Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Tuesday, February 4, 2014

Sex Abuse of a Minor

USA v. Mateen, No. 12-4481 (6th Cir. Jan. 7, 2014) (published) 

In this criminal sentencing, the court addressed an issue relevant to the sex abuse of a minor aggravated felony ground of removal. In this case, the government sought a sentencing enhancement based on the defendant's prior conviction Gross Sexual Imposition. The government alleged that this qualified as a prior conviction for "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 

The court first applied the the categorical approach and concluded that the state offense must include as an element the age of the victim. The "involving a minor or ward" language modified the sexual abuse, etc., language. In this case, it was clear from the plea colloquy and other documents that the victim was a minor but because the victim's age was not an element of the offense, it did not trigger the sentencing enhancement.

The court next applied the modified categorical approach. The factual basis for the conviction is relevant only to the extent that it assists the court in identifying which alternative elements of the statute were violated. Although the judgement did not identify the specific subsection that was violated, it did narrow down the possibilities and none of those possibilities include age as an element.The court would not rely on or consider factual material in the charging documents or the plea colloquy because it was not essential to the guilty plea or an element of the offense.

6th Circuit on credibility determination, stays of removal

Slyusar v. Holder, No. 13-3071 (6th Cir. Jan. 30, 2014) (published).

In this published decision, the Sixth Circuit addressed several issues relating to an asylum claim.

First, the court upheld an adverse credibility determination in an asylum and withholding of removal claim from Ukraine. The discrepancies included employment history, date of entry, possession of a Ukrainian passport at entry, prior marriages, and attempts to file an asylum claim. Although these do not necessarily go to the heart of the claim, they were sufficient to support the adverse credibility finding under the REAL ID Act.

Second, the court denied a motion for stay of removal. While the motion became moot upon the denial of the petition for review, the court addressed the 4 factors for a stay. The court found there would be irreparable harm (second prong). Addressing the third prong (harm to government) and fourth prong (public interest), the court noted these merge in immigration cases and stated that the public has an interest in not wrongfully removing a noncitizen, especially to a country where she will be harmed.

However, when the petition for review involves an adverse credibility determination, the court seemed to suggest that the noncitizen can never meet the first prong, a substantial likelihood of success, because the court cannot review the merits of the asylum claim if the BIA's decision rested solely on the credibility determination. "In effect, the REAL ID Act forecloses stays of removal to asylum-seekers who have received adverse credibility determinations by constructively preventing them from proving eligibility for such relief." This is quite troubling for future litigants seeking to avoid removal to the country of persecution.

In closing, the court cautioned agency adjudicators from making adverse credibility determinations that rest on issues unrelated to the heart of the claim because of hurdles those applicants face on review and the possibility that this would punish applicants for their trauma.

BIA on reopening for same sex marriage

In re Manuel Lopez-Rivera, A089-235-276, 2014 WL 347695 (BIA Jan. 3, 2014) (unpublished)

The noncitizen filed an untimely motion to reopen following the Supreme Court's decision on the Defense of Marriage Act in U.S. v. Windsor. The noncitizen sought reopening based on his same-sex marriage and pending I-130 petition. The BIA declined to reopen sua sponte because there was insufficient evidence that the marriage was bona fide.

BIA on reopening for provisional waiver

In re Daniel Romero-Tello, A200-297-980, 2013 WL 6921581 (Dec. 31, 2013 BIA) (unpublished).

The noncitizen filed a timely motion to reopen. He sought administrative closure so he could file an I-601A unlawful presence provisional waiver. The BIA denied the motion because he is subject to a final order of removal and is therefore ineligible for the waiver (although he would be eligible if the motion was granted). The BIA noted that the regulations do not provide for reopening on this basis.

The noncitizen also sought reopening and reconsideration because his U.S. citizen wife's visa petition was approved. The BIA denied the motion because, when it first decided the appeal, there was no proof the I-130 was approved. The noncitizen failed to file this proof before the appeal was denied despite having over 3 months to do so.