Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, December 23, 2011

Michigan Court of Appeals punts on Padilla

People v. Zak, No. 298441 (Mich. Ct. App. Dec. 6, 2011) (unpublished).

The defendant appealed the denial of his Padilla motion to set aside his plea, in Oakland County Circuit Court.  The Michigan Court of Appeals remanded for an evidentiary hearing.  The circuit court erred by favoring unsupported assertions in the People's brief over the defendant's affidavit.  The proper course of action would have been to hold an evidentiary hearing.

 On appeal, the People argued for the first time that Padilla is not retroactive.  While noting that this is an open question in Michigan, the Court of Appeals declined to address this and instead instructed the trial court to consider this on remand.

Sixth Circuit reviews I-751 denial

Sova v. Holder, No. 09-3718 (6th Cir. Dec. 20, 2011) (unpublished)

The court reviewed the merits of this waiver-based I-751 denial but affirmed the BIA's decision.  There is an interesting discussion on the enforcement of subpoenas and the proper steps for requesting one under the regulations.

Blood feuds and timeliness

Spaqi v. Holder, Nos. 09-4442/4444 (6th Cir. Dec. 21, 2011) (unpublished).

In this Kosovar asylum claim, the family sought asylum based on a blood feud.  The court found that the fear of the blood feud was a personal problem unconnected to politics and therefore not a basis for asylum or withholding of removal. 

The lead applicant was disqualified from asylum because of his murder conviction relating to the blood feud.  When this became apparent, the family's attorney sought to sever the wife and kids from his case, but the request came too late in the proceedings.  The ground of ineligibility for the principal should have been apparent.  Also, the family did not establish prima facie eligibility.

The oldest child turned 21 a few days after the family entered and a few days before the principal filed his I-589.  He had to file his application but by the time it was filed, it was one month past the one year deadline.  The majority declined to review the timeliness determination because it found that the family was not eligible for relief.

The partial dissent would have remanded on the one-year issue because there is some indication in the record that the BIA failed to consider the transcript from the father's separate proceedings, which suggested that the oldest child was given permission to file late.  The BIA failed to review the complete record and got some of the key facts wrong.  It suggested a due process violation.  The partial dissent would have also found that the family constituted a particular social group.

Sixth Circuit addresses "violent felonies"

In two recent cases, USA v. Oaks, No. 06-6056 (6th Cir. Dec. 15, 2011) (published) and USA v. Rodriguez, No. 09-3867 (6th Cir. Dec. 21, 2011) (published) the court addressed whether an offense is a violent felony in these criminal sentencing cases.  In Oaks, the court found, in a split decision, that escape from a courtroom was not a violent felony.  In Rodriguez, it found that an Ohio conviction for aggravated assault is a violent felony.

Friday, December 9, 2011

Ohio Court of Appeals remands in Padilla case

State v. Yahya, 2011 WL 5868794 (Ohio Ct. App. Nov. 22, 2011).

In this Padilla motion case, the court found the defendant received ineffective assistance of counsel because (1) her attorney failed to properly advise her that she was pleading to an aggravated felony (she received incorrect advice) and (2) she established prejudice because she would not have pled guilty if properly advised.  The court remanded for further factual inquiry as to the truth of the defendant's assertions.

Convictions previously waived can lead to removal

Kalbass v. Holder, No. 10-3527 (6th Cir. Nov. 29, 2011) (unpublished)

In this case, the alien received 212(c) relief in 1987.  He did not learn his lesson and accrued another conviction.  He was placed in removal proceedings and alleged to have committed multiple crimes involving moral turpitude.  The multiple crimes were one after the waiver and several before.  The court, following but not citing to BIA precedent, found that the waiver did not preclude future use of the offenses for immigration purposes.  The waiver waives the immigration consequences of the conviction but does not erase the conviction itself.

BIA remands in suppression case

In re Jose Zacaria Quinteros, A088-239-850, 2011 WL 5865126 (BIA Nov. 9, 2011) (unpublished) (Memphis).

In this case, the alien filed a motion to suppress based on constitutional violations in the traffic stop leading to his arrest.  The IJ denied it but the BIA remanded.  ICE filed a motion to reconsider, which the BIA denied.  The BIA found that the exclusionary rule can apply in removal proceedings if the evidence was obtained in a manner so egregious that its use would violate due process by offending the requirements of fundamental fairness.

Friday, November 18, 2011

Facilitation of Aggravated Robbery is a Violent Felony

U.S. v. Gloss, No. 10-5417 (6th Cir. Nov. 17, 2011) (published),

In this Armed Career Criminal Act case, the court held that facilitation of armed robbery under Tennessee law is a violent offense because it has as an element the use, attempted use, or threatened use of physical force against the person of another.  This is similar to the BIA's recent decision in Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011).

Sixth Circuit stays appeal to correct translation errors

Sea v. Holder, No. 09-4301 (6th Cir. Nov. 8, 2011) (published),

The alien's asylum claim was denied on credibility grounds.  She hired a new attorney to file a petition for review with the Sixth Circuit.  The new attorney realized that a document that was crucial to the adverse credibility finding was improperly translated.  The attorney obtained affidavit from the translator admitting to the error and retranslating the document. 

The court cannot consider this new evidence but it agreed to stay the appeal to allow the alien to file a motion to reopen with the BIA.  According to the EOIR information line, the motion was filed on October 24, 2011 and it is still pending.  There are timeliness issues in this case so it will be interesting to see how the BIA handles it.

