Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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Juarez-Chavez v. Holder, No. 11-4224 (6th Cir. Feb. 19, 2013) (unpublished)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Novatchinski v. Holder, No. 10-3873 (6th Cir. Mar. 4, 2013) (unpublished)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.