USA v. Louchart, No. 10-1416 (6th Cir. May 25, 2012) (published)
The narrow question in this case was whether the defendant's guilty plea can be treated as an admission to the quantity of firearms stated in an indictment for purposes of calculating the sentencing range. The court answered "no."
This is important in the immigration context. The court stated "admission of facts from a guilty plea is limited to elements of the crime charged or those explicitly admitted by the defendant." A guilty plea does not constitute admission of facts included in an indictment when those facts were not necessary to sustain a conviction. Loosely stated, it does not matter so much what the defendant was accused of doing or admitted to doing; what is important is what the government had to prove to obtain a conviction. A guilty plea is not an admission to non-essential facts in the indictment that did not constitute an element of the crime charged and were not specifically admitted by the defendant.
Friday, June 1, 2012
Thursday, May 10, 2012
Ohio appellate court on prejudice under Padilla
Ohio v. Yahya, No. 10AP-1190 (Ohio App. Ct. Nov. 21, 2011) (unpublished)
The defendant pled guilty to theft with a restitution amount over $100,000. This turned out to be an aggravated felony fraud conviction. The defendant moved to withdraw her plea on Padilla grounds. The trial court denied the motion. The court of appeals sustained her appeal.
The court found that the attorney gave her bad advice by not telling her that she was pleading guilty to an aggravated felony. This satisfied the first prong of Strickland.
Turning to the second prong, the court found that the defendant was prejudiced because the trial court's boilerplate warnings about possible deportation did not cure the attorney's specific advice that deportation would not result. The court remanded for an evidentiary hearing on this point.
The defendant pled guilty to theft with a restitution amount over $100,000. This turned out to be an aggravated felony fraud conviction. The defendant moved to withdraw her plea on Padilla grounds. The trial court denied the motion. The court of appeals sustained her appeal.
The court found that the attorney gave her bad advice by not telling her that she was pleading guilty to an aggravated felony. This satisfied the first prong of Strickland.
Turning to the second prong, the court found that the defendant was prejudiced because the trial court's boilerplate warnings about possible deportation did not cure the attorney's specific advice that deportation would not result. The court remanded for an evidentiary hearing on this point.
Bivens action survives summary dismissal
Ortega v. ICE, 2012 WL 1493874 (W.D. Ky, Apr. 27, 2012) (unpublished).
A USC was serving a sentence of home confinement. ICE issued a detainer because it thought he was an illegal alien. As a result, he was taken from home and jailed for several days. He filed a Bivens action. The court dismissed some of the parties on qualified immunity grounds but allowed the suit to go forward against other, unnamed, officers.
A USC was serving a sentence of home confinement. ICE issued a detainer because it thought he was an illegal alien. As a result, he was taken from home and jailed for several days. He filed a Bivens action. The court dismissed some of the parties on qualified immunity grounds but allowed the suit to go forward against other, unnamed, officers.
Court reviews denial of derivative citizenship claim
Guzman v. DHS, No. 10-2243 (6th Cir. May 10, 2012) (published)
Joining all the other courts and agencies that have considered the matter, the court held that the Child Citizenship Act does not apply retroactively.
It also rejected an Equal Protection challenge to the age-based requirement in former INA 201(g) (1940). This provision allowed a USC mother to transmit citizenship to an in-wedlock child born abroad if the mother lived in the U.S. for ten years prior to the child's birth, five of which occurred after the age of 16. In other words, a USC mother who was under 21 when she gave birth abroad would be unable to transmit citizenship to a child.
Joining all the other courts and agencies that have considered the matter, the court held that the Child Citizenship Act does not apply retroactively.
It also rejected an Equal Protection challenge to the age-based requirement in former INA 201(g) (1940). This provision allowed a USC mother to transmit citizenship to an in-wedlock child born abroad if the mother lived in the U.S. for ten years prior to the child's birth, five of which occurred after the age of 16. In other words, a USC mother who was under 21 when she gave birth abroad would be unable to transmit citizenship to a child.
Zundell, Part III
Zundel v. Holder, No. 10-6012 (6th Cir. May 7, 2012) (published)
This is the third time the court has dealt with the removal of this Holocaust denier.
There are some interesting points to take away from this decision. A petition for review from a VWP removal order allows for the same scope of review as a habeas petition. This is good for cases where the record needs to be developed.
