Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, January 27, 2012

No review of denial of sua sponte motion to reopen

Kalaj v. Holder, No. 10-4315 (6th Cir. Jan. 26, 2012) (unpublished)

The court found no jurisdiction to review the denial of a sua sponte motion to reopen.  The court did not address Kucana.

Review of TPS denial

Hernandez v. Holder, No. 10-3662 (6th Cir. Jan. 25, 2012) (unpublished)

The court reviewed on the merits of the TPS denial.  The court found that the failure to properly file before the registration deadline precluded TPS relief.  The court also declined to equitably toll the deadline due to the USCIS's delay in returning the timely filed.  The court recognized that under the right circumstances this deadline could have been equitably tolled.  The court also declined to equitably toll the deadline due to ineffective assistance of counsel provided by a community organization engaged in the unauthorized practice of law. The applicant did not comply with Lozada plus the court seemed to say that the can be no ineffective assistance of counsel if the individual was not an attorney or accredited representative.

Asylum denial worth reading

Abdurakhmanov v. Holder, No. 10-4263 (6th Cir. Jan. 23, 2012) (published)

The court denied this Uzbeki's asylum claim but there is some interesting language in the decision that should provide guidance for other cases.

The BIA gave three reasons in support of its adverse credibility finding.  The court rejected the first reason because it was based on a mischaracterization of the record.

The court expressed its doubts about the second reason because it seemed that the BIA read too much into the applicant's ambiguous statement in his I-589.

The court agreed with the third reason and found this sufficient to affirm the adverse credibility finding.  In this regard, there is an argument that credibility determinations are mixed questions of law and fact.  Whether there is an inconsistency or discrepancy is a factual determination that is given deference by the court.  Whether a single inconsistency means the whole case is not believable should be a question of law.  This is worth exploring in future cases.

The court went on to reject the BIA's determination that the applicant should have provided corroborating evidence.  The court rejected the rationale that the evidence provided was inconsistent with the claim because it was not.  Evidence obtained for the purpose of the hearing but were records of past events cannot be rejected on the grounds set forth in H-L-H, even though the documents were not prepared contemporaneously with the events.

Monday, January 9, 2012

Board unclear as to legal standard, Sixth Circuit remands

Lin v. Holder, No. 11-3262 (6th Cir. Jan. 4, 2012) (unpublished)

The Board's application of legal principles to undisputed facts, rather than its underlying determination of those facts or its interpretation of governing statutes is reviewed de novo, not under the substantial evidence standard.

In this case, the IJ granted asylum to this Chinese national on his political persecution claim.  The Board sustained ICE's appeal and ordered him removed.

On de novo review, the Court remanded because the Board appeared to have applied the higher withholding of removal standard to the review of the asylum claim, since it cited to A-M-, which was decided on withholding, not asylum, grounds.