appeal from a decision dismissing an indictment for possessing a firearm after a conviction for a misdemeanor crime of domestic violence.  Noting the similarities between 16(a), 924(e)(2)(B)(i), and 921(a)(33)(A), the court used the same framework to determine whether the Tennessee conviction has as an element the use or attempted use of physical force. 

Applying the categorical approach, the court concluded that the state statute did not categorically require the use of violent force, in that the bodily injury that results could be as minor as a cut, abrasion, or bruise.  Applying the modified categorical approach, the court did not find any evidence in the record of conviction to indicate that violent physical force was used.

Tuesday, September 25, 2012

Affidavit of Support enforcement

Davis v. Davis, 970 N.E.2d 1151 (Ohio App. May 11, 2012)

In this divorce case, the court had to decide whether to terminate a spousal support order that was based on the affidavit of support obligations after the U.S. citizen argued that the noncitizen wife could be credited with 40 quarters of qualifying earnings based on the quarters earned by the U.S. citizen husband during the marriage.  The court upheld the trial court's termination of this support obligation based on competent evidence that the noncitizen wife reached the 40 quarter mark.

Habeas petition challenging reinstatement

Alvarez-Lopez v. Adducci, 2012 WL 2407702, No. 12-11952 (E.D. Mich. June 26, 2012).

This Mexican citizen was granted voluntary departure and returned to Mexico.  He then reentered the U.S. without inspection.  Later, he was caught by ICE, which wanted to reinstate a prior removal order.  The alien filed a habeas petition alleging that there was no prior order because he complied with the voluntary departure order.

Because the habeas petition was filed while the alien was in ICE custody, his subsequent removal did not divest the court of jurisdiction.

The court found that the REAL ID Act did not divest it of jurisdiction because he was challenging the "existence" of the order, not the removal order itself.

On the merits, though, the court denied the petition because there was insufficient proof that he complied with the voluntary departure order.

Request to Appear for deferred inspection is a parole but still no AOS eligibility

Ni v. USCIS, 2012 WL 3637731, No. 11-2482 (W.D. Tenn. Aug, 22, 2012).

In this case, a Chinese citizen was denied admission at the port of entry and given a notice to return for deferred inspection.  When he returned, he was given a notice denying him admission.  He was later ordered removed.  Fast forward many years and he applied for adjustment of status based on an I-130 petition filed by his USC son.  The USCIS denied this application because he was not paroled into the U.S.

The district court accepted jurisdiction over his Administrative Procedures Act claim, and the parties did not contest jurisdiction.

The court did not defer to the USCIS and it concluded that the deferred inspection is a parole.  However, the court found that the parole was not indefinite and that it terminated upon the entry of the removal order.

Friday, August 17, 2012

Departure after initiation of removal proceedings = in absentia order

In re Eliseo Pereyra, A076-014-954, 2012 WL 3276580 (BIA July 25, 2012) (Cleveland) (unpublished).

In this case, it appears that after the issuance of the NTA and its filing with the court, the alien left the U.S. and missed a hearing.  He was ordered removed in absentia.  The BIA affirmed the denial of a motion to reopen an in absentia order because the alien cannot defeat the court's jurisdiction by leaving the country. 

Scope of 237(a)(1)(H) waiver

Avila-Anguiano v. Holder, No. 11-3958 (6th Cir. Aug. 7, 2012) (published).

In this decision, the court struggled with the scope of my favorite waiver, the 237(a)(1)(H) waiver.

The alien had two misrepresentation incidents.  The first was in 1991 when he made a false USC claim at the port of entry.  He was convicted of making a false USC claim and was returned to Mexico. Two years later, he made another misrepresentation when he failed to disclose that incident in his successful immigrant visa application.

There was no dispute that 237(a)(1)(H) was available to waive the second misrepresentation because that was made at the time of admission.  ICE and the BIA asserted that the earlier misrepresentation was outside of 237(a)(1)(H)'s reach because it was made prior to the admission. 

The Court disagreed and found that both misrepresentations were waivable.  The first misrepresentation rendered him inadmissible at the time of his 1993 admission because it made him an alien described in 212(a)(6)(C)(i) [there was no separate ground of inadmissibility for false USC claims in 1993].  The statute requires that the alien be inadmissible at the time of admission, not that he make the misrepresentation at that time.

