Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010), http://www.ca6.uscourts.gov/opinions.pdf/10a0164p-06.pdf.
In this case, the BIA affirmed a denial of asylum and withholding because, it concluded, the alien committed a serious nonpolitical crime abroad when he engaged in protests against the military dictatorship in Ethiopia. The Sixth Circuit reversed and remanded. Throwing rocks at the police during a political demonstration is not per se a serious nonpolitical crime. Because there was both a criminal and political aspect to the protests, and because the agency was not clear in its decision and it did not consider the alien's claim of self-defense, the court remanded.
Although the court is willing to defer to the agency, the agency must still provide a reasoned explanation.
Monday, August 9, 2010
Sixth Circuit panel recommends that en banc reconsideration of authority to review sua sponte motions
In Gor v Holder, 607 F.3d 180 (6th Cir. 2010), http://www.ca6.uscourts.gov/opinions.pdf/10a0162p-06.pdfm, the court followed its previous decisions that concluded that the court lacked jurisdiction to review the denial of a sua sponte motion to reopen. Two judges on the panel called into question the continuing validity of this authority in light of the Supreme Court's decision in Kucana v. Holder, 130 S. Ct. 827 (2010).
The alien has filed a petition for en banc rehearing and the American Immigration Court is appearing as amicus.
The alien has filed a petition for en banc rehearing and the American Immigration Court is appearing as amicus.
Wednesday, June 9, 2010
Motion to reopen an in absentia order
In re Alawie, A094-250-122, 2010 WL 2224567 (BIA May 5, 2010) (unpublished).
The BIA reversed an Immigration Judge's denial of a motion to reopen an in absentia removal order. The alien did not live at the address of record but used as a mailing address. The BIA reopened based on (1) an affidavit from the resident of the address stating that he did not receive the hearing notice and would have given it to the alien if he had received it, (2) the alien had a reason to appear at his hearing because he is eligible for cancellation of removal, and (3) the alien acted quickly in filing the motion (he filed it two days after the order was entered).
The BIA reversed an Immigration Judge's denial of a motion to reopen an in absentia removal order. The alien did not live at the address of record but used as a mailing address. The BIA reopened based on (1) an affidavit from the resident of the address stating that he did not receive the hearing notice and would have given it to the alien if he had received it, (2) the alien had a reason to appear at his hearing because he is eligible for cancellation of removal, and (3) the alien acted quickly in filing the motion (he filed it two days after the order was entered).
Returning LPR burden of proof
In re Valero-Pena, A099-120-766, 2010 WL 2224531 (BIA May 20, 2010) (unpublished).
The respondent, an LPR, was charged with drug trafficking but the charges were ultimately dismissed. Later, he traveled abroad and was denied entry and paroled into the U.S. He was charged with removability under INA s 212(a)(2)(C) as a noncitizen who the Attorney General has reason to believe is or was a drug trafficker. The Immigration Judge sustained the removal charge and the LPR appealed.
On appeal, the BIA remanded. The BIA was concerned that the Immigration Judge did not place the burden of proof on the DHS. Because the respondent had a colorable claim to returning resident status, the burden was on the DHS to establish removability by clear, unequivocal, and convincing evidence (the concurring opinion took issue with the "unequivocal" portion of the standard). The BIA was not convinced that the Immigration Judge applied this "exacting standard" or that the judge properly weighed the evidence in light of this standard.
The respondent, an LPR, was charged with drug trafficking but the charges were ultimately dismissed. Later, he traveled abroad and was denied entry and paroled into the U.S. He was charged with removability under INA s 212(a)(2)(C) as a noncitizen who the Attorney General has reason to believe is or was a drug trafficker. The Immigration Judge sustained the removal charge and the LPR appealed.
On appeal, the BIA remanded. The BIA was concerned that the Immigration Judge did not place the burden of proof on the DHS. Because the respondent had a colorable claim to returning resident status, the burden was on the DHS to establish removability by clear, unequivocal, and convincing evidence (the concurring opinion took issue with the "unequivocal" portion of the standard). The BIA was not convinced that the Immigration Judge applied this "exacting standard" or that the judge properly weighed the evidence in light of this standard.