The court also noted that the warning given to an alien who is being removed about the bars on returning are not binding. The nature and length of the bars will be determined when the alien applies for admission or a visa and can then be contested as provided for by law.
This is the third time the court has dealt with the removal of this Holocaust denier.
There are some interesting points to take away from this decision. A petition for review from a VWP removal order allows for the same scope of review as a habeas petition. This is good for cases where the record needs to be developed.
The court also noted that the warning given to an alien who is being removed about the bars on returning are not binding. The nature and length of the bars will be determined when the alien applies for admission or a visa and can then be contested as provided for by law.
Thursday, May 3, 2012
Sixth Circuit on review of bona fide marriage I751 waivers
Johns v. Holder, No. 11-3011 (6th Cir. May 2, 2012) (published)
This case involved the denial of a good faith marriage waiver for an I-751 petition. The IJ and BIA found that the alien was not credible and did not enter into a bona fide marriage.
On review, the Court held that, under 242(a)(2)(B)(ii) and 216(c)(4), it lacked jurisdiction to review credibility determinations and the weighing of evidence. It did, however, have jurisdiction to consider legal and constitutional claims, including whether the BIA applied to proper legal test. The court would not consider questions bearing on how the BIA assessed the evidence. Under the substantial evidence test, then, the court noted that it would be almost impossible to overrule a hardship waiver denial that was based on an adverse credibility finding.
The court also quickly disposed of a paperwork reduction argument and a request to remand because the BIA sent a signed IJ decision 3 weeks after issuing the briefing schedule. It should be pretty clear that these arguments are only going to work if there is demonstrable prejudice.
This case involved the denial of a good faith marriage waiver for an I-751 petition. The IJ and BIA found that the alien was not credible and did not enter into a bona fide marriage.
On review, the Court held that, under 242(a)(2)(B)(ii) and 216(c)(4), it lacked jurisdiction to review credibility determinations and the weighing of evidence. It did, however, have jurisdiction to consider legal and constitutional claims, including whether the BIA applied to proper legal test. The court would not consider questions bearing on how the BIA assessed the evidence. Under the substantial evidence test, then, the court noted that it would be almost impossible to overrule a hardship waiver denial that was based on an adverse credibility finding.
The court also quickly disposed of a paperwork reduction argument and a request to remand because the BIA sent a signed IJ decision 3 weeks after issuing the briefing schedule. It should be pretty clear that these arguments are only going to work if there is demonstrable prejudice.
Sixth Circuit on venue and televideo hearings
Thiam v. Holder, No. 10-3371 (6th Cir. Apr. 30, 2012) (published)
The court delved into the thorny matter of remote IJ's and venue. In this case, the IJ was in Virginia but the case was docketed in Cleveland. For the ICH, the alien and her attorney travelled to Virginia because they felt that her credibility would be more apparent in person. On appeal, the BIA treated the case as if it arose in the 4th Circuit and applied that circuit's law on firm resettlement.
On review, the court found that 242(b)(2) is nonjurisdictional and does not mandate the transfer of a petition for review to a different circuit. A case will be transferred if it is in the interests of justice, which it was not in Thiam. Without deciding whether venue was proper in the 6th Circuit, the court remanded because the BIA did not apply its most recent decision on firm resettlement, Matter of A-G-G-. It would not have been an efficient use of resources to transfer venue and re-brief the case.
The court delved into the thorny matter of remote IJ's and venue. In this case, the IJ was in Virginia but the case was docketed in Cleveland. For the ICH, the alien and her attorney travelled to Virginia because they felt that her credibility would be more apparent in person. On appeal, the BIA treated the case as if it arose in the 4th Circuit and applied that circuit's law on firm resettlement.
On review, the court found that 242(b)(2) is nonjurisdictional and does not mandate the transfer of a petition for review to a different circuit. A case will be transferred if it is in the interests of justice, which it was not in Thiam. Without deciding whether venue was proper in the 6th Circuit, the court remanded because the BIA did not apply its most recent decision on firm resettlement, Matter of A-G-G-. It would not have been an efficient use of resources to transfer venue and re-brief the case.
