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

Petitioner, a lawful permanent resident (LPR), and citizen of the Dominican Republic, was convicted of drug related offenses, sentenced to probation, and taken into custody by ICE agents pursuant to 8 U.S.C. 1226(c). Petitioner then sought habeas relief, contending that he was eligible to apply for bail because the mandatory detention provision of section 1226(c) did not apply to him because he had not been taken into custody “when released” and that indefinite incarceration without an opportunity to apply for bail violated his right to due process. The district court granted the petition. The court deferred to the BIA's interpretation that detention need not be immediate in order to be mandatory. The court held, however, that to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to section 1226(c) must be afforded a bail hearing before an immigration judge within six months of his or her detention. Following the Ninth Circuit, the court also held that the detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community. In this case, petitioner is neither a risk of flight nor dangerous where he is the primary caretaker of his two-year-old son who was placed in foster care while petitioner was in detention, he has no arrest record, and he has been gainfully employed for over two decades. The court affirmed the judgment. View "Lora v. Shanahan" on Justia Law

Petitioner, a native and citizen of Yemen, seeks review of the BIA's decision affirming the IJ's finding of removeability based on procurement of admission through fraud and denial of petitioner's request for a waiver of inadmissibility. The BIA determined that the government had demonstrated petitioner’s removability by clear and convincing evidence because petitioner, who was admitted to the United States as an unmarried son of a United States citizen, was married at the time of his admission. The court granted the petition for review because the BIA failed to consider petitioner's marriage certificate, which stated that he first married five years after his admission. The court also concluded that the BIA erred when it applied the standards for determining credibility articulated in the REAL ID Act, INA 208(b)(1)(B)(iii), 8 U.S.C. 1158(b)(1)(B)(iii), to assess petitioner’s testimony concerning his removability. On remand, the BIA is instructed to articulate the standard it applies when assessing the credibility of an individual who testifies on matters concerning removability in a contested removal proceeding. View "Ahmed v. Lynch" on Justia Law

Petitioner sought review of the BIA's denial of his motion to reopen removal proceedings relating to his claim of derivative citizenship. Under the statute in effect when petitioner was born - the Immigration and Nationality Act of 1952 (the 1952 Act) - a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. A child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen. In this case, petitioner's father satisfied the requirements for transmitting citizenship applicable to unwed mothers but not the more stringent requirements applicable to unwed mothers. Applying intermediate scrutiny, the court concluded that the gender‐based distinction at the heart of the 1952 Act’s physical presence requirements is not substantially related to the achievement of a permissible, non‐stereotype‐based objective. The court saw no reason that unwed fathers need more time than unwed mothers in the United States prior to their child’s birth in order to assimilate the values that the statute seeks to ensure are passed on to citizen children born abroad. Conforming the immigration laws Congress enacted with the Constitution’s guarantee of equal protection, the court concluded that petitioner is a citizen as of his birth. Accordingly, the court reversed and remanded. View "Morales-Santana v. Lynch" on Justia Law

Petitioner, a native and citizen of Ecuador, petitioned for review of the BIA's order determining that his receipt of a notice to appear failed to specify the date of his initial hearing sufficed to trigger the stop-time rule under 8 U.S.C. 1229b(d)(1). The court denied the petition for review because the BIA’s determination that a notice to appear need not include the date and time of the initial hearing to trigger the stop‐time rule is a permissible construction of the Immigration and Nationality Act entitled to Chevron deference from the court. In this case, DHS served petitioner with a notice to appear less than ten years after he entered the United States, that notice triggered the stop‐time rule on his period of continuance residence so as to preclude him from establishing his eligibility for cancellation of removal. View "Guaman-Yuqui v. Lynch" on Justia Law

Lugo, a citizen of Venezuela, came to the U.S. in 1996 on a nonimmigrant visa, and remained beyond the authorized period. In 2005, she was charged with concealing a felony involving her boyfriend, who sold heroin. On advice of counsel, who told her that she faced up to five years of incarceration, Lugo pled guilty under 18 U.S.C. 4. She was sentenced to time served. Lugo claims that her attorney never explained that a guilty plea could jeopardize her immigration status. In 2007, the Department of Homeland Security charged Lugo as removable. She applied for cancellation of removal based on hardship to her U.S. citizen child, and for relief under the Convention Against Torture. In 2011, an Immigration Judge found that Lugo was barred from cancellation of removal because of her conviction for misprision of felony was a “crime involving moral turpitude” that stops the clock on the 10-year “continuous physical presence” requirement for cancellation of removal under 8 U.S.C. 1229b(d)(1)(B). The BIA affirmed. The Second Circuit vacated and remanded: the rights of fair notice and effective assistance of counsel may provide a reason not to apply, retroactively, new agency rules that establish deportation as a consequence of certain crimes. View "Lugo v. Holder" on Justia Law