Thursday, August 2, 2012

Sixth Circuit on torture-bar to relief

Abdallahi v. Holder, No. 11-3920 (6th Cir. July 31, 2012) (published)

This case involved multiple issues concerning whether an adjustment of status applicant who served as a gendarme for the Mauritanian military was inadmissible under 212(a)(2)(E)(iii).

1. Although there is no liberty interest in discretionary relief, there is a due process right to a full and fair hearing.

2. Transferring the case to a new IJ was not a due process violation because the new IJ followed the regulations.

3.  No prejudice resulting from transferring the case to the new IJ between the close of the record and the issuance of the decision.

4.  The alien participated in acts of torture under the Negusie (SCt) and Diaz-Zanatta (6th) standards, which require (1) a nexus between the alien's actions and the torture of another and (2) some level of contemporaneous knowledge that the torture was being conducted.  The evidence clearly established this.  The court rejected his involuntariness defense because it was not supported by the record.

Tuesday, July 24, 2012

Sixth Circuit on Amending NTAs and time issues

Sagastume v. Holder, No. 10-4393 (6th Cir. 07/20/2012)

In this case, the aliens were admitted to the U.S. and then went to Canada to apply for asylum.  After their claims were denied, they were returned to the U.S. and placed in removal proceedings.  They were originally charged as overstays under 237(a)(1)(B).  While the proceedings were pending, the BIA decided R-D-, which required the aliens to be treated as applicants for admission because they made a departure by going to Canada.  ICE then amended the NTA to charge them under 212(a)(7)(A)(i)(I).

The aliens applied for voluntary departure but could not show that they were present in the U.S. for a year prior to the issuance of the NTA.  They were not present for a year before the issuance of the initial NTA but were before the issuance of the amended NTA.  The parties stipulated to voluntary departure eligibility but the IJ and BIA denied the request and this was the only issue on appeal.

Beyond this case, the decision bears on the question of whether a completely defective NTA can, for example, trigger the stop time rule.  In other words, can the government issue baseless NTA to stop the clock and only later amend it to reflect proper charges.  Or should the proceedings be terminated to allow the government to issue a new NTA and initiate new proceedings?

Thursday, July 5, 2012

6th Circuit on fleeing, CIMTs

Ruiz-Lopez v. Holder, No. 11-3730 (6th Cir. June 19, 2012) (published)

In this case, the court found that a Washington State conviction for felony fleeing was a CIMT.  To a large extent, the court relied on the inclusion as a statutory element the "wanton or wilful disregard for the lives or property of others."  Michigan's fleeing and eluding statutes lack this element and some of the aggravating factors present in the 5th and 7th circuit decisions it cited to.  Still, this decision makes it more likely that Michigan's fleeing and eluding statute will be a CIMT.

Importantly, the court only employed the two-step analysis (categorical and modified categorical) and did not use or even mention the existence of the 3rd step created in Silva-Trevino.  The court went so far in a footnote as to expressly refuse to look beyond or behind the record of conviction at the actual conduct.  The court has yet to expressly adopt or reject Silva-Trevino's third step but in a number of cases now the court has limited its analysis to the traditional two-step approach.

Friday, June 1, 2012

6th Circuit on record of conviction

USA v. Louchart, No. 10-1416 (6th Cir. May 25, 2012) (published)

The narrow question in this case was whether the defendant's guilty plea can be treated as an admission to the quantity of firearms stated in an indictment for purposes of calculating the sentencing range.  The court answered "no." 

This is important in the immigration context.  The court stated "admission of facts from a guilty plea is limited to elements of the crime charged or those explicitly admitted by the defendant." A guilty plea does not constitute admission of facts included in an indictment when those facts were not necessary to sustain a conviction.  Loosely stated, it does not matter so much what the defendant was accused of doing or admitted to doing; what is important is what the government had to prove to obtain a conviction.  A guilty plea is not an admission to non-essential facts in the indictment that did not constitute an element of the crime charged and were not specifically admitted by the defendant.

