People v. Zajaczkowski, No. 295340 (Mich. App. July 26, 2011) (published)
This is a criminal case involving a charge of 1st Degree Criminal Sexual Conduct. The defendant was accused of having improper sexual relations with his underage and much younger half-sister. For his defense, he claimed that she was not his half-sister because he was not related to their common parent (his father). Factually, he was his father's son: the divorce decree stated as much, the father paid child support, and held him out as his son. Biologically, though, he was not his father's son as a DNA test revealed.
The defendant could not assert this test because a child born during a marriage is presumed to be a legitimate issue of the marriage. The child, or anyone other than the mother and presumed legal father have a right to challenge the presumption of legitimacy. The child lacked standing to do this and the father conceded the question of paternity in the earlier divorce and child support proceedings.
Although the defendant and victim were not related by affinity and in fact were not related by blood, he was properly convicted of 1st degree Criminal Sexual Conduct because they were related by blood as a matter of law.
This is an important principle for immigration cases where USCIS wants to question the legitimacy of a relationship between an in-wedlock child to the husband and wife.
Friday, July 29, 2011
Sixth Circuit finds jurisdiction to review particularly serious crime determination
Hernandez-Vasquez v. Holder, No. 09-4421 (6th Cir. July 14, 2011) (unpublished).
The issue in this Salvadoran asylum case was whether he was convicted of a particularly serious crime so as to be ineligible for asylum. INA 208(b)(2)(A)(ii) and (c)(2). The Court found jurisdiction to review the AG's determination that he had been convicted of such a crime. The Court relied on Kucana v. Holder, 130 S. Ct. 827 (2010) and Berhane v. Holder, 606 F.3d 819, 821-22 (6th Cir. 2010).
On the merits, the Court agreed with the BIA that the petitioner's child endangerment conviction was a particularly serious crime. The Court looked at both the elements of the crime of conviction and the underlying allegations in the criminal case, which included five counts of gross sexual imposition with an 8-9 year old girl.
The issue in this Salvadoran asylum case was whether he was convicted of a particularly serious crime so as to be ineligible for asylum. INA 208(b)(2)(A)(ii) and (c)(2). The Court found jurisdiction to review the AG's determination that he had been convicted of such a crime. The Court relied on Kucana v. Holder, 130 S. Ct. 827 (2010) and Berhane v. Holder, 606 F.3d 819, 821-22 (6th Cir. 2010).
On the merits, the Court agreed with the BIA that the petitioner's child endangerment conviction was a particularly serious crime. The Court looked at both the elements of the crime of conviction and the underlying allegations in the criminal case, which included five counts of gross sexual imposition with an 8-9 year old girl.
Tuesday, July 12, 2011
Unlawful possession or transfer of a weapon is not a crime of violence.
Evans v. Zych, No. 09-1094 (6th Cir. July 12, 2011).
In this criminal sentencing case, the Sixth Circuit held that a conviction under 28 U.S.C. 5861(d) and (e), receiving, possessing, or transferring an unregistered firearm is not a crime of violence under 924(c)(3). Relevant to immigration law, 924(c)(3) is essentially identical to 18 USC 16.
In this criminal sentencing case, the Sixth Circuit held that a conviction under 28 U.S.C. 5861(d) and (e), receiving, possessing, or transferring an unregistered firearm is not a crime of violence under 924(c)(3). Relevant to immigration law, 924(c)(3) is essentially identical to 18 USC 16.
Sixth Circuit applies fugitive disentitlement doctrine to noncitizen who left the country
Dong v. Holder, No. 09-4121 (6th Cir. July 7, 2011) (unpublished)
In this case, the noncitizen apparently left the U.S. His attorney represented to the Court in a motion to waive oral argument that he heard, secondhand, that his client left the U.S. and did not return.
The Court dismissed his petition for review pursuant to the fugitive disentitlement doctrine. The Court relied on several factors: the attorney lost contact with the client, the client did not respond to ICE's efforts to contact him, he was in violation of his Order of Supervision by notify ICE of his whereabouts, and he did not verify his departure with ICE.
In this case, the noncitizen apparently left the U.S. His attorney represented to the Court in a motion to waive oral argument that he heard, secondhand, that his client left the U.S. and did not return.
