An Immigration Judge denied Al-Najar’s claims, a determination which the Bureau of Immigration Appeals upheld on appeal. During the pendency of his appeal, Al-Najar filed a motion to dismiss his criminal conviction with the Michigan trial court, based upon his successful completion of probation; the Michigan court granted Al-Najar’s motion. Al-Najar then filed this petition for review, which the Sixth Circuit denied.
Initially, Al-Najar argued that the substance involved in his possession conviction, khat, was not a controlled substance under the Controlled Substances Act (“CSA”), and thus could not serve as the basis for his removal. As this was a legal issue involving interpretation of the CSA, therefore falling outside of the BIA’s expertise, the Court ruled that it was unnecessary to remand the case to the BIA for this determination.
Furthermore, the Court noted that Al-Najar’s petition for review was an impermissible collateral attack on his Michigan criminal conviction, so remand was improper. In pleading guilty to possession of a controlled substance under Michigan law, Al-Najar admitted that khat was a controlled substance. As Al-Najar was not claiming that his plea was constitutionally invalid or the result of deprivation of counsel, he was not entitled to collaterally attack his Michigan criminal conviction.
The Court also rejected Al-Najar’s argument that because his Michigan criminal conviction had been vacated, the DHS could not use it as a basis for his removal. Since the Michigan court dismissed Al-Najar’s criminal conviction solely due to the successful completion of his probation requirements, the conviction could serve as the basis of his removal. Thus, the Court affirmed the BIA’s ruling that Al-Najar was removable.
Likewise, the Court rejected Al-Najar’s challenges to the IJ’s denial of his requests for a continuance and for voluntary departure. The Court concluded that the IJ did not abuse its discretion in denying the request, as the IJ had granted previous continuances, and, in fact, did permit Al-Najar a brief continuance in this instance. Moreover, pursuant to federal law, the Court had no jurisdiction to review the IJ’s denial of Al-Najar’s request for voluntary departure.
Finally, the Court acknowledged its lack of jurisdiction to review Al-Najar’s claim regarding the availability of relief under 8 U.S.C. §1182(h); nonetheless, the Court stated this claim was without merit due to Al-Najar’s criminal conviction.
The petition for review was denied.
Judge(s): James L. Ryan, Alice M. Batchelder, and Richard Allen Griffin, Circuit Judges
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
|Petitioner Lawyer(s)||Petitioner Law Firm(s)|
|Irena Karpinski||The Law Office of Irena I. Karpinski|
|Respondent Lawyer(s)||Respondent Law Firm(s)|
|Janice K. Redfern||U.S. Department of Justice|