Friday, April 27, 2012
Sixth Circuit on nexus, CAT
Mushayahama v. Holder, No. 10-3874 (6th Cir. Apr. 24, 2012) (unpublished)
The court denied in part and sustained in part this petition for review. The court dismissed the challenge to the BIA's determination that she did not qualify for an exception to the asylum deadline because she did not raise a statutory or constitutional claim.
The court affirmed the denial of a withholding claim on the merits. The court agreed that she did not present direct or circumstantial proof that the past harm was on account of her actual or imputed political opinion, even though there was no dispute that she suffered harm that rose to the level of persecution.
The court also agreed that she did not suffer or will not suffer persecution on account of a particular social group. Sidestepping the question of whether female teachers opposed to the ruling party is a cognizable social group, the court found that there was a lack of nexus between the harm and the proposed group.
The court declined to find that a group consisting of nationals who remained abroad too long was a social group because it was not sufficiently visible. On review, the petitioner argued that the BIA erred in relying on its interpretation of foreign law relating to loss of nationality without giving her an opportunity to respond because she did not exhaust her remedies by first filing a motion to reopen with the BIA or that the error affected the outcome of the proceeding.
However, the court remanded for reconsideration of the petitioner's CAT claim. The IJ and BIA did not discuss the country condition evidence in the CAT analysis. Also, the IJ misstated the burden of proof to require the petitioner to show that she will be detained upon return, not that she will tortured.
The court denied in part and sustained in part this petition for review. The court dismissed the challenge to the BIA's determination that she did not qualify for an exception to the asylum deadline because she did not raise a statutory or constitutional claim.
The court affirmed the denial of a withholding claim on the merits. The court agreed that she did not present direct or circumstantial proof that the past harm was on account of her actual or imputed political opinion, even though there was no dispute that she suffered harm that rose to the level of persecution.
The court also agreed that she did not suffer or will not suffer persecution on account of a particular social group. Sidestepping the question of whether female teachers opposed to the ruling party is a cognizable social group, the court found that there was a lack of nexus between the harm and the proposed group.
The court declined to find that a group consisting of nationals who remained abroad too long was a social group because it was not sufficiently visible. On review, the petitioner argued that the BIA erred in relying on its interpretation of foreign law relating to loss of nationality without giving her an opportunity to respond because she did not exhaust her remedies by first filing a motion to reopen with the BIA or that the error affected the outcome of the proceeding.
However, the court remanded for reconsideration of the petitioner's CAT claim. The IJ and BIA did not discuss the country condition evidence in the CAT analysis. Also, the IJ misstated the burden of proof to require the petitioner to show that she will be detained upon return, not that she will tortured.
Thursday, April 26, 2012
Michigan Court of Appeals on prejudice at plea stage
People v. Douglas, No. 301546 (Mich. App. Apr. 12, 2012) (published)
The Michigan Court of Appeals found that a defendant was prejudiced when his attorney provided ineffective assistance at the plea stage because the attorney failed to properly advise him about the consequences of accepting a plea offer, namely, the proper maximums and minimums as charged versus the plea offer. This may help in Padilla cases in terms of showing prejudice when a defense attorney fails to properly advise of other consequences of accepting a plea offer, like removal.
The Michigan Court of Appeals found that a defendant was prejudiced when his attorney provided ineffective assistance at the plea stage because the attorney failed to properly advise him about the consequences of accepting a plea offer, namely, the proper maximums and minimums as charged versus the plea offer. This may help in Padilla cases in terms of showing prejudice when a defense attorney fails to properly advise of other consequences of accepting a plea offer, like removal.
No jurisdiction over I-130 revocation
Mehanna v. USCIS, No. 11-1110 (6th Cir. Apr. 19, 2012) (published)
The Sixth Circuit dismissed a challenge to the revocation of a visa petition. The USCIS revoked an I-130 petition filed by an LPR mother for her adult son after learning that the son was married when the petition was filed. The mother and son argued that the annulment of the son's marriage made the marriage void ab initio.
The court found that there was no jurisdiction to review the revocation of a visa petition because it is a discretionary determination. INA 242(a)(2)(B)(ii). The court relied on 205's language making revocation within the USCIS's discretion. However, the agency has made revocation mandatory in certain situations, including this, thereby removing discretion from the analysis. In this case, the revocation was pursuant to the automatic revocation regulation, 205.1(a)(3)(i)(I), based on the USCIS's interpretation of state law.