Thursday, November 3, 2011

BIA reopens based on vacatur of conviction

In re Michael Anthony Foster, A089-349-341, 2011 WL 5111702 (BIA Sept. 20, 2011) (Memphis) (unpublished).

In this case, the alien was found deportable.  90 days after the BIA denied his appeal, his conviction was set aside.  He filed a motion to reopen, which the BIA granted.  The decision suggests that ICE's concern was that there were still pending charges but apparently those charges were dismissed.

It is not explicit in the decision but the BIA must have granted an untimely motion to reopen based on the vacatur of a conviction.

Wednesday, October 12, 2011

Late change of counsel does not require a continuance

Moctar v. Holder, No. 10-4542 (6th Cir. Oct. 11, 2011) (unpublished)

About seven years after the issuance of the NTA and two weeks before the individual hearing, the alien changed counsel and sought a continuance to allow the new attorney to get the file and prepare and also to get evidence from abroad.  The IJ denied the request because it was made at the last minute.  The court found no error or prejudice or due process violation.

Road map for challenging discretionary denial of cancellation application

Ettienne v. Holder, No. 10-3896 (6th Cir. Oct. 5, 2011) (published).

The court affirmed the discretionary denial of this nonLPR cancellation of removal application.  The alien tried to overcome the statutory bar to reviewing this discretionary determination by arguing that the BIA committed a legal error by failing to consider the evidence in their totality, contrary to BIA precedent.  The court found that this was not a legal error but rather an invitation to reweigh the evidence, something it felt powerless to do.  The court gave examples of reviewable evidence, such as misstating the hardship standard or where the BIA applies the wrong standard of review.

Unfortunately, because the alien was found to have previously engaged in marriage fraud, she will be permanently barred from immigrating through her current husband or her children.

Friday, September 23, 2011

S.D. Ohio on Padilla, Coram Nobis

U.S. v. Reid, No. 1:97-cr-94, 2011 WL 3417235 (SD Ohio Aug. 4, 2011) (unpublished)

The court found that the defendant could use a writ of coram nobis to challenge a plea on Padilla grounds.  The court further found that Padilla was not a "new" rule and therefore it applied retroactively. Finding that he established prejudice, the court vacated and set aside his guilty plea.

Friday, September 9, 2011

Arriving alien adjustment of status

Kuppusamy v. Holder, No. 10-3011 (6th Cir. Sept. 9, 2011) (unpublished)

The court affirmed the removal of this employment-based adjustment of status applicant. 

The court seemed to suggest that an alien cannot file an I-485 in removal proceedings unless the application is first filed with USCIS.  This is wrong, as an application can be filed defensively in removal proceedings.  I think the court was confused because the alien is an arriving alien.  The IJ could review the first application because it was the basis for the advance parole.  The IJ could not review the second application because it was based on a different underlying visa petition (the USCIS has exclusive jurisdiction over that application). 

Prima facie natz. determination in removal proceedings

Shewchun v. Holder, No. 09-3894 (6th Cir. Sept. 8, 2011) (published)

In this case, the court followed the other circuits and the Board's decision in Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007), including that the IJ and BIA are not empowered to determine whether an LPR is prima facie eligible for naturalization so as to be able to terminate proceedings under 8 C.F.R. 1239.2(f).  The USCIS does not have a mechanism for making this determination, which makes this regulation virtually meaningless.  The court acknowledged this but concluded that the power to fix this lies elsewhere.

For interesting reading, google the petitioner in this case.

Reinstatement of removal after voluntary departure

Casillas v. Holder, No. 09-3831 (6th Cir. Sept. 2, 2011) (published)

This case is notable for a number of reasons.  First, an alien seeking to establish that he complied with a voluntary departure order must be able to prove that he timely departed.  Second, there is no jurisdiction, on a petition for review, to review ICE's denial of a stay, an IJ's bond decision, and an untimely challenge to the underlying order being reinstated.

Third, the Court held that the proper vehicle for challenging ICE's decision to reinstate a removal order is through a habeas petition, at least where the alien is challenging whether there is even a removal order.

Not addressed by the court, though, is whether a petition for review can be filed directly from a reinstatement order.  There is authority in support of this, but this was not at play in this case.

Tuesday, August 30, 2011

Court affirms new voluntary departure regulations

Hachem v. Holder, No. 09-3992 (6th Cir. Aug. 29, 2011) (published)

In this published decision, the Court found that the new voluntary departure regulations, which provide for the automatic termination of a voluntary departure grant upon the filing of a petition for review (subject to narrow exceptions), are a valid exercise of rulemaking authority.  The Court found that the regulation applies to grants by IJs before the regulation where the BIA reinstated the grant after the regulation took effect on on January 20, 2009.

Missing a hearing and the oportunity to apply for relief is not prejudice

Orlov v. Holder, No. 09-4304 (6th Cir. Aug. 26, 2011) (unpublished)

In this case, the Court affirmed the denial of a motion to reopen in absentia proceedings.  The Court did not reach the ineffective assistance of counsel claim or the alien's diligence, instead resting on prejudice.  Because he conceded removability, he was not prejudiced by the inability to apply for relief from removal because the relief was discretionary (adjustment of status and fraud waiver). 

The Supreme Court in St. Cyr noted the importance of being able to apply for relief from removal.  In St. Cyr, the loss of this right was sufficiently prejudicial to find that 212(c) relief remained available for certain LPRs.

