Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Second Circuit
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Petitioner petitioned for the court’s review of the Board of Immigration Appeal’s (BIA) denial of his motion to reopen his removal proceedings. According to Petitioner, the BIA erred in finding his motion to be time-barred under 8 U.S.C. Section 1229a and further erred in refusing to exercise its authority to reopen his case sua sponte.The Second Circuit dismissed in part and denied in part Petitioner’s petition for review. The court held that Petitioner’s motion was filed years after his order of removal became final, and he has not identified any changed country conditions that could justify the delay. Furthermore, the court wrote that it lacks jurisdiction to review the BIA’s decision not to reopen a case sua sponte. View "Chen v. Garland" on Justia Law

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Petitioner a native and citizen of South Korea, sought review of a Board of Immigration Appeals  (BIA) decision affirming an Immigration Judge’s denial of Petitioner’s application for cancellation of removal. The BIA found Jang ineligible for cancellation because of her state conviction for attempted second-degree money laundering which it deemed a “crime involving moral turpitude” (“CIMT”) under the Immigration and Nationality Act.   The Second Circuit granted Petitioner’s petition for review and remanded the case to the agency for further consideration. The court held that Petitioner’s offense of conviction lacks the scienter required to qualify as a CIMT. The court explained that the BIA’s reliance on Section 470.10(1) to determine that Petitioner’s crime was a CIMT was indisputably misplaced, either as a reference to the Tejwani provision that had been superseded by Section 470.15(1)(b)(ii)(A) before Petitioner’s offense conduct or as a reference to the current Section 470.10(1), which defines money laundering in the third, not second, degree. Further, the knowledge required for conviction under Section 470.15(1)(b)(ii)(A) falls well short of the depravity described by the BIA as requisite for a CIMT. The BIA, therefore, erred in treating Petitioner’s conviction for attempted money laundering in the second degree as a CIMT and on that basis denying her application for cancellation of removal. View "Jang v. Garland" on Justia Law

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Petitioners sought review of a December 14, 2018, decision of the Board of Immigration Appeals (the "BIA") affirming a decision of an Immigration Judge (the "IJ") denying asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").   The Second Circuit granted Petitioners' petition for review and held that to qualify as a "refugee" under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. The court explained that to be eligible for asylum and withholding of removal, an individual must be a "refugee." 8 U.S.C. Section 1158(b)(1)(A). But this is only one step in the asylum process. Even if an individual is a refugee, there are other bars to asylum, see 8 U.S.C. Sections 1158(a)(2) (exceptions to authority to apply for asylum), 1158(b)(2) (exceptions to eligibility for asylum), and even assuming all bars are overcome, the decision of whether to grant a particular asylum application is still a matter of discretion for the Attorney General. Further, the court held that to be considered a "refugee" under Section 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality. Accordingly, the court granted the petition for review, vacated the BIA's December 14, 2018, decision, and remanded to the BIA for further proceedings in accordance with the proper legal standard. View "Zepeda-Lopez, et al. v. Garland" on Justia Law

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Petitioner filed an application for naturalization with the United States Citizenship and Immigration Services (“USCIS”). His application was denied when USCIS determined that he was ineligible for naturalization. Petitioner filed an administrative appeal, and in response, the agency sent him a notice to appear at a hearing pursuant to 8 U.S.C. Section 1447(a) After Petitioner failed to appear, the agency affirmed the denial of his application. Petitioner brought an action seeking review alleging, among other things, that the agency failed to follow its own procedures in denying his application. The district court held that, by not attending the hearing, Petitioner failed to exhaust his administrative remedies as required by 8 U.S.C. Section 1421(c). Because the district court held the exhaustion requirement to be jurisdictional, the district court dismissed the case for lack of subject matter jurisdiction.   The Second Circuit held that the district court erred when it treated 8 U.S.C. Section 1421(c) as a jurisdictional requirement. However, the court held that Petitioner’s claim may not proceed because the government properly raised Petitioner’s failure to attend the hearing as a failure to exhaust. Thus, Section 1421(c)’s exhaustion requirement must be enforced. Petitioner’s noncompliance with the exhaustion requirement means that he failed to state a claim, and thus the court affirmed the judgment of the district court on that ground. View "Donnelly v. CARRP" on Justia Law

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Petitioner sought review of a Board of Immigration Appeals (“BIA”) decision finding her ineligible for cancellation of removal because of her 2014 New York conviction for attempted second-degree money laundering. Petitioner entered the United States without inspection in 1995. In 2014, she pleaded guilty under a plea agreement to attempted money laundering in the second degree. The agreement provided that she would receive a sentence of “time served.” Days later, the Department of Homeland Security served Petitioner with a Notice to Appear, charging her as removable for having entered the United States without inspection. Petitioner did not contest removability.   The Second Circuit granted Petitioner’s review of the Board of Immigration Appeals decision affirming the denial of Petitioner’s application for cancellation of removal. The court held that because the crime of conviction lacks the requisite scienter, it is not a crime involving moral turpitude. The court reasoned that the INA provides that aliens convicted of, or who admit having committed, or who admit committing acts that constitute the essential elements of a crime involving moral turpitude are ineligible for cancellation of removal. To determine whether a crime is a CIMT, the agency asks whether the act is accompanied by a vicious motive or a corrupt mind. Both the circuit court and the BIA have made clear that the indispensable component of a CIMT is evil intent. Here, the knowledge required for conviction under Petitioner’s crime falls well short of the depravity described by the BIA as requisite for a CIMT. View "Jang v. Garland" on Justia Law

