Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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Wajda v. Holder, No. 12-3978 (CA6 July 23, 2013) (unpublished).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