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

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

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

The Second Circuit granted a petition for review of the BIA's decision denying petitioner's application for deferral or removal under the Convention Against Torture. Petitioner contended that, if he was removed to Jamaica, he would be killed in retaliation for his earlier cooperation with law enforcement.The court held that the jurisdictional provision in 8 U.S.C. 1252(a)(2)(C), which limits this court's jurisdiction, applies only to cases where the IJ has found a petitioner removable based on covered criminal activity, and that it does not apply where a petitioner's order of removal is based solely on unlawful presence. The court also held that the IJ and BIA discounted petitioner's credible testimony without proper explanation, failed to consider substantial and material evidence that petitioner is likely to be killed if removed to Jamaica, and erroneously placed a burden on petitioner to prove he could not internally relocate in order to avoid torture. Accordingly, the court remanded petitioner's application for deferral of removal for further proceedings. View "Manning v. Barr" on Justia Law

Petitioner, a legal permanent resident, sought review of an agency order of removal based on a finding that he committed an "aggravated felony" within the meaning of 8 U.S.C. 1101(a)(43)(G). Under section 1101(a)(43)(G), to establish an aggravated felony, the government must show by clear and convincing evidence that a noncitizen committed a "theft offense" that resulted in a term of imprisonment of "at least one year." Petitioner was a member of the U.S. Army when he pleaded guilty to four violations of the Uniform Code of Military Justice (UCMJ), one of which was larceny of military property. Under the military's customary practice of unitary sentencing at the time, the military judge issued a general sentence that imposed a punishment for all four of petitioner's convictions for 30 months' confinement.The Second Circuit held that, under the military's traditional unitary sentencing scheme, a military judgment in which a single sentence of confinement is imposed in connection with multiple counts of conviction may not be presumed to be equivalent to equal, full‐term, concurrent sentences as to each count of conviction. Because the government has not carried its burden, the court granted the petition for review and remanded for further proceedings. View "Persad v. Barr" on Justia Law

The Attorney General was statutorily authorized to impose all three challenged immigration-related conditions on Byrne Criminal Justice Assistance grant applications. The conditions require grant applicants to certify that they will (1) comply with federal law prohibiting any restrictions on the communication of citizenship and alien status information with federal immigration authorities; (2) provide federal authorities, upon request, with the release dates of incarcerated illegal aliens; and (3) afford federal immigration officers access to incarcerated illegal aliens.The Second Circuit held that the Certification Condition (1) is statutorily authorized by 34 U.S.C. 10153(a)(5)(D)'s requirement that applicants comply with "all other applicable Federal laws," and (2) does not violate the Tenth Amendment's anticommandeering principle; the Notice Condition is statutorily authorized by section 10153(a)(4)'s reporting requirement, section 10153(a)(5)(C)'s coordination requirement, and section 10155's rule‐making authority; and the Access Condition is statutorily authorized by section 10153(a)(5)(C)'s coordination requirement, and section 10155's rule‐making authority.The court also held that the Attorney General did not overlook important detrimental effects of the challenged conditions so as to make their imposition arbitrary and capricious. Accordingly, the court reversed the district court's award of partial summary judgment to plaintiffs; vacated the district court's mandate ordering defendants to release withheld 2017 Byrne funds, as well as its injunction barring defendants from imposing the three challenged immigration‐related conditions on such grants; and remanded for further proceedings. View "New York v. United States Department of Justice" on Justia Law

The Second Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal from an IJ's denial of her application for asylum. Petitioner claimed that she was entitled to asylum because if she is returned to El Salvador, she will be persecuted on account of her membership in a particular social group ‐‐ Salvadoran women who have resisted the sexual advances of a gang member ‐‐ and political opinion ‐‐ resistance to the norm of female subordination to male dominance that pervades El Salvador.The court held that, although petitioner failed to establish her asylum claim based on membership in a particular social group, the agency did not adequately consider petitioner's political opinion claim. In this case, the agency concluded that petitioner did not have a political opinion; concluded that petitioner simply chose to not be a victim; and failed to consider whether the attackers imputed an anti‐patriarchy political opinion to her when she resisted their sexual advances, and whether that imputed opinion was a central reason for their decision to target her. Accordingly, the court remanded for further proceedings. View "Hernandez-Chacon v. Barr" on Justia Law

The BIA must consider the principles of equitable tolling when an untimely appeal is filed and the petitioner raises the issue.The Second Circuit granted a petition for review of the BIA's decision refusing to accept petitioner's untimely appeal of an IJ's order of removal from Ghana. The court held that the BIA erred in refusing to consider whether the argument that the appeal deadline, which is nonjurisdictional, is subject to an equitable tolling exception. The court found that the appeal deadline is a claim‐processing rule amenable to equitable tolling and thus remanded to the BIA to develop standards for equitable tolling, determining whether petitioner qualified for such relief. View "Attipoe v. Barr" on Justia Law

Notwithstanding a district court's release order pursuant to the Bail Reform Act (BRA), the government has the authority under the Immigration and Nationality Act (INA) to detain a criminal defendant who is an alien in the course of an administrative removal proceeding.The Second Circuit vacated the district court's dismissal of an indictment against defendant with prejudice. The court held that the district court's bail release order under the BRA did not preclude the government from detaining defendant under the INA as an inadmissible alien subject to removal. The court found defendant's arguments to the contrary unavailing. View "United States v. Lett" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable and ineligible for cancellation of removal. The court held that petitioner's conviction under New York Penal Law 110.00, 130.45 for attempted oral or anal sexual conduct with a person under the age of fifteen constitutes sexual abuse of a minor, and was therefore an aggravated felony under the Immigration and Nationality Act. The court explained that petitioner's conviction under the New York statute did not encompass more conduct than the generic definition and could not realistically result in an individual's conviction for conduct made with a less than knowing mens rea. View "Acevedo v. Barr" on Justia Law

The Second Circuit denied the petition for sua sponte reopening of petitioner's removal proceedings pending the outcome of his U-visa application, because petitioner's U-visa application has been denied.However, the court granted the petition for review of the BIA's denial of petitioner's motion to suppress evidence of petitioner's alleged alienage, finding that he made a prima facie showing of an egregious violation of his Fourth Amendment rights. In this case, petitioner established a prima facie case that his arrest was racially motivated and therefore constituted an egregious violation of his constitutional rights. Accordingly, the court remanded for further proceedings. View "Rodriguez v. Barr" on Justia Law