Thursday, May 10, 2012

Ohio appellate court on prejudice under Padilla

Ohio v. Yahya, No. 10AP-1190 (Ohio App. Ct. Nov. 21, 2011) (unpublished)

The defendant pled guilty to theft with a restitution amount over $100,000.  This turned out to be an aggravated felony fraud conviction.  The defendant moved to withdraw her plea on Padilla grounds.  The trial court denied the motion.  The court of appeals sustained her appeal.

The court found that the attorney gave her bad advice by not telling her that she was pleading guilty to an aggravated felony.  This satisfied the first prong of Strickland.

Turning to the second prong, the court found that the defendant was prejudiced because the trial court's boilerplate warnings about possible deportation did not cure the attorney's specific advice that deportation would not result.  The court remanded for an evidentiary hearing on this point.

Bivens action survives summary dismissal

Ortega v. ICE, 2012 WL 1493874 (W.D. Ky, Apr. 27, 2012) (unpublished).

A USC was serving a sentence of home confinement.  ICE issued a detainer because it thought he was an illegal alien.  As a result, he was taken from home and jailed for several days.  He filed a Bivens action.  The court dismissed some of the parties on qualified immunity grounds but allowed the suit to go forward against other, unnamed, officers.

Court reviews denial of derivative citizenship claim

Guzman v. DHS, No. 10-2243 (6th Cir. May 10, 2012) (published)

Joining all the other courts and agencies that have considered the matter, the court held that the Child Citizenship Act does not apply retroactively. 

It also rejected an Equal Protection challenge to the age-based requirement in former INA 201(g) (1940).  This provision allowed a USC mother to transmit citizenship to an in-wedlock child born abroad if the mother lived in the U.S. for ten years prior to the child's birth, five of which occurred after the age of 16.  In other words, a USC mother who was under 21 when she gave birth abroad would be unable to transmit citizenship to a child.

Zundell, Part III

Zundel v. Holder, No. 10-6012 (6th Cir. May 7, 2012) (published)

This is the third time the court has dealt with the removal of this Holocaust denier. 

There are some interesting points to take away from this decision.  A petition for review from a VWP removal order allows for the same scope of review as a habeas petition.  This is good for cases where the record needs to be developed.

The court also noted that the warning given to an alien who is being removed about the bars on returning are not binding.  The nature and length of the bars will be determined when the alien applies for admission or a visa and can then be contested as provided for by law.

Thursday, May 3, 2012

Sixth Circuit on review of bona fide marriage I751 waivers

Johns v. Holder, No. 11-3011 (6th Cir. May 2, 2012) (published)

This case involved the denial of a good faith marriage waiver for an I-751 petition.  The IJ and BIA found that the alien was not credible and did not enter into a bona fide marriage.

On review, the Court held that, under 242(a)(2)(B)(ii) and 216(c)(4), it lacked jurisdiction to review credibility determinations and the weighing of evidence.  It did, however, have jurisdiction to consider legal and constitutional claims, including whether the BIA applied to proper legal test.  The court would not consider questions bearing on how the BIA assessed the evidence.  Under the substantial evidence test, then, the court noted that it would be almost impossible to overrule a hardship waiver denial that was based on an adverse credibility finding.

The court also quickly disposed of a paperwork reduction argument and a request to remand because the BIA sent a signed IJ decision 3 weeks after issuing the briefing schedule.  It should be pretty clear that these arguments are only going to work if there is demonstrable prejudice.

Sixth Circuit on venue and televideo hearings

Thiam v. Holder, No. 10-3371 (6th Cir. Apr. 30, 2012) (published)

The court delved into the thorny matter of remote IJ's and venue.  In this case, the IJ was in Virginia but the case was docketed in Cleveland.  For the ICH, the alien and her attorney travelled to Virginia because they felt that her credibility would be more apparent in person.  On appeal, the BIA treated the case as if it arose in the 4th Circuit and applied that circuit's law on firm resettlement. 

On review, the court found that 242(b)(2) is nonjurisdictional and does not mandate the transfer of a petition for review to a different circuit.  A case will be transferred if it is in the interests of justice, which it was not in Thiam.  Without deciding whether venue was proper in the 6th Circuit, the court remanded because the BIA did not apply its most recent decision on firm resettlement, Matter of A-G-G-.  It would not have been an efficient use of resources to transfer venue and re-brief the case.

