Ohio Court of Appeals remands in Padilla case

State v. Yahya, 2011 WL 5868794 (Ohio Ct. App. Nov. 22, 2011).

In this Padilla motion case, the court found the defendant received ineffective assistance of counsel because (1) her attorney failed to properly advise her that she was pleading to an aggravated felony (she received incorrect advice) and (2) she established prejudice because she would not have pled guilty if properly advised.  The court remanded for further factual inquiry as to the truth of the defendant's assertions.

Convictions previously waived can lead to removal

Kalbass v. Holder, No. 10-3527 (6th Cir. Nov. 29, 2011) (unpublished)

In this case, the alien received 212(c) relief in 1987.  He did not learn his lesson and accrued another conviction.  He was placed in removal proceedings and alleged to have committed multiple crimes involving moral turpitude.  The multiple crimes were one after the waiver and several before.  The court, following but not citing to BIA precedent, found that the waiver did not preclude future use of the offenses for immigration purposes.  The waiver waives the immigration consequences of the conviction but does not erase the conviction itself.

BIA remands in suppression case

In re Jose Zacaria Quinteros, A088-239-850, 2011 WL 5865126 (BIA Nov. 9, 2011) (unpublished) (Memphis).

In this case, the alien filed a motion to suppress based on constitutional violations in the traffic stop leading to his arrest.  The IJ denied it but the BIA remanded.  ICE filed a motion to reconsider, which the BIA denied.  The BIA found that the exclusionary rule can apply in removal proceedings if the evidence was obtained in a manner so egregious that its use would violate due process by offending the requirements of fundamental fairness.

Facilitation of Aggravated Robbery is a Violent Felony

U.S. v. Gloss, No. 10-5417 (6th Cir. Nov. 17, 2011) (published), http://www.ca6.uscourts.gov/opinions.pdf/11a0291p-06.pdf.

In this Armed Career Criminal Act case, the court held that facilitation of armed robbery under Tennessee law is a violent offense because it has as an element the use, attempted use, or threatened use of physical force against the person of another.  This is similar to the BIA's recent decision in Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011).

Sixth Circuit stays appeal to correct translation errors

Sea v. Holder, No. 09-4301 (6th Cir. Nov. 8, 2011) (published), http://www.ca6.uscourts.gov/opinions.pdf/11a0286p-06.pdf.

The alien's asylum claim was denied on credibility grounds.  She hired a new attorney to file a petition for review with the Sixth Circuit.  The new attorney realized that a document that was crucial to the adverse credibility finding was improperly translated.  The attorney obtained affidavit from the translator admitting to the error and retranslating the document. 

The court cannot consider this new evidence but it agreed to stay the appeal to allow the alien to file a motion to reopen with the BIA.  According to the EOIR information line, the motion was filed on October 24, 2011 and it is still pending.  There are timeliness issues in this case so it will be interesting to see how the BIA handles it.

BIA reopens based on vacatur of conviction

In re Michael Anthony Foster, A089-349-341, 2011 WL 5111702 (BIA Sept. 20, 2011) (Memphis) (unpublished).

In this case, the alien was found deportable.  90 days after the BIA denied his appeal, his conviction was set aside.  He filed a motion to reopen, which the BIA granted.  The decision suggests that ICE's concern was that there were still pending charges but apparently those charges were dismissed.

It is not explicit in the decision but the BIA must have granted an untimely motion to reopen based on the vacatur of a conviction.

Late change of counsel does not require a continuance

Moctar v. Holder, No. 10-4542 (6th Cir. Oct. 11, 2011) (unpublished)

About seven years after the issuance of the NTA and two weeks before the individual hearing, the alien changed counsel and sought a continuance to allow the new attorney to get the file and prepare and also to get evidence from abroad.  The IJ denied the request because it was made at the last minute.  The court found no error or prejudice or due process violation.

Road map for challenging discretionary denial of cancellation application

Ettienne v. Holder, No. 10-3896 (6th Cir. Oct. 5, 2011) (published).

