Late-filed administrative appeal is not a jurisdictional bar

Abraitas v. U.S., No. 12-3747 (6th Cir. Mar. 4, 2013) (published)

This is a tax case but it discusses an issue that comes up in immigration cases - does the failure to timely seek administrative review deprive the court of jurisdiction over a petition for review?

The court found that the rules governing administrative review are claims processing rules that are not jurisdictional.  However, the failure to exhaust administrative remedies through the filing of a timely administrative appeal does deprive the court of jurisdiction.

Reinstatement of removal

Juarez-Chavez v. Holder, No. 11-4224 (6th Cir. Feb. 19, 2013) (unpublished)

In this case, ICE reinstated a prior removal order.  The alien filed a timely petition for review.  The basis for the challenge was that the prior order, which was a stipulated order, was not done voluntarily, etc., and that the procedure whereby IJ's sign off on stipulated orders without further review violates due process.

The court rejected both arguments.  The court declined to review the underlying order because such challenge was untimely. This could close off the door to any challenges to defective orders that are being reinstated, but the court did allow for an as-applied challenge in the appropriate case, such as where a timely challenge to the underlying order was not possible due to ineffective assistance of counsel or government misconduct.

False statement to SBA is a CIMT

Novatchinski v. Holder, No. 10-3873 (6th Cir. Mar. 4, 2013) (unpublished)

The court found that making a false statement to the SBA, in violation of 15 USC 645(a) is a CIMT because it involves deceiving government officials.

Female Iraqi women with pro-Western tendencies in dress and looks

Abdulbaki v. Holder, No. 12-3012 (6th Cir. Feb. 1, 2013) (unpublished, available through PACER)

The Court reversed the BIA and remanded this Iraqi woman's asylum case.  The court found that this is a particular social group.  "[W]omen who refuse to conform to a government’s gender-specific laws and
repressive social norms or who do not adhere to a female dress code may satisfy the Board’s definition
of a particular social group if the alien’s opposition to the norm or code 'is so profound that she would
choose to suffer the severe consequences of noncompliance,' showing that her beliefs are fundamental
to her identity and conscience."

Victims should not have to be willing to suffer martyrdom before being able to claim persecution.
The concurrence questioned whether the ten percent threshold was too high.

Two Crimes of Violence cases

USA v. Sanford, No. 11-1847 (6th Cir. Dec. 4, 2012) (published)

In Sanford, the Court found that simple assault/domestic violence under MCL 750.81(2) is a "crime of domestic violence" under 18 USC 921(a)(33)(A) (relating to possession of firearms by prohibited individuals) because it requires "violent force ... capable of causing physical pain or injury."  On appeal, the defendant tried to challenge this but the Court deemed the argument waived because this argument was successfully made in other circuits.  This implies that the Court's holding should be read as an endorsement of the classification of simple assault/domestic violence in Michigan as a crime of domestic violence.  Rather, to the contrary, the Court found the argument waived because it was such a good argument that it should obviously have been made at the trial court level.

USA v. Stout, No. 10-6163 (6th Cir. Feb. 5, 2013) (published)

Second degree escape under Kentucky law is a crime of violence under 18 USC 16(b).  (a) did not apply because the statute did not require the use or threatened use of physical force.  (b) applied because there was a substantial risk that physical force against the person or property of another may be used. Escape from a secured facility (as opposed to failing to appear for something) is an active crime requiring intentional conduct on the part of the offender. There is a clear possibility of detection and confrontation during the course of escape.  Judge Donald dissented because the offense involved an unarmed prisoner climbing a wall and crawling through a hole in a gate that was already there.

Lifers ineligible for early release for deportation

Chico-Polo v. Department of Corrections, No. 307804 (Mich. Ct. App. Jan. 8, 2013) (published)

There is also a concurring opinion.


