Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Thursday, November 15, 2012

Cancellation of Removal - hardship review

Navarro v. Holder, No. 10-4558 (6th Cir. Nov. 14, 2012) (unpublished)

In this Mexican nonLPR cancellation of removal case, the only issue was whether his removal would cause exceptional and extremely unusual hardship to his wife and children.

The court rejected the argument that the IJ and BIA committed legal error by mischaracterizing the evidence by discounting the seriousness of the children's illnesses and failing to understand the totality of the financial hardship.  He also argued that the BIA and IJ misapplied precedent decisions in weighing and assessing evidence.  The court declined to second-guess the BIA and IJ.

The court remanded to allow the BIA to reinstate voluntary departure because it mistakenly failed to do so before.

There was a spirited dissent.

Ohio assault on a police officer is crime of violence

US v. Evans, No. 11-3460 (6th Cir. Nov. 15, 2012) (published)

In this criminal sentencing case, the court found that an Ohio conviction for assault on a police officer is a crime of violence because it requires the use of force: it is violated by knowingly causing or attempting to cause physical harm to another."  Even a scratch requires sufficiently violent force to qualify as a crime of violence. It also presents a serious potential risk of physical injury.

This decision conflicts with McMurray, which the Court distinguishes and dismisses as dicta, so how these cases will be decided remains to be seen.

FGM and well-founded fear

Lo v. Holder, No. 10-3497 (6th Cir. Nov. 8, 2012) (published)

In this FGM case from Senegal, the female applicant suffered past persecution based on two attempts to subject her to genital mutilation.  The BIA found that the birth of her daughter in the U.S., and the resultant fear that the daughter could be subjected to FGM, constituted an exceptional circumstance excusing the late-filed application.

The question was whether she had a well-founded fear of persecution.  The court agreed with the BIA that she did not.  First, she "aged out" in that she was too old to be a target of FGM. Second, FGM is in decline in Senegal.  Third, her husband belongs to a tribe and religion that does not practice FGM, so she could safely relocate to an area of Senegal where she would not be in danger.

The court also rejected her claim based on her fear that her daughters would be subjected to FGM.  Distinguishing the Court's decision in Abay, the Court noted that the family could live in an area and with a tribe that does not practice FGM, and the daughters are U.S. citizens who could remain in the U.S. with guardians or other family members.

This "painful" result, as the court suggests it is, should have been considered for humanitarian asylum because separating this family would seem to constitute "other serious harm."  One wonders why this claim was not presented or considered since the female applicant suffered past persecution.

Tuesday, November 6, 2012

TN misdemeanor domestic violence not a "crime of violence"

USA v. Castleman, No. 10-5912 (6th Cir. Sept. 19, 2012) (published)

The court denied the government's appeal from a decision dismissing an indictment for possessing a firearm after a conviction for a misdemeanor crime of domestic violence.  Noting the similarities between 16(a), 924(e)(2)(B)(i), and 921(a)(33)(A), the court used the same framework to determine whether the Tennessee conviction has as an element the use or attempted use of physical force. 

Applying the categorical approach, the court concluded that the state statute did not categorically require the use of violent force, in that the bodily injury that results could be as minor as a cut, abrasion, or bruise.  Applying the modified categorical approach, the court did not find any evidence in the record of conviction to indicate that violent physical force was used.