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

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

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