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Ibe v. Holder, (unpublished, December 22, 2010).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Soumah v. Holder, (unpublished, 12/20/2010).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.