Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Thursday, December 23, 2010

Sixth Circuit applies Nijhawan to Aggravated Felony fraud charge

Ibe v. Holder, (unpublished, December 22, 2010).

The LPR was convicted of fraud.  The indictment placed the loss at $45,500 and the restitution was $29,000.  The Court found this to clearly be above the $10,000 threshold to trigger the aggravated felony bar to LPR cancellation of removal.  The Court applied the Supreme Court's circumstance-specific test, which was announced in Nijhawan.

The LPR did not present any evidence or real argument that the amount of loss was actually less than $10,000, so the Court did not remand for further development of the record.

Alien has to notify court of change of address even though proceedings had not started

Soumah v. Holder, (unpublished, 12/20/2010).

The alien received an NTA in 2004, which was mailed to his then-current address.  No hearing date was listed on the NTA.  He moved in 2005 and notified the DHS but not the Immigration Court.  In October 2006, the court mailed a hearing notice to his old address; he failed to appear and was ordered removed in absentia.  The Sixth Circuit found notice proper and affirmed the denial of a motion to rescind the order.

Although it is not clear from the facts, it is likely that the NTA was not filed with the Immigration Court for over two years.  During that time, he moved and notified the DHS as he was supposed to.  The DHS failed to notify the court, even though it had a record of his change of address and could have presented that to the court at the in absentia hearing.  At the time, the court had no way to record a change of address for an alien for whom the NTA was not filed as there was no open file.  Thus, it was impossible for the alien to notify the court and he notified the only agency he could, the DHS.

It is not clear if these arguments were raised or the exact factual scenario, but fortunately this decision is not published.

According to PACER, OIL has asked the Court to publish this decision.  If the decision is published, it will be very bad for noncitizens because the record appears undeveloped and certain favorable arguments were not made.

Crime of Violence analysis

U.S. v. Ruvalcaba, (published, 12/22/2010).

In this sentencing enhancement case, the Court applied the modified categorical approach to the offender's prior convictions and refsued an invitation to look at the actual conduct.  Applying this approach, the Court concluded that the two convictions for discharging a firearm at or into a habitation in violation of Ohio R.C. 2923.161(A)(A) are crimes of violence.

First, the Court found that there is a serious, inherent potential risk of physical injury, even if the structure is unoccupied. 

Thursday, December 9, 2010

1447(b) suite deprives USCIS of jurisdiction over an N400 application

District courts in the Eastern District of Michigan, Lucaj v. Dedvukaj, 2010 WL 3766491 (E.D.Mich. Sept. 21, 2010) (published); the Eastern District of Tennessee, Abujheisha v. Dennis, 2010 WL 4320500 (E.D. Tenn. Oct. 26, 2010); and the Southern District of Ohio, Omar v. Holder, 2010 WL 4879007 (S.D. Ohio Nov. 23, 2010) have recently concluded that the filing of a petition for hearing on a naturalization application under 8 USC 1447(b) vests exclusive jurisdiction over the application with the district court.  A 1447(b) action seeks judicial review of a naturalization application if the USCIS fails to make a decision within 120 days of the naturalization interview.

In the view of these courts, which have joined the majority of the district courts as well as the Second, Fourth, and Ninth Circuits, the USCIS cannot deny an N-400 once the applicant files the 1447(b) complaint with the federal court.

The Omar Court retained jurisdiction and will decide the application on the merits.  The Lucaj and Abujheisha Courts remanded the applications to the USCIS, which will presumably issue a new denial.  A remand in a situation where USCIS has already announced its intention to deny the application is futile from the perspective of the applicant.  As the Omar Court noted, if background checks have been completed, the district court is capable of deciding the application on the merits.

Ohio appellate court limits Padilla

State v. Bains, 2010 WL 4286167 (Ohio Court of Appeals, Oct. 21, 2010).

In Bains, the defendant, a non-U.S. citizen, pleaded guilty to attempted deception to obtain a dangerous drug.  He paid a $50 fine. 

As part of the plea colloquy, the judge advised the defendant several times that there could be serious immigration consequences as a result of the plea and offered to give the defendant time to consider this possibility.  Shortly after the plea, the defendant's attorney sent him a letter advising him to consult with an immigration attorney concerning possible removal proceedings. 

Two years later, removal proceedings were initiated.  And four years after that, the defendant moved to withdraw his plea on the grounds that his attorney misinformed him regarding the immigration consequences of his plea.

The Ohio court noted that the immigration consequences of the conviction were clear.  This would seem to trigger Padilla's requirement that the defense counsel advise the defendant of those clear consequences.  See Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  The Ohio court seems to have found that the trial court's strong advisals satisfied the defense counsel's duties to advise his or client.  The court found that these advisals trumped the affirmative misadvice allegedly given by defense counsel during the plea colloquy, although the court did not conduct an inquiry into whether the counsel actually whispered to the defendant that he had nothing to worry about.

The decision can also be more narrowly held to rest on a determination of diligence in that as of October 2003, years before the initiation of removal proceedings, the defendant was on notice of the potential immigration consequences and should have sought to withdraw his plea then and not now.

The court also found no prejudice to the defendant because the felony charges were reduced to a misdemeanor as part of the plea negotiations.

Tuesday, December 7, 2010

Sixth Circuit denies motion to rescind in absentia order

Sanchez v. Holder, (published, December 6, 2010).

The noncitizen was personally served with an OSC.  He did not receive the hearing notice (it was returned because the time to forward the mail had expired), was ordered deported, and filed a motion to rescind 11 years later. 

The motion was denied because there was no proof to support his claim that he was still living at the address when the notice was sent by certified mail.  Because the notice was returned as undeliverable with the time to forward mail having expired, and it was sent by certified mail, there was a strong presumption that the proper procedures were followed.  Because notice was proper, the motion was untimely.  Had notice not been proper, presumably the motion would have been timely because there would have been no filing deadline.