No post-departure bar to reopening Immigration Court proceedings

Lisboa v. Holder, No. 09-4521 (6th Cir. Aug. 29, 2011) (unpublished)

Following the Court's decision in Pruidze, the Court reversed a BIA decision reversing an IJ's decision reopening removal proceedings.  The alien was deported and then after his removal, he successfully challenged his state conviction.  He filed a motion to reopen with the IJ, which the court granted.  The BIA reversed on appeal.

Consistent with Pruidze, the court struck down the departure bar at 1003.21(b)(1).  While departure can be a factor for the exercise of discretion, it does not divest the agency of jurisdiction over a motion to reopen.

Tuesday, August 23, 2011

Kiegemwe v. Holder, No. 09-3816 (6th Cir. Aug. 17, 2011) (unpublished)

The three petitioners were part of a group of boy scouts seeking asylum from Tanzania.  The fourth member of the group received asylum in a case originating in the Third Circuit, in Pennsylvania. 420 F.3d 193 (3rd Cir. 2005).

The BIA found their applications timely but found that they lacked a well-founded fear of persecution.  They did not assert past persecution.  The Sixth Circuit reversed.

The BIA disregarded the decision from the Third Circuit and the resulting grant of asylum.  The Sixth Circuit, while acknowledging that it was not binding, agreed that similarly-situated individuals should be treated the same.

Because they were credible, the court found that the BIA's well-founded fear denial could not stand. The agency substituted speculation for expert testimony.

The two concurring opinions strongly criticized the inconsistent results by the agency and the failure to articulate basis for reaching those results.

Thursday, August 18, 2011

Interesting asylum denial

Chagnaa v. Holder, No. 10-3228 (6th Cir. Aug. 16, 2011) (unpublished).

In this case, the court affirmed the denial of an asylum application.  The decision is interesting for some of the rulings made during course of the decision.  At pages 7-9, the court discussed when an omission can support an adverse credibility finding. 

At page 10-11, the court discussed when statements made during the visa process can support an adverse credibility finding.

Friday, August 12, 2011

BIA remand for voluntary departure is an appealable order, sort of

Giraldo v. Holder, No. 09-4445 (6th Cir. Aug. 12, 2011) (published)

Joining other circuits and affirming its pre-IIRIRA precedent, the court held that it has jurisdiction to review a BIA decision reversing a grant of relief and remanding for voluntary departure.  The court found that the finality requirement for a petition for review is satisfied in this situation because removability has already been determined and it could not review the voluntary departure determination itself.

Still, the court giveth and the court taketh away.  For prudential reasons, including 1240.26(i)'s automatic vacation of voluntary departure upon the filing of a petition for review, the court declined to review a petition for review in this situation.  The question becomes what to do next.  In the next to last sentence of the opinion, the court suggested that it would accept a petition for review directly from the IJ's decision granting or denying voluntary departure.  I would have preferred the court to be more clear as to whether a noncitizen has to file an appeal with the BIA first or whether it is permissible to skip right to the judicial review stage.  There could be serious consequences for choosing the wrong path the review.

Sufficiency of evidence to prove conviction

U.S. v. Gardner, No. 07-5947 (6th Cir. Aug. 12, 2011) (published)

In this criminal sentencing case, the Court affirmed a district court order finding that the records offered by government were insufficient to establish whether a prior conviction triggered a higher mandatory minimum.  The defendant had a prior conviction for sexual battery and the records indicated that the victim was his minor daughter.  But because the age of the victim was not an element of the sexual battery statute, the references to her age in the indictment and other documents were not essential to the offense to which he pleaded.  In other words, the Court looked to what the convicting court was required to find to enter a conviction, not what the convicting court actually found.

The PSR, like a police report or criminal complaint, is not a judicially noticeable document.

The decision has a good discussion of Shephard and Taylor.

Aggravated Assault not categorically a crime of violence

U.S. v. McMurray, No. 09-5806 (6th Cir. Aug. 4, 2011) (published)

This is an Armed Career Criminal Act case concerning Tennessee's aggravated assault statute.

Friday, July 29, 2011

Child is the "legal" child of a parent even in face of contrary DNA test

People v. Zajaczkowski, No. 295340 (Mich. App. July 26, 2011) (published)

This is a criminal case involving a charge of 1st Degree Criminal Sexual Conduct.  The defendant was accused of having improper sexual relations with his underage and much younger half-sister.  For his defense, he claimed that she was not his half-sister because he was not related to their common parent (his father).  Factually, he was his father's son: the divorce decree stated as much, the father paid child support, and held him out as his son.  Biologically, though, he was not his father's son as a DNA test revealed.

The defendant could not assert this test because a child born during a marriage is presumed to be a legitimate issue of the marriage.  The child, or anyone other than the mother and presumed legal father have a right to challenge the presumption of legitimacy.  The child lacked standing to do this and the father conceded the question of paternity in the earlier divorce and child support proceedings.

Although the defendant and victim were not related by affinity and in fact were not related by blood, he was properly convicted of 1st degree Criminal Sexual Conduct because they were related by blood as a matter of law.

This is an important principle for immigration cases where USCIS wants to question the legitimacy of a relationship between an in-wedlock child to the husband and wife.

Sixth Circuit finds jurisdiction to review particularly serious crime determination

Hernandez-Vasquez v. Holder, No. 09-4421 (6th Cir. July 14, 2011) (unpublished).

