Articles Posted in US Court of Appeals for the Second Circuit

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The Second Circuit joined its sister circuits and held that differentiating between two classes of legal permanent residents—those who seek a waiver from within the United States and those who seek a waiver at the border—in the 8 U.S.C. 1182(h) waiver process does not violate equal protection. Petitioner, a native and citizen of Trinidad and Tobago, sought review of the BIA's decision affirming the IJ's order of removal based on his conviction for a crime involving moral turpitude and constituting an aggravated felony. In this opinion, the court held that the agency's interpretation of the waiver provision did not violate the Equal Protection Clause by arbitrarily distinguishing between aliens who seek a waiver of inadmissibility while within the United States from those entering the United States at its borders. View "Seepersad v. Sessions" on Justia Law

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Omissions need not go to the heart of a claim to be considered in adverse credibility determinations, but they must still be weighed in light of the totality of the circumstances and in the context of the record as a whole. The Second Circuit granted petitions for review of the BIA's decision affirming the IJ's denial of asylum and related relief based on adverse credibility grounds. In this case, petitioners testified during removal proceedings regarding the medical attention they received for injuries they sustained from police beatings, but omitted that information from their initial applications and supporting documents. The court held that, in light of the totality of the circumstances and in the context of the record as a whole, the IJ and BIA erred in substantially relying on certain omissions in the record in each case. The court remanded for further proceedings. View "Gao v. Sessions" on Justia Law

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When a stay has been issued, an immigrant is not held pursuant to 8 U.S.C. 1231(a) because he is not in the "removal period" contemplated by statute until his appeal is resolved by this court. The Second Circuit reversed the district court's determination that petitioner was detained under 8 U.S.C. 1231, holding that petitioner was detained under 8 U.S.C. 1226(c). In light of the uncertainty surrounding this area of detention after the Supreme Court's decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the court remanded to the district court for reconsideration of the habeas petition under the correct statutory provision. View "Hechavarria v. Sessions" on Justia Law

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The Second Circuit denied a petition for review of an order of removal based on petitioner's conviction for possession of a controlled substance in the fifth degree in violation of New York Penal Law. The court rejected petitioner's argument that 8 U.S.C. 1101(a)(43)(T) did not set forth the elements of the generic federal crime for failure to appear, because the agency's interpretation, which was contrary to petitioner's interpretation, was entitled to deference; petitioner's related mens rea argument was also without merit; a conviction for failure to appear was an aggravated felony; and thus the BIA did not err in finding that petitioner was ineligible for cancellation of removal. View "Perez Henriquez v. Sessions" on Justia Law

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The Second Circuit denied a petition for review of an order of removal based on petitioner's conviction for possession of a controlled substance in the fifth degree in violation of New York Penal Law. The court rejected petitioner's argument that 8 U.S.C. 1101(a)(43)(T) did not set forth the elements of the generic federal crime for failure to appear, because the agency's interpretation, which was contrary to petitioner's interpretation, was entitled to deference; petitioner's related mens rea argument was also without merit; a conviction for failure to appear was an aggravated felony; and thus the BIA did not err in finding that petitioner was ineligible for cancellation of removal. View "Perez Henriquez v. Sessions" on Justia Law

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Petitioner, a native and citizen of the Dominican Republic, sought review of the BIA's dismissal of his appeal from an IJ's order of removal and denial of his application for deferral of removal under the Convention Against Torture (CAT). The Second Circuit denied the petition insofar as petitioner challenged his conviction-based removal on the ground that, in determining whether his federal narcotics conviction rendered him removable, the agency was required to apply a "time‐of‐decision" rule and to compare his statute of conviction to the version of the Controlled Substances Act, 21 U.S.C. 801 et seq., in effect during his removal proceedings. The court granted the petition to the extent that petitioner urged that the agency committed legal error in denying his application for deferral of removal under the CAT. View "Doe v. Sessions" on Justia Law

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Flores, a native of Ecuador, legally entered the U.S. in 1978 but overstayed his visa. He obtained legal permanent resident (LPR) status in 1979 and a passport stamp reading “temporary evidence of lawful admission for permanent residence valid until 1‐2‐80.” In November 1979, INS denied Flores’ application for adjustment of status and granted voluntary departure. Flores remained. In 1994, an immigration judge ordered his deportation. The BIA dismissed his appeal. In 2008, Flores was arrested and placed in detention. After three months, he was placed on supervised release. The BIA granted a motion to reopen; an IJ terminated the removal proceedings in 2010. The BIA closed the case in 2011. Flores subsequently received a notice from USCIS requesting that he report for a “[r]eview of your IJ decision, and LPR status.” Flores appeared and received a second passport stamp. He received his green card in 2012. In 2013, Flores sent administrative claims to federal entities under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671‐2680. After those entities denied his claims, Flores filed suit under the FTCA, alleging false arrest and imprisonment and other claims. The Second Circuit affirmed summary judgment for the government. Flores failed to present his claims within the two‐year statute of limitations; the “continuing violation doctrine” did not apply to this action and Flores failed to establish entitlement to equitable tolling of the limitations period. Flores’s injuries ceased after the IJ’s 2010 order. View "Flores v. United States" on Justia Law

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Petitioner challenged the BIA's retroactive application of a new rule expanding the types of larceny that qualify as a crime of moral turpitude. The Second Circuit granted the petition for review and reversed the BIA's latest order issued on remand. In this case, the BIA issued Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (B.I.A. 2016), on the same day that it dismissed petitioner's appeal. The court considered the factors in Lugo v. Holder, 783 F.3d 119, 121 (2d Cir. 2015), to determine that the BIA could not apply the new rule in Diaz-Lizarraga retroactively. In light of the second and third Lugo factors, the court found that Diaz-Lizarraga was an abrupt departure from BIA precedent and that petitioner relied on the previous rule when pleading guilty. The court then applied the categorical approach and the BIA's pre-Diaz-Lizarraga standard for larceny crimes involving moral turpitude, and held that the BIA erred when it found that petitioner's larceny conviction constituted such a crime. View "Obeya v. Sessions" on Justia Law

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The Second Circuit denied petitions for review of a precedential decision of the BIA finding petitioner ineligible for asylum under the Immigration and Nationality Act based on the ground that she provided "material support" to a terrorist organization, notwithstanding that she acted under duress. The court held that Chevron deference was warranted in this case and joined several other circuits in holding that the material support bar does not except aliens who acted under duress. The court rejected petitioner's claim that aliens who are rendered ineligible for relief from removal by the material support bar have a due process right to some means of obtaining an exemption based on duress, other than the currently‐available procedure for obtaining a discretionary waiver from the Department of State or the Department of Homeland Security. View "Hernandez v. Sessions" on Justia Law

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The Second Circuit denied petitions for review of a precedential decision of the BIA finding petitioner ineligible for asylum under the Immigration and Nationality Act based on the ground that she provided "material support" to a terrorist organization, notwithstanding that she acted under duress. The court held that Chevron deference was warranted in this case and joined several other circuits in holding that the material support bar does not except aliens who acted under duress. The court rejected petitioner's claim that aliens who are rendered ineligible for relief from removal by the material support bar have a due process right to some means of obtaining an exemption based on duress, other than the currently‐available procedure for obtaining a discretionary waiver from the Department of State or the Department of Homeland Security. View "Hernandez v. Sessions" on Justia Law