It is not clear what exactly was submitted in support of the claim, but this should be a warning to other noncitizens to submit detailed affidavits and other corroborating evidence.

Sixth Circuit on "crime of violence"

USA v. Gibbs, (published, 11/24/2010).

This case arose in the context of a challenge to the sentence in a criminal case.  The sentence was increased based on a determination that the defendant had prior convictions for crimes of violence. 

Applying the modified categorical approach, the court concluded that the following is a crime of violence: second degree home invasion (because it is a burglary offense and this is a sentencing case).

The following are not crimes of violence: Michigan's "walkaway prison escape, MCL 750.193(1).  The government conceded this.  And , resisting and obstructing an officer (MCL 750.479). The latter is a divisible statute because it can be violated either by physically injuring an officer or by failing to comply.  Because the record of conviction establishes that the defendant was convicted under the failing to comply prong, it is not a crime of violence.

While this is a sentencing and not an immigration case, the logic and reasoning should be instructive in the immigration context.

Court reviews denial of cancellation of removal application

Galvan v. Holder, (unpublished, 11/12/2010).

The noncitizen challenged the denial on his application for cancellation of removal as a nonpermanent resident.  The IJ and BIA denied the application because he failed to prove that he satisfied the continuous physical presence requirement.

Importantly, the court exercised jurisdiction over the following legal questions, all of which were decided in the government's favor: (1) admission of the I-213, in which it gives a date of entry different from what was later claimed (admission was harmless because it was not the primary evidence, its contents were confirmed by the noncitizen, and other arguments were unexhausted), (2) whether his testimony was sufficient where there was no adverse credibility finding (credibility is not enough and also need corroborating evidence), (3)procedural challenges.

Friday, November 19, 2010

Not all cocaine base convictions are aggravated felonies

Matter of Aguirre, 2010 WL 4509738, A073-808-366 (BIA Oct. 29, 2010) (Memphis).

The LPR was convicted of possessing cocaine base.  The IJ found that it was an aggravated felony barring him from cancellation of removal.

Sidestepping the LPR's Federal First Offender Act argument, the BIA remanded because not all convictions for possessing cocaine base are federal felonies.  21 USC s 844(a); Lopez v. Gonzales, 549 US 47 (2006).  Because the record does not show that he possessed more than five grams of cocaine base, the BIA held that the state conviction was analogous to a federal misdemeanor.  The BIA remanded for consideration of his application for cancellation of removal.

BIA affirms that ICE bears the burden in Pickering-type case

Matter of Chmura, 2010 WL 4500863, A035-957-832 (BIA Oct. 28, 2010) (Detroit).  More information about the noncitizen is available at

The LPR was ordered removed for having been convicted of multiple CIMTs.  She did not appeal but filed a timely motion to reopen after one of her convictions were vacated pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  The IJ denied the motion, asserting that the LPR did not prove that the convictions were vacated under Padilla as opposed to a rehabilitative statute or to avoid removal.

On appeal, the BIA reversed.  Citing to the Sixth Circuit's decision in Barakat v. Holder,, the BIA held that ICE bore the burden of proving that the convictions were vacated for an improper purpose.  The noncitizen met her burden of proof by submitting an order from a court of competent jurisdiction vacating the conviction.  Doing so shifts the burden to ICE to establish the basis for the state court's action.  The Board applied Barakat equally to motions to reopen and motions to remand.

The BIA remanded to allow ICE to attempt to meet its burden.

Substantial compliance with Lozada supports appeal and remand

Matter of Morales-Bribiesca, 2010 WL 4500889, A047-770-293 (BIA Oct. 18, 2010) (Cleveland).

The noncitizen's prior attorney, without consulting with the noncitizen, conceded removability as a smuggler.  Upon learning that she would be ineligible for cancellation of removal, she tried to amend her pleadings.  The IJ denied the request and ordered her removed. 

On appeal, the noncitizen and her new attorney alleged ineffective assistance of counsel. Although she did not include a fee agreement or lodge a disciplinary complaint against the prior counsel, she included that attorney's affidavit accepting responsibility for conceding removability without first consulting with noncitizen.

Finding the representation "egregious," the BIA found that the attorney's concession was not binding on the noncitizen.  The BIA remanded for a hearing on the noncitizen's removability and eligibility for relief from removal.

Tuesday, November 9, 2010

Six minutes late, a dollar short

Camaj v. Holder, (published, November 8, 2010).

The court upheld the denial of a motion to reopen an in absentia order, finding that personal service of the hearing notice was not practicable where the alien was in Detroit and the judge was in Chicago.  The court found the use of certified mail sufficient.

The alien arrived at the hearing in question 40 minutes late, only six minutes after entry of the in absentia order.  While not explicitly stated, it is likely that the alien was late because the hearing location had changed and the new address may not have been brought to his attention.

Had it been able to do so, the court would have reopened on the basis that the alien was only six minutes late and deportation is too harsh a penalty for such tardiness.  However, his attorney below did not exhaust that argument, raising it for the first time on the petition for review.  The court also made a point of mentioning that the attorney did not show that the Camaj had a meritorious claim for relief.  The court bemoaned the prevalence of "inadequate lawyering" but felt constrained to do anything about it on a less than perfect record.

Pending petition for review plus stay of removal equals Immigration Court Bond Jurisdiction

Cuello v. Adduci, 2010 WL 4226688 (E.D. Mich. Oct. 21, 2010).

In this district court decision, Judge Battani adopted the reasoning expressed by the Ninth Circuit in the Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), line of cases.  See also Bejjani v. INS, 271 F.3d 670, 689 (6th Cir. 2001).  Where an alien is subject to an administratively final order of removal, timely files a petition for review with the circuit court, and receives a stay of removal from that court, the alien's "removal period" (INA s 241(a)(1)(B)) has not commenced.  Therefore, detention under section 241(a) is not authorized. 

