Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Tuesday, September 25, 2012

Affidavit of Support enforcement

Davis v. Davis, 970 N.E.2d 1151 (Ohio App. May 11, 2012)

In this divorce case, the court had to decide whether to terminate a spousal support order that was based on the affidavit of support obligations after the U.S. citizen argued that the noncitizen wife could be credited with 40 quarters of qualifying earnings based on the quarters earned by the U.S. citizen husband during the marriage.  The court upheld the trial court's termination of this support obligation based on competent evidence that the noncitizen wife reached the 40 quarter mark.

Habeas petition challenging reinstatement

Alvarez-Lopez v. Adducci, 2012 WL 2407702, No. 12-11952 (E.D. Mich. June 26, 2012).

This Mexican citizen was granted voluntary departure and returned to Mexico.  He then reentered the U.S. without inspection.  Later, he was caught by ICE, which wanted to reinstate a prior removal order.  The alien filed a habeas petition alleging that there was no prior order because he complied with the voluntary departure order.

Because the habeas petition was filed while the alien was in ICE custody, his subsequent removal did not divest the court of jurisdiction.

The court found that the REAL ID Act did not divest it of jurisdiction because he was challenging the "existence" of the order, not the removal order itself.

On the merits, though, the court denied the petition because there was insufficient proof that he complied with the voluntary departure order.

Request to Appear for deferred inspection is a parole but still no AOS eligibility

Ni v. USCIS, 2012 WL 3637731, No. 11-2482 (W.D. Tenn. Aug, 22, 2012).

In this case, a Chinese citizen was denied admission at the port of entry and given a notice to return for deferred inspection.  When he returned, he was given a notice denying him admission.  He was later ordered removed.  Fast forward many years and he applied for adjustment of status based on an I-130 petition filed by his USC son.  The USCIS denied this application because he was not paroled into the U.S.

The district court accepted jurisdiction over his Administrative Procedures Act claim, and the parties did not contest jurisdiction.

The court did not defer to the USCIS and it concluded that the deferred inspection is a parole.  However, the court found that the parole was not indefinite and that it terminated upon the entry of the removal order.