MCL 791.234b allows qualified inmates who have served at least 1/2 of the minimum sentence and have been ordered removed to request a transfer to ICE custody for purposes of removal.  The Court held that this does not apply to inmates who receive a life sentence because there is no court-imposed minimum sentence, even though the legislature has made them eligible for parole after 20 years.

No derivatives for Withholding of Removal

Camara v. Holder, No. 11-4043 (6th Cir. Jan. 15, 2013) (published)

The Court denied the appeal filed by the spouse of an applicant granted withholding of removal.  The principal applicant and the spouse were in consolidated removal proceedings but the spouse never filed or made a claim for relief until a second BIA appeal.  The principal applicant was granted withholding based on female genital mutilation (the asylum claim was time-barred).

The spouse should have much earlier in the process made an independent claim for relief but for some reason he or his attorney failed to realize that there are no derivative beneficiaries for withholding of removal.  The Court rejected a challenge to the statute and agreed that he did not make out a prima facie claim for protection.

Changed Country Conditions

Zhang v. Holder, No. 11-4251 (6th Cir. Dec. 18, 2012) (published)

In this case, the court reversed the BIA's denial of a motion to reopen.  The asylum applicant, a Chinese national, sought to reopen based on her changed conditions relating to her religion, Catholicism, and coercive population control in Fujian.

The Court found fault with the BIA's decision for several reasons. First, although the BIA stated that if found the region and sect to be relevant to the issue of persecution, it did not explain why the distinction between leader and layman was pertinent.  Thus, the decision lacked a rational explanation.

Second, the BIA should not have dismissed unsworn statements from individuals who were unaffiliated with any government institution.  These can constitute evidence if they are otherwise reliable and credible.  The BIA should have considered the credibility of the statements. 

The Court affirmed the BIA's decision with respect to coercive population control, a challenge to the adverse credibility determination, and its refusal to exercise its sua sponte authority.

Cancellation of Removal - hardship review

Navarro v. Holder, No. 10-4558 (6th Cir. Nov. 14, 2012) (unpublished)

In this Mexican nonLPR cancellation of removal case, the only issue was whether his removal would cause exceptional and extremely unusual hardship to his wife and children.

The court rejected the argument that the IJ and BIA committed legal error by mischaracterizing the evidence by discounting the seriousness of the children's illnesses and failing to understand the totality of the financial hardship.  He also argued that the BIA and IJ misapplied precedent decisions in weighing and assessing evidence.  The court declined to second-guess the BIA and IJ.

The court remanded to allow the BIA to reinstate voluntary departure because it mistakenly failed to do so before.

There was a spirited dissent.

Ohio assault on a police officer is crime of violence

US v. Evans, No. 11-3460 (6th Cir. Nov. 15, 2012) (published)

In this criminal sentencing case, the court found that an Ohio conviction for assault on a police officer is a crime of violence because it requires the use of force: it is violated by knowingly causing or attempting to cause physical harm to another."  Even a scratch requires sufficiently violent force to qualify as a crime of violence. It also presents a serious potential risk of physical injury.

This decision conflicts with McMurray, which the Court distinguishes and dismisses as dicta, so how these cases will be decided remains to be seen.

FGM and well-founded fear

Lo v. Holder, No. 10-3497 (6th Cir. Nov. 8, 2012) (published)

In this FGM case from Senegal, the female applicant suffered past persecution based on two attempts to subject her to genital mutilation.  The BIA found that the birth of her daughter in the U.S., and the resultant fear that the daughter could be subjected to FGM, constituted an exceptional circumstance excusing the late-filed application.

The question was whether she had a well-founded fear of persecution.  The court agreed with the BIA that she did not.  First, she "aged out" in that she was too old to be a target of FGM. Second, FGM is in decline in Senegal.  Third, her husband belongs to a tribe and religion that does not practice FGM, so she could safely relocate to an area of Senegal where she would not be in danger.