Therefore, if detention is not pursuant to section 241, it must be pursuant to section 236(a).  The alien is therefore entitled to a bond hearing in Immigration Court while the petition for review is pending. 

In this case, the alien was not subject to mandatory detention under 236(c), so it is unclear if there would be bond jurisdiction if that section applied.  The Ninth Circuit has found that there would be following the entry of an administratively final order of removal.

Friday, October 22, 2010

"At any time" means at any time

In re Hugo Sanchez, A096-419-992, 2010 WL 2601529 (BIA June 15, 2010) (Detroit - unpublished).

In this case, the NTA and Notice of Custody Determination contained the alien's correct address.  But when he bonded out, ICE gave the Immigration Court the address of the bond obligor.  The hearing notice was sent to that address and the alien failed to appear.  A month later, he received notice to report for his removal.  He reported and was removed and illegally reentered seven months later.  He was convicted of illegal reentry.

The BIA found that the notice was deficient because the alien never claimed to be living at the obligor's address.  It reversed the IJ, vacated the removal order, and remanded.  The BIA noted that a motion to rescind an in absentia order can be filed "at any time" (INA 240(b)(5)(C)(ii)) so it does not matter if the alien waited a long time to file the motion or did not exercise due diligence.  "At any time" means just that.

No issue was made of the alien's departure and illegal reentry, consistent with Matter of Bulnes, 25 I&N Dec. 57 (BIA 2009).

Wednesday, October 20, 2010

Sixth Circuit strictly applies categorical approach

In a pair of decisions involving criminal appeals, the Sixth Circuit strictly applied the categorical and modified categorical approach set forth in Taylor v. US, 495 U.S. 575, 579 (1990).  US v. Soto-Sanchez, (published) and US v. Laferriere, (unpublished).

In Soto-Sanchez, the defendant was deported after being convicted in Michigan of felony attempted kidnapping, MCL 750.349 (1999).  After illegally reentering, he was facing a sentencing enhancement if his prior conviction was a crime of violence.  The court followed the Taylor framework. 

First, it defined the generic offense of kidnapping.  The court declined the defendant's to use the Model Penal Code and instead surveyed other state laws.  Most states were not as specific as the MPC, so the court developed a list of elements based on how most states define kidnapping.  Kidnapping requires unlawful confinement or restraint of the victim plus an aggravating factor, like risk of harm or movement to another location.

Next, it compared the Michigan statute to the generic definition.  Michigan's statute could be violated in any of six ways.  Five of these fits within the generic definition and one does not.  However, the remaining prong contained an element of the use/attempted/threatened use of physical force, so it was still a crime of violence.

Because the Michigan statute was categorically a crime of violence, the court did not need to look at the conviction records and it was clear that it would not look at the defendant's actual conduct (the defendant wanted the court to look at his conduct).

It should be noted that the Soto-Sanchez Court was not completely faithful to the categorical approach, although it did not change the result in the case.  If a state statute is broader than the generic offense, then it does not categorically fall within the relevant category, such as crimes of violence.  The analysis should end at that point unless the statute is actually divisible, in which case the court should move on to the modified categorical approach.  The court seemed to suggest that if the state statute is broader, the court applies the modified categorical approach without considering whether the state statute is divisible (page 5 of the decision).

In Laferriere, the defendant had a prior juvenile conviction for assault with intent to rob.  The question was whether this involved a firearm, so as to trigger the Armed Career Criminal Act and a 15 year mandatory minimum.  The court rejected all of the defendant's argument but raised sua sponte the issue of whether the prior conviction involved a firearm, knife, or destructive device.  The court found that, based on the record of conviction, it did not.  Even though the defendant was originally charged with possession of a firearm, that charged was dismissed.  The statute of conviction could be violated without the actual use of a firearm, etc.  Examining state case law, the court noted that it could be violated by pretending to have a weapon (using a toy weapon or a finger in the pocket).  Because the firearm charge had been dismissed, the statute could be violated in any number of ways, and the old records were most lost, the court found that the government did not meet its burden of proof and it rejected the ACCA enhanced sentence.

Wednesday, September 22, 2010

District Court support for USCIS treatment of foreign degrees

In a pair of decisions from the Eastern District of Michigan, Sunshine Rehab Services v. Napolitano, 2010 WL 3325442, No. 09-13605 (E.D. Mich. Aug. 20, 2010), and Tisco Group v. Napolitano, 2010 WL 3464314, No. 09-10072 (E.D. Mich. Aug. 30, 2010), the courts were presented with challenges to denials of I-140 petitions filed for an EB3 professional (Sunshine) and an EB2 advanced degree professional (Tisco).

In both cases, the USCIS denied the I-140 petitions because the foreign degrees were not equivalent to either a four year U.S. bachelor's degree (Sunshine) or a U.S. master's degree (Tisco).  The district courts deferred to the USCIS interpretation and application of the regulations and statute and reliance on the EDGE database.  Judge Rosen in Sunshine expressed his belief that the USCIS got it wrong but was constrained by the deferential standard of review.

1429 trumps 1447(b)

In Rahman v. Napolitano, (unpublished), the court was confronted with an appeal from the denial of a petition for a hearing on a delayed naturalization application, pursuant to 1447(b).

The facts are somewhat complicated.  The LPR applied for naturalization.  While her application was pending, she pleaded guilty to a federal crime and was placed in removal proceedings.  In addition to the conviction, there was apparently a previously undisclosed in absentia order.  After the initiation of the removal proceedings, she filed the 1447(b) action in district court.  Between the filing and proper service on the government, the USCIS denied the naturalization application because of the pending removal proceedings, and the failure to disclose the criminal activity and prior removal order.

Following Zayed v. U.S., 368 F.3d 902 (6th Cir. 2004), the court found that the bar on granting naturalization applications for LPRs in removal proceedings, 1429, trumps 1447(b).  While the district court has jurisdiction under 1447(b) to consider the matter, 1429 restricts the available remedies.  The court can only grant what the AG would be and if the AG is prohibited from granting naturalization because of the pending removal proceedings, so to is the court.

