Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Thursday, December 19, 2013

Sixth Circuit recognizes concept of sham divorce

Bazzi v. Holder, No. 12-3759 (6th Cir. Dec. 19, 2013) (unpublished)

In this case, the noncitizen allegedly lied about whether he had truly divorced his wife in Lebanon before applying for an immigrant visa in the 2B category in 1989.  He was found to have been involved in a sham divorce and was denied a visa.  A few  years later, his ex-wife and their six children immigrated to the U.S. in a petition filed for her as an unmarried child.  They are now citizens.

Bazzi entered without inspected a few years later and applied for adjustment of status, possibly as the parent of an adult USC child.  He was denied on the grounds that he was inadmissible as the result of fraud in sham divorce/1989 immigrant visa proceedings.

The court upheld this finding and in the process also recognized the concept of sham divorces in immigration law. 

Detainers against U.S. citizens does not violate clearly established liberty right

Ortega v. ICE, No. 12-6608 (6th Cir. Dec. 10, 2013) (published)

In this case, a USC was sentenced to home confinement as part of a driving under the influence conviction.  ICE issued a detainer against him, purportedly because his name and birth date resembled that of a noncitizen who had been removed.  Apparently there was not a fingerprint match but that did not matter.  As a result, he was imprisoned for four days before being released.

His lawsuit was dismissed on qualified immunity grounds because there was no clearly established right to be free from unnecessary imprisonment as a result of an improperly issued detainer.  This will only encourage further such erroneous detainers.

Tuesday, November 26, 2013

District Court rejects Rojas

Rosciszewski v. Adducci, __ F. Supp. 2d __, 2013 WL 6098553 (E.D. Mich. Nov. 14, 2013).

The district court found that the meaning of "when released" in 236(c) is plain therefore did not the defer to the BIA's interpretation of that provision in Matter of Rojas.  Because the LPR was not taken into custody immediately upon, or within a reasonable period of time after, his release from criminal custody, mandatory detention did not apply.

The court found the government's position was not substantially unjustified so it denied EAJA fees.

Tuesday, November 12, 2013

Reinstatement of Removal

Ruiz v. Holder, No. 12-3900 (6th Cir. 2013) (unpublished).

The issue in this reinstatement case was whether the noncitizen timely complied with the voluntary departure order.  If he did, then there is no order to reinstate.  If he did not, the order can be reinstated because he reentered without inspection.

The court found that it had jurisdiction over the reinstatement challenge even though Ruiz did not sign the Notice of Intent form or indicate an intention to challenge the reinstatement request administratively.  This is not a required remedy that has to be exhausted because it is not an administrative remedy.

The court found that the streamlined reinstatement process does not violate due process.  The court acknowledged the difficult road to challenge a reinstated order because judicial review is limited to the administrative record and if the noncitizen does not submit documents to ICE, the record will be thin on review.

The court found no prejudice because it concluded that it did not  matter if he complied with the voluntary departure order because he later entered without inspection.  This raises the question of what order is being reinstated if there was only a voluntary departure order, not a removal order.  This also raises the question of whether the deprivation of the right to apply for cancellation of removal results in prejudice even if the relief is discretionary (see St. Cyr).

Notice to former counsel does not equal notice to party

Lampe v. Kash, No. 12-4487 (6th Cir. 2013) (published)

In this bankruptcy case, the matter for which the attorney represented the client ended 8 years ago.  Notice of bankruptcy proceedings sent to the former attorney is not notice to the client because it is not reasonably likely that notice will reach the client, not the best way to reach the client, and the attorney is no longer the agent of the client or obligated to pass notice on to her.

This is not an immigration case but the comments about sufficiency of notice may help in that context.

Tuesday, September 24, 2013

BIA on reopening for DACA or provisional ULP waiver

In two separate unpublished decisions, the BIA denied motions to reopen to allow noncitizens to seek administrative closure for DACA or for a provisional unlawful presence waiver.

In re Heron-Morales, A097-550-281, 2013 WL 5208969 (BIA Aug. 12, 2013) (Memphis) - noncitizen filed motion to reopen sua sponte for administrative closure so she could then apply for an I-601A provisional unlawful presence waiver.  The BIA denied the motion, finding that she is ineligible for a provisional waiver because she is subject to a final order (circular reasoning at its best).  The BIA also found no regulatory basis for reopening for this purpose.

In re Guzman-Vargas, A205-005-710, 2013 WL 5208911 (BIA Aug. 5, 2013) (Detroit) - noncitizen filed motion to reopen for administrative closure based on pending DACA application.  He was ineligible for DACA at the time of the removal order because he had not yet completed the educational requirements.  He apparently meets them now but his DACA application has not been approved.

