Shewchun v. Holder
2011 U.S. App. LEXIS 18606
6th Cir.2011Background
- Shewchun is a Canadian citizen and lawful permanent resident since 1963, working as a scientist in energy.
- He has prior convictions: 1983 Rhode Island larceny and taking money under false pretenses; 1984 Florida mail and wire fraud.
- He served time and parole largely served by 1987, with over two additional years in prison for parole violations through 1995.
- In 1990 the INS issued an order to show cause charging deportability based on moral turpitude convictions; in 1997 two more grounds were added for aggravated-felony theft and aggravated-felony fraud over $10,000.
- Elizabeth Hacker recused in 1995; in 1997 IJ Marsha Nettles found deportable on moral-turpitude grounds and aggravated-felony theft, but not deportable on the $10,000 fraud charge.
- BIA affirmed in 2003, and later DHS added a new aggravated-felony charge; on remand Shewchun sought termination under 8 C.F.R. § 1239.2(f) and other relief, which the IJ denied in 2007 and the BIA reaffirmed in 2009. He also challenged the IJ’s recusal and raised a due-process claim about transcript and record corrections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to terminate under §1239.2(f) | Acosta Hidalgo misallocates authority; IJ should determine prima facie eligibility without DHS input. | DHS/ BIA control prima facie findings; Acosta Hidalgo correctly defers to DHS for termination decisions. | Acosta Hidalgo governs; BIA properly requires affirmative DHS communication. |
| DHS prima facie determination during removal | DHS could provide prima facie eligibility even while removal pending; prevents DHS from monopolizing the process. | Statutory framework prioritizes removal; DHS may provide prima facie input but cannot bind naturalization merits. | Regulatory framework allows DHS to issue prima facie input without binding naturalization merits; proper deference to BIA. |
| Transcript and due-process implications | Erroneous or incomplete transcript prejudices appeal; final transcript essential for review. | Minor or no prejudice; transcription issues alone do not violate due process. | No due-process violation shown; lack of prejudice defeats reversal. |
Key Cases Cited
- In re Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007) (BIA requires DHS communication to terminate under §1239.2(f))
- Barnes v. Holder, 625 F.3d 801 (4th Cir.2010) (deference to BIA on jurisdiction and prima facie eligibility)
- Ogunfuye v. Holder, 610 F.3d 303 (5th Cir.2010) (deference to BIA interpretations of INA/regulations)
- Zegrean v. Att'y Gen. of United States, 602 F.3d 273 (3d Cir.2010) (jurisdiction and authority in naturalization context)
- Perriello v. Napolitano, 579 F.3d 135 (2d Cir.2009) (interpretation of §1239.2(f) and §1429 interplay)
- Hernandez de Anderson v. Gonzales, 497 F.3d 927 (9th Cir.2007) (allocation of naturalization authority and DHS roles)