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

Petitioner, a citizen of the Dominican Republic, sought review of the BIA's order affirming the IJ's finding that he had been convicted of an aggravated felony and was ineligible for cancellation of removal. The court concluded that petitioner's New York state conviction under NYPL 220.39(1) constituted an aggravated felony, which deprived the court of jurisdiction to review the order of removal. The court also denied petitioner's additional motions as moot. View "Pascual v. Holder" on Justia Law

Plaintiff, a native and citizen of Albania, appealed the district court's dismissal of his complaint, holding that it lacked jurisdiction to review the decision of the CIS to deny plaintiff's application for a waiver of inadmissibility pursuant to section 212(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(i). Because the plain language of the INA provided that judicial review of such decisions was available only for "constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals," the district court correctly determined that it lacked jurisdiction to adjudicate plaintiff's claims. The court need not consider the government's remaining arguments that plaintiff's removal from the United States rendered this appeal moot and that plaintiff failed to identify any legal errors in the CIS's decision. View "Shabaj v. Holder" on Justia Law

Petitioner, a citizen of Serbia, petitioned for review of an order of the BIA affirming the oral decision of the IJ, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The IJ rejected petitioner's claim of past persecution, explaining that his failure to demonstrate that the abuse he suffered had a sufficient nexus to a protected ground. The court concluded, however, that the proposed group of cooperating witnesses was a particular social group under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(42)(A). Accordingly, the court granted the petition for review, vacated the BIA's order, and remanded for the agency to consider whether petitioner was a member of the group, whether the 2005 attacks and threats directed against petitioner amounted to persecution, and, if so, whether that persecution was on account of his membership in the group. View "Gashi v. Holder" on Justia Law

Defendant appealed from the judgment of the district court convicting him of illegal reentry under 8 U.S.C. 1326, following a conditional plea. While defendant's 1998 immigration proceedings were pending, he was arrested for robbery and detained in New York. Although he notified the INS of his new address, the INS did not properly process the address change and failed to notify defendant of his ongoing immigration proceedings, so that he was ordered removed in absentia. Defendant was removed to Jamaica but he subsequently returned to the United States. He was arrested again and indicted for illegal reentry. Defendant moved to dismiss the indictment on the ground that he was given no notice of the 1998 removal proceedings. Because the district court properly considered defendant's completed criminal conduct in ruling that the entry of the removal order against defendant in abstentia was not fundamentally unfair because there was no reasonable probability that defendant would have obtained relief had he received notice of the removal proceeding and been present, the court affirmed the judgment. View "United States v. Daley" on Justia Law

Petitioner, a Malaysian citizen who has overstayed his immigrant visa in the United States, sought an adjustment of immigration status. Petitioner invoked the so-called "grandfathering" exception for beneficiaries of labor-certification applications filed by April 30, 2001 pursuant to 8 U.S.C. 1255(i)(1)(B)(ii). The Attorney General has interpreted that provision as applying only to beneficiaries actually listed on labor-certification applications as of April 30, 2001. The court held that 8 C.F.R. 245.10(j) and section 1245.10(j), in which the Attorney General set forth this interpretation, was entitled to Chevron deference. Accordingly, the IJ and BIA properly determined that petitioner was ineligible for a change of immigration status because he was not listed as a beneficiary on an application for labor certification until after April 30, 2001. The court denied the petition for review. View "Lee v. Holder" on Justia Law

The government appealed from the district court's order suppressing evidence found following the stop and subsequent search of a vehicle driven by defendant. The vehicle stop was executed by two officers of the St. Regis Mohawk Police Department (SRMPD), one of whom was also cross-designated as a U.S. customs officer by ICE. The district court held that the vehicle stop violated the Fourth Amendment because the officers lacked the authority to act as law enforcement officers at the time of the stop. The court held that the violation of the ICE policy requiring prior authorization did not affect the constitutionality of the stop under the Fourth Amendment and that the stop and subsequent search comported with the Fourth Amendment because they were justified by probable cause. Accordingly, the court reversed the decision of the district court. Because the court determined that the stop was a constitutional exercise of designated customs authority, the court did not decide whether the stop was also a constitutional exercise of New York police authority. View "United States v. Wilson" on Justia Law

This opinion sets out a procedure for all immigration cases pending in this Court that will enable an interested petition and the Government to evaluate whether remand to the BIA, according to terms specified, is appropriate. View "In the Matter of Immigration" on Justia Law

Petitioner, a native and citizen of Albania, sought review of the BIA's order reversing the decision of the IJ, which granted her application for asylum, withholding of removal, and relief under the Convention Against Torture. The IJ found that petitioner testified credibly and belonged to a particular social group at risk of being kidnapped and forced into prostitution. Because the court found that young, unmarried Albanian women did not constitute a social group for asylum purposes, the court denied the petition for review. View "Gjura v. Holder" on Justia Law

Petitioner, a native and citizen of the People's Republic of China, petitioned for review of a decision by the BIA affirming the decision of the IJ denying his application for asylum, withholding of removal, and relief under the Convention Against Torture. The court concluded that the BIA failed to consider petitioner's opposition in its full factual and political context, and the court rejected the BIA's conclusion that opposition to corruption at one workplace - without evidence that the corruption extended to other workplaces - could not serve as the basis for asylum. Finally, the court concluded that the BIA erroneously failed to consider petitioner's claim of imputed political opinion. Accordingly, the court granted the petition and remanded to the BIA for further proceedings. View "Yu v. Holder" on Justia Law

Petitioner, a native and citizen of Albania, sought review of an order of removal by ICE. Petitioner entered the United States through the Visa Waiver Program (VWP), using a fraudulent Italian passport. The court held that petitioner knowingly and voluntarily waived her right to contest her removal on any basis other than asylum, and having participated in her asylum-only proceeding, petitioner could not contest removal on the ground that she filed an adjustment of status application after she overstayed the time she was authorized to be in this country. The court concluded that a VWP participant could not contest his or her removal on the basis of an adjustment of status application filed after the 90-day period during which a VWP participant could stay in the country. View "Gjerjaj v. Holder" on Justia Law