The issue in this Salvadoran asylum case was whether he was convicted of a particularly serious crime so as to be ineligible for asylum.  INA 208(b)(2)(A)(ii) and (c)(2).  The Court found jurisdiction to review the AG's determination that he had been convicted of such a crime.  The Court relied on Kucana v. Holder, 130 S. Ct. 827 (2010) and Berhane v. Holder, 606 F.3d 819, 821-22 (6th Cir. 2010).

On the merits, the Court agreed with the BIA that the petitioner's child endangerment conviction was a particularly serious crime.  The Court looked at both the elements of the crime of conviction and the underlying allegations in the criminal case, which included five counts of gross sexual imposition with an 8-9 year old girl.

Tuesday, July 12, 2011

Unlawful possession or transfer of a weapon is not a crime of violence.

Evans v. Zych, No. 09-1094 (6th Cir. July 12, 2011).

In this criminal sentencing case, the Sixth Circuit held that a conviction under 28 U.S.C. 5861(d) and (e), receiving, possessing, or transferring an unregistered firearm is not a crime of violence under 924(c)(3).  Relevant to immigration law, 924(c)(3) is essentially identical to 18 USC 16.

Sixth Circuit applies fugitive disentitlement doctrine to noncitizen who left the country

Dong v. Holder, No. 09-4121 (6th Cir. July 7, 2011) (unpublished)

In this case, the noncitizen apparently left the U.S.  His attorney represented to the Court in a motion to waive oral argument that he heard, secondhand, that his client left the U.S. and did not return.

The Court dismissed his petition for review pursuant to the fugitive disentitlement doctrine.  The Court relied on several factors: the attorney lost contact with the client, the client did not respond to ICE's efforts to contact him, he was in violation of his Order of Supervision by notify ICE of his whereabouts, and he did not verify his departure with ICE.

Sixth Circuit finds jurisdiction over motions to change venue.-

Dugboe v. Holder, No. 10-3010 (6th Cir. July 6, 2011) (published)

This decision involved several issues.

First, the Court found jurisdiction to review denied motions to change venue, citing to Kucana.  This latter decision was on point because venue motions are creatures of regulations, not statute.  On the merits, though, the Court affirmed the denial of the motion to change venue both because is was a permissible exercise of discretion, there was no prejudice, and the noncitizen was permanently inadmissible anyway.

Next, the Court affirmed a denial of a motion to remand to seek adjustment of status.  The noncitizen had falsely claimed to be a U.S. citizen and was therefore permanently inadmissible.  He was unable to meaningfully contest this charge.

Finally, the Court affirmed the denial of his withholding of removal applications.  The denial was based on an adverse credibility finding.  There were so many issues with his credibility that the Court only addressed a few of them.

Thursday, July 7, 2011

BIA affirms denial of motion to supress

Matter of Lopez, 2011 WL 2607057, A099-762-480 (BIA June 22, 2011) (unpublished).

The BIA denied the noncitizen's motion to suppress.  The BIA found no right to access to counsel prior to DHS questioning.  The DHS's officers alleged yelling and other mistreatment did not amount to egregious conduct.  Even if the arrest was unlawful, the body of the respondent is not suppressible.  Plus, the noncitizen admitted alienage in his request for voluntary departure.

Padilla cases within the Sixth Circuit

Gomez v. Tennessee, 2011 WL 1797305 (Tenn. Crim. App. May  12, 2011): Padilla announced a new rule and would not be applied retroactively.  Petition for post-conviction relief for 1997 conviction denied.

U.S. v. Lin, 2011 WL 197206 (W.D. Ky. Jan. 20, 2011): Padilla did not announce a new rule and therefore applies retroactively to 2007 conviction.  Petition for writ of coram nobis granted.

State v. Ikharo, 2011 WL 2201193 (Ohio App. June 7, 2011): Padilla not implicated where court gives required advisal concerning possible immigration consequences of conviction.  Motion denied.  (this is the same person as Ikharo v. Holder 614 F.3d 622 (6th Cir. 2010) (conviction for gross sexual imposition is an aggravated felony sex abuse of a minor) (see also for another Ohio case)

Michigan v. Abbas, 2011 WL 2347622 (Mich. App. June 14, 2011): Without addressing the retroactivity of Padilla, the court remanded for an evidentiary hearing on whether the defendant's plea was knowing and voluntary where there was a misunderstanding concerning his eligibility for placement in the Holmes Youthful Trainee Act program.

Monday, June 27, 2011

245(i) and "approvable when filed"

Doughan v. Holder, No. 09-4287 (6th Cir. June 24, 2011) (unpublished)

The primary issue underlying this case was whether a labor certification that was filed on April 26, 2001, was approvable when filed so as to create grandfathering under 245(i).  This, in turn, would allow this EWI noncitizen to adjust his status based on his marriage to a U.S. citizen. 

The labor certification was returned three years later because the prevailing wage was too low and the listed address was incomplete.  The employer never responded.  The IJ and BIA concluded that the labor certification was not approvable when filed.  The Sixth Circuit did not reach this precise question because a direct petition for review was not filed.  Instead, the noncitizen filed a motion to reopen and reconsider, seeking grandfathering on an even earlier labor certification.  The earlier, 1998, labor certification was supported only by a letter confirming receipt from the California agency.  The BIA denied the motion.

On review, the Sixth Circuit affirmed.  It affirmed the denial of the motion to reopen because the 1998 labor certification was not "new" evidence in that it could have been discovered earlier.

It affirmed the denial of the motion to reconsider because the motion did not include new arguments.  The court did not reach the merits of the "approvable when filed arguments" and only addressed whether the BIA erred in denying the motion to reconsider.  Because the motion did not meet the requirements for a motion to reconsider and the BIA addressed the arguments in the direct appeal, it did not err in denying the motion.