Friday, May 28, 2010
Nunc Pro no way
Ramirez-Canales v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0312n-06.pdf (unpublished).
This case was back before the court following a remand to the BIA. Ramirez-Canales v. Mukasey, 517 F.3d 904, 911 (6th Cir. 2008). In the prior decision, the court remanded for a determination of whether a noncitizen subject to the permanent bar of INA 212(a)(9)(C)(i)(I) was entitled to 245(i) relief nunc pro tunc. On remand, the BIA said no and the court deferred to this reasonable interpretation.
The court reviewed the BIA's legal conclusions de novo but deferred to its reasonable interpretations of the INA. The BIA found that it lacked discretion to grant adjustment nunc pro tunc in this situation. While the court implied that it would have liked a more thorough review on remand, it accepted the BIA's conclusion as to the limits of its authority.
This case was back before the court following a remand to the BIA. Ramirez-Canales v. Mukasey, 517 F.3d 904, 911 (6th Cir. 2008). In the prior decision, the court remanded for a determination of whether a noncitizen subject to the permanent bar of INA 212(a)(9)(C)(i)(I) was entitled to 245(i) relief nunc pro tunc. On remand, the BIA said no and the court deferred to this reasonable interpretation.
The court reviewed the BIA's legal conclusions de novo but deferred to its reasonable interpretations of the INA. The BIA found that it lacked discretion to grant adjustment nunc pro tunc in this situation. While the court implied that it would have liked a more thorough review on remand, it accepted the BIA's conclusion as to the limits of its authority.
ICE did not meet its Burden of Proof
Hassan v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0130p-06.pdf (published).
In this case Mr. Hassan was admitted as an immigrant as the unmarried child of a lawful permanent resident. At the same time, his fiancée was admitted as a nonimmigrant. After they were both admitted, they married and Mr. Hassan filed an I-130 petition for her. Mrs. Hassan eventually adjusted her status. When Mr. Hassan applied for naturalization, the legacy INS came to believe that Mr. Hassan and Mrs. Hassan were actually married in Jerusalem before Mr. Hassan immigrated as an unmarried person. The Hassans were placed in removal proceedings.
The Sixth Circuit reviewed the record and concluded that the record compelled the conclusion that ICE did not prove by clear and convincing evidence that the Hassans were married abroad. The agency relied on two letters from the U.S. Embassy in Jerusalem. The Hassans relied not only on their own testimony (which was consistent throughout as to when the marriage occurred) but expert opinions on marriage rules for Muslims in Jerusalem and a report from the Library of Congress. The Embassy letters lacked indicia of reliability and the Israeli documents that allegedly established the existence of a marriage were never produced. For their part, the Hassans produced documents that, according to the rules for Muslim marriages in that part of the world, established that they did not complete the four steps necessary to complete the marriage process.
The court found the Embassy letters to be problematic because they lacked sufficient detail, did not identify the source of the information and the source's knowledge and expertise. The Hassans filed a marriage contract, which was only one step of the four step marriage process, so this missing information raised the possibility that the source confused the existence of a marriage contract indicating an intent to marry with a completed marriage.
Mr. Hassan was also charged with making a false claim to U.S. citizenship when, on one of his SBA loan applications, he indicated that he was a citizen. The court found that ICE did not prove that this was "for any purpose or benefit" under a law. Mr. Hassan had on prior SBA applications disclosed he was a permanent resident and those applications were approved, so there was no indication that his citizenship status was relevant to the loan process. The court did reject Mr. Hassan's claim that he did not knowingly make the false claim because he did sign the forms prepared by someone else.
The Immigration Judge made an adverse credibility determination. The Sixth Circuit did not outright reject this determination and instead found that the Hassans' credibility "should play no part in assessing the evidence offered by the government to meet its burden of proof." The IJ and BIA improperly shifted the burden to the Hassans.
The decision is also notable for the rejection of the Hassans' argument that the IJ should have recused herself. The court found that the IJ was within her rights to take a "somewhat active role" in the examination of the witnesses.
