Articles Posted in U.S. 2nd Circuit Court of Appeals

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Petitioner, a native and citizen of Peru, sought review of a 2011 order of the BIA affirming a 2009 decision of the IJ, which pretermitted his application for cancellation of removal under section 240A of the Immigration and Nationality Act (INA), 8 U.S.C. 1229b(a), and for a waiver under the former INA 212(c), 8 U.S.C. 1182(c). The court concluded that petitioner was properly deemed inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(II) and a single confusing reference to a Class B misdemeanor did not compel a different conclusion. The court saw no basis for concluding that Vartelas v. Holder overruled Domond v. INS sub silentio; the court adhered to Domond's teaching that the legal regime in force at the time of an alien's conviction determines whether an alien is entitled to seek section 212(c) relief; and because petitioner's conviction for a controlled substance post-dated the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 et seq., he was ineligible for a waiver of deportation under section 212(c). Accordingly, the court dismissed the petition for review. View "Centurion v. Holder" on Justia Law

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Petitioner pled guilty to four counts of sexual assault in the fourth degree under Connecticut General Statute 53a-73a(a)(2), which criminalizes subjecting "another person to sexual contact without such other person's consent." The United States then commenced removal proceedings against petitioner under 8 U.S.C. 1227(a)(2)(A)(ii). Under federal immigration law, petitioner's removal turns on whether the crime he was convicted of is a crime involving moral turpitude. Because the court is unable to predict what level of mens rea the Connecticut courts would require, and because the issue involves the weighing of important policy considerations, the court certified questions to the Connecticut Supreme Court. View "Efstathiadis v. Holder" on Justia Law

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Defendant, a native and citizen of Barbados, appealed the district court's denial of his motion to dismiss the indictment for illegal reentry in violation of 18 U.S.C. 1326(a), (b)(2). At issue was whether the Supreme Court's ruling in Vartelas v. Holder required the court to find that defendant was eligible for relief from deportation under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c). The court held that deeming noncitizens like defendant ineligible for section 212(c) relief merely because they were convicted after trial would have an impermissible retroactive effect because it would impermissibly attach new legal consequences to conviction that pre-date the repeal of section 212(c). In this instance, the court found that the district court erred because defendant was erroneously found to be ineligible for relief under section 212(c). The court remanded for further proceedings. View "United States v. Gill" on Justia Law

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Defendant appealed his conviction for illegal reentry into the United States after he was deported because of an aggravated felony conviction. Defendant challenged the sufficiency of the evidence, arguing that the government failed to prove his physical departure from the United States on March 7, 1992 airline flight from JFK Airport to Kingston, Jamaica. The court held that a properly executed warrant of deportation, coupled with testimony regarding the deportation procedures followed at that time, was sufficient proof that a defendant was, in fact physically deported from the United States. In this instance, the warrant of deportation specifically indicated that the immigration officer "witnessed" defendant's departure, and set forth the date, flight number, and time it was affected. Further, defendant stipulated that he signed the warrant and that it contained his fingerprints. Accordingly, the court concluded that there was sufficient evidence to establish defendant's guilt beyond a reasonable doubt and the court affirmed the judgment of the district court. View "United States v. Harvey" on Justia Law

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Plaintiff filed suit under 8 U.S.C. 1503(a), seeking a declaration of U.S. nationality and the return of his Consular Report of Birth Abroad (CRBA) and passport. The district court granted summary judgment in favor of plaintiff and the government appealed. The consular officer had erroneously applied the five-year rule under 8 U.S.C. 1401(g), instead of the ten-year rule, in granting plaintiff a CRBA. The court concluded that plaintiff was not entitled to documentary proof of U.S. citizenship because he was indisputably not a U.S. citizen. The court held that section 1503(a) allows a district court to grant just one type of relief: a declaration that a person is a U.S. national; the enactment of section 1504 did not change the citizenship rights provided by statute, and simply providing jurisdiction where none existed previously did not create an impermissible retroactive effect; and despite the considerable inequities in plaintiff's favor, the courts were simply unable to provide plaintiff the relief he seeks. According, the court reversed and remanded with directions to dismiss the complaint. View "Hizam v. Kerry" on Justia Law

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Petitioner, a native and citizen of the People's Republic of China, sought review of the BIA's order affirming the IJ's denial of her motion to reopen. Petitioner contended that her prior deportation proceedings were void ab initio because exclusion proceedings at the port of entry were the only appropriate procedure for determining whether she could enter into and remain in the United States. The court concluded, however, that petitioner conceded to the charge of deportability at her hearing before the IJ and did not attempt to terminate the proceedings until filing her motion to reopen over nine years after the deportation order became effective. The court rejected petitioner's remaining arguments, finding them to be without merit. Accordingly, the court denied the petition for review. View "Li v. Holder" on Justia Law

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Petitioner, a Kurdish ethnic and citizen of Turkey, sought review of the BIA's order affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ concluded that on at least four or five occasions, petitioner gave food and, on at least one occasion, clothing, to individuals whom petitioner knew, or had reason to know, to be members of Kurdish terrorist groups. The BIA adopted the IJ's findings and legal conclusions. The court found no error in the agency's factual conclusion that petitioner provided material support to a terrorist organization. However, the court remanded in order to allow the BIA to address a precedential issue: whether the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B)(iv)(VI), should be construed to include a duress exception to the admissibility bar that the Act otherwise established for those who have provided material support to a terrorist organization. Accordingly, the court granted in part, denied in part, and remanded for further proceedings. View "Ay v. Holder" on Justia Law

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Petitioner, a citizen of Vietnam, sought review of an order of the BIA dismissing her appeal from a decision of the IJ, which ordered her removed and denied her petition to remove conditions placed upon her residency in the United States. The USCIS denied the petition after finding that petitioner was her husband's half-niece, concluding that the marriage was incestuous and therefore void. The court affirmed the IJ's factual determination that petitioner and her husband were related as half-blooded niece and uncle. The court certified to the New York Court of Appeals the issue of whether such relationships were void for incest under New York's Domestic Relations Law, N.Y. Dom. Rel. Law 5(2). View "Nguyen v. Holder" on Justia Law

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Defendant appealed his conviction for being voluntarily present and found in the United States, arguing that he was not in the United States when he was found. The court concluded that, although defendant had indisputably been present in the United States illegally for nearly a decade, defendant was not "found" while has in the country. When he was found - admittedly not long after his departure from the United States - defendant had neither a physical nor a legal presence in the country. When defendant had been "found" at the Canadian border, he had been returned involuntarily with neither a desire to enter, nor a will to be present in, the United States. Accordingly, the court reversed and remanded, concluding that defendant was not "found in" the United States within the meaning of 8 U.S.C. 1326. View "United States v. Vasquez Macias" on Justia Law

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Petitioners sought review of the BIA's order affirming the IJ's decision denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Both petitioners premised their applications on pro-democracy activities in which they engaged after arriving in the United States, including the publication of articles criticizing the Chinese government. The court concluded that, although petitioners asserted that they revealed their participation in pro-democracy organizations on the Internet, neither adduced sufficient evidence that Chinese authorities were aware or likely to become aware of their political activities in the United States or that they would in any event be persecuted on that basis. Accordingly, the court denied Y.C.'s petition for review, and denied in part and dismissed in part X.W.'s petition for review. View "Y.C. v. Holder, X.W. Holder" on Justia Law