Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, December 18, 2009

Court upholds in absentia order

In Acquaah v. Holder, the alien failed to appear for a telephonic master calendar hearing at his attorney's office because he thought the hearing was two days later.  He further alleged that his attorney then failed to challenge the in absentia order over the next 2 1/2 years.  The attorney did not file a motion to reopen until after the alien hired another attorney.

Suggesting that the 180 day deadline is subject to equitable tolling, the Court found that the alien failed to present exceptional circumstances excusing the delay.  The alien was too "disengaged" from the process and should have been more diligent in following up on his attorney.  The alien's mistaken belief as to the hearing date was not an exceptional circumstance, regardless of the errors made by the attorney.

Thursday, December 17, 2009

Wednesday, December 9, 2009

Sixth Circuit modifies court rules

The Court recently announced amendments to the FRAP and local rules:

Significantly, local rule 30 does away with the need to file an appendix in most immigration petitions for review.  According to the clerk's office, this rule is effective immediately and applies to pending cases, although counsel is cautioned to check with the case manager before deciding whether to forgo an appendix. This rule should reduce the time and cost associated with filing a petition for review.

The amendments also reflect a change in the way time periods are computed.

Thursday, November 19, 2009

Pair of unpublished asylum decisions

In this pair of unpublished decisions, the court affirmed the BIA's denial of asylum and withholding of removal.  In Toure, the court rejected one of the two reasons given in support of an adverse credibility finding.  The court found that an inconsistency relating to whether the alien sign or did not sign a document stating that he was not tortured is "minor and irrelevant" and was not used to enhance his claim.  Nevertheless, the court was highly deferential to the Immigration Judge's conclusion and upheld the adverse credibility determination after rejecting half of the basis for that determination.

Both decisions discuss the level of harm necessary to show persecution.

U.S. v. Magoti

In this unpublished decision, the court affirmed convictions for making or using a false writing or document, and willfully making a false, fictitious, or fraudulent statement to the government.  The charges arose from the defendant's backdating of an I-9 form and her false statements to ICE officers when she turned over this form.