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

Petitioner, a native and citizen of the Dominican Republic, sought review of the BIA's dismissal of his appeal from an IJ's order of removal and denial of his application for deferral of removal under the Convention Against Torture (CAT). The Second Circuit denied the petition insofar as petitioner challenged his conviction-based removal on the ground that, in determining whether his federal narcotics conviction rendered him removable, the agency was required to apply a "time‐of‐decision" rule and to compare his statute of conviction to the version of the Controlled Substances Act, 21 U.S.C. 801 et seq., in effect during his removal proceedings. The court granted the petition to the extent that petitioner urged that the agency committed legal error in denying his application for deferral of removal under the CAT. View "Doe v. Sessions" on Justia Law

Flores, a native of Ecuador, legally entered the U.S. in 1978 but overstayed his visa. He obtained legal permanent resident (LPR) status in 1979 and a passport stamp reading “temporary evidence of lawful admission for permanent residence valid until 1‐2‐80.” In November 1979, INS denied Flores’ application for adjustment of status and granted voluntary departure. Flores remained. In 1994, an immigration judge ordered his deportation. The BIA dismissed his appeal. In 2008, Flores was arrested and placed in detention. After three months, he was placed on supervised release. The BIA granted a motion to reopen; an IJ terminated the removal proceedings in 2010. The BIA closed the case in 2011. Flores subsequently received a notice from USCIS requesting that he report for a “[r]eview of your IJ decision, and LPR status.” Flores appeared and received a second passport stamp. He received his green card in 2012. In 2013, Flores sent administrative claims to federal entities under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671‐2680. After those entities denied his claims, Flores filed suit under the FTCA, alleging false arrest and imprisonment and other claims. The Second Circuit affirmed summary judgment for the government. Flores failed to present his claims within the two‐year statute of limitations; the “continuing violation doctrine” did not apply to this action and Flores failed to establish entitlement to equitable tolling of the limitations period. Flores’s injuries ceased after the IJ’s 2010 order. View "Flores v. United States" on Justia Law

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 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