The court seemed sympathetic to this case: the noncitizen lived here a long time, had an approved I-130 petition from his U.S. citizen wife, and was "ill-served" by his prior attorneys.  It may have reached a different conclusion if a direct petition for review was filed, but it did not do so because of the procedural posture of the case.

Tuesday, June 21, 2011

Khozhaynova v. Holder, No. 09-4327 (6th Cir. Apr. 20, 2011) (published)

The court affirmed the denial of this Russian asylum claim. 

The noncitizen filed her asylum application beyond the expiration of the one-year deadline.  She claimed extraordinary circumstances excused the untimely filing.  To get around the jurisdictional bar of 208(a)(3), she argued that the case presented a mixed question of law and fact, as the court has jurisdiction to consider constitutional claims and matters of statutory construction. 

The 9th and 2nd circuits have held that these mixed questions of law and fact are reviewable in this context.  The court declined to follow those decisions because it felt constrained by its prior precedent decision Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006).  The court found that because the question is predominantly factual, it could not review the timeliness determination.

Turning to the merits of the withholding claim, the court affirmed the BIA's decision.  It upheld the adverse credibility finding, addressing several of the grounds.

The court also found that the harm was not connected to a protected ground, in that extortionate demands by thugs do not put the victim in a protected social group.  Business owners who refuse to give in to extortion do not form such a group. 

The court also refused to find that the harm was on account of her political opinion.  One wonders whether the analysis would have been different had the court had the benefit of Matter of N-M-, 25 I&N Dec. 526 (BIA 2011) (setting out the framework to determining when opposition to state corruption constitutes a political opinion or gives rise to an imputed political opinion claim).

Thursday, June 9, 2011

Forced statelessness can constitute persecution

Stserba v. Holder, No. 09-4312 (6th Cir. 2011) (published)

The court granted this petition for review and remanded to allow the BIA to consider whether (1) the ethnically motivated revocation of citizenship, resulting in statelessness, constitutes persecution, and (2) the refusal to recognize a medical degree constituted past persecution. On remand, the BIA is to consider their eligibility for humanitarian asylum and also for withholding of removal.

The Court reiterated that persecution is determined in the aggregate.

Friday, May 20, 2011

Solicitation to commit aggravated assault

USA v. Benton, No. 09-6322 (6th Cir. May 17, 2011) (published)

The court found that solicitation to commit aggravated assault does not require the use, attempted use, or threatened use of force.  It was, however, a violent felony in this Armed Career Criminal Act case because it presents a serious risk of injury.
Gordillo v. Holder, No. 08-45874 (6th Cir. May 13, 2011)

The court found that the prior attorney rendered ineffective assistance of counsel by failing to assert the alien's eligibility for NACARA suspension of deportation.  The court further found prejudice.

Importantly, the court found that the alien was diligent despite a lengthy delay between when the aliens learned about the error and filed the motion to reopen.  The aliens were diligent because they immediately spoke to two attorneys who told them there was nothing to do.  The court found it reasonable for them to rely on the advice of these attorneys and a notario.  The court found equitable tolling was warranted.

The court also seemed willing to accept that the delay between the BIA's removal order and when the aliens learned about it was reasonable because they were able to renew their work authorization but it remanded to allow the BIA to address this in the first instance.

In absentia order rescinded due to ineffective assistance of counsel

Matter of Vasoeuz, A098-079-94, 2011 WL 1570476 (BIA Mar. 31, 2011) (Detroit).

The BIA found that the prior attorney's failure to file an entry of appearance and notify the court of the alien's change of address could constitute ineffective assistance of counsel supporting rescission of an in absentia order.  The BIA noted the prior attorney's poor track record.

The IJ did not believe that the prior attorney was actually representing the alien but the BIA found this to be clearly erroneous.  The BIA based this on the prior attorney's malfeasance in other cases, the alien's affidavit, and the prior attorney's failure to respond to the allegations or appear pursuant to a subpoena.

Interlocutory appeal or venue motion does not excuse failure to appeal

Matter of Gvasalia, A097-610-584, 2011 WL 1570490 (BIA Apr. 4, 2011) (Cleveland)

The alien filed a motion for a televideo hearing to avoid travelling from Cincinnati to Cleveland.  The IJ denied the motion and he filed an interlocutory appeal.  When he failed to appear for the hearing, the IJ ordered him removed in absentia.  The BIA affirmed the denial of the motion to reopen because the interlocutory appeal did not excuse the failure to appeal.

Monday, April 25, 2011

Court dismissed Tier III mandamus complaint

Seydi v. USCIS, 2011 WL 1135553 (E.D. Mich. Mar. 28, 2011) (unpublished).

The alien filed an adjustment of status application 5 years ago after having been granted asylum.  The USCIS has placed the case on hold because the alien apparently belonged to a Tier III "terrorist" organization.  The court declined to exercise jurisdiction over the mandamus complaint because it would require it to get involved in the Tier III/material support determinations that are made by the various agencies.  The court also noted that the USCIS would deny the application if push came to shove, because five years is not enough time for it to do its job.

Country of last habitual residence

El Assadi v. Holder, No. 09-4193 (6th Cir. Apr. 25, 2011) (unpublished)

The alien was born in and spent nearly her entire life in Saudi Arabia, but had only temporary nonimmigrant status there, dependent on her father's nonimmigrant status.  She is a stateless Palestinian with a Lebanese travel document. 