The court also rejected her claim based on her fear that her daughters would be subjected to FGM.  Distinguishing the Court's decision in Abay, the Court noted that the family could live in an area and with a tribe that does not practice FGM, and the daughters are U.S. citizens who could remain in the U.S. with guardians or other family members.

This "painful" result, as the court suggests it is, should have been considered for humanitarian asylum because separating this family would seem to constitute "other serious harm."  One wonders why this claim was not presented or considered since the female applicant suffered past persecution.

TN misdemeanor domestic violence not a "crime of violence"

USA v. Castleman, No. 10-5912 (6th Cir. Sept. 19, 2012) (published)


The court denied the government's appeal from a decision dismissing an indictment for possessing a firearm after a conviction for a misdemeanor crime of domestic violence.  Noting the similarities between 16(a), 924(e)(2)(B)(i), and 921(a)(33)(A), the court used the same framework to determine whether the Tennessee conviction has as an element the use or attempted use of physical force. 

Applying the categorical approach, the court concluded that the state statute did not categorically require the use of violent force, in that the bodily injury that results could be as minor as a cut, abrasion, or bruise.  Applying the modified categorical approach, the court did not find any evidence in the record of conviction to indicate that violent physical force was used.

Affidavit of Support enforcement

Davis v. Davis, 970 N.E.2d 1151 (Ohio App. May 11, 2012)

In this divorce case, the court had to decide whether to terminate a spousal support order that was based on the affidavit of support obligations after the U.S. citizen argued that the noncitizen wife could be credited with 40 quarters of qualifying earnings based on the quarters earned by the U.S. citizen husband during the marriage.  The court upheld the trial court's termination of this support obligation based on competent evidence that the noncitizen wife reached the 40 quarter mark.

Habeas petition challenging reinstatement

Alvarez-Lopez v. Adducci, 2012 WL 2407702, No. 12-11952 (E.D. Mich. June 26, 2012).

This Mexican citizen was granted voluntary departure and returned to Mexico.  He then reentered the U.S. without inspection.  Later, he was caught by ICE, which wanted to reinstate a prior removal order.  The alien filed a habeas petition alleging that there was no prior order because he complied with the voluntary departure order.

Because the habeas petition was filed while the alien was in ICE custody, his subsequent removal did not divest the court of jurisdiction.

The court found that the REAL ID Act did not divest it of jurisdiction because he was challenging the "existence" of the order, not the removal order itself.

On the merits, though, the court denied the petition because there was insufficient proof that he complied with the voluntary departure order.

Request to Appear for deferred inspection is a parole but still no AOS eligibility

Ni v. USCIS, 2012 WL 3637731, No. 11-2482 (W.D. Tenn. Aug, 22, 2012).

In this case, a Chinese citizen was denied admission at the port of entry and given a notice to return for deferred inspection.  When he returned, he was given a notice denying him admission.  He was later ordered removed.  Fast forward many years and he applied for adjustment of status based on an I-130 petition filed by his USC son.  The USCIS denied this application because he was not paroled into the U.S.

The district court accepted jurisdiction over his Administrative Procedures Act claim, and the parties did not contest jurisdiction.

The court did not defer to the USCIS and it concluded that the deferred inspection is a parole.  However, the court found that the parole was not indefinite and that it terminated upon the entry of the removal order.

Departure after initiation of removal proceedings = in absentia order

In re Eliseo Pereyra, A076-014-954, 2012 WL 3276580 (BIA July 25, 2012) (Cleveland) (unpublished).

In this case, it appears that after the issuance of the NTA and its filing with the court, the alien left the U.S. and missed a hearing.  He was ordered removed in absentia.  The BIA affirmed the denial of a motion to reopen an in absentia order because the alien cannot defeat the court's jurisdiction by leaving the country. 

Scope of 237(a)(1)(H) waiver

Avila-Anguiano v. Holder, No. 11-3958 (6th Cir. Aug. 7, 2012) (published).

In this decision, the court struggled with the scope of my favorite waiver, the 237(a)(1)(H) waiver.

