Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Wednesday, October 12, 2011

Late change of counsel does not require a continuance

Moctar v. Holder, No. 10-4542 (6th Cir. Oct. 11, 2011) (unpublished)

About seven years after the issuance of the NTA and two weeks before the individual hearing, the alien changed counsel and sought a continuance to allow the new attorney to get the file and prepare and also to get evidence from abroad.  The IJ denied the request because it was made at the last minute.  The court found no error or prejudice or due process violation.

Road map for challenging discretionary denial of cancellation application

Ettienne v. Holder, No. 10-3896 (6th Cir. Oct. 5, 2011) (published).

The court affirmed the discretionary denial of this nonLPR cancellation of removal application.  The alien tried to overcome the statutory bar to reviewing this discretionary determination by arguing that the BIA committed a legal error by failing to consider the evidence in their totality, contrary to BIA precedent.  The court found that this was not a legal error but rather an invitation to reweigh the evidence, something it felt powerless to do.  The court gave examples of reviewable evidence, such as misstating the hardship standard or where the BIA applies the wrong standard of review.

Unfortunately, because the alien was found to have previously engaged in marriage fraud, she will be permanently barred from immigrating through her current husband or her children.