Sixth Circuit Rejects Ineffective Assistance Claim for Failure to Comply with Lozada

The Sixth Circuit has dismissed in part and denied in part consolidated petitions filed by a Liberian lawful permanent resident ordered removed after firearms convictions and an embezzlement conviction. Prior counsel had conceded removability and applied for cancellation of removal, which was denied in discretion.

The Court dismissed the direct challenge to removability for lack of exhaustion (the direct appeal to the agency did not challenge his removability) and dismissed the discretionary cancellation challenge for lack of jurisdiction. The Court also denied the ineffective assistance claim because the respondent did not satisfy Lozada’s procedural requirements; photocopies of unsent letters and unfiled grievance forms were insufficient to show that a bar complaint had actually been filed and prior counsel had actually be notified of the charges against him. The Court further upheld the BIA’s denial of the government’s unsupported motion to reopen and dismiss, since it failed to explain what circumstances had changed since issuance of the final removal order that would justify reopening.

The full text of Morris v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0182p-06.pdf

Sixth Circuit Finds BIA Appeal Deadline Subject to Equitable Tolling but Denies Tolling

The Sixth Circuit has held that the thirty-day deadline to appeal an Immigration Judge’s decision to the BIA is not jurisdictional and may be equitably tolled. The petitioner, a Guinean woman with sickle-cell disease, sought tolling after missing the BIA appeal deadline following hospitalizations and a delay in retaining new counsel.

The Court nonetheless denied the petition for review. It held that the BIA did not abuse its discretion in finding that the petitioner failed to show due diligence throughout the full delay, including the period after her hospitalizations and the delay after she retained counsel. The Court left open the exact deferential standard of review for equitable tolling determinations.

The full text of Baro v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0173p-06.pdf

Sixth Circuit Denies Review of BIA’s Discretionary Cancellation Denial

The Sixth Circuit has denied consolidated petitions for review filed by an Albanian lawful permanent resident whose cancellation of removal grant was reversed by the BIA. The respondent had entered the United States as a child and had significant family equities, but also had an extensive criminal history.

The Court held that it lacked jurisdiction to review the BIA’s discretionary weighing of positive and negative equities. The Court rejected the argument that the BIA had engaged in impermissible fact-finding, finding instead that the Board permissibly reweighed the facts found by the Immigration Judge. The Court also denied review of the motion to reconsider, finding that the respondent had waived his removability challenge by requesting summary affirmance of the IJ’s decision below.

The full text of Dodaj v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0162p-06.pdf

Sixth Circuit Denies Withholding and Cancellation Claims

The Sixth Circuit has denied a petition for review filed by a Nigerian respondent who sought withholding of removal and cancellation of removal. The respondent based his withholding claim on his father’s alleged kidnapping in Nigeria and based his cancellation claim on hardship to his U.S. citizen children.

The Court held that a favorable credibility finding did not eliminate the respondent’s obligation to provide reasonably available corroboration. The Court also joined other circuits in applying substantial evidence review to the cancellation hardship determination after Wilkinson, and found that the record did not compel a finding of exceptional and extremely unusual hardship.

The full text of Nwosu v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0158p-06.pdf

Sixth Circuit Finds Criminal Defense Counsel Need Not Advise Naturalized Citizens About Denaturalization Risk

The Sixth Circuit has determined that the Sixth Amendment does not require criminal defense counsel to advise a naturalized U.S. citizen that a guilty plea may create a risk of later civil denaturalization and removal. The petitioner, a naturalized citizen, argued that his guilty plea was constitutionally defective because his attorney failed to warn him that the conviction could later be used in denaturalization proceedings.

The Court rejected that argument, holding that denaturalization is a collateral civil consequence of a conviction, not a direct criminal penalty. The Court distinguished Padilla, explaining that deportation following a criminal conviction is uniquely intertwined with the criminal process, while denaturalization generally requires a separate civil proceeding and is not automatic. The Court therefore affirmed the denial of coram nobis relief.

The full text of United States v. Singh can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0130p-06.pdf

Sixth Circuit Finds Interior Arrests Are Governed by 8 USC 1226(a), Not Mandatory Detention Under 8 USC 1225(b)(2)(A)

The Sixth Circuit has determined that non-citizens arrested in the interior of the United States, years after entering without inspection, are not subject to mandatory detention under 8 USC 1225(b)(2)(A). Rather, the Court affirmed the district courts' grants of habeas relief and held that the petitioners were detained under 8 USC 1226(a), which permits bond. The Court also concluded that due process required individualized bond hearings for these non-citizens, rejecting the government's position that they could be detained without bond under the mandatory detention statute.

The full text of Lopez-Campos v. Raycraft can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0139p-06.pdf

Sixth Circuit Finds that 30-Day PFR Deadline is Subject to Equitable Tolling

The Sixth Circuit has determined that the 30-day filing deadline for a petition for review is subject to equitable tolling.

The full text of Oxlaj-Perez v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0126p-06.pdf

Sixth Circuit Finds that Hardship Should be Reviewed under Substantial Evidence Standard

The Sixth Circuit has determined that it will review the agency’s hardship determination in a cancellation of removal case under the deferential substantial evidence standard.