Her asylum was denied because she had no fear, other than restrictions on work and poor treatment of women, of returning to Saudi Arabia.  She could not seek asylum from Lebanon because she had only briefly visited there and resided in Saudi Arabia, even though she had a Lebanese travel document.

Adverse credibility decision

Sinani v. Holder, No. 09-4176 (6th Cir. Apr. 20, 2011) (unpublished)

The court affirmed the denial of this Albanian asylum case.  The decision was premised on an adverse credibility finding.  The decision is notable for the rejection of two reasons for the adverse credibility determination: whether the alien had applied for a visa before coming to the U.S. and because her written application said she was "physically abused" and she later said she was raped.

Alien who entered into good faith marriage can be removed as matter of discretion

Jebeili v. Holder, No. 009-4288 (6th Cir. April 18, 2011) (unpublished).

The noncitizen renewed his I-751 in removal proceedings.  He sought a waiver of the joint filing requirement, claiming that he married in good faith but his marriage ended in divorce.

The IJ found that he married in good faith but nonetheless denied his petition as a matter of discretion.  The IJ based the discretionary denial based on the belief the alien submitted a forged marriage license and embellished his testimony. The court found it lacked jurisdiction to review the discretionary denial.

So not only did the IJ order an LPR removed on credibility grounds, even though the alien otherwise complied with the immigration laws and did not commit a removable violation, the federal court was unwilling to even consider his petition for review.

FOIA litigation victory

Shearson v. DHS,  No. 08-4582 (6th Cir. Apr. 21, 2011)

This case deals with whether the agency properly withheld certain documents and the civil remedies available to FOIA requesters.

Friday, April 15, 2011

Failure to file appellate brief is per se prejudicial

Hardaway v. Robinson, No. 08-1156 (6th Cir. Apr. 14, 2011) (published)

This was a pure criminal case, involving an appeal from the denial of a habeas petition. 

The Court reversed the denial on ineffective assistance grounds.  The ineffective assistance was the defense attorney's failure to file an appellate brief, resulting in summary dismissal.  The Court found that this prejudiced the defendant because it rendered the direct appeal "entirely nonexistent."  Prejudice was therefore presumed since there was not adequate substitute for a direct appeal as of right.  Collateral review was not an adequate substitute.

If only the Court would apply this in the context of removal proceedings, where counsel failures to file a timely appeal or brief on appeal.

Asylum to one brother does not mean another brother gets it

Ashafi v. Holder, No. 09-4008 (6th Cir. Apr. 12, 2011) (unpublished)
The Court affirmed the denial of this Albanian asylum claim.  The Court found the denial appropriate even though the alien's brother was granted asylum in the Chicago Immigration Court, even though the alien had suffered past persecution.

This case suffered from a few deficiencies.  One is that the brother's asylum application was not submitted to show it was consistent with this case.  The alien also did not seek humanitarian asylum.  Or challenge the significant asylum discrepancies

6th Circuit on 245(k) and status

Kukalo v. Holder, No. 09-3338 (6th Cir. Apr. 13, 2011) (unpublished)

The Court affirmed the denial of this Ukrainian asylum claim.  It also affirmed the denial of a motion to remand for adjustment of status.

The aliens were not 245(i) eligible, so they could only adjust under 245(a) and (c) based on an approved I-140 petition if they were either covered by 245(k) or maintained status or their failure to do through no fault of their own or for technical reasons.

There was an approximately 60 day gap in 1994 between the expiration of their nonimmigrant status and the filing of the I-589.  The final decision on the I-589 was inexplicably delayed 14 years.

The Court rejected the argument that the 14 year delay was a "technical reason."  The Court would not combine 245(k), to excuse the 60 day gap in 1994 with the technical reason exception to excuse the 14 year delay.  The Court deferred to Matter of L-K-, 23 I&N Dec. 677 (BIA 2004), in which the Board found that a pending I-589 is not a technical reason, once it is referred to the Immigration Court.  Plus, the Kukalo's filed their applications after falling out of nonimmigrant status.

Monday, April 4, 2011

Possession with intent to deliver is an aggravated felony

Garcia v. Holder, March 28, 2011 (published).

The Court found that a conviction for attempting to possess marijuana with the intent to deliver (MCL 333.7401(2)(d)(iii)) is an aggravated felony.

The government conceded and the court agreed that this offense is not a trafficking offense because the statute does not require commercial dealing.

However, there is a second way that a drug offense can be an aggravated felony and that is if it would be a felony under the Controlled Substance Act (CSA).  The Court utilized the categorical approach to determine if the elements of the crime would be a felony under the CSA.

Possession with intent to deliver is a felony under 21 USC 841(a)(1).  However, a defendant who distributes a small amount of marijuana for no remuneration is punished as a misdemeanor.  21 USC 841(b)(4).

There is a circuit split.  The Sixth Circuit sided with the First and Fourth circuits in holding that the quantity and remuneration factors are not elements of the offense that need to be proven under 841(a)(1) and the misdemeanor provision is not a stand-alone crime.  Rather, it is a misdemeanor sentencing provision.  The Second and Third Circuits held otherwise.

It is interesting to note that the Court did not cite to the BIA's pronouncement on the question in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008).  The Court reached the same result and the BIA.  Is this a sign that the Court is not deferring to the agency on these matters of interpreting state and federal criminal law?  If so, that is a (small) positive in an otherwise negative case.