In this case Mr. Hassan was admitted as an immigrant as the unmarried child of a lawful permanent resident. At the same time, his fiancée was admitted as a nonimmigrant. After they were both admitted, they married and Mr. Hassan filed an I-130 petition for her. Mrs. Hassan eventually adjusted her status. When Mr. Hassan applied for naturalization, the legacy INS came to believe that Mr. Hassan and Mrs. Hassan were actually married in Jerusalem before Mr. Hassan immigrated as an unmarried person. The Hassans were placed in removal proceedings.
The Sixth Circuit reviewed the record and concluded that the record compelled the conclusion that ICE did not prove by clear and convincing evidence that the Hassans were married abroad. The agency relied on two letters from the U.S. Embassy in Jerusalem. The Hassans relied not only on their own testimony (which was consistent throughout as to when the marriage occurred) but expert opinions on marriage rules for Muslims in Jerusalem and a report from the Library of Congress. The Embassy letters lacked indicia of reliability and the Israeli documents that allegedly established the existence of a marriage were never produced. For their part, the Hassans produced documents that, according to the rules for Muslim marriages in that part of the world, established that they did not complete the four steps necessary to complete the marriage process.
The court found the Embassy letters to be problematic because they lacked sufficient detail, did not identify the source of the information and the source's knowledge and expertise. The Hassans filed a marriage contract, which was only one step of the four step marriage process, so this missing information raised the possibility that the source confused the existence of a marriage contract indicating an intent to marry with a completed marriage.
Mr. Hassan was also charged with making a false claim to U.S. citizenship when, on one of his SBA loan applications, he indicated that he was a citizen. The court found that ICE did not prove that this was "for any purpose or benefit" under a law. Mr. Hassan had on prior SBA applications disclosed he was a permanent resident and those applications were approved, so there was no indication that his citizenship status was relevant to the loan process. The court did reject Mr. Hassan's claim that he did not knowingly make the false claim because he did sign the forms prepared by someone else.
The Immigration Judge made an adverse credibility determination. The Sixth Circuit did not outright reject this determination and instead found that the Hassans' credibility "should play no part in assessing the evidence offered by the government to meet its burden of proof." The IJ and BIA improperly shifted the burden to the Hassans.
The decision is also notable for the rejection of the Hassans' argument that the IJ should have recused herself. The court found that the IJ was within her rights to take a "somewhat active role" in the examination of the witnesses.
Thursday, May 6, 2010
Madrigal v. Holder, on remand
In Madrigal v. Holder, the Sixth Circuit held that the withdrawal provisions of 8 C.F.R. s 1003.4 do not apply where the departure was involuntary. 572 F.2d 239 (6th Cir. 2009). Madrigal was removed during her appeal to the BIA because there was no automatic stay in place. She was ordered removed in absentia, filed a motion to reopen, and then appealed the denial of that motion to the BIA. The BIA did not enter a stay and ICE removed her.
On remand, the BIA remanded to the Immigration Judge to consider whether she received actual or constructive notice of the hearing, in light of the intervening precedent decisions Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008) and Matter of C-R-C, 24 I&N Dec. 677 (BIA 2008).
On remand, the BIA remanded to the Immigration Judge to consider whether she received actual or constructive notice of the hearing, in light of the intervening precedent decisions Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008) and Matter of C-R-C, 24 I&N Dec. 677 (BIA 2008).
Friday, April 16, 2010
District Court rejects Rojas
Khodr v. Adduci, 2010 WL 931860, No. 10-cv-10505 (E.D. Mich. Mar. 11, 2010).
First, the court examined the immediate custodian rule in habeas petitions. The alien named the ICE Field Office Director but not the warden of the county jail. After reviewing Roman v. Ashcroft, 340 F.3d 314 (6th Cir. 2003) and Rumsfeld v. Padilla, 542 U.S. 426 (2004), the court held that the ICE Field Office Director is the proper respondent. Even if she was not, venue was proper because the alien was detained in the Eastern District, the U.S. Attorney's Office would have represented the Respondent, and the error would be harmless.
Turning to the merits. More than four years after being released from criminal custody following a federal conspiracy to possess with intent to delivery heroin conviction, ICE detained the alien and alleged that he was subject to mandatory detention. The IJ agreed, citing Matter of Rojas, 23 I&N Dec. 117 (BIA 2001). The alien did not appeal to the BIA, as it would have been futile, and instead filed a habeas petition.
