Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Second Circuit
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Kwok Sum Wong, a citizen of China and Hong Kong native, petitioned for review of a decision by the Board of Immigration Appeals (BIA) affirming a decision by an Immigration Judge (IJ) that found him removable under the Immigration and Nationality Act. The IJ had found Wong removable because he had been “convicted” of “two crimes involving moral turpitude.” Wong's offenses were theft by deception under New Jersey law and second-degree forgery under New York law. The BIA determined that a "conviction" under immigration law hinges on whether the offenses were criminal proceedings with “minimum constitutional protections”, including proof beyond a reasonable doubt, and certain rights such as the right to a speedy trial and protection against double jeopardy.The United States Court of Appeals for the Second Circuit held that the BIA’s interpretation of “conviction” was not arbitrary or capricious and that the “minimum constitutional protections” test to ascertain a “conviction” retroactively applies to Wong’s case. The court further held that second-degree forgery under New York law is a crime involving moral turpitude (CIMT), and that the statutory phrase “crime involving moral turpitude” is not unconstitutionally vague. The court thus denied the petition for review. View "Wong v. Garland" on Justia Law

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In this case, the United States Court of Appeals for the Second Circuit reviewed the decision of the Board of Immigration Appeals (BIA) and the Immigration Judge (IJ) to deny asylum, withholding of removal, and protection under the Convention against Torture (CAT) to the petitioner, Baljinder Singh Bhagtana. Bhagtana, an Indian national, claimed political persecution by the Bharatiya Janata Party (BJP) due to his support for the Shiromani Akali Dal Amritsar or “Mann” Party and his Sikh religious affiliation. He claimed that he suffered three attacks by BJP members in Kapurthala, Punjab, which resulted in serious injuries and forced him to relocate within India on two occasions.Both the BIA and the IJ determined that Bhagtana could avoid future persecution by relocating within India, as he had done previously without incident. Bhagtana argued that he was safe in these new locations because he was "living in hiding," but this argument was rejected, as activities such as driving a taxicab and attending Mann party meetings contradicted his claim of being in hiding.The Court of Appeals agreed with the lower courts, noting that Bhagtana lived in two different cities in India without harm despite continuing his political activities. Furthermore, the U.S. Department of State’s 2016 Country Report on Human Rights Practices in India did not suggest that members of the Mann Party or Sikhs advocating for a sovereign Sikh state were victims of persecution. The Court of Appeals held that the record did not compel a conclusion contrary to the BIA and IJ's findings that Bhagtana could safely and reasonably relocate within India to avoid persecution. The Court of Appeals therefore denied Bhagtana's petition for review and affirmed the decisions of the BIA and the IJ. View "Singh Bhagtana v. Garland" on Justia Law

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Petitioner, a native and citizen of Mexico, seeks a review of an April 20, 2022, decision of the Board of Immigration Appeals (“BIA”) affirming a decision of an Immigration Judge (“IJ”) ordering her removal and denying her application for cancellation of removal after determining she had been convicted of a crime involving moral turpitude (“CIMT”). That conviction, for abuse of a corpse in violation of Arkansas Code Annotated (“ACA”) Section 5-60-101, stemmed from concealing her child’s body in a closet after he was murdered. In her petition for review, Petitioner argued that the BIA and IJ erred because her conviction under ACA Section 5-60-101 is not categorically a CIMT.   The Second Circuit granted the petition, vacated the BIA’s order of removal and remanded. The court explained that the language of ACA Section 5-60-101(a)(1) allows someone to be convicted if he or she knowingly “removes” or “disinters” a corpse, no matter the reason and without regard to whether it is done in a manner offensive to a person of reasonable sensibilities. The court explained that the broad language makes it clear that one can be convicted under the statute for conduct that is not “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Thus, because ACA Section 5-60-101 criminalizes conduct that is not invariably vile or depraved, a conviction under the statute cannot categorically be considered a CIMT. The BIA did not conduct an elements-based categorical inquiry. Instead, it applied an inapposite “realistic probability” test. View "Giron-Molina v. Garland" on Justia Law

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Petitioner petitioned for review of a Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Petitioner’s ineffective assistance of counsel claim, declined No. 21-6043 2 to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Petitioner argued that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application.   The Second Circuit granted Petitioner’s petition for review, vacated the BIA’s decision and remanded. The court explained that it agrees with Petitioner that the BIA improperly imposed a heightened standard when evaluating whether Petitioner was prejudiced by prior counsel’s deficient performance. The court explained that on remand, the BIA should differentiate between two types of hardship evidence presented by Petitioner in his appeal and motion to remand: (1) hardship evidence that was available to prior counsel and (2) evidence that was not previously available to prior counsel, for which Petitioner must show that the evidence “would likely change the result in the case.” View "Paucar v. Garland" on Justia Law

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Petitioner petitioned for review of a decision of the Board of Immigration Appeals affirming the finding that he is removable on the ground that he committed a crime involving moral turpitude for which “a sentence of one year or longer may be imposed.” 8 U.S.C. Section 1227(a)(2)(A)(i). The predicate offense, a 2017 conviction for possession of a forged instrument, is a Class A misdemeanor under New York law. In 2019, after his conviction, New York enacted Penal Law Section 70.15(1-a), which lowered the maximum possible sentence for Class A misdemeanors from one year to 364 days. Petitioner asserts that because the statute is retroactive for state law purposes, his prior conviction no longer constitutes a basis for removal because it is not a crime for which “a sentence of one year or longer may be imposed,” as required by the removal statute.   The Second Circuit denied Petitoner’s petition. The court wrote that it declines to give retroactive effect to New York’s modification of its sentencing scheme for purposes of federal immigration law. The removal statute focuses on the historical fact of an alien’s prior conviction and thereby consults the state law applicable at the time of the criminal proceedings, not at the time of the removal proceedings. View "Peguero Vasquez v. Garland" on Justia Law

