Justia Immigration Law Opinion Summaries

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

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

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

The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum. The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. The court held that the REAL ID Act was ambiguous on this point, and that the BIA's interpretation of the statute was reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In this case, although the IJ determined that petitioner was credible, petitioner failed to meet his burden of proof because of an absence of corroborating evidence. View "Wei Sun v. Sessions" on Justia Law

The Second Circuit affirmed the district court's dismissal of a complaint challenging the USCIS's denial of jurisdiction over plaintiff's application for an adjustment of his immigration status. The court agreed with the district court that the present action constituted an indirect challenge to an outstanding removal order issued against plaintiff and thus 8 U.S.C. 1252(a)(5) precluded subject matter jurisdiction. View "Singh v. USCIS" on Justia Law

The Second Circuit vacated defendant's sentence of 60 months in prison, nearly three times the top of the Guidelines range, after he pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony. In the context of the Sentencing Commission's statistics for illegal reentry cases and all the circumstances here, the court was not persuaded that the justification offered by the district court was sufficient to support the magnitude of the variance. The court also held that there may have been factual errors in the district court's discussion of the record and the district court's reluctance to credit defendant's acceptance of responsibility (although it did so in the end) suggested that the district court may have conflated defendant's statements in mitigation with a failure to accept responsibility. Accordingly, the court remanded for resentencing. View "United States v. Singh" on Justia Law

Petitioner challenged the BIA's dismissal of his appeal challenging the IJ's conclusion that he was a non-citizen convicted of drug offenses that made him inadmissible to the United States. Petitioner also challenged the denial of his motion to reopen the proceedings. The Second Circuit denied the consolidated petitions for review, holding that the BIA correctly concluded that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-546, overruled the Fleuti doctrine. In this case, the BIA correctly concluded that petitioner was properly treated as seeking admission when he arrived in the United States in 2015. The court also held that the stop-time rule prevented petitioner from accruing seven years of continuous residency in the United States. View "Heredia v. Sessions" on Justia Law

Petitioner, a native and citizen of Grenada, sought review of the BIA's decision affirming the IJ's denial of his applications for cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The applications were denied based on petitioner's conviction under NYPL 220.31 for criminal sale of a controlled substance in the fifth degree. The Second Circuit held that NYPL 220.31 defines a single crime and is therefore an indivisible statute. Therefore, the BIA should have applied the categorical approach. Applying the categorical approach, the court held that petitioner's conviction did not constitute a commission of an aggravated felony and consequently did not bar him from seeking cancellation of removal and asylum. The court held that it lacked jurisdiction to consider the remainder of the petition. Accordingly, the court granted the petition in part, vacated the BIA's rulings in part, and remanded. View "Harbin v. Sessions" on Justia Law

After petitioner committed a drug crime but before his crime was adjudicated, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. 1101(a)(13)(C)(v). At issue was whether the statute can be given effect with respect to petitioner's crime, even though he committed the crime before the statute's passage. The Second Circuit held that the presumption against retroactive legislation barred such an application because the plain text of the statute attaches legal consequences at the time a lawful permanent resident commits a crime, rather than at the time of conviction. Accordingly, the court granted the petition for review, vacated the BIA's order of removal, and remanded for further proceedings. View "Centurion v. Sessions" on Justia Law