Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, December 23, 2011

Michigan Court of Appeals punts on Padilla

People v. Zak, No. 298441 (Mich. Ct. App. Dec. 6, 2011) (unpublished).

The defendant appealed the denial of his Padilla motion to set aside his plea, in Oakland County Circuit Court.  The Michigan Court of Appeals remanded for an evidentiary hearing.  The circuit court erred by favoring unsupported assertions in the People's brief over the defendant's affidavit.  The proper course of action would have been to hold an evidentiary hearing.

 On appeal, the People argued for the first time that Padilla is not retroactive.  While noting that this is an open question in Michigan, the Court of Appeals declined to address this and instead instructed the trial court to consider this on remand.

Sixth Circuit reviews I-751 denial

Sova v. Holder, No. 09-3718 (6th Cir. Dec. 20, 2011) (unpublished)

The court reviewed the merits of this waiver-based I-751 denial but affirmed the BIA's decision.  There is an interesting discussion on the enforcement of subpoenas and the proper steps for requesting one under the regulations.

Blood feuds and timeliness

Spaqi v. Holder, Nos. 09-4442/4444 (6th Cir. Dec. 21, 2011) (unpublished).

In this Kosovar asylum claim, the family sought asylum based on a blood feud.  The court found that the fear of the blood feud was a personal problem unconnected to politics and therefore not a basis for asylum or withholding of removal. 

The lead applicant was disqualified from asylum because of his murder conviction relating to the blood feud.  When this became apparent, the family's attorney sought to sever the wife and kids from his case, but the request came too late in the proceedings.  The ground of ineligibility for the principal should have been apparent.  Also, the family did not establish prima facie eligibility.

The oldest child turned 21 a few days after the family entered and a few days before the principal filed his I-589.  He had to file his application but by the time it was filed, it was one month past the one year deadline.  The majority declined to review the timeliness determination because it found that the family was not eligible for relief.

The partial dissent would have remanded on the one-year issue because there is some indication in the record that the BIA failed to consider the transcript from the father's separate proceedings, which suggested that the oldest child was given permission to file late.  The BIA failed to review the complete record and got some of the key facts wrong.  It suggested a due process violation.  The partial dissent would have also found that the family constituted a particular social group.

Sixth Circuit addresses "violent felonies"

In two recent cases, USA v. Oaks, No. 06-6056 (6th Cir. Dec. 15, 2011) (published) and USA v. Rodriguez, No. 09-3867 (6th Cir. Dec. 21, 2011) (published) the court addressed whether an offense is a violent felony in these criminal sentencing cases.  In Oaks, the court found, in a split decision, that escape from a courtroom was not a violent felony.  In Rodriguez, it found that an Ohio conviction for aggravated assault is a violent felony.

Friday, December 9, 2011

Ohio Court of Appeals remands in Padilla case

State v. Yahya, 2011 WL 5868794 (Ohio Ct. App. Nov. 22, 2011).

In this Padilla motion case, the court found the defendant received ineffective assistance of counsel because (1) her attorney failed to properly advise her that she was pleading to an aggravated felony (she received incorrect advice) and (2) she established prejudice because she would not have pled guilty if properly advised.  The court remanded for further factual inquiry as to the truth of the defendant's assertions.

Convictions previously waived can lead to removal

Kalbass v. Holder, No. 10-3527 (6th Cir. Nov. 29, 2011) (unpublished)

In this case, the alien received 212(c) relief in 1987.  He did not learn his lesson and accrued another conviction.  He was placed in removal proceedings and alleged to have committed multiple crimes involving moral turpitude.  The multiple crimes were one after the waiver and several before.  The court, following but not citing to BIA precedent, found that the waiver did not preclude future use of the offenses for immigration purposes.  The waiver waives the immigration consequences of the conviction but does not erase the conviction itself.

BIA remands in suppression case

In re Jose Zacaria Quinteros, A088-239-850, 2011 WL 5865126 (BIA Nov. 9, 2011) (unpublished) (Memphis).

In this case, the alien filed a motion to suppress based on constitutional violations in the traffic stop leading to his arrest.  The IJ denied it but the BIA remanded.  ICE filed a motion to reconsider, which the BIA denied.  The BIA found that the exclusionary rule can apply in removal proceedings if the evidence was obtained in a manner so egregious that its use would violate due process by offending the requirements of fundamental fairness.