Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Thursday, May 10, 2012

Ohio appellate court on prejudice under Padilla

Ohio v. Yahya, No. 10AP-1190 (Ohio App. Ct. Nov. 21, 2011) (unpublished)

The defendant pled guilty to theft with a restitution amount over $100,000.  This turned out to be an aggravated felony fraud conviction.  The defendant moved to withdraw her plea on Padilla grounds.  The trial court denied the motion.  The court of appeals sustained her appeal.

The court found that the attorney gave her bad advice by not telling her that she was pleading guilty to an aggravated felony.  This satisfied the first prong of Strickland.

Turning to the second prong, the court found that the defendant was prejudiced because the trial court's boilerplate warnings about possible deportation did not cure the attorney's specific advice that deportation would not result.  The court remanded for an evidentiary hearing on this point.

Bivens action survives summary dismissal

Ortega v. ICE, 2012 WL 1493874 (W.D. Ky, Apr. 27, 2012) (unpublished).

A USC was serving a sentence of home confinement.  ICE issued a detainer because it thought he was an illegal alien.  As a result, he was taken from home and jailed for several days.  He filed a Bivens action.  The court dismissed some of the parties on qualified immunity grounds but allowed the suit to go forward against other, unnamed, officers.

Court reviews denial of derivative citizenship claim

Guzman v. DHS, No. 10-2243 (6th Cir. May 10, 2012) (published)

Joining all the other courts and agencies that have considered the matter, the court held that the Child Citizenship Act does not apply retroactively. 

It also rejected an Equal Protection challenge to the age-based requirement in former INA 201(g) (1940).  This provision allowed a USC mother to transmit citizenship to an in-wedlock child born abroad if the mother lived in the U.S. for ten years prior to the child's birth, five of which occurred after the age of 16.  In other words, a USC mother who was under 21 when she gave birth abroad would be unable to transmit citizenship to a child.

Zundell, Part III

Zundel v. Holder, No. 10-6012 (6th Cir. May 7, 2012) (published)

This is the third time the court has dealt with the removal of this Holocaust denier. 

There are some interesting points to take away from this decision.  A petition for review from a VWP removal order allows for the same scope of review as a habeas petition.  This is good for cases where the record needs to be developed.

The court also noted that the warning given to an alien who is being removed about the bars on returning are not binding.  The nature and length of the bars will be determined when the alien applies for admission or a visa and can then be contested as provided for by law.

Thursday, May 3, 2012

Sixth Circuit on review of bona fide marriage I751 waivers

Johns v. Holder, No. 11-3011 (6th Cir. May 2, 2012) (published)

This case involved the denial of a good faith marriage waiver for an I-751 petition.  The IJ and BIA found that the alien was not credible and did not enter into a bona fide marriage.

On review, the Court held that, under 242(a)(2)(B)(ii) and 216(c)(4), it lacked jurisdiction to review credibility determinations and the weighing of evidence.  It did, however, have jurisdiction to consider legal and constitutional claims, including whether the BIA applied to proper legal test.  The court would not consider questions bearing on how the BIA assessed the evidence.  Under the substantial evidence test, then, the court noted that it would be almost impossible to overrule a hardship waiver denial that was based on an adverse credibility finding.

The court also quickly disposed of a paperwork reduction argument and a request to remand because the BIA sent a signed IJ decision 3 weeks after issuing the briefing schedule.  It should be pretty clear that these arguments are only going to work if there is demonstrable prejudice.

Sixth Circuit on venue and televideo hearings

Thiam v. Holder, No. 10-3371 (6th Cir. Apr. 30, 2012) (published)

The court delved into the thorny matter of remote IJ's and venue.  In this case, the IJ was in Virginia but the case was docketed in Cleveland.  For the ICH, the alien and her attorney travelled to Virginia because they felt that her credibility would be more apparent in person.  On appeal, the BIA treated the case as if it arose in the 4th Circuit and applied that circuit's law on firm resettlement. 

On review, the court found that 242(b)(2) is nonjurisdictional and does not mandate the transfer of a petition for review to a different circuit.  A case will be transferred if it is in the interests of justice, which it was not in Thiam.  Without deciding whether venue was proper in the 6th Circuit, the court remanded because the BIA did not apply its most recent decision on firm resettlement, Matter of A-G-G-.  It would not have been an efficient use of resources to transfer venue and re-brief the case.