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

Petitioner, a native of the former Yugoslavia and citizen of Montenegro, sought review of the BIA's order of removal, denial of his request for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h), and denial of his request for a continuance. At issue was whether an alien who lawfully entered the country without lawful permanent resident (LPR) status but later adjusted to LPR status is eligible to seek a waiver of inadmissibility under section 212(h). The court joined seven sister circuits and found that an alien like petitioner is unambigiously not "an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence." Therefore, petitioner is eligible to seek a waiver under section 212(h) if the Attorney General chooses to exercise favorable discretion. The challenge to the denial of petitioner's request for a continuance is moot. Accordingly, the court granted the petition in part and vacated the removal order to permit application for a waiver of inadmissibility. The court dismissed the remainder of the petition as moot and remanded for further proceedings. View "Husic v. Holder" on Justia Law

Petitioner, a Chinese national, sought review of the BIA's decision upholding the IJ's denial of asylum and withholding of removal. The BIA determined that imposition of a fine equal to approximately twenty times petitioner's annual income and, after petitioner left China, further sanction for failure to pay the fine, specifically, termination of his family's farming leasehold, did not establish either past persecution or a well founded fear of future persecution. The court held that while a severe fine can amount to economic persecution, an alien claiming to have suffered past persecution must show more than the imposition of such a fine; he must show that payment of the fine (or efforts to pay or collect it) actually deprived him of the basic necessities of life or reduced him to an impoverished existence. The court clarified that an unpaid fine and sanctions imposed after an alien is already in the United States for nonpayment of a fine may support a well founded fear of future persecution if the alien were returned to his native country. In this case, substantial evidence supports the BIA's finding that petitioner failed to demonstrate that the imposition of a severe fine deprived him of the basic necessities of life or impoverished him before he left China. However, the BIA erred in concluding that no evidence existed of continuing demands for payment while petitioner has been in the United States and reaching other factual conclusions not supported by substantial evidence. Accordingly, the court vacated the BIA's order insofar as it denied petitioner both asylum and withholding of removal. The court remanded for further proceedings, granting review of the BIA's feared future persecution ruling. View "Huo Qiang Chen v. Holder" on Justia Law

Petitioner, a native and citizen of the People's Republic of China, sought review of the BIA's decision affirming the IJ's order of removal and denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT), based on past political persecution she experienced as a local public security officer. The court concluded that the statutory persecutor bar rendered petitioner ineligible for asylum and withholding of removal because, for over 20 years, she reported the identities of women with unauthorized pregnancies, knowing that, as a result, many of these women would be subjected to forced abortions and sterilizations; this showing was legally sufficient to demonstrate her assistance in persecution; petitioner is not entitled to relief under the CAT because she failed to establish that it is more likely than not that she will be tortured if removed to China; and, therefore, the court denied the petition for review. View "Meng v. Holder" on Justia Law

Petitioner, a native and citizen of Italy, sought review of the BIA's order determining that his conviction under 18 U.S.C. 922(g)(1) for the unlawful possession of ammunition qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(E)(ii). Petitioner argued that his conviction for the unlawful possession of ammunition does not constitute an offense "relating to firearms." The BIA held, however, that the "relating to" parenthetical in section 1101(a)(43)(E)(ii) was purely descriptive and not restrictive, classifying only a subset of the crimes defined in section 922(g)(1) as aggravated felonies. The court concluded that the BIA's descriptive reading of section 1101(a)(43)(E)(ii) is reasonable because it harmonized the broader structure of section 1101(43) and judicial precedent. Under Chevron deference, the court concluded that the BIA's ruling is a permissible construction of the statute. Accordingly, the court denied the petition for review. View "Oppedisano v. Holder" on Justia Law

Petitioner, a native and citizen of Jamaica, sought review of the BIA's order affirming the IJ's order of removability. The court concluded that the record supports the BIA's determination that petitioner's conviction of a controlled substance offense remains a removable offense even after the state court vacated the conviction under ARS 13-907 because she sought and obtained vacatur solely for rehabilitative reasons and to avoid adverse immigration consequences. Consequently, petitioner's conviction remains valid for federal immigration purposes. The court dismissed the petition for lack of jurisdiction. View "Sutherland v. Holder" on Justia Law

Petitioner asserts that he is a stateless Tibetan born in Nepal. On appeal, petitioner sought review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court vacated and remanded the BIA's decision where the BIA erroneously required petitioner to establish his nationality through documentary evidence alone. The court instructed the BIA to review the IJ's credibility finding and, on remand, the agency must make an explicit finding with respect to petitioner's country of nationality and citizenship for purposes of establishing the country with respect to which the agency is conducting its asylum inquiry and ensuring compliance with the mandatory, consecutive removal commands of 8 U.S.C. 1231(b)(2). View "Urgen v. Holder" on Justia Law

Petitioner, a native and citizen of the Dominican Republic, was convicted of attempted arson in the third degree in violation of New York Penal Law sections 110 and 150.10. Petitioner claimed that his conviction is not an aggravated felony rendering him statutorily ineligible for cancellation of removal. Applying Chevron deference, the court deferred to the BIA's reasonable determination that a state "offense described in" 18 U.S.C. 844(i) need not contain a federal jurisdictional element. Accordingly, the court denied the petition.View "Torres v. Holder" on Justia Law

Petitioner, a native and citizen of China, appealed the BIA's affirmance of the IJ's declaration that his petition was untimely. At issue was whether political activity first undertaken in the United States amounts to "changed circumstances" for purposes of the asylum provision of the Immigration and Nationality Act (INA), 8 U.S.C. 1158. Petitioner argued that his new China Democratic Party World Union (CDPWU) membership and his criticism of the Chinese Communist Party, made on the CDPWU website and in public spaces, had produced such changed circumstances because officials in China can see his public words and affiliation, and they may persecute him for them. The court concluded that the IJ and BIA have committed an error of law on the changed circumstances issue where their conclusion is in tension with a controlling DOJ regulatory interpretation of the asylum provision and their decision constitutes an unexplained, and therefore impermissible, departure from prior agency precedent. Accordingly, the court granted the petition for review and remanded for further proceedings.View "Lin v. Holder" on Justia Law

Petitioner, a native and citizen of Ghana, pled guilty to an information including a count related to his heroin smuggling activities. Petitioner then cooperated with federal agents to arrange a controlled delivery of the heroin to another individual in this country. Petitioner sought relief under the protection of witnesses provision of the United Nations Convention Against Transnational Organized Crime (CATOC), T.I.A.S. 13127, 2225 U.N.T.S. 209. The court held that the protection of witnesses provision was not self-executing and the relief petitioner sought could not be enforced by the BIA, the district court, or this court.View "Doe v. Holder" on Justia Law

Petitioners sought review of the BIA's dismissal of their appeals from decisions of the IJ and denial of their motions to remand and reopen. Petitioners were among persons gathered in a park to seek work as day laborers. The police department and ICE were jointly conducting a sting operation. Petitioners entered an unmarked vehicle driven by an undercover officer and were transported to a parking lot and arrested. During processing, petitioners made incriminating statements about their alienage. The IJ denied petitioners' motions to hold suppression hearings, suppress evidence, and terminate removal proceedings. The court concluded that petitioners failed to state egregious Fourth Amendment violations; the ordinary exclusionary rule does not apply in a civil deportation hearing; the BIA properly concluded that petitioners failed to assert egregious pre-hearing regulatory violations by ICE agents; and the BIA did not err in denying petitioners' motions to remand and to reopen. Accordingly, the court denied the petitions for review.View "Maldonado v. Holder" on Justia Law