Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, July 29, 2011

Child is the "legal" child of a parent even in face of contrary DNA test

People v. Zajaczkowski, No. 295340 (Mich. App. July 26, 2011) (published)

This is a criminal case involving a charge of 1st Degree Criminal Sexual Conduct.  The defendant was accused of having improper sexual relations with his underage and much younger half-sister.  For his defense, he claimed that she was not his half-sister because he was not related to their common parent (his father).  Factually, he was his father's son: the divorce decree stated as much, the father paid child support, and held him out as his son.  Biologically, though, he was not his father's son as a DNA test revealed.

The defendant could not assert this test because a child born during a marriage is presumed to be a legitimate issue of the marriage.  The child, or anyone other than the mother and presumed legal father have a right to challenge the presumption of legitimacy.  The child lacked standing to do this and the father conceded the question of paternity in the earlier divorce and child support proceedings.

Although the defendant and victim were not related by affinity and in fact were not related by blood, he was properly convicted of 1st degree Criminal Sexual Conduct because they were related by blood as a matter of law.

This is an important principle for immigration cases where USCIS wants to question the legitimacy of a relationship between an in-wedlock child to the husband and wife.

Sixth Circuit finds jurisdiction to review particularly serious crime determination

Hernandez-Vasquez v. Holder, No. 09-4421 (6th Cir. July 14, 2011) (unpublished).

The issue in this Salvadoran asylum case was whether he was convicted of a particularly serious crime so as to be ineligible for asylum.  INA 208(b)(2)(A)(ii) and (c)(2).  The Court found jurisdiction to review the AG's determination that he had been convicted of such a crime.  The Court relied on Kucana v. Holder, 130 S. Ct. 827 (2010) and Berhane v. Holder, 606 F.3d 819, 821-22 (6th Cir. 2010).

On the merits, the Court agreed with the BIA that the petitioner's child endangerment conviction was a particularly serious crime.  The Court looked at both the elements of the crime of conviction and the underlying allegations in the criminal case, which included five counts of gross sexual imposition with an 8-9 year old girl.

Tuesday, July 12, 2011

Unlawful possession or transfer of a weapon is not a crime of violence.

Evans v. Zych, No. 09-1094 (6th Cir. July 12, 2011).

In this criminal sentencing case, the Sixth Circuit held that a conviction under 28 U.S.C. 5861(d) and (e), receiving, possessing, or transferring an unregistered firearm is not a crime of violence under 924(c)(3).  Relevant to immigration law, 924(c)(3) is essentially identical to 18 USC 16.

Sixth Circuit applies fugitive disentitlement doctrine to noncitizen who left the country

Dong v. Holder, No. 09-4121 (6th Cir. July 7, 2011) (unpublished)

In this case, the noncitizen apparently left the U.S.  His attorney represented to the Court in a motion to waive oral argument that he heard, secondhand, that his client left the U.S. and did not return.

The Court dismissed his petition for review pursuant to the fugitive disentitlement doctrine.  The Court relied on several factors: the attorney lost contact with the client, the client did not respond to ICE's efforts to contact him, he was in violation of his Order of Supervision by notify ICE of his whereabouts, and he did not verify his departure with ICE.

Sixth Circuit finds jurisdiction over motions to change venue.-

Dugboe v. Holder, No. 10-3010 (6th Cir. July 6, 2011) (published)

This decision involved several issues.

First, the Court found jurisdiction to review denied motions to change venue, citing to Kucana.  This latter decision was on point because venue motions are creatures of regulations, not statute.  On the merits, though, the Court affirmed the denial of the motion to change venue both because is was a permissible exercise of discretion, there was no prejudice, and the noncitizen was permanently inadmissible anyway.

Next, the Court affirmed a denial of a motion to remand to seek adjustment of status.  The noncitizen had falsely claimed to be a U.S. citizen and was therefore permanently inadmissible.  He was unable to meaningfully contest this charge.

Finally, the Court affirmed the denial of his withholding of removal applications.  The denial was based on an adverse credibility finding.  There were so many issues with his credibility that the Court only addressed a few of them.

Thursday, July 7, 2011

BIA affirms denial of motion to supress

Matter of Lopez, 2011 WL 2607057, A099-762-480 (BIA June 22, 2011) (unpublished).

The BIA denied the noncitizen's motion to suppress.  The BIA found no right to access to counsel prior to DHS questioning.  The DHS's officers alleged yelling and other mistreatment did not amount to egregious conduct.  Even if the arrest was unlawful, the body of the respondent is not suppressible.  Plus, the noncitizen admitted alienage in his request for voluntary departure.

Padilla cases within the Sixth Circuit

Gomez v. Tennessee, 2011 WL 1797305 (Tenn. Crim. App. May  12, 2011): Padilla announced a new rule and would not be applied retroactively.  Petition for post-conviction relief for 1997 conviction denied.

U.S. v. Lin, 2011 WL 197206 (W.D. Ky. Jan. 20, 2011): Padilla did not announce a new rule and therefore applies retroactively to 2007 conviction.  Petition for writ of coram nobis granted.

State v. Ikharo, 2011 WL 2201193 (Ohio App. June 7, 2011): Padilla not implicated where court gives required advisal concerning possible immigration consequences of conviction.  Motion denied.  (this is the same person as Ikharo v. Holder 614 F.3d 622 (6th Cir. 2010) (conviction for gross sexual imposition is an aggravated felony sex abuse of a minor) (see also for another Ohio case)

Michigan v. Abbas, 2011 WL 2347622 (Mich. App. June 14, 2011): Without addressing the retroactivity of Padilla, the court remanded for an evidentiary hearing on whether the defendant's plea was knowing and voluntary where there was a misunderstanding concerning his eligibility for placement in the Holmes Youthful Trainee Act program.