Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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In re Hugo Sanchez, A096-419-992, 2010 WL 2601529 (BIA June 15, 2010) (Detroit - unpublished).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  US v. Soto-Sanchez, (published) and US v. Laferriere, (unpublished).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.