Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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.