Friday, August 2, 2013

BIA on Aggravated Assault, MCL 750.81a

Matter of Sangchul Lee, 2013 WL 3899749, A200-298-115 (BIA July 5, 2013) (unpublished).

The BIA held that aggravated assault, MCL 750.81a is not categorically a CIMT.  It specifically does not require the use of a weapon and it requires an intent less than an intent to commit murder or great bodily harm less than murder.

The BIA remanded for a modified categorical approach.

CA6 on Particular Social Group and Social Visibility

Umana-Ramos v. Holder, No. 12-4274 (CA6 July 30, 2013) (published)

In this resistance to gang recruitment case, the Court clearly adopted the BIA's particular social group test, which requires a showing of particularity and social visibility.  The Court did so with a caveat - social visibility is not to be taken literally (there is no on-sight visibility requirement).  Rather, it means that individuals with a shared characteristic must be perceived as a group in the society at issue. 

Friday, July 26, 2013

CA6 on "murder" under the INA, Matter of M-W-

Wajda v. Holder, No. 12-3978 (CA6 July 23, 2013) (unpublished).

The court affirmed the BIA's decision in Matter of M-W-, 25 I&N Dec. 748 (BIA 2012).  It answers the question of who M-W- is.

He failed to file a petition for review from the BIA's decision, instead choosing to file a motion to reconsider and then petitioning for review from that.  So the court did not review the published decision, only that decision on the motion to reconsider.

The argument that the court considered was whether the BIA's decision finding second degree murder to be "murder" under the INA was foreclosed by another circuit court decision finding that vehicular homicide was not a "crime of violence."  These are separate categories of offenses so the court found that there was no inconsistency. 

There were better arguments but they were not properly pursued.

CA6 on jurisdictional/claim processing rules, deference

Shweika v. USCIS, No. 12-1645 (CA6 July 25, 2013) (published)

This case involved an appeal from a district court decision dismissing a 1421(c) naturalization appeal.  The district court found that it lacked jurisdiction because the applicant failed to exhaust his administrative remedies by walking out of an administrative naturalization appeal interview.

This decision is of note for several reasons, including:

1. Its discussion of jurisdictional limitations versus claim processing rules and how to determine which is which.  This can help in other cases, such as those involving a failure to file a timely appeal or motion.

2. Its determination that the regulations are not owed deference because the federal court, not the agency, gets to determine the scope of the court's jurisdiction.

Thursday, April 25, 2013

False claim to USC dooms wife of attorney

Martial-Emanuel v. Holder, No. 12-3903 (6th Cir. Apr. 22, 2013) (unpublished).

In this case, the court affirmed the denial of non-LPR cancellation of removal because of an insufficient showing of hardship.  The foreign national and USC spouse are from Canada.

The decision is notable in that the foreign national was ineligible for adjustment of status because she claimed to be a U.S. citizen on an I-9 and registered to vote so she could renew her driver's license.

In another decision, Yemula v. Holder, No. 12-3858 (6th Cir. Apr. 22, 2013) (unpublished), the foreign national was found by the USCIS to ineligible for adjustment because he claimed to be a citizen on two I-9s.  The IJ did not sustain the 212(a)(9)(C) charge because the I-9 was ambiguous.  Nevertheless, the IJ found him ineligible for adjustment of status on this basis because he had the burden of proving his eligibility for relief.  The noncitizen was doomed in part by his own admissions to falsely claiming to be a U.S. citizen.

Monday, March 4, 2013

Shackling of female detainees in labor

Villegas v. Metro. Gov't of Nashville, No. 11-6031 (6th Cir. Mar. 4, 2013) (published)

This was not directly an immigration case as it involved an action for damages against state and local agencies that shackled the plaintiff while she was giving birth and during the post-partum recovery period.

She was detained following an arrest for driving without a license because there was an ICE hold against her as the result of her re-entry following a removal.  Because of the ICE detainer, she was classified at a security level that resulted in her being shackled.

Late-filed administrative appeal is not a jurisdictional bar

Abraitas v. U.S., No. 12-3747 (6th Cir. Mar. 4, 2013) (published)

This is a tax case but it discusses an issue that comes up in immigration cases - does the failure to timely seek administrative review deprive the court of jurisdiction over a petition for review?

The court found that the rules governing administrative review are claims processing rules that are not jurisdictional.  However, the failure to exhaust administrative remedies through the filing of a timely administrative appeal does deprive the court of jurisdiction.

Reinstatement of removal

Juarez-Chavez v. Holder, No. 11-4224 (6th Cir. Feb. 19, 2013) (unpublished)

In this case, ICE reinstated a prior removal order.  The alien filed a timely petition for review.  The basis for the challenge was that the prior order, which was a stipulated order, was not done voluntarily, etc., and that the procedure whereby IJ's sign off on stipulated orders without further review violates due process.