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Petitioner challenged an order of removal based on his violation of a court protection order and moved for leave to proceed in forma pauperis, appointment of counsel, and a stay of removal. Respondent, in turn, moved to expedite the petition.The Second Circuit dismissed Petitioner’s petition for review of a removal order based on his violation of a court protection order. The court held that removability under 8 U.S.C. Section 1227(a)(2)(E)(ii) is determined by a circumstance-specific inquiry as to whether a court found a particular alien’s conduct to violate a protection order then applicable to him, and whether that violation pertained to a provision of the order involving protection against credible threats of violence, repeated harassment, or bodily injury to the person for whom the protection order was issued. Here, because Petitioner’s arguments to the contrary lack any arguable basis in law or fact, and because his other challenges to removability and to the denial of cancellation of removal are similarly frivolous, the court dismissed his petition and denied all motions, both by the Petitioner and the Respondent, as moot. View "Alvarez v. Garland" on Justia Law

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Petitioner petitioned for review of an immigration officer’s decision to reinstate a prior order of removal against him and for review of an immigration judge’s subsequent decision that he does not qualify to pursue claims for withholding of removal to India. Petitioner was removed from the United States in 2010 and again in 2017, the latter time pursuant to a removal order entered on March 25, 2016, he expressed a fear of persecution and torture in India based on his political views, triggering the protocol set out in 8 C.F.R. Sec. 208.31   The Second Circuit dismissed the immigration Petitioner’s petition for review of an immigration officer’s decision to reinstate a prior order of removal. The court held that it did not have jurisdiction because Petitioner sought review of withholding-only decisions but no final order of removal subject to judicial review. The court reasoned that Illegal reentrants are “not eligible and may not apply for any relief under” the INA and “shall be removed under the prior order at any time after the reentry.” View "Bhaktibhai-Patel v. Garland" on Justia Law

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During the height of the COVID-19 public health crisis, the United States District Court for the Southern District of New York Judge issued a preliminary injunction principally requiring the United States Immigration & Customs Enforcement ("ICE") to release Petitioner and three others from immigration detention. The government appealed from an August 2020 order denying its motion to vacate or modify. The government sought permission to re-detain Petitioner on the ground that since his release he has been arrested and charged with crimes, thereby violating the court-imposed condition that he does not commit a crime while on release. The district court denied the motion.   The Second Circuit concluded that the court erred in ruling that a release condition prohibiting the commission of a crime is not violated unless there has been a criminal conviction. The court reasoned that the district court based its decision not on an assessment of the evidence as to Petitioner’s conduct but rather on its view as a matter of law that a release condition prohibiting the commission of a crime is not violated unless and until there is a conviction. The court also remanded for the district court to reconsider the government's motion, taking into account whether it was more likely than not that Petitioner committed a crime while on release. View "Villiers v. Decker" on Justia Law

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Defendants-Appellants the United States Citizenship and Immigration Services (“USCIS”), the United States Department of State (“DOS”), and the United States Immigration and Customs Enforcement (“ICE”) appealed from three orders of the district court for the Southern District of New York requiring they produce certain documents in response to FOIA requests filed by the Knight First Amendment Institute at Columbia University (“Knight”). The court reasoned that FOIA is premised on “a policy strongly favoring public disclosure of information in the possession of federal agencies.” Halpern v. F.B.I., 181 F.3d 279 (2d Cir. 1999). However, in some circumstances, Congress determined that other interests outweigh the need for transparency. These circumstances are embodied by a limited set of four statutory exemptions from FOIA’s disclosure requirements.Here, the court found that DOS established that the document includes specific guidance to DOS employees on detecting ties to terrorism. Thus, DOS and USCIS properly withheld the first two sets of documents under FOIA Exemption 7(E). However, the court remanded on the ICE issue because the record was unclear regarding whether ICE complied fully with the district court’s order. View "Knight v. USCIS et al." on Justia Law

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Plaintiff challenged the USCIS's denial of his application for lawful permanent residence (LPR) as arbitrary and capricious under the Administrative Procedure Act (APA). The district court affirmed the denial under the weapons bar of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(3)(B)(iii)(V).The Second Circuit vacated the district court's judgment, concluding that it is unable to discern USCIS's full reasoning for denying plaintiff's application or to conclude that the agency considered all factors relevant to its decision. In this case, a finding that plaintiff had used a weapon on behalf of the Taliban is not enough, the court explained that the INA also requires that the agency find that plaintiff's offending act either was unlawful where it took place (Afghanistan) or would be unlawful in the United States before it can determine that he is inadmissible under the weapons bar. Therefore, the decision was arbitrary and capricious under the APA and the court remanded to the district court to remand to the USCIS to consider and more clearly explain whether, in light of plaintiff's duress defense, his conduct was unlawful under the laws of the United States and thus qualifies as a terrorist activity under section 1182(a)(3)(B)(iii). View "Kakar v. United States Citizenship and Immigration Services" on Justia Law