Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Second Circuit
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Petitioner, a native and citizen of Honduras, sought review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Specifically, Petitioner claimed that her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police.Petioner's CAT petitioner alleged that she had been kidnapped while local police were present. These allegations required the BIA to inquire, whether it was more likely than not (1) that the gang will intentionally inflict severe pain or suffering to intimidate or coerce her, including meeting all the harm requirements for torture under section 1208.18(a); and (2) that local police acting under color of law will either (i) themselves participate in those likely gang actions or (ii) acquiesce in those likely gang actions.However, neither of these inquiries was made below. Thus, the Second Circuit reversed in part, remanding to the BIA for further proceedings. View "Garcia-Aranda v. Garland" on Justia Law

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An immigration judge (“IJ”) denied Petitioner’s application for asylum, withholding of removal, and protection under he Convention Against Torture based on his failure to adequately corroborate his claim with documentary evidence. The Board of Immigration Appeals (“BIA”) affirmed. Petitioner argued that the BIA was unduly deferential to the IJ’s determination that corroboration was required.The Second Circuit denied the petition for review. The court held that the BIA reviews de novo an IJ’s determination under 8 U.S.C. Section 1158(b)(1)(B)(ii) that an applicant should provide additional evidence that corroborates otherwise credible testimony, because that is not a finding of fact. In contrast, the BIA reviews for clear error an IJ’s finding as to whether an applicant does not have and cannot reasonably obtain such corroborating evidence because that is a finding of fact. Here, the court explained that the BIA properly applied de novo review to the IJ’s request for corroborating evidence and properly reviewed for clear error the IJ’s finding that Petitioner failed to produce requested evidence that he could reasonably have obtained. View "Pinel-Gomez v. Garland" on Justia Law

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Petitioner petitioned for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s denial of his application for asylum and withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture (CAT). Petitioner argued that the agency erred in denying his withholding of removal claim when it required that he demonstrate that his ethnicity was “at least one central reason” motivating his claimed persecution. He also challenges the BIA’s denial of his asylum claim and its finding that he waived his CAT claim.   The Second Circuit denied the petition. The court held that the withholding of removal statute is ambiguous as to the showing required to establish that a protected ground, such as ethnicity, motivated a persecutor. The court also held that the BIA’s interpretation that the “one central reason” standard applies to withholding of removal claims is reasonable and thus entitled to deference.   The court explained that substantial evidence supports the BIA’s determination that Petitioner did not demonstrate a link between his ethnicity and future persecution. Although Petitioner’s brother, who is in the United States, declared that the family “still received threatening messages,” his mother, who continues to live in Ecuador, did not corroborate this statement. She stated that her life would be at risk not because of threats or harm from the gang, but because if Petitioner were to return, he would be unable to support her. View "Quituizaca v. Garland" on Justia Law

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Petitioner petitioned for a review of the decision of the Board of Immigration Appeals to uphold the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. An Immigration Judge, as authorized by Congress, conducted the removal proceeding via video teleconference.   The Second Circuit concluded that the Fifth Circuit is the proper venue for his petition for review because jurisdiction vested in Louisiana and there was no change of venue after removal proceedings commenced. Still, in light of Petitioner’s understandable confusion about the proper venue for his petition, the period of time in which the petition has been pending before this Court, and the fact that his counsel is based in New York, the court denied the government’s motion to transfer. Thus, the court proceeded to consider Petitioner’s motion for a stay of removal, which the court denied due to Petitioner’s failure to demonstrate either a strong showing that he is likely to succeed on the merits of his claim or that he will be irreparably injured absent a stay. View "Sarr v. Garland" on Justia Law

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Petitioner a native and citizen of Mexico, sought review of a Board of Immigration Appeals (“BIA”) decision affirming the decision of an Immigration Judge (“IJ”) denying Petitioner’s application for cancellation of removal. Petitioner’s application rested on his assertion that removing him from the United States would cause “exceptional and extremely unusual hardship” to his three young, U.S.-citizen children, whose mother, Petitioner testified, was unable to care for them. Petitioner sought a brief continuance of the merits proceeding to enable him to present live testimony from an expert and three others regarding his children’s health, the family’s circumstances, and the nature and severity of the hardship that his removal would cause. The IJ denied the requested continuance as well as an alternative request to permit the expert to testify by telephone and then found Petitioner ineligible for cancellation on the ground that he failed to establish the necessary hardship. The Board of Immigration Appeals affirmed.   The Second Circuit granted Petitioner’s petition. The court concluded that the agency abused its discretion in denying the brief continuance that Petitioner sought. The IJ’s denial fell outside the range of permissible decisions because it prevented Petitioner from presenting relevant and material testimony in support of his application with regard to the precise ground on which the BIA ruling turned. View "Martinez Roman v. Garland" on Justia Law

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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