The court rejected both arguments.  The court declined to review the underlying order because such challenge was untimely. This could close off the door to any challenges to defective orders that are being reinstated, but the court did allow for an as-applied challenge in the appropriate case, such as where a timely challenge to the underlying order was not possible due to ineffective assistance of counsel or government misconduct.

False statement to SBA is a CIMT

Novatchinski v. Holder, No. 10-3873 (6th Cir. Mar. 4, 2013) (unpublished)

The court found that making a false statement to the SBA, in violation of 15 USC 645(a) is a CIMT because it involves deceiving government officials.

Friday, February 8, 2013

Female Iraqi women with pro-Western tendencies in dress and looks

Abdulbaki v. Holder, No. 12-3012 (6th Cir. Feb. 1, 2013) (unpublished, available through PACER)

The Court reversed the BIA and remanded this Iraqi woman's asylum case.  The court found that this is a particular social group.  "[W]omen who refuse to conform to a government’s gender-specific laws and
repressive social norms or who do not adhere to a female dress code may satisfy the Board’s definition
of a particular social group if the alien’s opposition to the norm or code 'is so profound that she would
choose to suffer the severe consequences of noncompliance,' showing that her beliefs are fundamental
to her identity and conscience."

Victims should not have to be willing to suffer martyrdom before being able to claim persecution.
The concurrence questioned whether the ten percent threshold was too high.

Two Crimes of Violence cases

USA v. Sanford, No. 11-1847 (6th Cir. Dec. 4, 2012) (published)

In Sanford, the Court found that simple assault/domestic violence under MCL 750.81(2) is a "crime of domestic violence" under 18 USC 921(a)(33)(A) (relating to possession of firearms by prohibited individuals) because it requires "violent force ... capable of causing physical pain or injury."  On appeal, the defendant tried to challenge this but the Court deemed the argument waived because this argument was successfully made in other circuits.  This implies that the Court's holding should be read as an endorsement of the classification of simple assault/domestic violence in Michigan as a crime of domestic violence.  Rather, to the contrary, the Court found the argument waived because it was such a good argument that it should obviously have been made at the trial court level.

USA v. Stout, No. 10-6163 (6th Cir. Feb. 5, 2013) (published)

Second degree escape under Kentucky law is a crime of violence under 18 USC 16(b).  (a) did not apply because the statute did not require the use or threatened use of physical force.  (b) applied because there was a substantial risk that physical force against the person or property of another may be used. Escape from a secured facility (as opposed to failing to appear for something) is an active crime requiring intentional conduct on the part of the offender. There is a clear possibility of detection and confrontation during the course of escape.  Judge Donald dissented because the offense involved an unarmed prisoner climbing a wall and crawling through a hole in a gate that was already there.

Wednesday, January 16, 2013

Lifers ineligible for early release for deportation

Chico-Polo v. Department of Corrections, No. 307804 (Mich. Ct. App. Jan. 8, 2013) (published)

There is also a concurring opinion.

MCL 791.234b allows qualified inmates who have served at least 1/2 of the minimum sentence and have been ordered removed to request a transfer to ICE custody for purposes of removal.  The Court held that this does not apply to inmates who receive a life sentence because there is no court-imposed minimum sentence, even though the legislature has made them eligible for parole after 20 years.

No derivatives for Withholding of Removal

Camara v. Holder, No. 11-4043 (6th Cir. Jan. 15, 2013) (published)

The Court denied the appeal filed by the spouse of an applicant granted withholding of removal.  The principal applicant and the spouse were in consolidated removal proceedings but the spouse never filed or made a claim for relief until a second BIA appeal.  The principal applicant was granted withholding based on female genital mutilation (the asylum claim was time-barred).

The spouse should have much earlier in the process made an independent claim for relief but for some reason he or his attorney failed to realize that there are no derivative beneficiaries for withholding of removal.  The Court rejected a challenge to the statute and agreed that he did not make out a prima facie claim for protection.

Changed Country Conditions

Zhang v. Holder, No. 11-4251 (6th Cir. Dec. 18, 2012) (published)

In this case, the court reversed the BIA's denial of a motion to reopen.  The asylum applicant, a Chinese national, sought to reopen based on her changed conditions relating to her religion, Catholicism, and coercive population control in Fujian.

The Court found fault with the BIA's decision for several reasons. First, although the BIA stated that if found the region and sect to be relevant to the issue of persecution, it did not explain why the distinction between leader and layman was pertinent.  Thus, the decision lacked a rational explanation.

Second, the BIA should not have dismissed unsworn statements from individuals who were unaffiliated with any government institution.  These can constitute evidence if they are otherwise reliable and credible.  The BIA should have considered the credibility of the statements. 

The Court affirmed the BIA's decision with respect to coercive population control, a challenge to the adverse credibility determination, and its refusal to exercise its sua sponte authority.