The Sixth Circuit dismissed a challenge to the revocation of a visa petition. The USCIS revoked an I-130 petition filed by an LPR mother for her adult son after learning that the son was married when the petition was filed. The mother and son argued that the annulment of the son's marriage made the marriage void ab initio.
The court found that there was no jurisdiction to review the revocation of a visa petition because it is a discretionary determination. INA 242(a)(2)(B)(ii). The court relied on 205's language making revocation within the USCIS's discretion. However, the agency has made revocation mandatory in certain situations, including this, thereby removing discretion from the analysis. In this case, the revocation was pursuant to the automatic revocation regulation, 205.1(a)(3)(i)(I), based on the USCIS's interpretation of state law.
Monday, April 9, 2012
Michigan Court of Appeals on right to full interpretation
People v. Chen, No. 301153 (Mich. App. Feb. 16, 2012) (unpublished)
The court affirmed that there is a right to a full interpretation of the trial proceedings. An interpreter is required to provide a simultaneous translation. The failure to provide it is plain error. However, the court denied review because the defendant could not establish prejudice.
The court affirmed that there is a right to a full interpretation of the trial proceedings. An interpreter is required to provide a simultaneous translation. The failure to provide it is plain error. However, the court denied review because the defendant could not establish prejudice.
Friday, February 17, 2012
Judulang remand
Ikharo v. Holder, No. 08-4139 (6th Cir. Feb. 16, 2012) (unpublished)
Previously in this case, the Sixth Circuit followed the BIA's corresponding ground rule in 212(c) cases. Following Judulang and a remand in this case from the Supreme Court, the Sixth Circuit remanded to the BIA to come up with a new framework for 212(c) eligibility determinations.
Previously in this case, the Sixth Circuit followed the BIA's corresponding ground rule in 212(c) cases. Following Judulang and a remand in this case from the Supreme Court, the Sixth Circuit remanded to the BIA to come up with a new framework for 212(c) eligibility determinations.
Michigan: Padilla is not retroactive
People v. Gomez, No. 302485 (Mich. App. Feb. 14, 2012) (published)
Unhappy Valentine's Day indeed. The Michigan Court of Appeals concluded that Padilla announced a new rule and therefore does not apply retroactively. This is the first published decision binding in Michigan. It will hopefully be challenged in the Michigan Supreme Court.
Unhappy Valentine's Day indeed. The Michigan Court of Appeals concluded that Padilla announced a new rule and therefore does not apply retroactively. This is the first published decision binding in Michigan. It will hopefully be challenged in the Michigan Supreme Court.
Monday, February 6, 2012
Pilla - immigration and criminal case
The court issued two decisions adverse to Ramani Pilla: Pilla v. Holder, No. 09-4577 (6th Cir. Feb. 2, 2012) (unpublished) and Pilla v. USA, No. 10-4178 (6th Cir. Feb. 6, 2012) (published).
Ms. Pilla was convicted of 18 USC 1001, for lying to the FBI. The court affirmed the agency's determination that this conviction involves fraud or deceit. Because the government and the private victim in this case suffered losses in excess of $10,000 in investigating her false reports of a crime, the court found that this was an aggravated felony fraud offense. As a result she was ineligible for relief from removal. She was convicted of making a "false" statement, which comes within the deceit prong of the aggravated felony definition. The court also agreed that the FBI (which suffered approximated $5k in loss) and the university (which suffered approximately $60k) were both "victims" for purposes of the aggravated felony definition. The court relied on the restitution order and sentencing stipulation in calculating the amount of loss.
In the criminal case, Ms. Pilla tried to set aside her conviction on Padilla grounds. Her defense attorney did not know whether the conviction would have adverse consequences, so he sought the opinion of a private immigration attorney who was a former high ranking INS official. That attorney opined that there would be no adverse consequences. On the plus side, the court found that the writ of coram nobis was not barred as a successive 2255 motion because she was no longer in custody.
The court did not address Padilla's retroactivity.
On the negative side, the court set a very high threshold for showing prejudice. Because of the overwhelming evidence of her guilt and the lack of a viable defense, the court found that she did not suffer prejudice because she would not have won at trial and received less jail time by pleading guilty. The court did not consider whether a defense attorney could have negotiated a better deal to avoid the immigration death penalty.