The court affirmed the discretionary denial of this nonLPR cancellation of removal application.  The alien tried to overcome the statutory bar to reviewing this discretionary determination by arguing that the BIA committed a legal error by failing to consider the evidence in their totality, contrary to BIA precedent.  The court found that this was not a legal error but rather an invitation to reweigh the evidence, something it felt powerless to do.  The court gave examples of reviewable evidence, such as misstating the hardship standard or where the BIA applies the wrong standard of review.

Unfortunately, because the alien was found to have previously engaged in marriage fraud, she will be permanently barred from immigrating through her current husband or her children.

S.D. Ohio on Padilla, Coram Nobis

U.S. v. Reid, No. 1:97-cr-94, 2011 WL 3417235 (SD Ohio Aug. 4, 2011) (unpublished)

The court found that the defendant could use a writ of coram nobis to challenge a plea on Padilla grounds.  The court further found that Padilla was not a "new" rule and therefore it applied retroactively. Finding that he established prejudice, the court vacated and set aside his guilty plea.

Arriving alien adjustment of status

Kuppusamy v. Holder, No. 10-3011 (6th Cir. Sept. 9, 2011) (unpublished)

The court affirmed the removal of this employment-based adjustment of status applicant. 

The court seemed to suggest that an alien cannot file an I-485 in removal proceedings unless the application is first filed with USCIS.  This is wrong, as an application can be filed defensively in removal proceedings.  I think the court was confused because the alien is an arriving alien.  The IJ could review the first application because it was the basis for the advance parole.  The IJ could not review the second application because it was based on a different underlying visa petition (the USCIS has exclusive jurisdiction over that application). 

Prima facie natz. determination in removal proceedings

Shewchun v. Holder, No. 09-3894 (6th Cir. Sept. 8, 2011) (published)

In this case, the court followed the other circuits and the Board's decision in Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007), including that the IJ and BIA are not empowered to determine whether an LPR is prima facie eligible for naturalization so as to be able to terminate proceedings under 8 C.F.R. 1239.2(f).  The USCIS does not have a mechanism for making this determination, which makes this regulation virtually meaningless.  The court acknowledged this but concluded that the power to fix this lies elsewhere.

For interesting reading, google the petitioner in this case.

Reinstatement of removal after voluntary departure

Casillas v. Holder, No. 09-3831 (6th Cir. Sept. 2, 2011) (published)

This case is notable for a number of reasons.  First, an alien seeking to establish that he complied with a voluntary departure order must be able to prove that he timely departed.  Second, there is no jurisdiction, on a petition for review, to review ICE's denial of a stay, an IJ's bond decision, and an untimely challenge to the underlying order being reinstated.

Third, the Court held that the proper vehicle for challenging ICE's decision to reinstate a removal order is through a habeas petition, at least where the alien is challenging whether there is even a removal order.

Not addressed by the court, though, is whether a petition for review can be filed directly from a reinstatement order.  There is authority in support of this, but this was not at play in this case.

Court affirms new voluntary departure regulations

Hachem v. Holder, No. 09-3992 (6th Cir. Aug. 29, 2011) (published)

In this published decision, the Court found that the new voluntary departure regulations, which provide for the automatic termination of a voluntary departure grant upon the filing of a petition for review (subject to narrow exceptions), are a valid exercise of rulemaking authority.  The Court found that the regulation applies to grants by IJs before the regulation where the BIA reinstated the grant after the regulation took effect on on January 20, 2009.

Missing a hearing and the oportunity to apply for relief is not prejudice

Orlov v. Holder, No. 09-4304 (6th Cir. Aug. 26, 2011) (unpublished)

In this case, the Court affirmed the denial of a motion to reopen in absentia proceedings.  The Court did not reach the ineffective assistance of counsel claim or the alien's diligence, instead resting on prejudice.  Because he conceded removability, he was not prejudiced by the inability to apply for relief from removal because the relief was discretionary (adjustment of status and fraud waiver). 

The Supreme Court in St. Cyr noted the importance of being able to apply for relief from removal.  In St. Cyr, the loss of this right was sufficiently prejudicial to find that 212(c) relief remained available for certain LPRs.