The Court dismissed his petition for review pursuant to the fugitive disentitlement doctrine. The Court relied on several factors: the attorney lost contact with the client, the client did not respond to ICE's efforts to contact him, he was in violation of his Order of Supervision by notify ICE of his whereabouts, and he did not verify his departure with ICE.
Sixth Circuit finds jurisdiction over motions to change venue.-
Dugboe v. Holder, No. 10-3010 (6th Cir. July 6, 2011) (published)
This decision involved several issues.
First, the Court found jurisdiction to review denied motions to change venue, citing to Kucana. This latter decision was on point because venue motions are creatures of regulations, not statute. On the merits, though, the Court affirmed the denial of the motion to change venue both because is was a permissible exercise of discretion, there was no prejudice, and the noncitizen was permanently inadmissible anyway.
Next, the Court affirmed a denial of a motion to remand to seek adjustment of status. The noncitizen had falsely claimed to be a U.S. citizen and was therefore permanently inadmissible. He was unable to meaningfully contest this charge.
Finally, the Court affirmed the denial of his withholding of removal applications. The denial was based on an adverse credibility finding. There were so many issues with his credibility that the Court only addressed a few of them.
This decision involved several issues.
First, the Court found jurisdiction to review denied motions to change venue, citing to Kucana. This latter decision was on point because venue motions are creatures of regulations, not statute. On the merits, though, the Court affirmed the denial of the motion to change venue both because is was a permissible exercise of discretion, there was no prejudice, and the noncitizen was permanently inadmissible anyway.
Next, the Court affirmed a denial of a motion to remand to seek adjustment of status. The noncitizen had falsely claimed to be a U.S. citizen and was therefore permanently inadmissible. He was unable to meaningfully contest this charge.
Finally, the Court affirmed the denial of his withholding of removal applications. The denial was based on an adverse credibility finding. There were so many issues with his credibility that the Court only addressed a few of them.
Thursday, July 7, 2011
BIA affirms denial of motion to supress
Matter of Lopez, 2011 WL 2607057, A099-762-480 (BIA June 22, 2011) (unpublished).
The BIA denied the noncitizen's motion to suppress. The BIA found no right to access to counsel prior to DHS questioning. The DHS's officers alleged yelling and other mistreatment did not amount to egregious conduct. Even if the arrest was unlawful, the body of the respondent is not suppressible. Plus, the noncitizen admitted alienage in his request for voluntary departure.
The BIA denied the noncitizen's motion to suppress. The BIA found no right to access to counsel prior to DHS questioning. The DHS's officers alleged yelling and other mistreatment did not amount to egregious conduct. Even if the arrest was unlawful, the body of the respondent is not suppressible. Plus, the noncitizen admitted alienage in his request for voluntary departure.
Padilla cases within the Sixth Circuit
Gomez v. Tennessee, 2011 WL 1797305 (Tenn. Crim. App. May 12, 2011): Padilla announced a new rule and would not be applied retroactively. Petition for post-conviction relief for 1997 conviction denied.
U.S. v. Lin, 2011 WL 197206 (W.D. Ky. Jan. 20, 2011): Padilla did not announce a new rule and therefore applies retroactively to 2007 conviction. Petition for writ of coram nobis granted.
State v. Ikharo, 2011 WL 2201193 (Ohio App. June 7, 2011): Padilla not implicated where court gives required advisal concerning possible immigration consequences of conviction. Motion denied. (this is the same person as Ikharo v. Holder 614 F.3d 622 (6th Cir. 2010) (conviction for gross sexual imposition is an aggravated felony sex abuse of a minor) (see also http://6thcir.blogspot.com/2010/12/ohio-appellate-court-limits-padilla.html for another Ohio case)
Michigan v. Abbas, 2011 WL 2347622 (Mich. App. June 14, 2011): Without addressing the retroactivity of Padilla, the court remanded for an evidentiary hearing on whether the defendant's plea was knowing and voluntary where there was a misunderstanding concerning his eligibility for placement in the Holmes Youthful Trainee Act program.
U.S. v. Lin, 2011 WL 197206 (W.D. Ky. Jan. 20, 2011): Padilla did not announce a new rule and therefore applies retroactively to 2007 conviction. Petition for writ of coram nobis granted.