Ms. Pilla was convicted of 18 USC 1001, for lying to the FBI. The court affirmed the agency's determination that this conviction involves fraud or deceit. Because the government and the private victim in this case suffered losses in excess of $10,000 in investigating her false reports of a crime, the court found that this was an aggravated felony fraud offense. As a result she was ineligible for relief from removal. She was convicted of making a "false" statement, which comes within the deceit prong of the aggravated felony definition. The court also agreed that the FBI (which suffered approximated $5k in loss) and the university (which suffered approximately $60k) were both "victims" for purposes of the aggravated felony definition. The court relied on the restitution order and sentencing stipulation in calculating the amount of loss.
In the criminal case, Ms. Pilla tried to set aside her conviction on Padilla grounds. Her defense attorney did not know whether the conviction would have adverse consequences, so he sought the opinion of a private immigration attorney who was a former high ranking INS official. That attorney opined that there would be no adverse consequences. On the plus side, the court found that the writ of coram nobis was not barred as a successive 2255 motion because she was no longer in custody.
The court did not address Padilla's retroactivity.
On the negative side, the court set a very high threshold for showing prejudice. Because of the overwhelming evidence of her guilt and the lack of a viable defense, the court found that she did not suffer prejudice because she would not have won at trial and received less jail time by pleading guilty. The court did not consider whether a defense attorney could have negotiated a better deal to avoid the immigration death penalty.
Failure to prove admission
Chaidy v. Holder, No. 11-3177 (6th Cir. Feb. 2, 2012) (unpublished)
In this case, the court affirmed the finding that the alien was ineligible for adjustment of status because he did not prove that he was inspected and admitted or paroled into the U.S.
The court found that the statutory scheme on the burden of proving admission for purposes of establishing eligibility for adjustment of status is ambiguous and could possibly have multiple plausible interpretations. The court declined to address this because it was not properly exhausted below.
The court went on to find that the IJ's determination was supported by substantial evidence - that the alien did not prove that he was not credible as it relates to his date, time, and manner of entry.
In this case, the court affirmed the finding that the alien was ineligible for adjustment of status because he did not prove that he was inspected and admitted or paroled into the U.S.
The court found that the statutory scheme on the burden of proving admission for purposes of establishing eligibility for adjustment of status is ambiguous and could possibly have multiple plausible interpretations. The court declined to address this because it was not properly exhausted below.
The court went on to find that the IJ's determination was supported by substantial evidence - that the alien did not prove that he was not credible as it relates to his date, time, and manner of entry.
Friday, January 27, 2012
No review of denial of sua sponte motion to reopen
Kalaj v. Holder, No. 10-4315 (6th Cir. Jan. 26, 2012) (unpublished)
The court found no jurisdiction to review the denial of a sua sponte motion to reopen. The court did not address Kucana.
The court found no jurisdiction to review the denial of a sua sponte motion to reopen. The court did not address Kucana.
Review of TPS denial
Hernandez v. Holder, No. 10-3662 (6th Cir. Jan. 25, 2012) (unpublished)
The court reviewed on the merits of the TPS denial. The court found that the failure to properly file before the registration deadline precluded TPS relief. The court also declined to equitably toll the deadline due to the USCIS's delay in returning the timely filed. The court recognized that under the right circumstances this deadline could have been equitably tolled. The court also declined to equitably toll the deadline due to ineffective assistance of counsel provided by a community organization engaged in the unauthorized practice of law. The applicant did not comply with Lozada plus the court seemed to say that the can be no ineffective assistance of counsel if the individual was not an attorney or accredited representative.
The court reviewed on the merits of the TPS denial. The court found that the failure to properly file before the registration deadline precluded TPS relief. The court also declined to equitably toll the deadline due to the USCIS's delay in returning the timely filed. The court recognized that under the right circumstances this deadline could have been equitably tolled. The court also declined to equitably toll the deadline due to ineffective assistance of counsel provided by a community organization engaged in the unauthorized practice of law. The applicant did not comply with Lozada plus the court seemed to say that the can be no ineffective assistance of counsel if the individual was not an attorney or accredited representative.
Asylum denial worth reading
Abdurakhmanov v. Holder, No. 10-4263 (6th Cir. Jan. 23, 2012) (published)
The court denied this Uzbeki's asylum claim but there is some interesting language in the decision that should provide guidance for other cases.