Although it did not decide the matter, the court noted that the weight of the authority seems to support the view that 1447(b) grants the court exclusive authority to decide a naturalization application, so the USCIS could not deny it once jurisdiction vests with the district court.  The court did not have to reach this question because of the reach of 1429.

Monday, September 20, 2010

Courts have jurisdiction to hear challenges to a family member's removal but cannot grant relief

In Hamdi v. Napolitano, (published), a child sought to stop the DHS from removing his mother. 
The case presented sympathetic facts because Hamdi is severely disabled and dependent on his mother's care.

Although the end result was not favorable, the decisions includes discussions about several important jurisdictional issues.  First, 8 USC 1252(g), the "zipper clause" did not deprive the District Court of jurisdiction over a child's independent complaint relating to the removal of his mother.  Thus, if a family member seeks to stop a loved one's removal, the family member should assert his or her own distinct constitutional right and separate injuries.

However, the child's constitutional and international law claims do not provide subject matter jurisdiction under the Administrative Procedures Act.  In a footnote, the Court also found that the Declaratory Judgments Act likewise does not provide subject matter jurisdiction.  The APA does not provide subject matter jurisdiction over a challenge to the parent's removal because the APA is supplanted by the INA.

The APA's general waiver of sovereign immunity with respect to non-monetary claims allowed the child's claim to proceed under 8 USC 1331's general federal-question subject matter jurisdiction.  The constitutional nature of the child's alleged injury (the complaint raised the 5th, 8th, 9th, and 14th Amendments) were sufficient to create subject matter jurisdiction and could not be dismissed out of hand.

Although the Court found subject matter jurisdiction, the Court found dismissal proper for failure to state a constitutional claim upon which relief may be granted.  8 USC 1252(b)(9), although it does not preclude subject matter jurisdiction, does preclude the granting of the relief requested, which was judicial review of the mother's removal order. This statute establishes the procedure for challenging a removal order.  While the Court can determine whether the child's constitutional rights will be violated from the separation from his mother, this is distinct from a judicial determination of questions arising from the mother's removal.  In the end, 1252(b)(9) operates to deprive all federal courts of the authority to review the mother's removal to determine whether the constitutional injuries to the child renders the removal invalid.

In the final footnote, note 16, the Court left open the possibility that certain types of unnamed relief might survive section 1252's jurisdictional bars.

Diversity Visa eligibility ends with the fiscal year

In Mwasaru v. Napolitano, (published), the alien filed a mandamus complaint seeking adjudication of her FY 2007 Diversity Visa Lottery application.

The Court agreed with the 2nd, 3rd, 9th, and 11th circuits in finding that 8 USC 1154 prohibits issuance of diversity visas after the close of the fiscal year.  As unfair as it is, these courts have found that the statute simply does not allow for the issuance of these visas after the end of the fiscal year, regardless of government processing errors.  It made no difference that Mwasaru filed her mandamus complaint before the close of the fiscal year, although perhaps there is some room to distinguish this case from future cases because the USCIS denied her application and she sought to renew her application in Immigration Court.

The Court denied her mandamus complaint as moot.

ICE has burden of proving a vacated conviction remains valid for immigration purposes

In a pair of decisions, Barakat v. Holder, (published), and Agolli v. Holder,, the Sixth Circuit addressed which party bears the burden of proving that an alien is or is not removable if a conviction is set aside.

ICE bears the initial burden of proving that an alien is removable.  If ICE makes out a prima facie case, the burden shifts to the alien to produce evidence of his non-removability, such as proof that a court of competent jurisdiction vacated the conviction.  At that point, the burden shifts to ICE to prove by clear and convincing evidence that the conviction remains valid for immigration purposes, in other words, that the conviction was vacated for rehabilitative or immigration purposes.

In Barakat, the Court reiterated that Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) placed the burden on ICE to show that a conviction was set aside for "improper" purposes.  The Court clarified that Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007) is distinguishable because in that case, ICE carried its burden by submitting uncontested circumstantial evidence that the conviction was vacated solely for immigration purposes.

In Barakat, the record was unclear as to why his conviction was vacated.  This meant that ICE could not meet its burden.

Friday, August 27, 2010

Discharged from military for alienage means no naturalization under section 329

Sakarapanee v. DHS,

Having lived in the U.S. since he was one, the LPR enlisted in the Navy in 1990.  Having problems, he eventually sought and obtained a discharge.   It was an honorable discharge, but on the basis of alienage.

He applied for regular naturalization under INA 316, but it was denied because of the bar in INA 315(a).  Later, he reapplied but under INA 329 because he served in the military during a time of conflict.  It was again denied and he appealed to the district court.  On review, the Sixth Circuit affirmed the denial.

Addressing INA 315(a), the Ninth Circuit held that it did not apply to aliens who voluntarily enlisted and were then discharged on the basis of alienage.  Gallarde v. INS, 486 F.3d 1136 (9th Cir. 2007).  The Sixth Circuit sidestepped whether Gallarde was good law in this circuit because INA 329 differs from INA 315 in material respects.  Notably, section 329 specifically applies to both enlisted service members and draftees, while section 315 is more ambiguous about its scope.

Particular social group, nexus, and future persecution

Qu v. Holder,
This case, involving a Chinese woman kidnapped and threatened with rape and forcible marriage by a "big thug," addressed several important issues.

First, the Court continued to follow the definition of particular social group formulated in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).  Acosta's broad interpretation of psg encompasses any group, not matter how populous, that is persecuted because of shared characteristics that are either immutable or fundamental.

Second, the Court strongly suggested that women in China who have been subjected to forced marriage and involuntary servitude constitute a psg, although it remanded to let the BIA decide this in the first instance.  Ms. Qu shares the common, immutable characteristic of being a woman who has been abducted by a man trying to force her into marriage in an area where forced marriages are recognized.

