Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Tuesday, August 30, 2011

Court affirms new voluntary departure regulations

Hachem v. Holder, No. 09-3992 (6th Cir. Aug. 29, 2011) (published)

In this published decision, the Court found that the new voluntary departure regulations, which provide for the automatic termination of a voluntary departure grant upon the filing of a petition for review (subject to narrow exceptions), are a valid exercise of rulemaking authority.  The Court found that the regulation applies to grants by IJs before the regulation where the BIA reinstated the grant after the regulation took effect on on January 20, 2009.

Missing a hearing and the oportunity to apply for relief is not prejudice

Orlov v. Holder, No. 09-4304 (6th Cir. Aug. 26, 2011) (unpublished)

In this case, the Court affirmed the denial of a motion to reopen in absentia proceedings.  The Court did not reach the ineffective assistance of counsel claim or the alien's diligence, instead resting on prejudice.  Because he conceded removability, he was not prejudiced by the inability to apply for relief from removal because the relief was discretionary (adjustment of status and fraud waiver). 

The Supreme Court in St. Cyr noted the importance of being able to apply for relief from removal.  In St. Cyr, the loss of this right was sufficiently prejudicial to find that 212(c) relief remained available for certain LPRs.

No post-departure bar to reopening Immigration Court proceedings

Lisboa v. Holder, No. 09-4521 (6th Cir. Aug. 29, 2011) (unpublished)

Following the Court's decision in Pruidze, the Court reversed a BIA decision reversing an IJ's decision reopening removal proceedings.  The alien was deported and then after his removal, he successfully challenged his state conviction.  He filed a motion to reopen with the IJ, which the court granted.  The BIA reversed on appeal.

Consistent with Pruidze, the court struck down the departure bar at 1003.21(b)(1).  While departure can be a factor for the exercise of discretion, it does not divest the agency of jurisdiction over a motion to reopen.

Tuesday, August 23, 2011

Kiegemwe v. Holder, No. 09-3816 (6th Cir. Aug. 17, 2011) (unpublished)

The three petitioners were part of a group of boy scouts seeking asylum from Tanzania.  The fourth member of the group received asylum in a case originating in the Third Circuit, in Pennsylvania. 420 F.3d 193 (3rd Cir. 2005).

The BIA found their applications timely but found that they lacked a well-founded fear of persecution.  They did not assert past persecution.  The Sixth Circuit reversed.

The BIA disregarded the decision from the Third Circuit and the resulting grant of asylum.  The Sixth Circuit, while acknowledging that it was not binding, agreed that similarly-situated individuals should be treated the same.

Because they were credible, the court found that the BIA's well-founded fear denial could not stand. The agency substituted speculation for expert testimony.

The two concurring opinions strongly criticized the inconsistent results by the agency and the failure to articulate basis for reaching those results.

Thursday, August 18, 2011

Interesting asylum denial

Chagnaa v. Holder, No. 10-3228 (6th Cir. Aug. 16, 2011) (unpublished).

In this case, the court affirmed the denial of an asylum application.  The decision is interesting for some of the rulings made during course of the decision.  At pages 7-9, the court discussed when an omission can support an adverse credibility finding. 

At page 10-11, the court discussed when statements made during the visa process can support an adverse credibility finding.

Friday, August 12, 2011

BIA remand for voluntary departure is an appealable order, sort of

Giraldo v. Holder, No. 09-4445 (6th Cir. Aug. 12, 2011) (published)

Joining other circuits and affirming its pre-IIRIRA precedent, the court held that it has jurisdiction to review a BIA decision reversing a grant of relief and remanding for voluntary departure.  The court found that the finality requirement for a petition for review is satisfied in this situation because removability has already been determined and it could not review the voluntary departure determination itself.

Still, the court giveth and the court taketh away.  For prudential reasons, including 1240.26(i)'s automatic vacation of voluntary departure upon the filing of a petition for review, the court declined to review a petition for review in this situation.  The question becomes what to do next.  In the next to last sentence of the opinion, the court suggested that it would accept a petition for review directly from the IJ's decision granting or denying voluntary departure.  I would have preferred the court to be more clear as to whether a noncitizen has to file an appeal with the BIA first or whether it is permissible to skip right to the judicial review stage.  There could be serious consequences for choosing the wrong path the review.

Sufficiency of evidence to prove conviction

U.S. v. Gardner, No. 07-5947 (6th Cir. Aug. 12, 2011) (published)

In this criminal sentencing case, the Court affirmed a district court order finding that the records offered by government were insufficient to establish whether a prior conviction triggered a higher mandatory minimum.  The defendant had a prior conviction for sexual battery and the records indicated that the victim was his minor daughter.  But because the age of the victim was not an element of the sexual battery statute, the references to her age in the indictment and other documents were not essential to the offense to which he pleaded.  In other words, the Court looked to what the convicting court was required to find to enter a conviction, not what the convicting court actually found.

The PSR, like a police report or criminal complaint, is not a judicially noticeable document.

The decision has a good discussion of Shephard and Taylor.

Aggravated Assault not categorically a crime of violence

U.S. v. McMurray, No. 09-5806 (6th Cir. Aug. 4, 2011) (published)

This is an Armed Career Criminal Act case concerning Tennessee's aggravated assault statute.