The court granted the habeas petition, finding that 236(c) imposes an "immediacy" requirement. This means that ICE has a "reasonable period" to take criminal aliens into custody after their release from criminal confinement. If the statutory language "when released" is to have any effect, it must mean that ICE must detain the alien within a reasonable time following release from criminal custody for mandatory detention to apply. The alien was granted a bond hearing in Immigration Court.
First, the court examined the immediate custodian rule in habeas petitions. The alien named the ICE Field Office Director but not the warden of the county jail. After reviewing Roman v. Ashcroft, 340 F.3d 314 (6th Cir. 2003) and Rumsfeld v. Padilla, 542 U.S. 426 (2004), the court held that the ICE Field Office Director is the proper respondent. Even if she was not, venue was proper because the alien was detained in the Eastern District, the U.S. Attorney's Office would have represented the Respondent, and the error would be harmless.
Turning to the merits. More than four years after being released from criminal custody following a federal conspiracy to possess with intent to delivery heroin conviction, ICE detained the alien and alleged that he was subject to mandatory detention. The IJ agreed, citing Matter of Rojas, 23 I&N Dec. 117 (BIA 2001). The alien did not appeal to the BIA, as it would have been futile, and instead filed a habeas petition.
The court granted the habeas petition, finding that 236(c) imposes an "immediacy" requirement. This means that ICE has a "reasonable period" to take criminal aliens into custody after their release from criminal confinement. If the statutory language "when released" is to have any effect, it must mean that ICE must detain the alien within a reasonable time following release from criminal custody for mandatory detention to apply. The alien was granted a bond hearing in Immigration Court.
Jurisdiction over APA action challenging denial of I-140
Taco Especial v. Napolitano, __ F. Supp. 2d __ (E.D. Mich. Mar. 15, 2010).
The District Court exercised jurisdiction over the company's APA action challenging the denial of its I-140 petition. The issue was whether the company had the ability to pay the proffered wage to the beneficiary.
On the negative side, the court agreed with the AAO that depreciation should not be added back to net income in determining the ability to pay.
On the positive side, the court agreed with the flexible approach endorsed by the Seventh Circuit in Construction & Design Co. v. USCIS, 563 F.3d 593 (7th Cir. 2009).
In the end, the court upheld the AAO's decision, finding that it was not arbitrary or capricious and that the AAO considered the evidence and applied Matter of Sonegawa.
The District Court exercised jurisdiction over the company's APA action challenging the denial of its I-140 petition. The issue was whether the company had the ability to pay the proffered wage to the beneficiary.
On the negative side, the court agreed with the AAO that depreciation should not be added back to net income in determining the ability to pay.
On the positive side, the court agreed with the flexible approach endorsed by the Seventh Circuit in Construction & Design Co. v. USCIS, 563 F.3d 593 (7th Cir. 2009).
In the end, the court upheld the AAO's decision, finding that it was not arbitrary or capricious and that the AAO considered the evidence and applied Matter of Sonegawa.
Federal Escape Conviction not Categorically a Crime of Violence
USA v. Anglin, http://www.ca6.uscourts.gov/opinions.pdf/10a0098p-06.pdf (published).
The Court employed the categorical approach and looked at the limited record of conviction to determine if defendant's federal escape conviction is a crime of violence for career offender sentencing purposes. To be a crime of violence, that is whether it poses a serious potential risk of violence, it must involve purposeful, violent, and aggressive conduct.
The Court employed the categorical approach and looked at the limited record of conviction to determine if defendant's federal escape conviction is a crime of violence for career offender sentencing purposes. To be a crime of violence, that is whether it poses a serious potential risk of violence, it must involve purposeful, violent, and aggressive conduct.
REAL ID Act precludes Writ of Prohibition
Elgharib v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0086p-06.pdf (published).
There seems to be a never ending supply of writs. But the REAL ID Act streamlines judicial review of removal orders and more or less renders these writs to the dustbin of history, at least when it comes to immigration cases.
242(a)(5) and (g) prohibit a writ of prohibition, even one that raises constitutional issues.
There seems to be a never ending supply of writs. But the REAL ID Act streamlines judicial review of removal orders and more or less renders these writs to the dustbin of history, at least when it comes to immigration cases.
