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

Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found Petitioner not credible and denied her application. Petitioner appealed to the Board of Immigration Appeals (BIA), which affirmed the IJ’s credibility decision. In addition to challenging the adverse credibility finding, Petitioner claimed for the first time that the border interview record was improperly admitted into evidence at the IJ hearing. The BIA rejected that argument as waived and also rejected it on the merits. Petitioner petitioned the Second Circuit for review.   The Second Circuit granted in part, denied in part, and vacated the BIA’s decision. The court explained that the immigration judge failed to consider various factors that may have affected the reliability of the border interview record. Petitioner claimed that she was frightened during the interview because a border patrol officer hit her and yelled at her upon her arrival to the United States. Petitioner may also have been reluctant to reveal information about persecution because authorities in her home country were allegedly unwilling to help her due to her indigenous status. Moreover, the questions asked during Petitioner’s border interview generally were not designed to elicit the details of an asylum claim. The court explained that in Ramsameachire v. Ashcroft, it cautioned immigration judges to consider these factors and others before relying on a border interview to find an asylum applicant not credible. Consistent with Ramsameachire and subsequent precedent, the court wrote that immigration judges are required to take such precautions. View "Pomavilla-Zaruma v. Garland" on Justia Law

Petitioner appealed the denial of his habeas petition to vacate his 2006 guilty plea, conviction, and sentence. Defendant asserted that he received ineffective assistance of counsel because his lawyer did not warn him of the risks of denaturalization and possible subsequent deportation arising from his guilty plea.   The Second Circuit affirmed. The court explained that the Sixth Amendment guarantees criminal defendants the effective assistance of counsel during plea negotiations. Effective assistance includes warning defendants of the “direct” consequences of pleading guilty, such as the offense’s maximum prison term and the likely sentence as set forth in a plea agreement. However, the court explained that it has long held that an attorney need not warn of every possible “collateral consequence of conviction. And such collateral consequences are “categorically removed from the scope of the Sixth Amendment.” Thus, a defendant can only establish an ineffective assistance claim as to a collateral consequence if his attorney affirmatively misadvises him. Failing to warn of the collateral risk alone is not enough. The court explained that the instant appeal is resolved by the straightforward application of this direct/collateral framework. Accordingly, the court held that the distinction remains valid, that it applies to civil denaturalization, and that such denaturalization is a collateral consequence of the conviction, and so is not covered by the Sixth Amendment’s right to effective assistance of counsel. View "Farhane v. United States" on Justia Law

Petitioner petitioned for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Petitioner was not credible.   The Second Circuit granted Petitioner’s petition for review and vacated the BIA’s decision. The court remanded, concluding that certain reasons for that credibility finding were erroneous, and the court cannot be confident that the IJ would have made the same determination absent those errors. The court concluded that the agency improperly relied on a number of trivial omissions and inconsistencies to find that Petitioner was not credible. First, the details Petitioner provided in his testimony about his encounter with the police at the police station were also referenced in his prior asylum statement. And even if they were not, they would merely supplement rather than contradict the asylum statement and would thus not alone support an adverse credibility determination. Second, most, if not all, of the inconsistencies in Petitioner’s description of his relationship with his wife were trivial. Third, although any inconsistencies relating to Petitioner’s interactions with his cousin may be non-trivial, the court wrote that it cannot “confidently predict” that the IJ would have made the same adverse credibility determination based on those inconsistencies alone. View "Chen v. Garland" on Justia Law

Petitioner petitioned for review of a Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Petitioner’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Petitioner argued that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand.   The Second Circuit granted Petitioner’s petition for review, vacated the BIA’s decision, and remanded for further proceedings. The court explained that it does not matter whether Petitioner initially requested a continuance from the IJ or whether his motion to remand was filed while proceedings before the IJ were ongoing. Petitioner only became aware of prior counsel’s alleged misconduct the premise for his U visa application—after the IJ had issued its decision and Petitioner sought advice from other counsel. Thereafter, he appears to have diligently pursued his U visa application and presented proof of his submitted U visa application to the BIA while his appeal was still pending. The BIA has advanced no reason why Sanchez Sosa should not apply under these circumstances. Therefore, the court concluded that the BIA should have applied the Sanchez Sosa factors in considering Petitioner’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. View "Paucar v. Garland" on Justia Law

Pakistani nationals and brothers petitioned for review of a Board of Immigration Appeals decision upholding orders denying them adjustment of status and directing their removal from the United States. Petitioners argued that the agency erred in finding them ineligible for adjustment of status based on their earlier filing of frivolous, i.e., deliberately and materially false, asylum applications because those applications were untimely and, thus, their concededly false statements could not have been material to a matter properly before the agency for decision. Petitioners further faulted the agency for alternatively denying them adjustment of status as a matter of discretion.   The Second Circuit denied Petitioners’ petition for their review. However, the court explained that a question arises as to how Petitioners removal will affect their future ability to apply for reentry to the United States. A permanent and unwaivable bar on reentry applies to any alien who filed a frivolous claim for asylum after receiving notice of that consequence. Otherwise, the alien may be subject to lesser, waivable bars on reentry. Because this court cannot determine on the present record whether Petitioners received the notice required to trigger a permanent, unwaivable bar. The court granted review as to that single question and remanded for the limited purpose of allowing the agency to make an express finding as to notice and, based on that finding, to specify the scope of the reentry bar that will attend Petitioners’ removal. View "Ud Din v. Garland" on Justia Law