State v. Ikharo, 2011 WL 2201193 (Ohio App. June 7, 2011): Padilla not implicated where court gives required advisal concerning possible immigration consequences of conviction. Motion denied. (this is the same person as Ikharo v. Holder 614 F.3d 622 (6th Cir. 2010) (conviction for gross sexual imposition is an aggravated felony sex abuse of a minor) (see also http://6thcir.blogspot.com/2010/12/ohio-appellate-court-limits-padilla.html for another Ohio case)
Michigan v. Abbas, 2011 WL 2347622 (Mich. App. June 14, 2011): Without addressing the retroactivity of Padilla, the court remanded for an evidentiary hearing on whether the defendant's plea was knowing and voluntary where there was a misunderstanding concerning his eligibility for placement in the Holmes Youthful Trainee Act program.
Monday, June 27, 2011
245(i) and "approvable when filed"
Doughan v. Holder, No. 09-4287 (6th Cir. June 24, 2011) (unpublished)
The primary issue underlying this case was whether a labor certification that was filed on April 26, 2001, was approvable when filed so as to create grandfathering under 245(i). This, in turn, would allow this EWI noncitizen to adjust his status based on his marriage to a U.S. citizen.
The labor certification was returned three years later because the prevailing wage was too low and the listed address was incomplete. The employer never responded. The IJ and BIA concluded that the labor certification was not approvable when filed. The Sixth Circuit did not reach this precise question because a direct petition for review was not filed. Instead, the noncitizen filed a motion to reopen and reconsider, seeking grandfathering on an even earlier labor certification. The earlier, 1998, labor certification was supported only by a letter confirming receipt from the California agency. The BIA denied the motion.
On review, the Sixth Circuit affirmed. It affirmed the denial of the motion to reopen because the 1998 labor certification was not "new" evidence in that it could have been discovered earlier.
It affirmed the denial of the motion to reconsider because the motion did not include new arguments. The court did not reach the merits of the "approvable when filed arguments" and only addressed whether the BIA erred in denying the motion to reconsider. Because the motion did not meet the requirements for a motion to reconsider and the BIA addressed the arguments in the direct appeal, it did not err in denying the motion.
The court seemed sympathetic to this case: the noncitizen lived here a long time, had an approved I-130 petition from his U.S. citizen wife, and was "ill-served" by his prior attorneys. It may have reached a different conclusion if a direct petition for review was filed, but it did not do so because of the procedural posture of the case.
The primary issue underlying this case was whether a labor certification that was filed on April 26, 2001, was approvable when filed so as to create grandfathering under 245(i). This, in turn, would allow this EWI noncitizen to adjust his status based on his marriage to a U.S. citizen.
The labor certification was returned three years later because the prevailing wage was too low and the listed address was incomplete. The employer never responded. The IJ and BIA concluded that the labor certification was not approvable when filed. The Sixth Circuit did not reach this precise question because a direct petition for review was not filed. Instead, the noncitizen filed a motion to reopen and reconsider, seeking grandfathering on an even earlier labor certification. The earlier, 1998, labor certification was supported only by a letter confirming receipt from the California agency. The BIA denied the motion.
On review, the Sixth Circuit affirmed. It affirmed the denial of the motion to reopen because the 1998 labor certification was not "new" evidence in that it could have been discovered earlier.
It affirmed the denial of the motion to reconsider because the motion did not include new arguments. The court did not reach the merits of the "approvable when filed arguments" and only addressed whether the BIA erred in denying the motion to reconsider. Because the motion did not meet the requirements for a motion to reconsider and the BIA addressed the arguments in the direct appeal, it did not err in denying the motion.
The court seemed sympathetic to this case: the noncitizen lived here a long time, had an approved I-130 petition from his U.S. citizen wife, and was "ill-served" by his prior attorneys. It may have reached a different conclusion if a direct petition for review was filed, but it did not do so because of the procedural posture of the case.
Tuesday, June 21, 2011
Khozhaynova v. Holder, No. 09-4327 (6th Cir. Apr. 20, 2011) (published)
The court affirmed the denial of this Russian asylum claim.