The Court also found the noncitizen ineligible for a 212(h) waiver because it concluded that he was not convicted of a single offense of simple possession of less than 30 grams of marijuana.  However, the Court did not consider that a noncitizen need only be convicted of an offense "relating to" this crime.  The BIA in
Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007) and Matter of Moncada, 24 I&N Dec. 62 (BIA 2007) interpreted "relating to" broadly.  The BIA looked beyond the simple fact of conviction to a circumstance-specific, or factual inquiry.  For example, possession of paraphernalia might relate to simple possession whereas possession in a school zone or prison would not.

On the one hand, a strict categorical analysis is generally helpful to noncitizens but in Garcia, a broader, circumstance-specific analysis might have helped him.  Although, he would have born the burden of proving the quantity and the record of conviction was inconclusive.

Naturalization fraud conviction

U.S. v. Szilvagyi, March 29, 2011 (unpublished).

The Court affirmed a conviction for naturalization fraud, 18 USC 1425(a).  In this case, the defendant naturalized.  After the naturalization, she was convicted of crimes that were alleged to have occurred before and during the naturalization process.  She did not disclose on her N-400 that she committed crimes for which she had not been arrested (does anyone ever answer that in the affirmative?).

Shooting pepper spray is a crime of violence

U.S. v. Mosley, (March 29, 2011) (published).

In this criminal sentencing case, the Court found that shooting pepper spray at another without justification, in violation of MCL 750.224d(2), is a crime of violence.

The Court applied the categorical approach and looked at the statutory definition of the crime, not the actual conduct. To carry a "serious potential risk physical injury to another," the court looked at the conduct encompassed by the "ordinary case."

The Court noted that the very purpose of pepper spray is to cause intense pain.  The Court examined the chemical makeup and the effect of the spray, comparing it to really really hot peppers.  The Court also noted that its improper use by law enforcement can constitute excessive force in violation of the Fourth Amendment.

Friday, March 18, 2011

IJ's have bond jurisdiction over aliens with pending petitions for review

Matter of Cuello, 2011 WL 899606, A021-334-966 (BIA Febr. 28, 2011)

The alien had a pending petition for review as well as a stay of removal issued by the circuit court. Although it ultimately affirmed the denial of bond (the alien was found to be a flight risk and danger to the community), there was no issue made as to the Immigration Judge's authority to conduct a bond hearing.  This is presumably because the alien cannot be detained under INA s 241 if the circuit court issues a stay of removal, as it means the removal period has not begun.  Rather, any detention would have to be under s 236, and this statute allows for individualized custody determinations by a neutral arbiter.

Detainer violation lawsuit

Ramos-Macario v. Jones, 2011 WL 831678 (M.D. Tenn. Mar. 2, 2011).

The Court allowed the plaintiff to proceed on his claim of false imprisonment against Rutherford County when he was detained beyond the expiration of the ICE detainer.  This detained expired 48 hours after he was supposed to be released from state custody, but he remained in custody for four months while waiting for ICE to assume custody of him (ICE eventually released him on his own recognizance).

Wednesday, February 16, 2011

Court finds past persecution, remands

Vincent v. Holder, __ F.3d __ (6th Cir. Feb. 15, 2011) (published).

The Court denied in part and sustained in part the petition for review filed by a native of Sierra Leone.

The Court did not review the timeliness of his asylum claim, even though he delayed filing because he had a pending adjustment of status application based on his marriage to a U.S. citizen.  His wife died and the Court brought new Surviving Relative law to counsel's attention, which can hopefully be pursued on remand.

Although rejecting the applicant's challenges to the denial of asylum and CAT, the Court remanded on withholding.  The Court found that the record compels the conclusion that the burning of the applicant's home was on account of his political opinion and that the cumulative effect of the harm (including the murder of his son) rose to the level of past persecution.  This is key because there is sometimes a tendency for judges to look at incidents of  harm in isolation instead of cumulatively and based on the totality of circumstances.

Having found past persecution, the Court remanded because the applicant was entitled to a presumption of a clear probability of future persecution (which the Court mistakenly refers to as a well-founded fear).

Conviction relating to I-9 investigation

USA v. Ramirez, __ F.3d __ (6th Cir. Feb. 14, 2011) (published).

The defendant was a quality control manager at a cheese cutting and wrapping company.  ICE and the NLRB were investigating the company for immigration and work stoppage issues, respectively.  The two agencies worked to set up the defendant and she made incriminating statements, which she later contradicted before the grand jury.

She was convicted of harboring and perjury-related charges, but acquited of possessing false documents.

The defendant had made statements to the effect that she knew employees were submitting fake documents and the documents were of "poor" quality. 

The facts were not the best, but this decision should be a warning to companies and managers.

Thursday, February 10, 2011

Court invalidates post-departure motion to reopen bar

Pruidze v. Holder, __ F.3d __ (6th Cir. 2010) (published)

In a case involving brilliant lawyer (ok, I'm biased) and substantial assistance from the American Immigration Council, the Court found that the regulatory bar on motions to reopen filed by aliens who have the U.S. is inconsistent with the statute.  The statutory silence did not leave a gap for the agency to fill.  The silence in the statute indicates an ability of aliens to file post-departure motions.  The post-departure regulation creates a gap; it does not fill one.

No statute gives the BIA the authority to disclaim jurisdiction over post-departure motions.

Congress actually repealed the statutory bar on post-departure motions when it enacted IIRIRA.

