Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Tuesday, July 24, 2012

Sixth Circuit on Amending NTAs and time issues

Sagastume v. Holder, No. 10-4393 (6th Cir. 07/20/2012)

In this case, the aliens were admitted to the U.S. and then went to Canada to apply for asylum.  After their claims were denied, they were returned to the U.S. and placed in removal proceedings.  They were originally charged as overstays under 237(a)(1)(B).  While the proceedings were pending, the BIA decided R-D-, which required the aliens to be treated as applicants for admission because they made a departure by going to Canada.  ICE then amended the NTA to charge them under 212(a)(7)(A)(i)(I).

The aliens applied for voluntary departure but could not show that they were present in the U.S. for a year prior to the issuance of the NTA.  They were not present for a year before the issuance of the initial NTA but were before the issuance of the amended NTA.  The parties stipulated to voluntary departure eligibility but the IJ and BIA denied the request and this was the only issue on appeal.

Beyond this case, the decision bears on the question of whether a completely defective NTA can, for example, trigger the stop time rule.  In other words, can the government issue baseless NTA to stop the clock and only later amend it to reflect proper charges.  Or should the proceedings be terminated to allow the government to issue a new NTA and initiate new proceedings?

Thursday, July 5, 2012

6th Circuit on fleeing, CIMTs

Ruiz-Lopez v. Holder, No. 11-3730 (6th Cir. June 19, 2012) (published)

In this case, the court found that a Washington State conviction for felony fleeing was a CIMT.  To a large extent, the court relied on the inclusion as a statutory element the "wanton or wilful disregard for the lives or property of others."  Michigan's fleeing and eluding statutes lack this element and some of the aggravating factors present in the 5th and 7th circuit decisions it cited to.  Still, this decision makes it more likely that Michigan's fleeing and eluding statute will be a CIMT.

Importantly, the court only employed the two-step analysis (categorical and modified categorical) and did not use or even mention the existence of the 3rd step created in Silva-Trevino.  The court went so far in a footnote as to expressly refuse to look beyond or behind the record of conviction at the actual conduct.  The court has yet to expressly adopt or reject Silva-Trevino's third step but in a number of cases now the court has limited its analysis to the traditional two-step approach.