Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, April 27, 2012

Sixth Circuit on nexus, CAT

Mushayahama v. Holder, No. 10-3874 (6th Cir. Apr. 24, 2012) (unpublished)

The court denied in part and sustained in part this petition for review.  The court dismissed the challenge to the BIA's determination that she did not qualify for an exception to the asylum deadline because she did not raise a statutory or constitutional claim.

The court affirmed the denial of a withholding claim on the merits.  The court agreed that she did not present direct or circumstantial proof that the past harm was on account of her actual or imputed political opinion, even though there was no dispute that she suffered harm that rose to the level of persecution.

The court also agreed that she did not suffer or will not suffer persecution on account of a particular social group.  Sidestepping the question of whether female teachers opposed to the ruling party is a cognizable social group, the court found that there was a lack of nexus between the harm and the proposed group.

The court declined to find that a group consisting of nationals who remained abroad too long was a social group because it was not sufficiently visible.  On review, the petitioner argued that the BIA erred in relying on its interpretation of foreign law relating to loss of nationality without giving her an opportunity to respond because she did not exhaust her remedies by first filing a motion to reopen with the BIA or that the error affected the outcome of the proceeding.

However, the court remanded for reconsideration of the petitioner's CAT claim.  The IJ and BIA did not discuss the country condition evidence in the CAT analysis.  Also, the IJ misstated the burden of proof to require the petitioner to show that she will be detained upon return, not that she will tortured.

Thursday, April 26, 2012

Michigan Court of Appeals on prejudice at plea stage

People v. Douglas, No. 301546 (Mich. App. Apr. 12, 2012) (published)

The Michigan Court of Appeals found that a defendant was prejudiced when his attorney provided ineffective assistance at the plea stage because the attorney failed to properly advise him about the consequences of accepting a plea offer, namely, the proper maximums and minimums as charged versus the plea offer.  This may help in Padilla cases in terms of showing prejudice when a defense attorney fails to properly advise of other consequences of accepting a plea offer, like removal.

No jurisdiction over I-130 revocation

Mehanna v. USCIS, No. 11-1110 (6th Cir. Apr. 19, 2012) (published)

The Sixth Circuit dismissed a challenge to the revocation of a visa petition.  The USCIS revoked an I-130 petition filed by an LPR mother for her adult son after learning that the son was married when the petition was filed.  The mother and son argued that the annulment of the son's marriage made the marriage void ab initio.

The court found that there was no jurisdiction to review the revocation of a visa petition because it is a discretionary determination.  INA 242(a)(2)(B)(ii).  The court relied on 205's language making revocation within the USCIS's discretion.  However, the agency has made revocation mandatory in certain situations, including this, thereby removing discretion from the analysis.  In this case, the revocation was pursuant to the automatic revocation regulation, 205.1(a)(3)(i)(I), based on the USCIS's interpretation of state law.

Monday, April 9, 2012

Michigan Court of Appeals on right to full interpretation

People v. Chen, No. 301153 (Mich. App. Feb. 16, 2012) (unpublished)

The court affirmed that there is a right to a full interpretation of the trial proceedings.  An interpreter is required to provide a simultaneous translation.  The failure to provide it is plain error.  However, the court denied review because the defendant could not establish prejudice.