Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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 Mar. 28, 2011) (unpublished).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El Assadi v. Holder, No. 09-4193 (6th Cir. Apr. 25, 2011) (unpublished)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Sinani v. Holder, No. 09-4176 (6th Cir. Apr. 20, 2011) (unpublished)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Jebeili v. Holder, No. 009-4288 (6th Cir. April 18, 2011) (unpublished).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.