The noncitizen filed her asylum application beyond the expiration of the one-year deadline. She claimed extraordinary circumstances excused the untimely filing. To get around the jurisdictional bar of 208(a)(3), she argued that the case presented a mixed question of law and fact, as the court has jurisdiction to consider constitutional claims and matters of statutory construction.
The 9th and 2nd circuits have held that these mixed questions of law and fact are reviewable in this context. The court declined to follow those decisions because it felt constrained by its prior precedent decision Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006). The court found that because the question is predominantly factual, it could not review the timeliness determination.
Turning to the merits of the withholding claim, the court affirmed the BIA's decision. It upheld the adverse credibility finding, addressing several of the grounds.
The court also found that the harm was not connected to a protected ground, in that extortionate demands by thugs do not put the victim in a protected social group. Business owners who refuse to give in to extortion do not form such a group.
The court also refused to find that the harm was on account of her political opinion. One wonders whether the analysis would have been different had the court had the benefit of Matter of N-M-, 25 I&N Dec. 526 (BIA 2011) (setting out the framework to determining when opposition to state corruption constitutes a political opinion or gives rise to an imputed political opinion claim).
The court affirmed the denial of this Russian asylum claim.
The noncitizen filed her asylum application beyond the expiration of the one-year deadline. She claimed extraordinary circumstances excused the untimely filing. To get around the jurisdictional bar of 208(a)(3), she argued that the case presented a mixed question of law and fact, as the court has jurisdiction to consider constitutional claims and matters of statutory construction.
The 9th and 2nd circuits have held that these mixed questions of law and fact are reviewable in this context. The court declined to follow those decisions because it felt constrained by its prior precedent decision Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006). The court found that because the question is predominantly factual, it could not review the timeliness determination.
Turning to the merits of the withholding claim, the court affirmed the BIA's decision. It upheld the adverse credibility finding, addressing several of the grounds.
The court also found that the harm was not connected to a protected ground, in that extortionate demands by thugs do not put the victim in a protected social group. Business owners who refuse to give in to extortion do not form such a group.
The court also refused to find that the harm was on account of her political opinion. One wonders whether the analysis would have been different had the court had the benefit of Matter of N-M-, 25 I&N Dec. 526 (BIA 2011) (setting out the framework to determining when opposition to state corruption constitutes a political opinion or gives rise to an imputed political opinion claim).
Thursday, June 9, 2011
Forced statelessness can constitute persecution
Stserba v. Holder, No. 09-4312 (6th Cir. 2011) (published)
The court granted this petition for review and remanded to allow the BIA to consider whether (1) the ethnically motivated revocation of citizenship, resulting in statelessness, constitutes persecution, and (2) the refusal to recognize a medical degree constituted past persecution. On remand, the BIA is to consider their eligibility for humanitarian asylum and also for withholding of removal.
The Court reiterated that persecution is determined in the aggregate.
The court granted this petition for review and remanded to allow the BIA to consider whether (1) the ethnically motivated revocation of citizenship, resulting in statelessness, constitutes persecution, and (2) the refusal to recognize a medical degree constituted past persecution. On remand, the BIA is to consider their eligibility for humanitarian asylum and also for withholding of removal.
The Court reiterated that persecution is determined in the aggregate.
Friday, May 20, 2011
Solicitation to commit aggravated assault
USA v. Benton, No. 09-6322 (6th Cir. May 17, 2011) (published)
The court found that solicitation to commit aggravated assault does not require the use, attempted use, or threatened use of force. It was, however, a violent felony in this Armed Career Criminal Act case because it presents a serious risk of injury.
The court found that solicitation to commit aggravated assault does not require the use, attempted use, or threatened use of force. It was, however, a violent felony in this Armed Career Criminal Act case because it presents a serious risk of injury.
Gordillo v. Holder, No. 08-45874 (6th Cir. May 13, 2011)
The court found that the prior attorney rendered ineffective assistance of counsel by failing to assert the alien's eligibility for NACARA suspension of deportation. The court further found prejudice.
Importantly, the court found that the alien was diligent despite a lengthy delay between when the aliens learned about the error and filed the motion to reopen. The aliens were diligent because they immediately spoke to two attorneys who told them there was nothing to do. The court found it reasonable for them to rely on the advice of these attorneys and a notario. The court found equitable tolling was warranted.
