Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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.