The BIA gave three reasons in support of its adverse credibility finding. The court rejected the first reason because it was based on a mischaracterization of the record.
The court expressed its doubts about the second reason because it seemed that the BIA read too much into the applicant's ambiguous statement in his I-589.
The court agreed with the third reason and found this sufficient to affirm the adverse credibility finding. In this regard, there is an argument that credibility determinations are mixed questions of law and fact. Whether there is an inconsistency or discrepancy is a factual determination that is given deference by the court. Whether a single inconsistency means the whole case is not believable should be a question of law. This is worth exploring in future cases.
The court went on to reject the BIA's determination that the applicant should have provided corroborating evidence. The court rejected the rationale that the evidence provided was inconsistent with the claim because it was not. Evidence obtained for the purpose of the hearing but were records of past events cannot be rejected on the grounds set forth in H-L-H, even though the documents were not prepared contemporaneously with the events.
The court denied this Uzbeki's asylum claim but there is some interesting language in the decision that should provide guidance for other cases.
The BIA gave three reasons in support of its adverse credibility finding. The court rejected the first reason because it was based on a mischaracterization of the record.
The court expressed its doubts about the second reason because it seemed that the BIA read too much into the applicant's ambiguous statement in his I-589.
The court agreed with the third reason and found this sufficient to affirm the adverse credibility finding. In this regard, there is an argument that credibility determinations are mixed questions of law and fact. Whether there is an inconsistency or discrepancy is a factual determination that is given deference by the court. Whether a single inconsistency means the whole case is not believable should be a question of law. This is worth exploring in future cases.
The court went on to reject the BIA's determination that the applicant should have provided corroborating evidence. The court rejected the rationale that the evidence provided was inconsistent with the claim because it was not. Evidence obtained for the purpose of the hearing but were records of past events cannot be rejected on the grounds set forth in H-L-H, even though the documents were not prepared contemporaneously with the events.
Monday, January 9, 2012
Board unclear as to legal standard, Sixth Circuit remands
Lin v. Holder, No. 11-3262 (6th Cir. Jan. 4, 2012) (unpublished)
The Board's application of legal principles to undisputed facts, rather than its underlying determination of those facts or its interpretation of governing statutes is reviewed de novo, not under the substantial evidence standard.
In this case, the IJ granted asylum to this Chinese national on his political persecution claim. The Board sustained ICE's appeal and ordered him removed.
On de novo review, the Court remanded because the Board appeared to have applied the higher withholding of removal standard to the review of the asylum claim, since it cited to A-M-, which was decided on withholding, not asylum, grounds.
The Board's application of legal principles to undisputed facts, rather than its underlying determination of those facts or its interpretation of governing statutes is reviewed de novo, not under the substantial evidence standard.
In this case, the IJ granted asylum to this Chinese national on his political persecution claim. The Board sustained ICE's appeal and ordered him removed.
On de novo review, the Court remanded because the Board appeared to have applied the higher withholding of removal standard to the review of the asylum claim, since it cited to A-M-, which was decided on withholding, not asylum, grounds.
Friday, December 23, 2011
Michigan Court of Appeals punts on Padilla
People v. Zak, No. 298441 (Mich. Ct. App. Dec. 6, 2011) (unpublished).
The defendant appealed the denial of his Padilla motion to set aside his plea, in Oakland County Circuit Court. The Michigan Court of Appeals remanded for an evidentiary hearing. The circuit court erred by favoring unsupported assertions in the People's brief over the defendant's affidavit. The proper course of action would have been to hold an evidentiary hearing.
On appeal, the People argued for the first time that Padilla is not retroactive. While noting that this is an open question in Michigan, the Court of Appeals declined to address this and instead instructed the trial court to consider this on remand.
The defendant appealed the denial of his Padilla motion to set aside his plea, in Oakland County Circuit Court. The Michigan Court of Appeals remanded for an evidentiary hearing. The circuit court erred by favoring unsupported assertions in the People's brief over the defendant's affidavit. The proper course of action would have been to hold an evidentiary hearing.
On appeal, the People argued for the first time that Padilla is not retroactive. While noting that this is an open question in Michigan, the Court of Appeals declined to address this and instead instructed the trial court to consider this on remand.
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