Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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Doughan v. Holder, No. 09-4287 (6th Cir. June 24, 2011) (unpublished)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