Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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Abdulbaki v. Holder, No. 12-3012 (6th Cir. Feb. 1, 2013) (unpublished, available through PACER)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