The alien had two misrepresentation incidents.  The first was in 1991 when he made a false USC claim at the port of entry.  He was convicted of making a false USC claim and was returned to Mexico. Two years later, he made another misrepresentation when he failed to disclose that incident in his successful immigrant visa application.

There was no dispute that 237(a)(1)(H) was available to waive the second misrepresentation because that was made at the time of admission.  ICE and the BIA asserted that the earlier misrepresentation was outside of 237(a)(1)(H)'s reach because it was made prior to the admission. 

The Court disagreed and found that both misrepresentations were waivable.  The first misrepresentation rendered him inadmissible at the time of his 1993 admission because it made him an alien described in 212(a)(6)(C)(i) [there was no separate ground of inadmissibility for false USC claims in 1993].  The statute requires that the alien be inadmissible at the time of admission, not that he make the misrepresentation at that time.

Sixth Circuit on torture-bar to relief

Abdallahi v. Holder, No. 11-3920 (6th Cir. July 31, 2012) (published)

This case involved multiple issues concerning whether an adjustment of status applicant who served as a gendarme for the Mauritanian military was inadmissible under 212(a)(2)(E)(iii).

1. Although there is no liberty interest in discretionary relief, there is a due process right to a full and fair hearing.

2. Transferring the case to a new IJ was not a due process violation because the new IJ followed the regulations.

3.  No prejudice resulting from transferring the case to the new IJ between the close of the record and the issuance of the decision.

4.  The alien participated in acts of torture under the Negusie (SCt) and Diaz-Zanatta (6th) standards, which require (1) a nexus between the alien's actions and the torture of another and (2) some level of contemporaneous knowledge that the torture was being conducted.  The evidence clearly established this.  The court rejected his involuntariness defense because it was not supported by the record.

Sixth Circuit on Amending NTAs and time issues

Sagastume v. Holder, No. 10-4393 (6th Cir. 07/20/2012)

In this case, the aliens were admitted to the U.S. and then went to Canada to apply for asylum.  After their claims were denied, they were returned to the U.S. and placed in removal proceedings.  They were originally charged as overstays under 237(a)(1)(B).  While the proceedings were pending, the BIA decided R-D-, which required the aliens to be treated as applicants for admission because they made a departure by going to Canada.  ICE then amended the NTA to charge them under 212(a)(7)(A)(i)(I).

The aliens applied for voluntary departure but could not show that they were present in the U.S. for a year prior to the issuance of the NTA.  They were not present for a year before the issuance of the initial NTA but were before the issuance of the amended NTA.  The parties stipulated to voluntary departure eligibility but the IJ and BIA denied the request and this was the only issue on appeal.

Beyond this case, the decision bears on the question of whether a completely defective NTA can, for example, trigger the stop time rule.  In other words, can the government issue baseless NTA to stop the clock and only later amend it to reflect proper charges.  Or should the proceedings be terminated to allow the government to issue a new NTA and initiate new proceedings?

6th Circuit on fleeing, CIMTs

Ruiz-Lopez v. Holder, No. 11-3730 (6th Cir. June 19, 2012) (published)

In this case, the court found that a Washington State conviction for felony fleeing was a CIMT.  To a large extent, the court relied on the inclusion as a statutory element the "wanton or wilful disregard for the lives or property of others."  Michigan's fleeing and eluding statutes lack this element and some of the aggravating factors present in the 5th and 7th circuit decisions it cited to.  Still, this decision makes it more likely that Michigan's fleeing and eluding statute will be a CIMT.

Importantly, the court only employed the two-step analysis (categorical and modified categorical) and did not use or even mention the existence of the 3rd step created in Silva-Trevino.  The court went so far in a footnote as to expressly refuse to look beyond or behind the record of conviction at the actual conduct.  The court has yet to expressly adopt or reject Silva-Trevino's third step but in a number of cases now the court has limited its analysis to the traditional two-step approach.