Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, February 17, 2012

Judulang remand

Ikharo v. Holder, No. 08-4139 (6th Cir. Feb. 16, 2012) (unpublished)

Previously in this case, the Sixth Circuit followed the BIA's corresponding ground rule in 212(c) cases.  Following Judulang and a remand in this case from the Supreme Court, the Sixth Circuit remanded to the BIA to come up with a new framework for 212(c) eligibility determinations.

Michigan: Padilla is not retroactive

People v. Gomez, No. 302485 (Mich. App. Feb. 14, 2012) (published)

Unhappy Valentine's Day indeed.  The Michigan Court of Appeals concluded that Padilla announced a new rule and therefore does not apply retroactively.  This is the first published decision binding in Michigan.  It will hopefully be challenged in the Michigan Supreme Court.

Monday, February 6, 2012

Pilla - immigration and criminal case

The court issued two decisions adverse to Ramani Pilla: Pilla v. Holder, No. 09-4577 (6th Cir. Feb. 2, 2012) (unpublished) and Pilla v. USA, No. 10-4178 (6th Cir. Feb. 6, 2012) (published).

Ms. Pilla was convicted of 18 USC 1001, for lying to the FBI.  The court affirmed the agency's determination that this conviction involves fraud or deceit.  Because the government and the private victim in this case suffered losses in excess of $10,000 in investigating her false reports of a crime, the court found that this was an aggravated felony fraud offense.  As a result she was ineligible for relief from removal.  She was convicted of making a "false" statement, which comes within the deceit prong of the aggravated felony definition. The court also agreed that the FBI (which suffered approximated $5k in loss) and the university (which suffered approximately $60k) were both "victims" for purposes of the aggravated felony definition.  The court relied on the restitution order and sentencing stipulation in calculating the amount of loss.

In the criminal case, Ms. Pilla tried to set aside her conviction on Padilla grounds.  Her defense attorney did not know whether the conviction would have adverse consequences, so he sought the opinion of a private immigration attorney who was a former high ranking INS official.  That attorney opined that there would be no adverse consequences.  On the plus side, the court found that the writ of coram nobis was not barred as a successive 2255 motion because she was no longer in custody. 

The court did not address Padilla's retroactivity.

On the negative side, the court set a very high threshold for showing prejudice.  Because of the overwhelming evidence of her guilt and the lack of a viable defense, the court found that she did not suffer prejudice because she would not have won at trial and received less jail time by pleading guilty.  The court did not consider whether a defense attorney could have negotiated a better deal to avoid the immigration death penalty.

Failure to prove admission

Chaidy v. Holder, No. 11-3177 (6th Cir. Feb. 2, 2012) (unpublished)

In this case, the court affirmed the finding that the alien was ineligible for adjustment of status because he did not prove that he was inspected and admitted or paroled into the U.S.

The court found that the statutory scheme on the burden of proving admission for purposes of establishing eligibility for adjustment of status is ambiguous and could possibly have multiple plausible interpretations.  The court declined to address this because it was not properly exhausted below.

The court went on to find that the IJ's determination was supported by substantial evidence - that the alien did not prove that he was not credible as it relates to his date, time, and manner of entry.