Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, August 17, 2012

Departure after initiation of removal proceedings = in absentia order

In re Eliseo Pereyra, A076-014-954, 2012 WL 3276580 (BIA July 25, 2012) (Cleveland) (unpublished).

In this case, it appears that after the issuance of the NTA and its filing with the court, the alien left the U.S. and missed a hearing.  He was ordered removed in absentia.  The BIA affirmed the denial of a motion to reopen an in absentia order because the alien cannot defeat the court's jurisdiction by leaving the country. 

Scope of 237(a)(1)(H) waiver

Avila-Anguiano v. Holder, No. 11-3958 (6th Cir. Aug. 7, 2012) (published).

In this decision, the court struggled with the scope of my favorite waiver, the 237(a)(1)(H) waiver.

The alien had two misrepresentation incidents.  The first was in 1991 when he made a false USC claim at the port of entry.  He was convicted of making a false USC claim and was returned to Mexico. Two years later, he made another misrepresentation when he failed to disclose that incident in his successful immigrant visa application.

There was no dispute that 237(a)(1)(H) was available to waive the second misrepresentation because that was made at the time of admission.  ICE and the BIA asserted that the earlier misrepresentation was outside of 237(a)(1)(H)'s reach because it was made prior to the admission. 

The Court disagreed and found that both misrepresentations were waivable.  The first misrepresentation rendered him inadmissible at the time of his 1993 admission because it made him an alien described in 212(a)(6)(C)(i) [there was no separate ground of inadmissibility for false USC claims in 1993].  The statute requires that the alien be inadmissible at the time of admission, not that he make the misrepresentation at that time.

Thursday, August 2, 2012

Sixth Circuit on torture-bar to relief

Abdallahi v. Holder, No. 11-3920 (6th Cir. July 31, 2012) (published)

This case involved multiple issues concerning whether an adjustment of status applicant who served as a gendarme for the Mauritanian military was inadmissible under 212(a)(2)(E)(iii).

1. Although there is no liberty interest in discretionary relief, there is a due process right to a full and fair hearing.

2. Transferring the case to a new IJ was not a due process violation because the new IJ followed the regulations.

3.  No prejudice resulting from transferring the case to the new IJ between the close of the record and the issuance of the decision.

4.  The alien participated in acts of torture under the Negusie (SCt) and Diaz-Zanatta (6th) standards, which require (1) a nexus between the alien's actions and the torture of another and (2) some level of contemporaneous knowledge that the torture was being conducted.  The evidence clearly established this.  The court rejected his involuntariness defense because it was not supported by the record.