Third, this case involved a mixed motive because Ms. Qu was targeted both to secure the repayment of her father's debt and because she was a woman show could be forced into marriage in a place where such marriages are accepted.  If there is a nexus between the persecution and membership in a psg, the simultaneous existence of a personal dispute does not eliminate the nexus.  This case is subject to the REAL Id Act.

The Court remanded because the BIA did not fully consider these issues.  The Court left the BIA with the parting instruction that if the BIA concludes that she belonged to a psg, then substantial evidence does not support its finding that she did not fulfill the requirements for asylum.

Finally, the Court found that Ms. Qu did not abandon her CAT claim by only raising it in a cursory manner before the BIA.  The IJ had granted asylum and ICE appealed, so Ms. Qu may not have been aware of the need to argue CAT in detail before the BIA.  Plus, the Court suggested that she had a viable CAT claim.

Sixth Circuit on who bears the burden of proof when a conviction is vacated

Barakat v. Holder,

The Court reversed the BIA because the BIA improperly placed the burden on the alien to prove that a conviction was vacated for permissible reasons.  The offending conviction in this case was set aside while the alien's appeal was pending with the BIA.  The alien submitted the state court order but not the motion itself.

ICE bears the initial burden of proving, by clear and convincing evidence, that an alien is removable.  If ICE makes out a prima facie case, then the burden shifts to the alien to establish non-removability, which the alien can meet by showing that a court of competent jurisdiction vacated the conviction.  This returns the burden to ICE to prove, again by clear and convincing evidence, that the conviction remains valid for immigration purposes because, for example, it was set aside for immigration or rehabilitative purposes.

The court clarified that Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007) involved a situation in which ICE met its burden, not a case where the alien failed to meet his.  In Sanusi, as in Pickering, the burden was on ICE.

Thursday, August 12, 2010

Amended dissent in Japarkulova

Previous blog:

The court issued an amended opinion to include a forceful and spirited dissent by Judge Martin.  This case raises the interesting question of whether an erroneous determination that an alien did not suffer past persecution can ever be harmless.  A finding of past persecution does two things.  One, it shifts the burden to ICE to prove by a preponderance of evidence that the applicant lacks the presumed well-founded fear or clear probability of persecution.  Two, it makes the applicant eligible for humanitarian asylum in the absence of a well founded fear.  Humanitarian asylum can be granted based on the severity of the harm or the reasonable possibility that the alien will suffer "other serious harm."  These determinations have to be made by the agency in the first instance.

Monday, August 9, 2010

Motion to reopen following rescission of in absentia order not number barred

In re Rabee, A099 235 166, 2010 WL 2390748 (BIA June 2, 2010) (Cleveland).

The alien was removed in absentia.  The IJ granted his motion to rescind that order.  The alien was ordered removed in absentia a second time and filed another motion to reopen, which the IJ denied as being number barred.  The BIA disagreed and remanded.

The rescission of the first in absentia order "annulled" all the determinations made in the in absentia proceedings and returned the alien to the same status he had before the hearing.  Thus, it was as if he never filed the motion and the current motion was treated as if it was his first.

Equitable tolling applies?

Mezo v. Holder,

The court held that equitable tolling applies to ineffective assistance of counsel-based motions to reopen.  The court then remanded to allow the BIA to determine whether the allegations of error are true and whether the alien was prejudiced when her attorney filed the appeal late.  The court had no problems finding ineffective assistance in this case.  The court also found that the alien exercised due diligence when her attorney lied to her and it was reasonable to believe the attorney.

ICE can't defeat jurisdiction by delaying service of order

Villegas de la Paz v. Holder,

The court found that it had jurisdiction over a petition for review from a decision by ICE to reinstate a removal order. The court denied the petition on the merits, finding that ICE established the existence of the prior order and that any regulatory or procedural violations in the underlying order were irrelevant.  The court recognized its authority to review allegations of constitutional or legal error in the underlying order but found that none existed.

Notably, the petition for review was seven months late because ICE delayed in serving the alien or her attorney with the decision.  OIL made the "remarkable" argument that the court lacked jurisdiction over the appeal because it was untimely.  The court was little time in rejecting that argument because it was ICE's own actions that resulted in the late appeal.  The court would not allow that kind of "ball-hiding," which it called "repellent."  Reinstated orders, like other removal orders, are not valid until served.

False claim to citizenship in an I-9 is a false claim under the INA

Ferrans v. Holder,

The alien checked a box on the I-9 form indicating that he was a citizen or national of the U.S. when he actually had no status in the U.S.  He applied for adjustment of status.  The USCIS, the IJ, and the BIA denied his application because he admitted that he falsely claimed to be a U.S. citizen on the I-9 so he could work, making him inadmissible under INA s 212(a)(6)(C)(ii).  There is no waiver for this bar except in very narrow circumstances.

Notably, the alien never claimed that he was claiming to be a U.S. national.

The court affirmed.  The court deferred to the agency's interpretation of the statute and found that the burden was on the alien, an applicant for adjustment of status, to show that he was admissible.  A false claim to citizenship on an I-9 for private employment is for "any purpose or benefit" under the INA.  The court followed decisions from the Fifth, Tenth, and Eighth circuits.

Harmless error in asylum adjudication

Japarkulova v. Holder,

The BIA erred in finding that the alien did not suffer past persecution.  A threat, from a high-placed government official, can constitute past persecution. 

The court would have remanded to allow the agency to determine when a stand-alone threat constitutes persecution but the error was harmless.  Conditions have changed and so the alien did not possess a well-founded fear of future persecution.

The concurrence noted recent events in the Kyrgyz Republic.  Noting the counterintuitiveness of the result, the opinion noted that the alien had to file a motion to reopen so the agency could consider the new evidence, even though the more efficient result would be for the court to remand the case.