Friday, April 27, 2012

Sixth Circuit on nexus, CAT

Mushayahama v. Holder, No. 10-3874 (6th Cir. Apr. 24, 2012) (unpublished)

The court denied in part and sustained in part this petition for review.  The court dismissed the challenge to the BIA's determination that she did not qualify for an exception to the asylum deadline because she did not raise a statutory or constitutional claim.

The court affirmed the denial of a withholding claim on the merits.  The court agreed that she did not present direct or circumstantial proof that the past harm was on account of her actual or imputed political opinion, even though there was no dispute that she suffered harm that rose to the level of persecution.

The court also agreed that she did not suffer or will not suffer persecution on account of a particular social group.  Sidestepping the question of whether female teachers opposed to the ruling party is a cognizable social group, the court found that there was a lack of nexus between the harm and the proposed group.

The court declined to find that a group consisting of nationals who remained abroad too long was a social group because it was not sufficiently visible.  On review, the petitioner argued that the BIA erred in relying on its interpretation of foreign law relating to loss of nationality without giving her an opportunity to respond because she did not exhaust her remedies by first filing a motion to reopen with the BIA or that the error affected the outcome of the proceeding.

However, the court remanded for reconsideration of the petitioner's CAT claim.  The IJ and BIA did not discuss the country condition evidence in the CAT analysis.  Also, the IJ misstated the burden of proof to require the petitioner to show that she will be detained upon return, not that she will tortured.

Thursday, April 26, 2012

Michigan Court of Appeals on prejudice at plea stage

People v. Douglas, No. 301546 (Mich. App. Apr. 12, 2012) (published)

The Michigan Court of Appeals found that a defendant was prejudiced when his attorney provided ineffective assistance at the plea stage because the attorney failed to properly advise him about the consequences of accepting a plea offer, namely, the proper maximums and minimums as charged versus the plea offer.  This may help in Padilla cases in terms of showing prejudice when a defense attorney fails to properly advise of other consequences of accepting a plea offer, like removal.

No jurisdiction over I-130 revocation

Mehanna v. USCIS, No. 11-1110 (6th Cir. Apr. 19, 2012) (published)

The Sixth Circuit dismissed a challenge to the revocation of a visa petition.  The USCIS revoked an I-130 petition filed by an LPR mother for her adult son after learning that the son was married when the petition was filed.  The mother and son argued that the annulment of the son's marriage made the marriage void ab initio.

The court found that there was no jurisdiction to review the revocation of a visa petition because it is a discretionary determination.  INA 242(a)(2)(B)(ii).  The court relied on 205's language making revocation within the USCIS's discretion.  However, the agency has made revocation mandatory in certain situations, including this, thereby removing discretion from the analysis.  In this case, the revocation was pursuant to the automatic revocation regulation, 205.1(a)(3)(i)(I), based on the USCIS's interpretation of state law.

Monday, April 9, 2012

Michigan Court of Appeals on right to full interpretation

People v. Chen, No. 301153 (Mich. App. Feb. 16, 2012) (unpublished)

The court affirmed that there is a right to a full interpretation of the trial proceedings.  An interpreter is required to provide a simultaneous translation.  The failure to provide it is plain error.  However, the court denied review because the defendant could not establish prejudice.

Friday, February 17, 2012

Judulang remand

Ikharo v. Holder, No. 08-4139 (6th Cir. Feb. 16, 2012) (unpublished)

Previously in this case, the Sixth Circuit followed the BIA's corresponding ground rule in 212(c) cases.  Following Judulang and a remand in this case from the Supreme Court, the Sixth Circuit remanded to the BIA to come up with a new framework for 212(c) eligibility determinations.

Michigan: Padilla is not retroactive

People v. Gomez, No. 302485 (Mich. App. Feb. 14, 2012) (published)

Unhappy Valentine's Day indeed.  The Michigan Court of Appeals concluded that Padilla announced a new rule and therefore does not apply retroactively.  This is the first published decision binding in Michigan.  It will hopefully be challenged in the Michigan Supreme Court.

Monday, February 6, 2012

Pilla - immigration and criminal case

The court issued two decisions adverse to Ramani Pilla: Pilla v. Holder, No. 09-4577 (6th Cir. Feb. 2, 2012) (unpublished) and Pilla v. USA, No. 10-4178 (6th Cir. Feb. 6, 2012) (published).

