Articles Posted in Immigration Law

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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

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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

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At issue in this appeal was whether defendant should have been acquitted of transporting an alien within the United States for profit in violation of 8 U.S.C. 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). The Second Circuit reversed the conviction, holding that the evidence was insufficient to prove that defendant transported an alien "in furtherance of" the alien's illegal stay in the United States, as required by section 1324(a)(1)(A)(ii) and by the district court's jury instructions. Although the Government did present evidence that defendant drove the alien to Pennsylvania Station in order to facilitate the alien's entry into Canada using a fraudulent passport, such a showing alone cannot establish a direct and substantial relationship between the transportation and an act in furtherance of the alien's unlawful presence in the United States. The Second Circuit remanded with instructions to dismiss the count and for de novo sentencing. View "United States v. Khalil" on Justia Law

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Petitioner, a native and citizen of Ecuador, sought review of the BIA's order affirming the IJ's finding of removeability based on his unlawful entry into the United States. Petitioner, an unaccompanied juvenile of 17, entered the country without inspection to live with his mother. At issue was whether either the Fifth Amendment's due process clause or the Eighth Amendment's prohibition on cruel and unusual punishment required consideration and weighing of the proportionality of removal against the grounds for removability. The court held that no such consideration was necessary because removal was not punitive and no fair considerations were present in this case. Accordingly, the court denied the petition for review. View "Marin-Marin v. Sessions" on Justia Law

Posted in: Immigration Law

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Petitioner, born in the Dominican Republic to unwed parents and admitted to the United States as a lawful permanent resident, sought review of the BIA's decision affirming the IJ's finding that petitioner was ineligible for derivative citizenship and denial of petitioner's motion to terminate removal proceedings. Petitioner argued that he became a U.S. citizen derivatively when his father was naturalized in 1980, when petitioner was eleven years old. The court agreed with the IJ and BIA that petitioner was not a "child" eligible for derivative citizenship because he was not "legitimated" within the meaning of the Immigration and Nationality Act (INA), 8 U.S.C. 1432(a). In this case, the elimination of legal distinctions between children born in and out of wedlock under Dominican law did not occur before petitioner's sixteenth birthday. Furthermore, petitioner failed to identify any legal authority suggesting that New York has eliminated all legal distinctions between children based on the marital status of their parents. Accordingly, the court dismissed the petition for review. View "Gil v. Sessions" on Justia Law

Posted in: Immigration Law

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Petitioner sought review of the BIA's dismissal of his appeal from the denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In this case, petitioner, who was illegally present in the United States after multiple deportations, crossed into Canada by bridge, was detained four hours by the Canada Border Services Agency, and was then returned back over the bridge. At issue was whether petitioner's return counts as his "last arrival" into the United States, and therefore gave him an additional one year from that date to file an asylum application. Pursuant to 8 C.F.R. 208.4(a)(2)(ii), an asylum claim must be filed within one year of the alien's "last arrival" in the United States. The court concluded that the court's prior precedent foreclosed such a result. However, after the court decided Joaquin-Porras v. Gonzales, the BIA issued a decision explicitly rejecting the court's holding, and giving the term "its natural and literal meaning, i.e., the alien's most recent arrival in the United States from a trip abroad." Matter of F-P-R-. Because deference to this subsequent BIA opinion raised a doubt that the BIA was better suited to resolve, the court granted the petition in part and remanded it in part for the BIA to determine, in the first instance, how F-P-R- may apply to this case. View "Linares-Urrutia v. Sessions" on Justia Law

Posted in: Immigration Law

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Buffalo Transportation seeks review of a final order of the OCAHO finding that it had committed substantive violations of Section 274A(b) of the Immigration and Nationality Act (INA), 8 U.S.C. 1324a(b). The OCAHO also affirmed the imposition of fines by ICE. The court agreed with the ALJ's finding that Buffalo Transportation had not timely complied with the requirements of 8 U.S.C. 1324a(b) and related regulations that require employers to verify that an employee is legally authorized to work in the United States through executing a Form I‐9 for each employee within three business days of hire. The court also agreed with the adjustments of ICE's original fine amounts. Accordingly, the court affirmed the judgment. View "Buffalo Transportation Inc. v. United States" on Justia Law

Posted in: Immigration Law

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Petitioner, a citizen of Portugal and native of Angola, seeks review of DHS's order of removal that was issued without a hearing on the ground that he waived the right to challenge removal by submitting an Electronic System for Travel Authorization (ESTA) application and subsequently entering the country pursuant to the Visa Waiver Program (VWP). The court held that an ESTA record is sufficient evidence of waiver. In this case, the court concluded that the administrative record supports the agency’s finding that petitioner waived his right to a hearing by submitting an ESTA application and entering the United States pursuant to the VWP. Accordingly, the court denied the petition for review. View "Vasconcelos v. Lynch" on Justia Law

Posted in: Immigration Law

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Petitioner, a native and citizen of the People's Republic of China, seeks review of the BIA's order affirming the IJ's denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because petitioner did not object to the introduction of the credible fear interview notes at her merits hearing and did not make a due process argument in her brief to the BIA, the court declined to review her due process argument as unexhausted. The court agreed with petitioner that the IJ and BIA erred in some of its findings, but nonetheless concluded that substantial evidence supported the IJ and BIA's ultimate ruling regarding past persecution. The agency cited numerous and important consistencies among petitioner's testimony, written application, and credible fear interview. Finally, the court concluded that there is no error in the agency’s conclusion that petitioner failed to show that her fear of future persecution resulting from her activities with the China Democracy Party was objectively reasonable. Accordingly, the court denied the petition for review, vacated the stay of removal, and dismissed any pending motion for a stay of removal as moot. View "Li v. Lynch" on Justia Law

Posted in: Immigration Law

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Respondents appealed the district court's grant of petitioner's petition for a writ of habeas corpus and order that petitioner be granted an individual bond hearing before an immigration judge. The district court found that petitioner's detention was governed by 8 U.S.C. 1226(a) and he was, therefore, entitled to a bond hearing. The court agreed, concluding that the language and structure of the statutes dictate the conclusion that petitioner’s detention during the pendency of his withholding‐only proceedings is detention pursuant to 8 U.S.C. 1226(a). Accordingly, the court affirmed the judgment. View "Guerra v. Shanahan" on Justia Law

Posted in: Immigration Law