Ortiz‐Franco, a citizen of El Salvador, entered the U.S. illegally in 1987. Between 1992 and 1996, he was convicted of: criminal possession of a weapon in the third degree, a class D Armed Violent Felony under New York law; attempted petit larceny; and possession of a controlled substance. He conceded that he was removable as an alien present without being admitted or paroled and as an alien convicted of a controlled substance violation and a crime of moral turpitude. He argued that, if he is returned to El Salvador, members a street gang would torture and kill him because of information he provided to federal prosecutors. He applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. The IJ ruled that his witness tampering conviction rendered Ortiz‐Franco ineligible for asylum and withholding of removal, and that he did not demonstrate entitlement to CAT relief because he did not establish that it was more likely than not that he would be subject to torture in which the Salvadoran government would acquiesce. The BIA affirmed. The Second Circuit dismissed an appeal for lack of jurisdiction under 8 U.S.C. 1252(a)(2)(C) because Ortiz-Franco raised no colorable constitutional claims. View "Ortiz-Franco v. Holder" on Justia Law

Prabhudial was admitted to the U.S. as a legal permanent resident in 1983. In 2012, he was placed in removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii), (A)(2)(B)(i), based on New York convictions: two for seventh‐degree possession of a controlled substance, N.Y. Penal L. 220.03, and one for fifth‐degree sale of a controlled substance, N.Y. Penal L. 220.31. The BIA initially affirmed an order of removal, but reopened after Prabhudial‘s sale conviction was vacated. An IJ granted relief. About a year later, after the previously vacated sale conviction was reinstated, Prabhudial was served with a second Notice to Appear. Rejecting Prabhudual’s claim that a case pending before the New York Court of Appeals, if decided favorably, would give him grounds to again seek vacatur of his conviction, the IJ ruled that the sale conviction was an aggravated felony, and sustained charges of removability. On appeal, the BIA held that Prabhudial had waived an argument that the Supreme Court’s 2013 decision, Descamps v. United States, prohibited the agency from using the modified categorical approach to determine whether his sale conviction was an aggravated felony. The Second Circuit dismissed: the BIA may apply the doctrine of waiver to matters not raised before an IJ. View "Prabhudial v. Holder" on Justia Law

Florez, a citizen of Honduras and a lawful permanent resident of the U.S., was charged in New York with a variety of offenses. Florez was twice convicted of endangering the welfare of a child, for “knowingly act[ing] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” The first conviction, in 2004, arose from Florez’s involvement with a co‐defendant who was charged with “acting in concert with another person” in the rape of a teenage girl. His precise role in the incident was unclear. The second conviction, in 2010, resulted from Florez’s driving under the influence of alcohol while his two children, aged one and nine, were in the car. The Department of Homeland Security commenced removal proceedings under 8 U.S.C. 1227(a)(2)(E)(i). The Immigration Judge held that Florez’s convictions each satisfied the generic federal definition of a “crime of child abuse.” The BIA affirmed. The Second Circuit denied a petition for review, rejecting an argument that the broad interpretation of the statutory phrase “crime of child abuse” is unreasonable. View "Florez v. Holder" on Justia Law

Flores, a citizen of Honduras, entered the U.S. without inspection in 1991. He married a U.S. citizen. In 2009, he was convicted of two counts of first‐degree sexual abuse under New York law. Charged with removability under: 8 U.S.C. 1182(a)(6)(A)(i)), for being present without being admitted or paroled, and 8 U.S.C. 1182(a)(2)(A)(i)(I)), for having been convicted of crimes involving moral turpitude, Flores appeared pro se. After several continuances, Flores conceded removability for entering without inspection. He requested another continuance to pursue adjustment of status and a waiver of inadmissibility, based on an approved I‐130 Petition for Alien Relative filed by his U.S.‐citizen sister in 2001 and another filed by his wife in 2010. Flores also moved to terminate his proceedings and applied for asylum, withholding of removal, and relief under the Convention Against Torture, based on his fear of Honduran gangs. The IJ denied all relief. The BIA affirmed, finding Flores ineligible for asylum because his convictions were aggravated felonies relating to the sexual abuse of a minor (8 U.S.C. 1101(a)(43)(A)) and were particularly serious crimes. The Second Circuit vacated; the agency erred in denying a continuance and in determining that the offenses were aggravated felonies, but did not err in concluding that they were particularly serious crimes. View "Flores v. Holder" on Justia Law

Petitioner, a citizen and native of the Kyrgyz Republic, petitioned for review of the BIA's order dismissing his appeal from the IJ's denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner claimed that he was persecuted because he is an ethnic Korean and an Evangelical Christian. The court granted the petition for review because the IJ and the BIA failed to adequately explain why the significant violence petitioner suffered was insufficiently egregious to constitute persecution and failed to consider record evidence of petitioner's aunt's testimony and affidavit, which tended to prove that the Kyrgyz police are unwilling or unable to protect petitioner from private persecutors. View "Pan v. Holder" on Justia Law