Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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.