Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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In absentia order rescinded due to ineffective assistance of counsel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.