Prosecution not persecution

Cruz-Samayoa v. Holder, 607 F.3d 1145 (6th Cir. 2010),

The court held that a legitimate criminal prosecution does not amount to persecution and affirmed the denial of asylum and withholding of removal.  The alien served as a spokesperson for Guatemalan peasants who were occupying disputed farmlands.  When the police entered the lands, violence erupted as it sought to remove the occupiers.  The alien fled and an arrest warrant was issued for him.

There was a sufficient legal basis for the arrest warrant in that there seemed to be little dispute that violence occurred when the police entered the occupied lands.

The court followed its earlier decision in Haider by assuming the alien's credibility when the IJ's credibility determination was ambiguous.

No time to wait for I-140 appeal

Kwak v. Holder, 607 F.3d 1140 (6th Cir. 2010),

The court affirmed the denial of a continuance.  The alien requested a continuance to await the outcome of an I-140 appeal to the AAO.  The court found no abuse of discretion because the I-140 petition was still pending and the USCIS had previously denied the alien's petition and it had also denied his affirmative adjustment of status application and I-601 waiver.

The court affirmed its jurisdiction to review denials of continuances because the IJ's authority to continue proceedings derives from 8 C.F.R. s 1003.29, not the INA.  See Kucana v. Holder, 130 S. Ct. 827 (2010).

Serious nonpolitical crime has to be viewed in context

Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010),

In this case, the BIA affirmed a denial of asylum and withholding because, it concluded, the alien committed a serious nonpolitical crime abroad when he engaged in protests against the military dictatorship in Ethiopia.  The Sixth Circuit reversed and remanded.  Throwing rocks at the police during a political demonstration is not per se a serious nonpolitical crime.  Because there was both a criminal and political aspect to the protests, and because the agency was not clear in its decision and it did not consider the alien's claim of self-defense, the court remanded.

Although the court is willing to defer to the agency, the agency must still provide a reasoned explanation.

Sixth Circuit panel recommends that en banc reconsideration of authority to review sua sponte motions

In Gor v Holder, 607 F.3d 180 (6th Cir. 2010),, the court followed its previous decisions that concluded that the court lacked jurisdiction to review the denial of a sua sponte motion to reopen.  Two judges on the panel called into question the continuing validity of this authority in light of the Supreme Court's decision in Kucana v. Holder, 130 S. Ct. 827 (2010).

The alien has filed a petition for en banc rehearing and the American Immigration Court is appearing as amicus.

Wednesday, June 9, 2010

Motion to reopen an in absentia order

In re Alawie, A094-250-122, 2010 WL 2224567 (BIA May 5, 2010) (unpublished).

The BIA reversed an Immigration Judge's denial of a motion to reopen an in absentia removal order.  The alien did not live at the address of record but used as a mailing address.  The BIA reopened based on (1) an affidavit from the resident of the address stating that he did not receive the hearing notice and would have given it to the alien if he had received it, (2) the alien had a reason to appear at his hearing because he is eligible for cancellation of removal, and (3) the alien acted quickly in filing the motion (he filed it two days after the order was entered).

Returning LPR burden of proof

In re Valero-Pena, A099-120-766, 2010 WL 2224531 (BIA May 20, 2010) (unpublished). 

The respondent, an LPR, was charged with drug trafficking but the charges were ultimately dismissed.  Later, he traveled abroad and was denied entry and paroled into the U.S.  He was charged with removability under INA s 212(a)(2)(C) as a noncitizen who the Attorney General has reason to believe is or was a drug trafficker.  The Immigration Judge sustained the removal charge and the LPR appealed.

On appeal, the BIA remanded.  The BIA was concerned that the Immigration Judge did not place the burden of proof on the DHS.  Because the respondent had a colorable claim to returning resident status, the burden was on the DHS to establish removability by clear, unequivocal, and convincing evidence (the concurring opinion took issue with the "unequivocal" portion of the standard).  The BIA was not convinced that the Immigration Judge applied this "exacting standard" or that the judge properly weighed the evidence in light of this standard.

Friday, May 28, 2010

Nunc Pro no way

Ramirez-Canales v. Holder, (unpublished).

This case was back before the court following a remand to the BIA.  Ramirez-Canales v. Mukasey, 517 F.3d 904, 911 (6th Cir. 2008).  In the prior decision, the court remanded for a determination of whether a noncitizen subject to the permanent bar of INA 212(a)(9)(C)(i)(I) was entitled to 245(i) relief nunc pro tunc.  On remand, the BIA said no and the court deferred to this reasonable interpretation.

The court reviewed the BIA's legal conclusions de novo but deferred to its reasonable interpretations of the INA.  The BIA found that it lacked discretion to grant adjustment nunc pro tunc in this situation.  While the court implied that it would have liked a more thorough review on remand, it accepted the BIA's conclusion as to the limits of its authority.

ICE did not meet its Burden of Proof

Hassan v. Holder, (published).

In this case Mr. Hassan was admitted as an immigrant as the unmarried child of a lawful permanent resident.  At the same time, his fiancĂ©e was admitted as a nonimmigrant.  After they were both admitted, they married and Mr. Hassan filed an I-130 petition for her.  Mrs. Hassan eventually adjusted her status.  When Mr. Hassan applied for naturalization, the legacy INS came to believe that Mr. Hassan and Mrs. Hassan were actually married in Jerusalem before Mr. Hassan immigrated as an unmarried person.  The Hassans were placed in removal proceedings.

The Sixth Circuit reviewed the record and concluded that the record compelled the conclusion that ICE did not prove by clear and convincing evidence that the Hassans were married abroad.  The agency relied on two letters from the U.S. Embassy in Jerusalem.  The Hassans relied not only on their own testimony (which was consistent throughout as to when the marriage occurred) but expert opinions on marriage rules for Muslims in Jerusalem and a report from the Library of Congress.  The Embassy letters lacked indicia of reliability and the Israeli documents that allegedly established the existence of a marriage were never produced.  For their part, the Hassans produced documents that, according to the rules for Muslim marriages in that part of the world, established that they did not complete the four steps necessary to complete the marriage process.

