Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

Petitioner, a native of Nigeria, entered the U.S. illegally in 1992 and married a citizen in 1995. After a child was born in 1996, he applied for adjustment of status. In 1997 he attempted to enter Canada under a false identity and immigration officials determined that he had previously committed thefts under a false identity. Petitioner was charged as removeable. Immigration judges denied various motions and, in 2003, was found to be removeable. Withholding of removal was denied. The BIA upheld the decision. The Sixth Circuit denied a petition for review, holding that it had jurisdiction to review a denial of change of venue motion. The IJ was within his discretion in denying transfer of venue; petitioner suffered no prejudice. The motion for remand was futile because petitioner is not admissible for permanent residence and had no basis to adjust his status (8 U.S.C. 1255(a)). Noting petitioner's contradictions and refusals to answer questions, the court held that substantial evidence supported finding that petitioner failed to establish the likelihood that he or his daughter would be persecuted or tortured if they return to Nigeria.

In 1994 defendant entered a plea of guilty to unlawfully furnishing a controlled substance. He was sentenced to 220 days in jail and 3 years of probation. In 1998, he violated probation and was sentenced to 365 days, with 234 days of credit for time served. He was subsequently deported from the United States four times. In 2009, he pleaded guilty to assault with a dangerous weapon. Investigation revealed the deportations and 1994 conviction, an aggravated felony under 8 U.S.C. 1101(a)(43). Defendant pleaded guilty to being present in the United States after being deported for an aggravated felony conviction (8 U.S.C. 1326(a) & (b)(2)). The district court sentenced him to 70 months’ imprisonment. The Sixth Circuit affirmed. The district court correctly calculated the sentence, based on a finding that the 1994 conviction resulted in a sentence of more than 13 months. The sentence of imprisonment for guidelines purposes is the sentence pronounced, not the length of time actually served, with no subtraction of credit for time served.

Mother, a native of Russia, first entered the U.S. in 1999 to seek a doctor for her son and left without seeking asylum. Mother and son returned and overstayed their visitors' visas. When the Department of Homeland Security initiated removal, they sought asylum based on fear of persecution for their political belief in a fee economy and refusal to make mafia payments. An immigration judge denied withholding of removal and the BIA affirmed. The Sixth Circuit dismissed appeal of the petition for asylum for lack of jurisdiction. The immigration judge correctly found the petition untimely, based on a factual finding that nothing prevented petitioner from applying within a year of entering the country. Affirming denial of withholding removal, the court stated that the petitioner did not establish that she would more likely than not suffer persecution if returned to Russia. The court noted several inconsistencies in her claims.

Petitioner and her son are Estonian citizens who are ethnically Russian; her husband is a Russian citizen. All three came to the United States legally and sought asylum and withholding of removal, claiming past persecution on account of their Russian ethnicity and fear of future persecution. They claim that petitioner's Estonian citizenship was revoked after Estonia regained independence from the USSR; Estonia invalidated Russian medical degrees, limiting job opportunities for petitioner; petitioner's son received a delayed diagnosis of a genetic defect, PKU, and inferior health care on account of his ethnicity; and that an older son, residing in Estonia, has been subjected to mistreatment based on ethnicity. The immigration judge denied asylum and withholding of removal. The Board of Immigration Appeals affirmed. The Sixth Circuit vacated, finding that the BIA did not consider whether revocation of citizenship on account of ethnicity is persecution, and that the BIA lacked substantial evidence to support its conclusion that petitionerâs job limitations were neither persecution nor on account of ethnicity.

Petitioner was removed from the United States in 1987, returned and served four years in the Oregon penitentiary for rape, and was deported again in 1994. He returned and used various aliases until, in 2001, after pleading guilty to a felony in Michigan, an immigration judge entered an order of voluntary departure. He failed to depart and was apprehended in 2008. After stating that he would review the presentence report before deciding whether to accept the unconditional guilty plea to illegal reentry after previous deportation following an aggravated felony conviction, in violation of 8 U.S.C. 1326 (a), the district judge denied a motion to withdraw the unaccepted plea and to dismiss the indictment as barred by the statute of limitations. The Sixth Circuit vacated and remanded. Under Federal Rule 11 (d) the reason or motive for the motion to withdraw could not be questioned; the court lacked discretion to deny the motion. The motion to withdraw the plea was not conditioned on the outcome of the motion to dismiss.

Husband and wife, citizens of Ukraine, entered the United States in 1994. When their visas expired they conceded removability and applied for asylum. While proceedings were pending, husband's employer filed an I-140 petition for alien workers; the notice of approval indicated that husband was not eligible for adjustment of status. An immigration judge denied asylum. The BIA dismissed an appeal, subsequently denied adjustment of status, and refused to reopen removal proceedings. The Sixth Circuit denied petitions for review. The petitioners failed to establish that they maintained lawful status under either INA 245(c)(2) or (k) as required for an application for adjustment under INA 245(a).

Petitioners, husband and wife citizens of Guatemala, were eligible for suspension of removal under the Nicaraguan Adjustment and Central American Relief Act of 1997, 111 Stat. 2160, but their lawyer never cited NACARA during removal proceedings before the immigration judge or the Board of Immigration Appeals and failed to notify the couple of the decisions. After the husband was taken into custody they learned of their eligibility and moved to reopen their case. The Board denied the motion. The Sixth Circuit vacated and remanded. The Board retains jurisdiction, although the husband has been deported, and the doctrine of equitable tolling applies to the wife's petition. The couple was diligent in pursuing their rights after learning of their lawyer's ineffective assistance; the Board can explore the issue of their diligence prior to revocation of their work permits.

After being arrested and deported twice, the defendant was again arrested and entered a plea of guilty to unlawful re-entry under 8 U.S.C. 1326. The district court imposed a sentence of 96 months of incarceration; 59 months longer than the guidelines maximum. The Sixth Circuit remanded. Without holding a hearing, the district court again imposed a 96-month sentence. The Sixth Circuit again vacated and remanded. On a general remand, the defendant is entitled to a resentencing hearing at which he may exercise the right to be present and allocute as provided by the Federal Rules of Criminal Procedure; when a plenary resentencing hearing is held, the district court must state, in open court, the reasons underlying the imposed sentence. The court declined a request for assignment to a different trial judge.

Garcia became a lawful permanent resident of the United States in 1995. In 1998 he pled guilty to possession of marijuana with intent to deliver. An immigration judge refused to cancel the Department of Homeland Security's removal proceedings. The Board of Immigration Appeals affirmed. The Sixth Circuit agreed, reasoning that Garcia was convicted of an aggravated felony under 8 U.S.C. Sec. 1101(a)(43), which refers to state offenses considered drug-trafficking crimes, defined as state offenses "punishable as a felony." Although 21 U.S.C. Sec. 841(b)(4) provides that "distributing a small amount of marihuana for no remuneration" is a misdemeanor, punishable by not more than one year in prison, Michigan law provides that conviction of intent to deliver any amount of marijuana is punishable by up to five years in prison. The state law conviction presumptively corresponds to the federal felony and the government was not required to prove the amount of marijuana or that a remunerative exchange occurred. Because Garcia admitted to intent to deliver, he was not entitled to a waiver available for simple possession. The court declined to consider a claim of ineffective assistance of counsel.