Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, November 18, 2011

Facilitation of Aggravated Robbery is a Violent Felony

U.S. v. Gloss, No. 10-5417 (6th Cir. Nov. 17, 2011) (published),

In this Armed Career Criminal Act case, the court held that facilitation of armed robbery under Tennessee law is a violent offense because it has as an element the use, attempted use, or threatened use of physical force against the person of another.  This is similar to the BIA's recent decision in Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011).

Sixth Circuit stays appeal to correct translation errors

Sea v. Holder, No. 09-4301 (6th Cir. Nov. 8, 2011) (published),

The alien's asylum claim was denied on credibility grounds.  She hired a new attorney to file a petition for review with the Sixth Circuit.  The new attorney realized that a document that was crucial to the adverse credibility finding was improperly translated.  The attorney obtained affidavit from the translator admitting to the error and retranslating the document. 

The court cannot consider this new evidence but it agreed to stay the appeal to allow the alien to file a motion to reopen with the BIA.  According to the EOIR information line, the motion was filed on October 24, 2011 and it is still pending.  There are timeliness issues in this case so it will be interesting to see how the BIA handles it.

Thursday, November 3, 2011

BIA reopens based on vacatur of conviction

In re Michael Anthony Foster, A089-349-341, 2011 WL 5111702 (BIA Sept. 20, 2011) (Memphis) (unpublished).

In this case, the alien was found deportable.  90 days after the BIA denied his appeal, his conviction was set aside.  He filed a motion to reopen, which the BIA granted.  The decision suggests that ICE's concern was that there were still pending charges but apparently those charges were dismissed.

It is not explicit in the decision but the BIA must have granted an untimely motion to reopen based on the vacatur of a conviction.