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Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found Petitioner not credible and denied her application. Petitioner appealed to the Board of Immigration Appeals (BIA), which affirmed the IJ’s credibility decision. In addition to challenging the adverse credibility finding, Petitioner claimed for the first time that the border interview record was improperly admitted into evidence at the IJ hearing. The BIA rejected that argument as waived and also rejected it on the merits. Petitioner petitioned the Second Circuit for review.   The Second Circuit granted in part, denied in part, and vacated the BIA’s decision. The court explained that the immigration judge failed to consider various factors that may have affected the reliability of the border interview record. Petitioner claimed that she was frightened during the interview because a border patrol officer hit her and yelled at her upon her arrival to the United States. Petitioner may also have been reluctant to reveal information about persecution because authorities in her home country were allegedly unwilling to help her due to her indigenous status. Moreover, the questions asked during Petitioner’s border interview generally were not designed to elicit the details of an asylum claim. The court explained that in Ramsameachire v. Ashcroft, it cautioned immigration judges to consider these factors and others before relying on a border interview to find an asylum applicant not credible. Consistent with Ramsameachire and subsequent precedent, the court wrote that immigration judges are required to take such precautions. View "Pomavilla-Zaruma v. Garland" on Justia Law

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Petitioner appealed the denial of his habeas petition to vacate his 2006 guilty plea, conviction, and sentence. Defendant asserted that he received ineffective assistance of counsel because his lawyer did not warn him of the risks of denaturalization and possible subsequent deportation arising from his guilty plea.   The Second Circuit affirmed. The court explained that the Sixth Amendment guarantees criminal defendants the effective assistance of counsel during plea negotiations. Effective assistance includes warning defendants of the “direct” consequences of pleading guilty, such as the offense’s maximum prison term and the likely sentence as set forth in a plea agreement. However, the court explained that it has long held that an attorney need not warn of every possible “collateral consequence of conviction. And such collateral consequences are “categorically removed from the scope of the Sixth Amendment.” Thus, a defendant can only establish an ineffective assistance claim as to a collateral consequence if his attorney affirmatively misadvises him. Failing to warn of the collateral risk alone is not enough. The court explained that the instant appeal is resolved by the straightforward application of this direct/collateral framework. Accordingly, the court held that the distinction remains valid, that it applies to civil denaturalization, and that such denaturalization is a collateral consequence of the conviction, and so is not covered by the Sixth Amendment’s right to effective assistance of counsel. View "Farhane v. United States" on Justia Law

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Petitioner petitioned for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Petitioner was not credible.   The Second Circuit granted Petitioner’s petition for review and vacated the BIA’s decision. The court remanded, concluding that certain reasons for that credibility finding were erroneous, and the court cannot be confident that the IJ would have made the same determination absent those errors. The court concluded that the agency improperly relied on a number of trivial omissions and inconsistencies to find that Petitioner was not credible. First, the details Petitioner provided in his testimony about his encounter with the police at the police station were also referenced in his prior asylum statement. And even if they were not, they would merely supplement rather than contradict the asylum statement and would thus not alone support an adverse credibility determination. Second, most, if not all, of the inconsistencies in Petitioner’s description of his relationship with his wife were trivial. Third, although any inconsistencies relating to Petitioner’s interactions with his cousin may be non-trivial, the court wrote that it cannot “confidently predict” that the IJ would have made the same adverse credibility determination based on those inconsistencies alone. View "Chen v. Garland" on Justia Law

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Petitioner petitioned for review of a Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Petitioner’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Petitioner argued that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand.   The Second Circuit granted Petitioner’s petition for review, vacated the BIA’s decision, and remanded for further proceedings. The court explained that it does not matter whether Petitioner initially requested a continuance from the IJ or whether his motion to remand was filed while proceedings before the IJ were ongoing. Petitioner only became aware of prior counsel’s alleged misconduct the premise for his U visa application—after the IJ had issued its decision and Petitioner sought advice from other counsel. Thereafter, he appears to have diligently pursued his U visa application and presented proof of his submitted U visa application to the BIA while his appeal was still pending. The BIA has advanced no reason why Sanchez Sosa should not apply under these circumstances. Therefore, the court concluded that the BIA should have applied the Sanchez Sosa factors in considering Petitioner’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. View "Paucar v. Garland" on Justia Law

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Pakistani nationals and brothers petitioned for review of a Board of Immigration Appeals decision upholding orders denying them adjustment of status and directing their removal from the United States. Petitioners argued that the agency erred in finding them ineligible for adjustment of status based on their earlier filing of frivolous, i.e., deliberately and materially false, asylum applications because those applications were untimely and, thus, their concededly false statements could not have been material to a matter properly before the agency for decision. Petitioners further faulted the agency for alternatively denying them adjustment of status as a matter of discretion.   The Second Circuit denied Petitioners’ petition for their review. However, the court explained that a question arises as to how Petitioners removal will affect their future ability to apply for reentry to the United States. A permanent and unwaivable bar on reentry applies to any alien who filed a frivolous claim for asylum after receiving notice of that consequence. Otherwise, the alien may be subject to lesser, waivable bars on reentry. Because this court cannot determine on the present record whether Petitioners received the notice required to trigger a permanent, unwaivable bar. The court granted review as to that single question and remanded for the limited purpose of allowing the agency to make an express finding as to notice and, based on that finding, to specify the scope of the reentry bar that will attend Petitioners’ removal. View "Ud Din v. Garland" on Justia Law