Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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.