The court also seemed willing to accept that the delay between the BIA's removal order and when the aliens learned about it was reasonable because they were able to renew their work authorization but it remanded to allow the BIA to address this in the first instance.
The court found that the prior attorney rendered ineffective assistance of counsel by failing to assert the alien's eligibility for NACARA suspension of deportation. The court further found prejudice.
Importantly, the court found that the alien was diligent despite a lengthy delay between when the aliens learned about the error and filed the motion to reopen. The aliens were diligent because they immediately spoke to two attorneys who told them there was nothing to do. The court found it reasonable for them to rely on the advice of these attorneys and a notario. The court found equitable tolling was warranted.
The court also seemed willing to accept that the delay between the BIA's removal order and when the aliens learned about it was reasonable because they were able to renew their work authorization but it remanded to allow the BIA to address this in the first instance.
In absentia order rescinded due to ineffective assistance of counsel
Matter of Vasoeuz, A098-079-94, 2011 WL 1570476 (BIA Mar. 31, 2011) (Detroit).
The BIA found that the prior attorney's failure to file an entry of appearance and notify the court of the alien's change of address could constitute ineffective assistance of counsel supporting rescission of an in absentia order. The BIA noted the prior attorney's poor track record.
The IJ did not believe that the prior attorney was actually representing the alien but the BIA found this to be clearly erroneous. The BIA based this on the prior attorney's malfeasance in other cases, the alien's affidavit, and the prior attorney's failure to respond to the allegations or appear pursuant to a subpoena.
The BIA found that the prior attorney's failure to file an entry of appearance and notify the court of the alien's change of address could constitute ineffective assistance of counsel supporting rescission of an in absentia order. The BIA noted the prior attorney's poor track record.
The IJ did not believe that the prior attorney was actually representing the alien but the BIA found this to be clearly erroneous. The BIA based this on the prior attorney's malfeasance in other cases, the alien's affidavit, and the prior attorney's failure to respond to the allegations or appear pursuant to a subpoena.
Interlocutory appeal or venue motion does not excuse failure to appeal
Matter of Gvasalia, A097-610-584, 2011 WL 1570490 (BIA Apr. 4, 2011) (Cleveland)
The alien filed a motion for a televideo hearing to avoid travelling from Cincinnati to Cleveland. The IJ denied the motion and he filed an interlocutory appeal. When he failed to appear for the hearing, the IJ ordered him removed in absentia. The BIA affirmed the denial of the motion to reopen because the interlocutory appeal did not excuse the failure to appeal.
The alien filed a motion for a televideo hearing to avoid travelling from Cincinnati to Cleveland. The IJ denied the motion and he filed an interlocutory appeal. When he failed to appear for the hearing, the IJ ordered him removed in absentia. The BIA affirmed the denial of the motion to reopen because the interlocutory appeal did not excuse the failure to appeal.
Monday, April 25, 2011
Court dismissed Tier III mandamus complaint
Seydi v. USCIS, 2011 WL 1135553 (E.D. Mich. Mar. 28, 2011) (unpublished).
The alien filed an adjustment of status application 5 years ago after having been granted asylum. The USCIS has placed the case on hold because the alien apparently belonged to a Tier III "terrorist" organization. The court declined to exercise jurisdiction over the mandamus complaint because it would require it to get involved in the Tier III/material support determinations that are made by the various agencies. The court also noted that the USCIS would deny the application if push came to shove, because five years is not enough time for it to do its job.
The alien filed an adjustment of status application 5 years ago after having been granted asylum. The USCIS has placed the case on hold because the alien apparently belonged to a Tier III "terrorist" organization. The court declined to exercise jurisdiction over the mandamus complaint because it would require it to get involved in the Tier III/material support determinations that are made by the various agencies. The court also noted that the USCIS would deny the application if push came to shove, because five years is not enough time for it to do its job.
Country of last habitual residence
El Assadi v. Holder, No. 09-4193 (6th Cir. Apr. 25, 2011) (unpublished)
The alien was born in and spent nearly her entire life in Saudi Arabia, but had only temporary nonimmigrant status there, dependent on her father's nonimmigrant status. She is a stateless Palestinian with a Lebanese travel document.
