Articles Posted in US Court of Appeals for the Second Circuit

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The Second Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal because petitioner had derivative citizenship from his citizen father. The court held that the temporary physical separation caused by petitioner's time in federal pretrial juvenile detention did not strip petitioner's father of his "physical custody" of petitioner as that term is used in 8 U.S.C. 1431(a), and therefore petitioner is a U.S. citizen. The court explained that the statutory context and history of the derivative citizenship statute indicate that the "physical custody" requirement ensures that the legal permanent resident child, such as petitioner, has a strong connection to the naturalizing parent and to the United States at the time the child becomes eligible for derivative citizenship. Furthermore, the applicable canons of statutory interpretation also favored construing the term "physical custody" so that such custody does not terminate upon a brief, temporary separation from a parent; and the distinctive nature of federal pretrial juvenile detention—which encourages continued family involvement with the child during such detention—further supports the conclusion that petitioner's father retained "physical custody" over him. View "Khalid v. Sessions" on Justia Law

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The Second Circuit granted a petition for review of the BIA's decision ordering petitioner removed under 8 U.S.C. 1227(a)(1)(B) and 1227(a)(2)(B)(i). The court held that petitioner acquired United States citizenship at birth through his United States citizen parent, Jorge Boreland, the husband of his mother and his legal parent under the relevant section of the Immigration and Nationality Act. The court noted that the principle guiding this decision—that a child born into a legal marriage is presumed to be the child of the marriage—is a lasting one, with deep roots in the common law. View "Jaen v. Sessions" on Justia Law

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The Second Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioners' motions to suppress evidence relating to their immigration status obtained by law enforcement agents during a nighttime search of their residence. The court held that petitioners made a sufficient showing of an egregious constitutional violation to warrant an evidentiary hearing and those facts could support a basis for excluding the evidence. In this case, petitioners presented substantial evidence that the search was improperly based on race; petitioners have raised fair questions as to whether a warrant existed and, if so, whether the search exceeded its scope; and petitioners presented sufficient evidence that, if credited, would show the agents engaged in severe conduct. View "Zuniga-Perez v. Sessions" on Justia Law

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The Second Circuit granted a petition for review of the BIA's order finding petitioner ineligible for cancellation of removal because his prior state conviction for sale of marijuana in the third degree constituted an aggravated felony under the Immigration and Nationality Act. The court held that New York Penal Law 221.45 was not punishable as a federal felony by the Controlled Substances Act. Rather, NYPL 221.45 explicitly extends to the distribution of less than an ounce of marijuana without remuneration, and was thus punishable as a federal misdemeanor. Therefore, petitioner's crime of conviction was not categorically an aggravated felony. View "Hylton v. Sessions" on Justia Law

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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