Ms. Pilla was convicted of 18 USC 1001, for lying to the FBI.  The court affirmed the agency's determination that this conviction involves fraud or deceit.  Because the government and the private victim in this case suffered losses in excess of $10,000 in investigating her false reports of a crime, the court found that this was an aggravated felony fraud offense.  As a result she was ineligible for relief from removal.  She was convicted of making a "false" statement, which comes within the deceit prong of the aggravated felony definition. The court also agreed that the FBI (which suffered approximated $5k in loss) and the university (which suffered approximately $60k) were both "victims" for purposes of the aggravated felony definition.  The court relied on the restitution order and sentencing stipulation in calculating the amount of loss.

In the criminal case, Ms. Pilla tried to set aside her conviction on Padilla grounds.  Her defense attorney did not know whether the conviction would have adverse consequences, so he sought the opinion of a private immigration attorney who was a former high ranking INS official.  That attorney opined that there would be no adverse consequences.  On the plus side, the court found that the writ of coram nobis was not barred as a successive 2255 motion because she was no longer in custody. 

The court did not address Padilla's retroactivity.

On the negative side, the court set a very high threshold for showing prejudice.  Because of the overwhelming evidence of her guilt and the lack of a viable defense, the court found that she did not suffer prejudice because she would not have won at trial and received less jail time by pleading guilty.  The court did not consider whether a defense attorney could have negotiated a better deal to avoid the immigration death penalty.

Failure to prove admission

Chaidy v. Holder, No. 11-3177 (6th Cir. Feb. 2, 2012) (unpublished)

In this case, the court affirmed the finding that the alien was ineligible for adjustment of status because he did not prove that he was inspected and admitted or paroled into the U.S.

The court found that the statutory scheme on the burden of proving admission for purposes of establishing eligibility for adjustment of status is ambiguous and could possibly have multiple plausible interpretations.  The court declined to address this because it was not properly exhausted below.

The court went on to find that the IJ's determination was supported by substantial evidence - that the alien did not prove that he was not credible as it relates to his date, time, and manner of entry.

Friday, January 27, 2012

No review of denial of sua sponte motion to reopen

Kalaj v. Holder, No. 10-4315 (6th Cir. Jan. 26, 2012) (unpublished)

The court found no jurisdiction to review the denial of a sua sponte motion to reopen.  The court did not address Kucana.

Review of TPS denial

Hernandez v. Holder, No. 10-3662 (6th Cir. Jan. 25, 2012) (unpublished)

The court reviewed on the merits of the TPS denial.  The court found that the failure to properly file before the registration deadline precluded TPS relief.  The court also declined to equitably toll the deadline due to the USCIS's delay in returning the timely filed.  The court recognized that under the right circumstances this deadline could have been equitably tolled.  The court also declined to equitably toll the deadline due to ineffective assistance of counsel provided by a community organization engaged in the unauthorized practice of law. The applicant did not comply with Lozada plus the court seemed to say that the can be no ineffective assistance of counsel if the individual was not an attorney or accredited representative.

Asylum denial worth reading

Abdurakhmanov v. Holder, No. 10-4263 (6th Cir. Jan. 23, 2012) (published)

The court denied this Uzbeki's asylum claim but there is some interesting language in the decision that should provide guidance for other cases.

The BIA gave three reasons in support of its adverse credibility finding.  The court rejected the first reason because it was based on a mischaracterization of the record.

The court expressed its doubts about the second reason because it seemed that the BIA read too much into the applicant's ambiguous statement in his I-589.

The court agreed with the third reason and found this sufficient to affirm the adverse credibility finding.  In this regard, there is an argument that credibility determinations are mixed questions of law and fact.  Whether there is an inconsistency or discrepancy is a factual determination that is given deference by the court.  Whether a single inconsistency means the whole case is not believable should be a question of law.  This is worth exploring in future cases.

The court went on to reject the BIA's determination that the applicant should have provided corroborating evidence.  The court rejected the rationale that the evidence provided was inconsistent with the claim because it was not.  Evidence obtained for the purpose of the hearing but were records of past events cannot be rejected on the grounds set forth in H-L-H, even though the documents were not prepared contemporaneously with the events.