Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, September 23, 2011

S.D. Ohio on Padilla, Coram Nobis

U.S. v. Reid, No. 1:97-cr-94, 2011 WL 3417235 (SD Ohio Aug. 4, 2011) (unpublished)

The court found that the defendant could use a writ of coram nobis to challenge a plea on Padilla grounds.  The court further found that Padilla was not a "new" rule and therefore it applied retroactively. Finding that he established prejudice, the court vacated and set aside his guilty plea.

Friday, September 9, 2011

Arriving alien adjustment of status

Kuppusamy v. Holder, No. 10-3011 (6th Cir. Sept. 9, 2011) (unpublished)

The court affirmed the removal of this employment-based adjustment of status applicant. 

The court seemed to suggest that an alien cannot file an I-485 in removal proceedings unless the application is first filed with USCIS.  This is wrong, as an application can be filed defensively in removal proceedings.  I think the court was confused because the alien is an arriving alien.  The IJ could review the first application because it was the basis for the advance parole.  The IJ could not review the second application because it was based on a different underlying visa petition (the USCIS has exclusive jurisdiction over that application). 

Prima facie natz. determination in removal proceedings

Shewchun v. Holder, No. 09-3894 (6th Cir. Sept. 8, 2011) (published)

In this case, the court followed the other circuits and the Board's decision in Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007), including that the IJ and BIA are not empowered to determine whether an LPR is prima facie eligible for naturalization so as to be able to terminate proceedings under 8 C.F.R. 1239.2(f).  The USCIS does not have a mechanism for making this determination, which makes this regulation virtually meaningless.  The court acknowledged this but concluded that the power to fix this lies elsewhere.

For interesting reading, google the petitioner in this case.

Reinstatement of removal after voluntary departure

Casillas v. Holder, No. 09-3831 (6th Cir. Sept. 2, 2011) (published)

This case is notable for a number of reasons.  First, an alien seeking to establish that he complied with a voluntary departure order must be able to prove that he timely departed.  Second, there is no jurisdiction, on a petition for review, to review ICE's denial of a stay, an IJ's bond decision, and an untimely challenge to the underlying order being reinstated.

Third, the Court held that the proper vehicle for challenging ICE's decision to reinstate a removal order is through a habeas petition, at least where the alien is challenging whether there is even a removal order.

Not addressed by the court, though, is whether a petition for review can be filed directly from a reinstatement order.  There is authority in support of this, but this was not at play in this case.