The BIA's claim that it lacks jurisdiction over post-departure motions was undercut by Matter of Bulnes-Nolasco, 25 I&N Dec. 57 (BIA 2009).  In Bulnes, the BIA held that it has jurisdiction over post-departure motions filed by aliens challenging in absentia orders based on a claim of lack of notice.

Court affirms asylum denial

Kante v. Holder, __ F.3d __ (6th Cir. 2011) (published)
At the government's request, the Court published this decision affirming the denial of a Guinean woman's asylum claim.

The Court affirmed the adverse credibility finding because the discrepancies in her claim went to the heart of her claim.

The alien also asked the Court to consider current country conditions.  The Court declined to take judicial notice of those events.  The remedy is to file a motion to reopen.

Finally, the Court held that "women subjected to rape as a method of government control" is not a particular social group.  The Court held that the group is not defined with particularity and it is circularly defined by the fact that it suffers persecution.  The group has to share a narrowing characteristic other than the risk of harm.

Wednesday, January 19, 2011

Criminal prosecution of alien who refused to sign travel documents

USA v. Ashraf, __ F.3d __ (6th Cir. 2011)
In this published decision, the alien was convicted of willfully refusing to sign travel documents after being ordered removed.  He was ordered removed following a conviction for being a nonimmigrant alien in possession of firearms or ammunition.

The alien came to the government's attention when he applied for adjustment of status concurrently with an I-130 petition filed by his then-LPR mother.  Of course, an immigrant visa was not immediately available to him and his application was doomed to failure.  He was later sentenced to 78 months in prison on the firearms charge.  He was sentenced to 12 months for refusing to sign the travel documents.

He was physically deported to Pakistan in September 2010.  This did not render the appeal moot.

Humanitarian asylum

Chieh v. Holder, 09-4183 (6th Cir. Jan. 4, 2011)

This decision is notable for the Court's discussion of the humanitarian asylum provision.  8 C.F.R. s 1208.13(b)(1)(iii).  The Court only considered the first prong, whether the harm was particularly severe but did not consider the second prong, which is whether there is a reasonable possibility that the applicant will suffer other serious harm.  It could be because the issue was not raised, but it is important to recognize that there are two distinct paths to humanitarian asylum.  An applicant who suffered only the "normal" amount of past persecution remains eligible for asylum in the absence of a well-founded fear if there is a reasonable possibility that he or she will suffer other serious harm upon removal.

I-130 petition filed for married child of LPR not valid if marriage annulled

Mehanna v. Dedvukaj, 2010 WL 4940016 (E.D. Mich. Nov. 30, 2010).

In this case, an LPR mother filed an I-130 petition for her son.  After the filing of the petition, the son married a USC and immigrated as a conditional resident.  The marriage was later annulled and his conditional status was terminated.  He then tried to adjust through the I-130 petition filed for him by his mother.  He is now in removal proceedings.

The alien advanced the argument that because his marriage was annulled, his marriage did not automatically revoke the I-130 petition filed by his mother.  8 C.F.R. s 205.1(a)(3)(i)(I). 

The court found that the decision to revoke an approved I-130 petition is a discretionary decision insulated from judicial review.  INA s 242(a)(2)(B)(ii).  Because INA s 205 states that the Secretary of the DHS "may" revoke a petition "at any time" "for good and sufficient cause," this power is discretionary.  The court did not consider that this jurisdiction stripping statute concerns review of removal orders.  It rejected the argument that revocation under 205.1 is mandatory, not discretionary.  The court did not cite to Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006).

District Court affirms denial of I-130 petition

Adi v. U.S., 2011 WL 9613 (N.D. Ohio Jan. 3, 2011).

This is a complicated marriage fraud case.  The USCIS denied the I-130 petition filed by his current wife based on an allegedly fraudulent marriage in 1980.  That earlier marriage resulted in the alien's attainment of permanent resident status, a status that he abandoned in 1988 by moving to Brazil with his third and current wife.  In 1990, the first USC wife prepared an Affidavit with the help of the INS stating that the marriage was a sham.  Two years later, the alien was admitted as a B1 visitor.

The current USC wife began filing I-130 petitions for him.  The first was denied under 204(c).  The second was approved and then revoked under 204(c), which the BIA affirmed.  The third was denied and the BIA denied the appeal.  With the third petition, they included an affidavit from the first wife recanting the marriage fraud allegations.  In the meantime, the alien was ordered removed and those proceedings are pending before the Sixth Circuit (09-4041).

As an initial matter, the court affirmed its jurisdiction over I-130 denials.  Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006).

On the merits, the court affirmed the denial.  The court rejected the procedural due process and APA claims based on the USCIS's failure to reinterview the first wife, provide a transcript of an I-130 interview, or provide a copy of the record of proceedings.  Applying a deferential standard of review, the court agreed with the USCIS's marriage fraud determination.

Monday, January 3, 2011

Sixth Circuit remands for further consideration of ineffective assistance claim

Zheng v. Holder, (December 28, 2010, unpublished).

First, the Court dismissed the Chinese coercive population control case.  It upheld the adverse credibility finding based on inconsistencies in the claim, demeanor, and lack of corroboration.

Second, the Court granted the claim based on ineffective assistance of counsel because the BIA's was incomplete.  The gaps in the decision made it impossible for the Court to review the BIA's reasoning for rejecting the ineffective assistance claim.  The Court did not reach the noncitizen's claim of whether she has a due process right to effective assistance, given the remand.  The ineffective assistance claim was based on the failure of her trial and appellate attorneys to advise her to have her family testify (they were available to do so) or to submit new evidence on appeal.