242(a)(5) and (g) prohibit a writ of prohibition, even one that raises constitutional issues.
We lost your file so you cannot corroborate your claim
Alcius v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0183n-06.pdf (2-1 decision).
Another reason to be thankful for judicial review. On appeal to the BIA, the record was lost, including some of Mr. Alcius' supporting evidence. On remand, it was discovered that the evidence was missing. This was held against Mr. Alcius during the agency proceedings, but the Sixth Circuit rightly noted the due process problem.
The decision is also notable for the Court's rejection of the IJ and BIA conclusion that the DHS rebutted the presumption of a well-founded fear. The IJ and BIA's treatment of the current country condition evidence was too narrow and one-sided.
Another reason to be thankful for judicial review. On appeal to the BIA, the record was lost, including some of Mr. Alcius' supporting evidence. On remand, it was discovered that the evidence was missing. This was held against Mr. Alcius during the agency proceedings, but the Sixth Circuit rightly noted the due process problem.
The decision is also notable for the Court's rejection of the IJ and BIA conclusion that the DHS rebutted the presumption of a well-founded fear. The IJ and BIA's treatment of the current country condition evidence was too narrow and one-sided.
Friday, March 5, 2010
Get a note from your dad, and practical problems for former gang members
Urbina-Mejia v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0063p-06.pdf
In this published decision, the Sixth Circuit found that former El Salvadoran gang members can constitute a particular social group. It is a characteristic that is impossible to change short of rejoining the gang. Note, that the noncitizen did not have any gang tatoos.
In this REAL ID Act case, the IJ found that the claim, while credible, lacked corroborating evidence. The court found that some of the missing evidence was unlikely to be probative, such as letters from the noncitizen's much younger siblings or the family members who were in the U.S. when these events occurred. However, a note from his father, who remains in El Salvador was available but not provided "because no one asked him for it."
The noncitizen presented an expert witness, whose testimony was somewhat discounted by the IJ as "mere opinion." The court found that his testimony was corroborative evidence. Still, under the REAL ID Act standard, the "immigration judge’s conclusion that the available evidence was insufficient to compel a finding that Urbina-Mejia would more likely than not suffer persecution upon removal was reasonably based on substantial evidence."
In what might be a fatal blow to similar claims, the noncitizen's admission that he robbed and extorted money and sometimes assaulted victims, and was taught to use a gun, meant that he was ineligible for withholding of removal because he committed a serious nonpolitical crime outside the U.S. It did not help that he was under the age of 18 when this happened or that there was some amount of coercion (the IJ noted that he shared in the proceeds of his crimes). The concurrence would have denied on this basis alone without reaching the particular social group or corroborating evidence issues.
In this published decision, the Sixth Circuit found that former El Salvadoran gang members can constitute a particular social group. It is a characteristic that is impossible to change short of rejoining the gang. Note, that the noncitizen did not have any gang tatoos.
In this REAL ID Act case, the IJ found that the claim, while credible, lacked corroborating evidence. The court found that some of the missing evidence was unlikely to be probative, such as letters from the noncitizen's much younger siblings or the family members who were in the U.S. when these events occurred. However, a note from his father, who remains in El Salvador was available but not provided "because no one asked him for it."
The noncitizen presented an expert witness, whose testimony was somewhat discounted by the IJ as "mere opinion." The court found that his testimony was corroborative evidence. Still, under the REAL ID Act standard, the "immigration judge’s conclusion that the available evidence was insufficient to compel a finding that Urbina-Mejia would more likely than not suffer persecution upon removal was reasonably based on substantial evidence."
In what might be a fatal blow to similar claims, the noncitizen's admission that he robbed and extorted money and sometimes assaulted victims, and was taught to use a gun, meant that he was ineligible for withholding of removal because he committed a serious nonpolitical crime outside the U.S. It did not help that he was under the age of 18 when this happened or that there was some amount of coercion (the IJ noted that he shared in the proceeds of his crimes). The concurrence would have denied on this basis alone without reaching the particular social group or corroborating evidence issues.
