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

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

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