No post-departure bar to reopening Immigration Court proceedings

Lisboa v. Holder, No. 09-4521 (6th Cir. Aug. 29, 2011) (unpublished)

Following the Court's decision in Pruidze, the Court reversed a BIA decision reversing an IJ's decision reopening removal proceedings.  The alien was deported and then after his removal, he successfully challenged his state conviction.  He filed a motion to reopen with the IJ, which the court granted.  The BIA reversed on appeal.

Consistent with Pruidze, the court struck down the departure bar at 1003.21(b)(1).  While departure can be a factor for the exercise of discretion, it does not divest the agency of jurisdiction over a motion to reopen.

Kiegemwe v. Holder, No. 09-3816 (6th Cir. Aug. 17, 2011) (unpublished)

The three petitioners were part of a group of boy scouts seeking asylum from Tanzania.  The fourth member of the group received asylum in a case originating in the Third Circuit, in Pennsylvania. 420 F.3d 193 (3rd Cir. 2005).

The BIA found their applications timely but found that they lacked a well-founded fear of persecution.  They did not assert past persecution.  The Sixth Circuit reversed.

The BIA disregarded the decision from the Third Circuit and the resulting grant of asylum.  The Sixth Circuit, while acknowledging that it was not binding, agreed that similarly-situated individuals should be treated the same.

Because they were credible, the court found that the BIA's well-founded fear denial could not stand. The agency substituted speculation for expert testimony.

The two concurring opinions strongly criticized the inconsistent results by the agency and the failure to articulate basis for reaching those results.

Interesting asylum denial

Chagnaa v. Holder, No. 10-3228 (6th Cir. Aug. 16, 2011) (unpublished).


In this case, the court affirmed the denial of an asylum application.  The decision is interesting for some of the rulings made during course of the decision.  At pages 7-9, the court discussed when an omission can support an adverse credibility finding. 

At page 10-11, the court discussed when statements made during the visa process can support an adverse credibility finding.

BIA remand for voluntary departure is an appealable order, sort of

Giraldo v. Holder, No. 09-4445 (6th Cir. Aug. 12, 2011) (published)

Joining other circuits and affirming its pre-IIRIRA precedent, the court held that it has jurisdiction to review a BIA decision reversing a grant of relief and remanding for voluntary departure.  The court found that the finality requirement for a petition for review is satisfied in this situation because removability has already been determined and it could not review the voluntary departure determination itself.

Still, the court giveth and the court taketh away.  For prudential reasons, including 1240.26(i)'s automatic vacation of voluntary departure upon the filing of a petition for review, the court declined to review a petition for review in this situation.  The question becomes what to do next.  In the next to last sentence of the opinion, the court suggested that it would accept a petition for review directly from the IJ's decision granting or denying voluntary departure.  I would have preferred the court to be more clear as to whether a noncitizen has to file an appeal with the BIA first or whether it is permissible to skip right to the judicial review stage.  There could be serious consequences for choosing the wrong path the review.

Sufficiency of evidence to prove conviction

U.S. v. Gardner, No. 07-5947 (6th Cir. Aug. 12, 2011) (published)

In this criminal sentencing case, the Court affirmed a district court order finding that the records offered by government were insufficient to establish whether a prior conviction triggered a higher mandatory minimum.  The defendant had a prior conviction for sexual battery and the records indicated that the victim was his minor daughter.  But because the age of the victim was not an element of the sexual battery statute, the references to her age in the indictment and other documents were not essential to the offense to which he pleaded.  In other words, the Court looked to what the convicting court was required to find to enter a conviction, not what the convicting court actually found.

The PSR, like a police report or criminal complaint, is not a judicially noticeable document.

The decision has a good discussion of Shephard and Taylor.

Aggravated Assault not categorically a crime of violence

U.S. v. McMurray, No. 09-5806 (6th Cir. Aug. 4, 2011) (published)

This is an Armed Career Criminal Act case concerning Tennessee's aggravated assault statute.