Friday, February 12, 2010
Presumption of credibility and imputed political opinion
http://www.ca6.uscourts.gov/opinions.pdf/10a0031p-06.pdf
In Haider v. Holder, the court clarified that persecution inflicted on account of a noncitizen's imputed political opinion can serve as a basis for asylum and withholding of removal. The court joined her sister circuits, including the Second and Ninth Circuits. In footnote 9, the court suggested that there should be no distinction for persecution inflicted for imputed illegitimate conduct (like being falsely accused of engaging in terrorist activities) or that inflicted ofr imputed political opinion or membership in a political group (like being falsely accused of belonging to a party that engages in terrorist activities).
The court reminds adjudicators that persecution is considered in the aggregate. So an adjudicator cannot consider each instance of harm separately and conclude that there was no persecution because there was no one single severe instance of harm. Nor must the harm be physical, as economic deprivation, expulsion, surveillance, and illegal searches can all constitute persecution.
In this case, there was no explicit credibility determination. Rather than remand for one, the court assumed the noncitizen was creidble and ruled on the merits of the withholding of removal claim. If the court finds that the evidence compels reversal of the decision denying relief, as it did in this case, the court will remand to allow the agency to consider which parts of the noncitizen's tersimony were and were not credible.
Also of note in this case is that the BIA did not carefully choose its words when describing its review of the Immigration Judge's decision, leading the noncitizen to argue that the BIA applied the wrong standard of review. The court looked carefully at the substance of the BIA's decision to conclude that the BIA applied the proper standard even if it was sloppy in its choice of words.
In Haider v. Holder, the court clarified that persecution inflicted on account of a noncitizen's imputed political opinion can serve as a basis for asylum and withholding of removal. The court joined her sister circuits, including the Second and Ninth Circuits. In footnote 9, the court suggested that there should be no distinction for persecution inflicted for imputed illegitimate conduct (like being falsely accused of engaging in terrorist activities) or that inflicted ofr imputed political opinion or membership in a political group (like being falsely accused of belonging to a party that engages in terrorist activities).
The court reminds adjudicators that persecution is considered in the aggregate. So an adjudicator cannot consider each instance of harm separately and conclude that there was no persecution because there was no one single severe instance of harm. Nor must the harm be physical, as economic deprivation, expulsion, surveillance, and illegal searches can all constitute persecution.
In this case, there was no explicit credibility determination. Rather than remand for one, the court assumed the noncitizen was creidble and ruled on the merits of the withholding of removal claim. If the court finds that the evidence compels reversal of the decision denying relief, as it did in this case, the court will remand to allow the agency to consider which parts of the noncitizen's tersimony were and were not credible.
Also of note in this case is that the BIA did not carefully choose its words when describing its review of the Immigration Judge's decision, leading the noncitizen to argue that the BIA applied the wrong standard of review. The court looked carefully at the substance of the BIA's decision to conclude that the BIA applied the proper standard even if it was sloppy in its choice of words.
Court rebukes EOIR's factfinding
http://www.ca6.uscourts.gov/opinions.pdf/10a0053n-06.pdf
In Stewart v. Holder, the court reversed and remanded the denial of an in absentia order. The court criticized the BIA's failure to address all of the relevant evidence. The court found it "odd" that the Immigration Judge and BIA would make much of two purported "blatant falsehoods" in the noncitizen's affidavit. The first was the noncitizen's claim that a court employee told him that the record did not contain a hearing notice mailed to his current address. Rather than being a falsehood, the court found that this could just have plausibly been an error on the part of the employee who talked to the noncitizen. Second, the noncitizen's affidavit misstated one of the relevant dates, a minor and irrelevant detail that could not be viewed as an attempt to enchance his claim. The court noted that this error was no different than the erroneous date entered by the court on one of the hearing notices.
In Stewart v. Holder, the court reversed and remanded the denial of an in absentia order. The court criticized the BIA's failure to address all of the relevant evidence. The court found it "odd" that the Immigration Judge and BIA would make much of two purported "blatant falsehoods" in the noncitizen's affidavit. The first was the noncitizen's claim that a court employee told him that the record did not contain a hearing notice mailed to his current address. Rather than being a falsehood, the court found that this could just have plausibly been an error on the part of the employee who talked to the noncitizen. Second, the noncitizen's affidavit misstated one of the relevant dates, a minor and irrelevant detail that could not be viewed as an attempt to enchance his claim. The court noted that this error was no different than the erroneous date entered by the court on one of the hearing notices.