Her asylum was denied because she had no fear, other than restrictions on work and poor treatment of women, of returning to Saudi Arabia. She could not seek asylum from Lebanon because she had only briefly visited there and resided in Saudi Arabia, even though she had a Lebanese travel document.
The alien was born in and spent nearly her entire life in Saudi Arabia, but had only temporary nonimmigrant status there, dependent on her father's nonimmigrant status. She is a stateless Palestinian with a Lebanese travel document.
Her asylum was denied because she had no fear, other than restrictions on work and poor treatment of women, of returning to Saudi Arabia. She could not seek asylum from Lebanon because she had only briefly visited there and resided in Saudi Arabia, even though she had a Lebanese travel document.
Adverse credibility decision
Sinani v. Holder, No. 09-4176 (6th Cir. Apr. 20, 2011) (unpublished)
The court affirmed the denial of this Albanian asylum case. The decision was premised on an adverse credibility finding. The decision is notable for the rejection of two reasons for the adverse credibility determination: whether the alien had applied for a visa before coming to the U.S. and because her written application said she was "physically abused" and she later said she was raped.
The court affirmed the denial of this Albanian asylum case. The decision was premised on an adverse credibility finding. The decision is notable for the rejection of two reasons for the adverse credibility determination: whether the alien had applied for a visa before coming to the U.S. and because her written application said she was "physically abused" and she later said she was raped.
Alien who entered into good faith marriage can be removed as matter of discretion
Jebeili v. Holder, No. 009-4288 (6th Cir. April 18, 2011) (unpublished).
The noncitizen renewed his I-751 in removal proceedings. He sought a waiver of the joint filing requirement, claiming that he married in good faith but his marriage ended in divorce.
The IJ found that he married in good faith but nonetheless denied his petition as a matter of discretion. The IJ based the discretionary denial based on the belief the alien submitted a forged marriage license and embellished his testimony. The court found it lacked jurisdiction to review the discretionary denial.
So not only did the IJ order an LPR removed on credibility grounds, even though the alien otherwise complied with the immigration laws and did not commit a removable violation, the federal court was unwilling to even consider his petition for review.
The noncitizen renewed his I-751 in removal proceedings. He sought a waiver of the joint filing requirement, claiming that he married in good faith but his marriage ended in divorce.
The IJ found that he married in good faith but nonetheless denied his petition as a matter of discretion. The IJ based the discretionary denial based on the belief the alien submitted a forged marriage license and embellished his testimony. The court found it lacked jurisdiction to review the discretionary denial.
So not only did the IJ order an LPR removed on credibility grounds, even though the alien otherwise complied with the immigration laws and did not commit a removable violation, the federal court was unwilling to even consider his petition for review.
FOIA litigation victory
Shearson v. DHS, No. 08-4582 (6th Cir. Apr. 21, 2011)
This case deals with whether the agency properly withheld certain documents and the civil remedies available to FOIA requesters.
This case deals with whether the agency properly withheld certain documents and the civil remedies available to FOIA requesters.
Friday, April 15, 2011
Failure to file appellate brief is per se prejudicial
Hardaway v. Robinson, No. 08-1156 (6th Cir. Apr. 14, 2011) (published)
This was a pure criminal case, involving an appeal from the denial of a habeas petition.
The Court reversed the denial on ineffective assistance grounds. The ineffective assistance was the defense attorney's failure to file an appellate brief, resulting in summary dismissal. The Court found that this prejudiced the defendant because it rendered the direct appeal "entirely nonexistent." Prejudice was therefore presumed since there was not adequate substitute for a direct appeal as of right. Collateral review was not an adequate substitute.
If only the Court would apply this in the context of removal proceedings, where counsel failures to file a timely appeal or brief on appeal.
This was a pure criminal case, involving an appeal from the denial of a habeas petition.
The Court reversed the denial on ineffective assistance grounds. The ineffective assistance was the defense attorney's failure to file an appellate brief, resulting in summary dismissal. The Court found that this prejudiced the defendant because it rendered the direct appeal "entirely nonexistent." Prejudice was therefore presumed since there was not adequate substitute for a direct appeal as of right. Collateral review was not an adequate substitute.
If only the Court would apply this in the context of removal proceedings, where counsel failures to file a timely appeal or brief on appeal.
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