The BIA recently held that an individual whose criminal prosecution was adjudicated through Michigan’s youthful offender process was convicted for purposes of immigration law. Matter of V-X-, 26 I&N Dec. 147 (BIA 2013) (Pauley, Guendelsberger, and Greer, Board Members). Board Member Pauley wrote the panel’s decision. This case involved an individual who received asylum in 2004. Three years later he was prosecuted on several drug-related charges. Importantly, he fell within Michigan’s “youthful trainee” designation, Mich. Comp. Laws § 762.11, which, according to the BIA, “means that the [...]
6 Cir: Driving while undocumented leads to shackled while giving birth
The U.S. Court of Appeals for the Sixth Circuit reversed a favorable summary judgment disposition and jury award involving a woman who was shackled while giving birth after she was caught driving without a license and processed through a 287(g) program. Villegas v. Metropolitan Government of Nashville and Davidson County, No. 11-6031, slip op. (6th Cir. Mar. 4, 2013) (Clay, Gibbons, and White, JJ.). Judge Clay delivered the panel’s majority opinion. Judge White dissented. This case involves a woman who was pulled over for a traffic offense. When she failed to produce a driver’s license, the [...]
6 Cir: In ineffective assistance claim, no prejudice where evidence of guilt is strong; avoids deciding Padilla retroactivity
The U.S. Court of Appeals for the Sixth Circuit held that an ineffective assistance claim based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), failed where the evidence of guilt was “overwhelming” and the defendant faced a longer prison term if convicted after trial. Pilla v. United States, No. 10-4178, slip op. (6th Cir. Feb. 6, 2012) (Boggs, Kethledge, and Collier, JJ.). Judge Kethledge wrote the panel’s decision. This case involved a non-citizen (the court doesn’t specify what type of non-citizen, though it implies she was authorized to be in the United States) who pleaded guilty to [...]
6 Cir: Fed ct can’t reconsider IJ’s weighing of hardship factors
The U.S. Court of Appeals for the Sixth Circuit recently held that it lacks jurisdiction to review the weight that an IJ attaches to evidence of hardship for purposes of Cancellation of Removal. Ettienne v. Holder, No. 10-3896, slip op. (6th Cir. Oct. 5, 2011) (Rogers, McKeague, and Donald, JJ.) Judge Rogers wrote the panel’s decision. This case involves a woman who entered the United States on what appears to be a non-immigrant visa (the court is unclear about this) and admitted to marriage fraud in 1990. Ettienne, No. 10-3896, slip op. at 3. DHS did not initiate removal proceedings until [...]
6th Cir: Ex-ICE Chief Counsel turned IJ doesn’t have to recuse herself
The U.S. Court of Appeals for the Sixth Circuit turned to the statute regulating recusal by federal judges to determine whether an immigration judge who previously served as ICE Chief Counsel should have recused herself. Shewchun v. Holder, No. 09-3894, slip op. (6th Cir. Sept. 8, 2011) (Boggs, Gilman, and Cook, J.). Judge Gilman wrote the panel’s opinion. This case involved an individual whose removal proceedings began in 1990 (when they were still called “deportation” proceedings). The immigration judge who most recently presided over his proceedings previously served as chief counsel for [...]
6th Cir: Post-departure bar isn’t jurisdictional
The simmering debate over the BIA’s power to deny motions to reopen or reconsider filed by people who left the country while their motion was pending or before their motion was filed gained renewed vigor with a recent decision by the U.S. Court of Appeals for the Sixth Circuit. In a published decision the Court held that the BIA does not lack jurisdiction to consider motions to reopen filed by individuals who are not physically present in the USA. Pruidze v. Holder, No. 09-3836, slip op. (6th Cir. Feb. 3, 2011) (Boggs, Moore, and Sutton). Judge Sutton wrote the panel’s decision. This case [...]
6th Circuit: No relief available under former § 212(c) for people convicted after trial
The Sixth Circuit Court of Appeals recently held that former INA § 212(c) was repealed and never reinstated for people who were convicted after a trial. Kellermann v. Holder, No. 08-3927, slip op. (6th Cir. Jan. 25, 2010) (Norris, Cole, and Adams). Judge Adams wrote for the three-judge panel. This case concerned a lawful permanent resident who was convicted in 1992 “of making false statements to an agency of the United States and conspiracy to defraud the United States in violation of 18 U.S.C. §§ 371 and 1001.” Kellermann, No. 08-3927, slip op. at 2.The IJ determined that Kellermann was [...]
6th Circuit: In determining whether to apply pre-1996 or post-1996 definition of aggravated felony, removal proceedings begin when non-citizen is served with NTA, not when NTA filed with court
This week the Sixth Circuit held that removal proceedings begin on the day that a non-citizen is served with a Notice to Appear or Order to Show Cause not on the day that the NTA is filed with the Immigration Court. Saqr v. Holder, No. 07-3794, slip op. (6th Cir. Sept. 9, 2009) (Clay, Gibbons, and Stamp). Judge Stamp of the U.S. District Court for the Northern District of West Virginia, sitting on the Sixth Circuit by designation, wrote the decision. This case concerned an individual who was convicted of reckless homicide, Kentucky Rev. Statute § 507.050, and assault in the second [...]