Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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Ramirez-Canales v. Holder, (unpublished).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).