Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

Articles Posted in Immigration Law
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The Second Circuit granted petitions for review of the BIA's decisions ordering petitioners removed based on their New York firearms convictions. The court principally concluded that the statutes of conviction, sections 265.03 and 265.11 of the New York Penal Law, criminalize conduct involving "antique firearms" that the relevant firearms offense definitions in the Immigration and Nationality Act do not. Therefore, the court held that this categorical mismatch precludes petitioners' removal on the basis of their state convictions. Accordingly, the court vacated the BIA's decisions and remanded with instructions to terminate the removal hearings. View "Jack v. Barr" on Justia Law

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The Second Circuit granted a petition for review of a BIA decision dismissing petitioner's appeal of an IJ's denial, without an evidentiary hearing, of her motion to suppress evidence. The court held that the agency erred by requiring that petitioner rely on her documentary evidence alone and make a prima facie showing of an egregious Fourth Amendment violation before it would conduct a suppression hearing. The court also held that, because sworn statements and the police incident report that petitioner submitted "could support" suppression under the Cotzojay standard, she was entitled to a hearing. Accordingly, the court remanded for further proceedings. View "Millan-Hernandez v. Barr" on Justia Law

Posted in: Immigration Law
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The Second Circuit granted a petition for review of the BIA's decision denying petitioner's motion to remand and dismissing his appeal of the denial of his asylum and statutory withholding claims under the Immigration and Nationality Act (INA). The court held that the BIA failed to adequately explain its conclusion that petitioner's proposed social group of former gang members in Guatemala was not particular. Furthermore, the BIA failed to adequately explain its reasons for denying petitioner's motion to remand based on evidence of new country conditions. The court also held that under 8 U.S.C. 1158(a)(2)(D), changed circumstances presenting an exception to the one-year deadline for filing an asylum application need not arise prior to the filing of the application. In this case, the BIA erred when it refused to consider petitioner's alleged changed circumstances on the ground that the change occurred while his application was pending. Therefore, the court vacated the BIA's decision and remanded for reconsideration. View "Ordonez Azmen v. Barr" on Justia Law

Posted in: Immigration Law
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In petition No. 18-834, petitioner contends principally that the BIA erred (a) in rejecting his challenge to the IJ's ruling that he failed to carry his burden of showing his procedurally regular admission to the United States, (b) in rejecting his contention that he was denied due process by the IJ's evidentiary rulings minimizing or curtailing evidence to show his procedurally regular admission, and (c) in denying his motion to reopen the proceeding to present newly discovered evidence. In petition No. 19-737, petitioner contends that the BIA erred in rejecting his contention that intervening legal authority requires the conclusion that criminal possession of stolen property was not a crime involving moral turpitude at the time of his conviction. The Second Circuit denied so much of Petition No 18-834 as contends that petitioner was denied due process. The court dismissed the remainder of that petition for lack of jurisdiction. In regard to Petition No. 19-737, the court held that there was no error in the Board's determination that petitioner's conviction for criminal possession of stolen property was a crime involving moral turpitude. Furthermore, the Board did not err by rejecting petitioner's motion to reopen removal proceedings based on petitioner's claim of an intervening change in the law. Therefore, the court denied the petition in No. 19-737. View "Ottey v. Barr" on Justia Law

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The Second Circuit granted a petition for review of the BIA's denial of petitioners' third motion to reopen. Petitioners argued that the BIA abused its discretion in denying their motion to reopen because it failed to address their primary evidence of changed country conditions for Christians in Indonesia and incorrectly concluded that their failure to submit a new asylum application with their motion made the motion procedurally deficient under 8 C.F.R. 1003.2(c)(1). The court held that the BIA's one-and-a-half page order failed to account for relevant evidence of changed country conditions. The court also held that section 1003.2(c)(1) does not require the submission of a new asylum application for motions such as this one. Accordingly, the court vacated the BIA's decision and remanded for explicit consideration of the changed country conditions evidence. View "Tanusantoso v. Barr" on Justia Law

Posted in: Immigration Law
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To hold categorically that an applicant for relief under the Convention Against Torture must be threatened more than once and that such a person must suffer physical harm before fleeing is an error of law. The Second Circuit granted a petition for review challenging the denial of petitioner's application for asylum, withholding of removal, and protection under the CAT. The court held that the IJ erred as a matter of law for penalizing petitioner for her prompt flight. Although the IJ credited petitioner's testimony that the threats received by the MS-13 gang were believable and no way remote, it erred by requiring that petitioner and her family wait until they suffered physical harm or until the threats recurred before they fled. The court remanded for further proceedings. View "Martinez De Artiga v. Barr" on Justia Law

Posted in: Immigration Law
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Sexual assault in the third degree under CGS 53a-72a(a)(1) necessarily includes as an element the use or threatened use of violent force and thus categorically constitutes a crime of violence as defined in 18 U.S.C. 16(a). The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's order of removal. The court declined to remand for the agency to consider in the first instance whether petitioner's conviction of Connecticut third-degree sexual assault is a crime of violence under the alternative definition in 18 U.S.C. 16(a), but rather considered that legal question de novo and held that it categorically satisfies that definition. The court vacated the petition and denied the pending motion for stay of removal as moot. View "Kondjoua v. Barr" on Justia Law

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The Second Circuit granted a petition for review of the BIA's decision ordering petitioner removed based on his 2016 Connecticut state conviction for carrying a pistol or revolver without a permit, in violation of Connecticut General Statutes 29-35(a). The court held that Section 29-35(a) of the Connecticut General Statutes is not a categorical match for the generic federal firearms offense, 8 U.S.C. 1227(a)(2)(C). The court held that the Connecticut statute criminalizes conduct involving "antique firearms" that the INA firearms offense definition does not, precluding petitioner's removal on the basis of the state conviction. The court also held that, under Hylton v. Sessions, 897 F.3d 58 (2d Cir. 2018), the realistic probability test has no bearing here, where the text of the state statute gives it a broader reach than the federal definition. Accordingly, the court vacated the order of removal and remanded with directions to terminate the removal proceedings. View "Williams v. Barr" on Justia Law

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The Second Circuit granted a petition for review of the BIA's decision affirming the IJ's finding that petitioner was removable for having been previously convicted of misprision of a felony in violation of 18 U.S.C. 4. The court aligned itself with the Ninth Circuit and held that misprision is not categorically a crime involving moral turpitude (CIMT). The court held that the government failed to show that misprision rises to the level of base, vile, conscience-shocking conduct traditionally attributed to the gravest and most inherently evil offenses. Furthermore, nothing in the misprision statute suggests that the crime has, as an element, the fraudulent intent necessary for misprision to constitute a CIMT. Accordingly, the court vacated the BIA's decision. View "Mendez v. Barr" on Justia Law

Posted in: Immigration Law
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Petitioner challenged the denials of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Second Circuit found no error in the BIA's rejection of petitioner's untimely asylum claim and its denial of withholding or CAT protection insofar as petitioner professes fear of persecution and torture from former police supervisors. However, insofar as petitioner seeks withholding and CAT protection based on feared persecution and torture from gangs, the court held that the record does not permit it to determine whether the agency considered all relevant evidence and applied the correct legal standard. Accordingly, the court granted the petition for review, affirming in part and vacating in part the BIA's decision. View "Scarlett v. Barr" on Justia Law

Posted in: Immigration Law