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

Petitioner, a native and citizen of Barbados, and lawful permanent resident of the United States, seeks review of the BIA's order affirming the IJ's denial of petitioner's application for cancellation of removal. Petitioner was found deportable under 8 U.S.C. 1182(a)(2)(A)(i)(II) on the basis of a prior conviction in 1997 under Title 35 of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act 780‐113(a)(30) (1997), which was determined to be a conviction that related to a federal controlled substance. The court concluded that, because a conviction under 35 Pa. Stat. Ann. 780‐113(a)(30) is categorically a conviction under a law relating to a federal controlled substance under 8 U.S.C. 1227(a)(2)(B)(i), the court lacked jurisdiction to review the removability order. Accordingly, the court dismissed the petition for review. View "Collymore v. Lynch" on Justia Law

Petitioner, a citizen of Germany, seeks review of the BIA's dismissal of his appeal from the IJ's order of removal. Petitioner argued that his conviction for possession of child pornography under New York Penal Law 263.11 does not qualify as an aggravated felony under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43)(I), because it lacks an interstate commerce element that is present in the analogous federal child pornography statute. The court rejected petitioner's argument, concluding that the Supreme Court held in Torres v. Lynch that violation of a state criminal law may constitute an aggravated felony for purposes of the INA even if the law lacks a federal jurisdictional element. Accordingly, the court denied the petition for review. View "Weiland v. Lynch" on Justia Law

Petitioner, a native and citizen of the Dominican Republic, seeks review of the BIA's decision affirming the IJ's denial of his applications for a waiver of deportation under former Immigration and Nationality Act 212(c), 8 U.S.C. 1182(c), and cancellation of removal under current INA 240A(a), 8 U.S.C. 1229b(a). Petitioner argued that Peralta-Taveras v. Attorney General, which precludes petitioner from relief, did not survive the Supreme Court's 2012 decision in Vartelas v. Holder. The court held that the Supreme Court’s decision in Vartelas does not cast doubt on its decision in Peralta-Taveras, and the rule of Peralta-Taveras precludes relief in this case. Petitioner, liked the petitioner in Peralta-Taveras, was on notice at the time of his controlled-substance convictions that his prior aggravated-felony convictions would preclude him from seeking section 240A relief if convicted of another removable offense. Accordingly, the court denied the petition for review. View "Nunez Pena v. Lynch" on Justia Law

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision declining to certify, pursuant to 8 C.F.R. 1003.1(c), his untimely appeal of the May 14, 2013 order of removal of the IJ. The court concluded that the decision not to certify an untimely appeal is committed to agency discretion by law. Because the decision not to certify an untimely appeal is committed to BIA discretion, it is not subject to judicial review. The court remanded to the BIA for it to address the motion to reopen removal proceedings because the agency had not addressed the motion. View "Vela-Estrada v. Lynch" on Justia Law

Petitioner, a native and citizen of the People's Republic of China, petitioned for review of the BIA's determination that an IJ's findings of fact are clearly erroneous. The court concluded that, although the BIA recognized its obligation to apply the “clear error” standard of review to the IJ’s findings of fact, it erred in its application of that standard and provided an insufficient basis for rejecting the IJ’s findings. Therefore, the court granted the petition for review and remanded to the BIA for further consideration. View "Lin v. Lynch" on Justia Law

Plaintiff arrived in the United States on an H1-B visa and pursued employment-based status adjustment to permanent residency. Plaintiff's original petitioning employer filed an alien labor certification for her with the Department of Labor, followed by an I‐140 “Immigrant Petition for Alien Worker” with USCIS. Plaintiff filed for adjustment of status to obtain a green card and then changed employers pursuant to the portability provisions of the American Competitiveness in the 21st Century Act of 2000 (AC-21), 8 U.S.C. 1154(j) and 8 U.S.C. 1182(a)(5)(A)(iv). The original petitioning employer subsequently pleaded guilty to mail fraud, USCIS initiated revocation of all petitions filed by the employer, but neither plaintiff nor her new employer were informed of these events. Denial of her green card application purportedly gave her notice of the I‐140 revocation. As a preliminary matter, the court concluded that it has subject matter jurisdiction to consider plaintiff's claims. On the merits, the court held that USCIS acted inconsistently with the statutory portability provisions of AC‐21 by providing notice of an intent to revoke neither i) to an alien beneficiary who has availed herself of the portability provisions to move to a successor employer nor ii) to the successor employer, who is not the original I‐140 petitioner, but who, as contemplated by AC‐21, has in effect adopted the original I‐140 petition. Accordingly, the court vacated and remanded for further proceedings. View "Mantena v. Johnson" on Justia Law

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