Battery is an offensive touching
http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20100126_C287416_44_287416.OPN.PDF
In People v. Federoff, the Michigan Court of Appeals discusses the elements of Michigan's assault and battery statute, MCL 750.81. Relevant to immigration practicioners, this statute can be violated through offensive touching that is not forceful or violent. A domestic violence offense can be committed even if the defendant intended to assault and batter another individual but mistakenly or accidentally assaulted or battered a protected person.
Monday, January 25, 2010
6th Circuit on 212(c) after trial, CIMT after Silva-Trevino
Kellermann v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0010p-06.pdf
In this case, the Court had the opportunity to address whether a conviction under 18 USC 371 and 1001 (conspiracy to make a false statement) was a CIMT. The Court answered in the affirmative. The decision is notable for the CIMT analysis. While the Court cited to Silva-Trevino, the Court did not adopt the AG's 3rd step, instead limiting the analysis to a limited examination of the record of conviction.
The Court also found that the repeal of 212(c) did not have an impermissible retroactive effect on a noncitizen that elected to go to trial on a criminal charge, joining the majority of circuits.
In this case, the Court had the opportunity to address whether a conviction under 18 USC 371 and 1001 (conspiracy to make a false statement) was a CIMT. The Court answered in the affirmative. The decision is notable for the CIMT analysis. While the Court cited to Silva-Trevino, the Court did not adopt the AG's 3rd step, instead limiting the analysis to a limited examination of the record of conviction.
The Court also found that the repeal of 212(c) did not have an impermissible retroactive effect on a noncitizen that elected to go to trial on a criminal charge, joining the majority of circuits.
Friday, January 22, 2010
Closure of Cincinnati Immigration Court
In Matter of Gvasalia, A097-610-583 (BIA Dec. 16, 2009), the Board held that the closure of the Cincinnati Immigration Court did not excuse the failure to appear for a hearing at the Cleveland Immigration Court.
This case is now at the Sixth Circuit, No. 10-3039.
This case is now at the Sixth Circuit, No. 10-3039.
Thursday, January 21, 2010
BIA extends Sixth Circuit's decision in Matovski nationwide
http://www.justice.gov/eoir/vll/intdec/vol25/3669.pdf
In Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), the BIA today confirmed that Immigration Judge's have jurisdiction over INA 204(j) job flexibility determinations during removal proceedings, for long-delayed adjustment of status applications. This was already the law in the Sixth Circuit, see Matovski v. Gonzales, 492 F.3d 722 (6th Cir. 2007) (http://www.ca6.uscourts.gov/opinions.pdf/07a0219p-06.pdf), but Neto clarifies the standard and procedures to be used in making the 204(j) determination.
In Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), the BIA today confirmed that Immigration Judge's have jurisdiction over INA 204(j) job flexibility determinations during removal proceedings, for long-delayed adjustment of status applications. This was already the law in the Sixth Circuit, see Matovski v. Gonzales, 492 F.3d 722 (6th Cir. 2007) (http://www.ca6.uscourts.gov/opinions.pdf/07a0219p-06.pdf), but Neto clarifies the standard and procedures to be used in making the 204(j) determination.
Wednesday, January 6, 2010
Court rejects many findings, affirms adverse credibility finding
http://www.ca6.uscourts.gov/opinions.pdf/10a0011n-06.pdf
Another decision highlighting the difficulty of successfully challenging an adverse credibility determination. The Court rejected 10 of the Immigration Judge's 15 findings supporting an adverse credibility determination but concluded that the remaining 5 were sufficient to affirm the determination.
Other circuits have remanded if the court could not state with confidence that the Immigration Judge would reach the same decision in the absence of the erroneous findings.
Another decision highlighting the difficulty of successfully challenging an adverse credibility determination. The Court rejected 10 of the Immigration Judge's 15 findings supporting an adverse credibility determination but concluded that the remaining 5 were sufficient to affirm the determination.
Other circuits have remanded if the court could not state with confidence that the Immigration Judge would reach the same decision in the absence of the erroneous findings.
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