Petitioner sought a review of a decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal, ordering her removed, and denying her application for cancellation of removal. The BIA ordered that she be removed under 8 U.S.C. Section 1227(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude (“CIMT”). Specifically, the BIA and Immigration Judge (“IJ”) determined that a conviction under Arkansas Code Annotated (“ACA”) Section 5-60-101 is categorically a CIMT.   The Second Circuit reversed. The court concluded that a conviction under ACA Section 5- 60-101 is not categorically a CIMT because the statute criminalizes conduct that is not “inherently base, vile, or depraved.” The court explained that the BIA did not conduct an elements-based categorical inquiry. Instead, it applied an inapposite “realistic probability” test. That test “operates as a backstop when a statute has indeterminate reach, and where minimum conduct analysis invites improbable hypotheticals.” It applies only when there is a match between the state statute and federal standard, but a petitioner posits imaginative scenarios in which the state statute would be violated in such a way that does not meet the requirements of a CIMT. View "Giron-Molina v. Garland" on Justia Law

Petitioner is a 32-year-old native and citizen of Jamaica who entered the United States in 2006 and overstayed his visitor visa. On December 20, 2017, Immigration and Customs Enforcement ("ICE") officers arrested Petitioner pursuant to a warrant issued by the Department of Homeland Security ("DHS"). In removal proceedings before the IJ, Petitioner argued that the immigration court lacked jurisdiction over his removal proceedings and the officers violated agency regulations and his fundamental rights during his arrest and interrogation.   The Second Circuit denied the petition. The court agreed that the agency had jurisdiction and that termination of the removal proceeding was not warranted. The court explained under Rajah termination may be warranted for pre-hearing regulatory violations in cases involving "prejudice that may have affected the outcome of the proceeding, conscience-shocking conduct, or a deprivation of fundamental rights." As Petitioner has failed to show that he satisfies any of the three requirements for termination, he is not entitled to termination of his removal proceedings, with or without prejudice to renewal. Accordingly, the court found that the immigration court did not abuse its discretion in denying the motions to terminate. View "Medley v. Garland" on Justia Law

Petitioner appealed the denial of his application for cancellation of removal by the Board of Immigration Appeals (“BIA”). After an immigration judge (“IJ”) initially granted cancellation, the BIA reversed, determining that Petitioner was statutorily eligible for cancellation but did not merit a favorable exercise of the agency’s discretion in light of his criminal history— namely, his two convictions for domestic violence. Petitioner objected to the BIA’s characterization of his criminal history, arguing that it impermissibly engaged in factfinding and reevaluated the IJ’s factual findings.   The Second Circuit dismissed the petition, holding that it lacks jurisdiction to review the discretionary decision. The court explained that the BIA did not second-guess the IJ’s factual findings or find facts of its own—it conducted a de novo reweighing of the equities based on the facts found by the IJ. The BIA thus properly exercised its discretion to deny cancellation of removal. View "Hernandez v. Garland" on Justia Law

Petitioner, a native and citizen of Ukraine, sought review of a December 12, 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Based on ostensible inconsistencies in  Petitioner’s testimony and a purported failure to submit corroborating evidence, an Immigration Judge (“IJ”) entered an adverse credibility finding.   The Second Circuit granted the petition for review, vacated the BIA’s decision, and remanded the case. The court explained that based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, the IJ entered an adverse credibility finding. However, the court d that the adverse credibility finding is not supported by substantial evidence and that the IJ unjustifiably refused to allow Petitioner to present readily available witness testimony, thereby depriving him of a full and fair hearing.   The court reasoned that the IJ identified discrepancies between Petitioner’s testimony as to whether his prior employment included driving responsibilities and whether his most recent period of employment began in October 2013 or March 2014. These findings were not adopted by the BIA. Though labeled a “material inconsistency” by the IJ, nowhere in his decision did he explain how these issues relate to Petitioner’s asylum claim, nor is the connection self-evident. The court explained that it has doubts whether, absent the errors identified above, the IJ would have reached the same conclusion based on these remaining issues. View "Malets v. Garland" on Justia Law

Petitioner petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his request for administrative closure of his removal proceedings. The agency relied on the Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), a then-controlling decision of the Attorney General that prohibited administrative closure. The Attorney General subsequently overruled that decision and revised the agency’s position.   The Second Circuit denied the petition for review. First, the court held that an agency does not abuse its discretion by relying on an interpretation of its regulations that are controlling at the time of its decision—even if the agency subsequently revises that interpretation—as long as it reflects a reasonable interpretation of the regulations. Second, the court concluded that the regulations, in this case, are at least ambiguous with respect to the availability of administrative closure and that Matter of Castro-Tum expressed a reasonable interpretation of the regulations that is entitled to deference. Third, the court agreed with the BIA that the Matter of Castro-Tum did not authorize administrative closure in this case. View "Garcia v. Garland" on Justia Law