The court found the Embassy letters to be problematic because they lacked sufficient detail, did not identify the source of the information and the source's knowledge and expertise.  The Hassans filed a marriage contract, which was only one step of the four step marriage process, so this missing information raised the possibility that the source confused the existence of a marriage contract indicating an intent to marry with a completed marriage.

Mr. Hassan was also charged with making a false claim to U.S. citizenship when, on one of his SBA loan applications, he indicated that he was a citizen.  The court found that ICE did not prove that this was "for any purpose or benefit" under a law.  Mr. Hassan had on prior SBA applications disclosed he was a permanent resident and those applications were approved, so there was no indication that his citizenship status was relevant to the loan process.  The court did reject Mr. Hassan's claim that he did not knowingly make the false claim because he did sign the forms prepared by someone else.

The Immigration Judge made an adverse credibility determination.  The Sixth Circuit did not outright reject this determination and instead found that the Hassans' credibility "should play no part in assessing the evidence offered by the government to meet its burden of proof."  The IJ and BIA improperly shifted the burden to the Hassans.

The decision is also notable for the rejection of the Hassans' argument that the IJ should have recused herself.  The court found that the IJ was within her rights to take a "somewhat active role" in the examination of the witnesses.

Thursday, May 6, 2010

Madrigal v. Holder, on remand

In Madrigal v. Holder, the Sixth Circuit held that the withdrawal provisions of 8 C.F.R. s 1003.4 do not apply where the departure was involuntary.  572 F.2d 239 (6th Cir. 2009).  Madrigal was removed during her appeal to the BIA because there was no automatic stay in place.  She was ordered removed in absentia, filed a motion to reopen, and then appealed the denial of that motion to the BIA.  The BIA did not enter a stay and ICE removed her. 

On remand, the BIA remanded to the Immigration Judge to consider whether she received actual or constructive notice of the hearing, in light of the intervening precedent decisions Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008) and Matter of C-R-C, 24 I&N Dec. 677 (BIA 2008).

Friday, April 16, 2010

District Court rejects Rojas

Khodr v. Adduci, 2010 WL 931860, No. 10-cv-10505 (E.D. Mich. Mar. 11, 2010).

First, the court examined the immediate custodian rule in habeas petitions.  The alien named the ICE Field Office Director but not the warden of the county jail.  After reviewing Roman v. Ashcroft, 340 F.3d 314 (6th Cir. 2003) and Rumsfeld v. Padilla, 542 U.S. 426 (2004), the court held that the ICE Field Office Director is the proper respondent.  Even if she was not, venue was proper because the alien was detained in the Eastern District, the U.S. Attorney's Office would have represented the Respondent, and the error would be harmless.

Turning to the merits.  More than four years after being released from criminal custody following a federal conspiracy to possess with intent to delivery heroin conviction, ICE detained the alien and alleged that he was subject to mandatory detention. The IJ agreed, citing Matter of Rojas, 23 I&N Dec. 117 (BIA 2001).  The alien did not appeal to the BIA, as it would have been futile, and instead filed a habeas petition.

The court granted the habeas petition, finding that 236(c) imposes an "immediacy" requirement.  This means that ICE has a "reasonable period" to take criminal aliens into custody after their release from criminal confinement.  If the statutory language "when released" is to have any effect, it must mean that ICE must detain the alien within a reasonable time following release from criminal custody for mandatory detention to apply.  The alien was granted a bond hearing in Immigration Court.

Jurisdiction over APA action challenging denial of I-140

Taco Especial v. Napolitano, __ F. Supp. 2d __ (E.D. Mich. Mar. 15, 2010).

The District Court exercised jurisdiction over the company's APA action challenging the denial of its I-140 petition.  The issue was whether the company had the ability to pay the proffered wage to the beneficiary.

On the negative side, the court agreed with the AAO that depreciation should not be added back to net income in determining the ability to pay.

On the positive side, the court agreed with the flexible approach endorsed by the Seventh Circuit in Construction & Design Co. v. USCIS, 563 F.3d 593 (7th Cir. 2009).

In the end, the court upheld the AAO's decision, finding that it was not arbitrary or capricious and that the AAO considered the evidence and applied Matter of Sonegawa.

Federal Escape Conviction not Categorically a Crime of Violence

USA v. Anglin, (published).

The Court employed the categorical approach and looked at the limited record of conviction to determine if defendant's federal escape conviction is a crime of violence for career offender sentencing purposes.  To be a crime of violence, that is whether it poses a serious potential risk of violence, it must involve purposeful, violent, and aggressive conduct.

REAL ID Act precludes Writ of Prohibition

Elgharib v. Holder, (published).

There seems to be a never ending supply of writs.  But the REAL ID Act streamlines judicial review of removal orders and more or less renders these writs to the dustbin of history, at least when it comes to immigration cases.

242(a)(5) and (g) prohibit a writ of prohibition, even one that raises constitutional issues.

We lost your file so you cannot corroborate your claim

Alcius v. Holder, (2-1 decision).

Another reason to be thankful for judicial review.  On appeal to the BIA, the record was lost, including some of Mr. Alcius' supporting evidence.  On remand, it was discovered that the evidence was missing.  This was held against Mr. Alcius during the agency proceedings, but the Sixth Circuit rightly noted the due process problem.

The decision is also notable for the Court's rejection of the IJ and BIA conclusion that the DHS rebutted the presumption of a well-founded fear.  The IJ and BIA's treatment of the current country condition evidence was too narrow and one-sided.

