Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

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Ruiz v. Holder, No. 12-3900 (6th Cir. 2013) (unpublished).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