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

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

Petitioner, a native and citizen of Senegal, sought review of the BIA's affirmance of the IJ's denial of his application for adjustment of status based on a finding that he was ineligible for all relief for having filed a frivolous asylum application. Petitioner originally applied for asylum, withholding of removal, and relief under the Convention Against Torture, falsely stating on his application that he was from the Ivory Coast where he had been persecuted on account of his ethnicity and his political opinion. The court denied the petition for review because the BIA did not err in denying petitioner's adjustment applications where he received adequate notice of the consequences of filing a frivolous application through the written warning on the asylum application.View "Niang v. Holder" on Justia Law

Petitioner, a native and citizen of Jamaica, sought review of the BIA's affirmance of the IJ's finding of removal based on her convictions for multiple crimes involving moral turpitude and an aggravated felony as defined in the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43)(G). Petitioner argued that, although she was convicted of a theft offense, the BIA erred in finding that the term of imprisonment for that offense was at least one year. The court held that petitioner's conviction constituted an aggravated felony theft offense for which the term of imprisonment was at least one year because it is the actual sentence imposed, including any recidivist enhancements applied, that is considered. The court extended to its interpretation of the phrase "term of imprisonment" in the INA the Supreme Court's holding in United States v. Rodriquez, that the phrase "maximum term of imprisonment" in the Armed Career Criminal Act (ACCA), 18 U.S.C. 924, includes any applicable recidivist sentence enhancement. Accordingly, the court denied the petition for review.View "Dawkins v. Holder" on Justia Law

Petitioner, a native of Albania, petitioned for review of the BIA's dismissal of her application for asylum and other relief. At issue was whether "young Albanian women" or "young Albanian women between the ages of 15 and 25" qualify as a particular social group. The court concluded that it was necessary to remand to the BIA for a redetermination of whether petitioner has identified a cognizable social group in light of the BIA's recent clarifications in M-E-V-G- and W-G-R-. Accordingly, the court vacated the BIA's decision and remanded.View "Paloka v. Holder" on Justia Law

Petitioner, a citizen and native of Nepal, seeks review of the BIA's dismissal of his appeal from an oral decision of the IJ denying petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court concluded that the IJ applied an incorrect and overly stringent legal standard in evaluating petitioner's claim of political persecution where petitioner may satisfy his burden for establishing eligibility of asylum by demonstrating that a statutorily protected ground, such as political opinion, was or will be at least one central reason for persecuting the applicant. The IJ erred when it determined that petitioner failed to show that political persecution was "the central reason" for his persecution by the Nepali Maoists. The court granted the petition for review and remanded for further proceedings. The pending motion for stay of removal was denied as moot.View "Acharya v. Holder" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's denial of petitioner's motion to suppress evidence and terminate removal proceedings, and his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court held that where, as here, an alien voluntarily concedes facts supporting his removeability, such concessions constitute independently admissible removability evidence, notwithstanding the allegedly egregious and illegal search and seizure that led to the initiation of the removal proceedings. Therefore, the agency did not err in denying the suppression motion. The court also concluded that the agency did not err by denying the asylum application based on the failure of petitioner's testimony to establish a well-founded fear and, by extension, a clear probability of prosecution. Accordingly, the court denied the petition for review. View "Vanegas-Ramirez v. Holder" on Justia Law

Petitioner, a native and citizen of Peru, sought review of a 2011 order of the BIA affirming a 2009 decision of the IJ, which pretermitted his application for cancellation of removal under section 240A of the Immigration and Nationality Act (INA), 8 U.S.C. 1229b(a), and for a waiver under the former INA 212(c), 8 U.S.C. 1182(c). The court concluded that petitioner was properly deemed inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(II) and a single confusing reference to a Class B misdemeanor did not compel a different conclusion. The court saw no basis for concluding that Vartelas v. Holder overruled Domond v. INS sub silentio; the court adhered to Domond's teaching that the legal regime in force at the time of an alien's conviction determines whether an alien is entitled to seek section 212(c) relief; and because petitioner's conviction for a controlled substance post-dated the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 et seq., he was ineligible for a waiver of deportation under section 212(c). Accordingly, the court dismissed the petition for review. View "Centurion v. Holder" on Justia Law

Petitioner pled guilty to four counts of sexual assault in the fourth degree under Connecticut General Statute 53a-73a(a)(2), which criminalizes subjecting "another person to sexual contact without such other person's consent." The United States then commenced removal proceedings against petitioner under 8 U.S.C. 1227(a)(2)(A)(ii). Under federal immigration law, petitioner's removal turns on whether the crime he was convicted of is a crime involving moral turpitude. Because the court is unable to predict what level of mens rea the Connecticut courts would require, and because the issue involves the weighing of important policy considerations, the court certified questions to the Connecticut Supreme Court. View "Efstathiadis v. Holder" on Justia Law