Friday, March 5, 2010

Get a note from your dad, and practical problems for former gang members

Urbina-Mejia v. Holder,

In this published decision, the Sixth Circuit found that former El Salvadoran gang members can constitute a particular social group.  It is a characteristic that is impossible to change short of rejoining the gang.  Note, that the noncitizen did not have any gang tatoos.

In this REAL ID Act case, the IJ found that the claim, while credible, lacked corroborating evidence.  The court found that some of the missing evidence was unlikely to be probative, such as letters from the noncitizen's much younger siblings or the family members who were in the U.S. when these events occurred.  However, a note from his father, who remains in El Salvador was available but not provided "because no one asked him for it." 

The noncitizen presented an expert witness, whose testimony was somewhat discounted by the IJ as "mere opinion."  The court found that his testimony was corroborative evidence.  Still, under the REAL ID Act standard, the "immigration judge’s conclusion that the available evidence was insufficient to compel a finding that Urbina-Mejia would more likely than not suffer persecution upon removal was reasonably based on substantial evidence."

In what might be a fatal blow to similar claims, the noncitizen's admission that he robbed and extorted money and sometimes assaulted victims, and was taught to use a gun, meant that he was ineligible for withholding of removal because he committed a serious nonpolitical crime outside the U.S.  It did not help that he was under the age of 18 when this happened or that there was some amount of coercion (the IJ noted that he shared in the proceeds of his crimes).  The concurrence would have denied on this basis alone without reaching the particular social group or corroborating evidence issues.

Friday, February 12, 2010

Presumption of credibility and imputed political opinion

In Haider v. Holder, the court clarified that persecution inflicted on account of a noncitizen's imputed political opinion can serve as a basis for asylum and withholding of removal.  The court joined her sister circuits, including the Second and Ninth Circuits.  In footnote 9, the court suggested that there should be no distinction for persecution inflicted for imputed illegitimate conduct (like being falsely accused of engaging in terrorist activities) or that inflicted ofr imputed political opinion or membership in a political group (like being falsely accused of belonging to a party that engages in terrorist activities). 

The court reminds adjudicators that persecution is considered in the aggregate.  So an adjudicator cannot consider each instance of harm separately and conclude that there was no persecution because there was no one single severe instance of harm.  Nor must the harm be physical, as economic deprivation, expulsion, surveillance, and illegal searches can all constitute persecution.

In this case, there was no explicit credibility determination.  Rather than remand for one, the court assumed the noncitizen was creidble and ruled on the merits of the withholding of removal claim.  If the court finds that the evidence compels reversal of the decision denying relief, as it did in this case, the court will remand to allow the agency to consider which parts of the noncitizen's tersimony were and were not credible.

Also of note in this case is that the BIA did not carefully choose its words when describing its review of the Immigration Judge's decision, leading the noncitizen to argue that the BIA applied the wrong standard of review.  The court looked carefully at the substance of the BIA's decision to conclude that the BIA applied the proper standard even if it was sloppy in its choice of words.

Court rebukes EOIR's factfinding
In Stewart v. Holder, the court reversed and remanded the denial of an in absentia order.  The court criticized the BIA's failure to address all of the relevant evidence.  The court found it "odd" that the Immigration Judge and BIA would make much of two purported "blatant falsehoods" in the noncitizen's affidavit.  The first was the noncitizen's claim that a court employee told him that the record did not contain a hearing notice mailed to his current address.  Rather than being a falsehood, the court found that this could just have plausibly been an error on the part of the employee who talked to the noncitizen.  Second, the noncitizen's affidavit misstated one of the relevant dates, a minor and irrelevant detail that could not be viewed as an attempt to enchance his claim.  The court noted that this error was no different than the erroneous date entered by the court on one of the hearing notices.

Battery is an offensive touching

In People v. Federoff, the Michigan Court of Appeals discusses the elements of Michigan's assault and battery statute, MCL 750.81.  Relevant to immigration practicioners, this statute can be violated through offensive touching that is not forceful or violent.  A domestic violence offense can be committed even if the defendant intended to assault and batter another individual but mistakenly or accidentally assaulted or battered a protected person.

Monday, January 25, 2010

6th Circuit on 212(c) after trial, CIMT after Silva-Trevino

Kellermann v. Holder,

In this case, the Court had the opportunity to address whether a conviction under 18 USC 371 and 1001 (conspiracy to make a false statement) was a CIMT.  The Court answered in the affirmative.  The decision is notable for the CIMT analysis.  While the Court cited to Silva-Trevino, the Court did not adopt the AG's 3rd step, instead limiting the analysis to a limited examination of the record of conviction.

The Court also found that the repeal of 212(c) did not have an impermissible retroactive effect on a noncitizen that elected to go to trial on a criminal charge, joining the majority of circuits.

Friday, January 22, 2010

Closure of Cincinnati Immigration Court

In Matter of Gvasalia, A097-610-583 (BIA Dec. 16, 2009), the Board held that the closure of the Cincinnati Immigration Court did not excuse the failure to appear for a hearing at the Cleveland Immigration Court.

This case is now at the Sixth Circuit, No. 10-3039.

Thursday, January 21, 2010

BIA extends Sixth Circuit's decision in Matovski nationwide

In Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), the BIA today confirmed that Immigration Judge's have jurisdiction over INA 204(j) job flexibility determinations during removal proceedings, for long-delayed adjustment of status applications.  This was already the law in the Sixth Circuit, see Matovski v. Gonzales, 492 F.3d 722 (6th Cir. 2007) (, but Neto clarifies the standard and procedures to be used in making the 204(j) determination.

Wednesday, January 6, 2010

Court rejects many findings, affirms adverse credibility finding

Another decision highlighting the difficulty of successfully challenging an adverse credibility determination.  The Court rejected 10 of the Immigration Judge's 15 findings supporting an adverse credibility determination but concluded that the remaining 5 were sufficient to affirm the determination. 

Other circuits have remanded if the court could not state with confidence that the Immigration Judge would reach the same decision in the absence of the erroneous findings.