The full text of Baltazar Us v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0125p-06.pdf

Sixth Circuit Finds that Kentucky First-Degree Burglary Conviction is not Crime of Violence

The Sixth Circuit has determined that a Kentucky conviction for first-degree burglary is not a crime of violence because it encompasses flight from a scene while armed, which does not necessarily involve the threat of physical force against others.

The full text of United States v. Reed can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0357p-06.pdf

Sixth Circuit Finds no Jurisdiction to Review Sua Sponte Motion

The Sixth Circuit has determined that even with the demise of Chevron deference and the extension of federal court jurisdiction as laid out in Wilikinson, it still does not have jurisdiction to review the denial of a sua sponte motion to reopen.

The full text of Herrera v. Bondi can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0338p-06.pdf

Sixth Circuit Finds no Jurisdiction to Review if Asylum Applicant Demonstrated Extraordinary Circumstances Related to Delay in Filing Application

The Sixth Circuit has determined that it lacks jurisdiction to review if an asylum applicant has demonstrated extraordinary circumstances related to the delay in filing his asylum application.

The full text of Osabas-Rivera v. Bondi can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0332p-06.pdf

Sixth Circuit Reverses Dismissal of Appeal for Failure to File Brief with the Same Attorney Address as Notice of Appearance

The Sixth Circuit has reversed the denial of an appeal for failure to file a brief, when the non-citizen did timely file a brief, but it contained an address for her attorney that was different than was provided on the Notice of Appearance. “[N]othing in the BIA Practice Manual, notice of appeal form, or regulations say that this address needed to match the address provided on the attorney’s notice of appearance or that failing to do so might result in rejection of the brief.”

The full text of Pineda-Guerra v. Bondi can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0329p-06.pdf

Sixth Circuit Rejects "Salvadoran Women" as a PSG

The Sixth Circuit has rejected “Salvadoran women” as a cognizable particular social group for asylum and withholding of removal purposes, finding the group because it encompasses “women across varied social, economic, religious, and cultural backgrounds.”

The full text of Cristales-de Linares v. Bondi can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0326p-06.pdf

Sixth Circuit Finds Jurisdiction to Review VAWA-Based MTR

The Sixth Circuit has determined that it has jurisdiction to review whether a VAWA self-petitioner has established extraordinary circumstances or extreme hardship to the applicant’s child, as required for a motion to reopen.

The full text of Sarkisov v. Bondi can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0316p-06.pdf

Sixth Circuit Finds Age of Child Should be Ascertained at time of IJ's Decision on Cancellation of Removal

The Sixth Circuit has determined that when a child is under 21 at the time an Immigration Judge grants cancellation of removal for nonlawful permanent residents, but ages out during the pendency on appeal filed by DHS, the child’s age remains the same as it was on the date of the judge’s decision. It appears this applicant was detained at the time of the cancellation grant, and thus, was not subject to the visa backlog for most cancellation applicants. As such, it is unclear what would happen if the child was under 21 on the day of the merits hearing, and the judge put the applicant in the queue for a cancellation number, and the child aged out before the number was issued.

The full text of Perez-Perez v. Bondi can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0315p-06.pdf

Sixth Circuit Finds that Kentucky Second Degree Manslaughter is not Violent Felony

The Sixth Circuit has determined that a Kentucky conviction for second degree manslaughter is not a violent felony because it criminalizes reckless conduct. The court also implied that the same analysis would apply to Kentucky’s murder statute.

The full text of United States v. Tooley can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0292p-06.pdf

Sixth Circuit Limits Crime of Child Abuse Deportability Ground to Convictions Rendered while Defendant was a Non-Citizen

The Sixth Circuit has determined that the crime of child abuse ground of deportability found at 8 USC 1227a2Ei does not apply to a denaturalized individual whose conviction was entered while he was still a U.S. citizen.

The full text of Gonzalez Castillo v. Bondi can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0160p-06.pdf

Sixth Circuit Finds District Court has no Jurisdiction to Naturalize Someone in Removal Proceedings

The Sixth Circuit has determined that a District Court has no jurisdiction to naturalize a non-citizen who is currently in removal proceedings. “In sum, when a noncitizen is concurrently subject to removal and naturalization proceedings, removal takes priority. “

The full text of Ebu v. USCIS can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0093p-06.pdf

Sixth Ciruit Finds that Hardship Determination for Waiver is not Reviewable

The Sixth Circuit has determined that the agency’s hardship determinations related to an unlawful presence waiver (212(a)(9)(B)(v)) and a fraud waiver (212(i)) are not reviewable by a federal court. Unlike the hardship determination for a cancellation of removal case, which is a mixed question of fact and law, hardship determinations related to these waivers are committed exclusively to the Attorney General.

The full text of Rahman v. Bondi can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0058p-06.pdf

Sixth Circuit Finds that 237(a)(1)(H) Waiver is Unavailable to Applicant who Refused to Answer Questions at I-751 Interview

The Sixth Circuit has determined that an applicant who refused to answer questions related to marriage fraud at his I-751 interview, and whose conditional residency was terminated for constructive non-appearance at the interview, is not eligible to seek a waiver under section 237(a)(1)(H) of the INA.

The full text of Seldon v. Garland can be found here:

www.opn.ca6.uscourts.gov/opinions.pdf/24a0246p-06.pdf