Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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.