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

Petitioner petitioned for review of an immigration officer’s decision to reinstate a prior order of removal against him and for review of an immigration judge’s subsequent decision that he does not qualify to pursue claims for withholding of removal to India. Petitioner was removed from the United States in 2010 and again in 2017, the latter time pursuant to a removal order entered on March 25, 2016, he expressed a fear of persecution and torture in India based on his political views, triggering the protocol set out in 8 C.F.R. Sec. 208.31   The Second Circuit dismissed the immigration Petitioner’s petition for review of an immigration officer’s decision to reinstate a prior order of removal. The court held that it did not have jurisdiction because Petitioner sought review of withholding-only decisions but no final order of removal subject to judicial review. The court reasoned that Illegal reentrants are “not eligible and may not apply for any relief under” the INA and “shall be removed under the prior order at any time after the reentry.” View "Bhaktibhai-Patel v. Garland" on Justia Law

During the height of the COVID-19 public health crisis, the United States District Court for the Southern District of New York Judge issued a preliminary injunction principally requiring the United States Immigration & Customs Enforcement ("ICE") to release Petitioner and three others from immigration detention. The government appealed from an August 2020 order denying its motion to vacate or modify. The government sought permission to re-detain Petitioner on the ground that since his release he has been arrested and charged with crimes, thereby violating the court-imposed condition that he does not commit a crime while on release. The district court denied the motion.   The Second Circuit concluded that the court erred in ruling that a release condition prohibiting the commission of a crime is not violated unless there has been a criminal conviction. The court reasoned that the district court based its decision not on an assessment of the evidence as to Petitioner’s conduct but rather on its view as a matter of law that a release condition prohibiting the commission of a crime is not violated unless and until there is a conviction. The court also remanded for the district court to reconsider the government's motion, taking into account whether it was more likely than not that Petitioner committed a crime while on release. View "Villiers v. Decker" on Justia Law

Defendants-Appellants the United States Citizenship and Immigration Services (“USCIS”), the United States Department of State (“DOS”), and the United States Immigration and Customs Enforcement (“ICE”) appealed from three orders of the district court for the Southern District of New York requiring they produce certain documents in response to FOIA requests filed by the Knight First Amendment Institute at Columbia University (“Knight”). The court reasoned that FOIA is premised on “a policy strongly favoring public disclosure of information in the possession of federal agencies.” Halpern v. F.B.I., 181 F.3d 279 (2d Cir. 1999). However, in some circumstances, Congress determined that other interests outweigh the need for transparency. These circumstances are embodied by a limited set of four statutory exemptions from FOIA’s disclosure requirements.Here, the court found that DOS established that the document includes specific guidance to DOS employees on detecting ties to terrorism. Thus, DOS and USCIS properly withheld the first two sets of documents under FOIA Exemption 7(E). However, the court remanded on the ICE issue because the record was unclear regarding whether ICE complied fully with the district court’s order. View "Knight v. USCIS et al." on Justia Law

Plaintiff challenged the USCIS's denial of his application for lawful permanent residence (LPR) as arbitrary and capricious under the Administrative Procedure Act (APA). The district court affirmed the denial under the weapons bar of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(3)(B)(iii)(V).The Second Circuit vacated the district court's judgment, concluding that it is unable to discern USCIS's full reasoning for denying plaintiff's application or to conclude that the agency considered all factors relevant to its decision. In this case, a finding that plaintiff had used a weapon on behalf of the Taliban is not enough, the court explained that the INA also requires that the agency find that plaintiff's offending act either was unlawful where it took place (Afghanistan) or would be unlawful in the United States before it can determine that he is inadmissible under the weapons bar. Therefore, the decision was arbitrary and capricious under the APA and the court remanded to the district court to remand to the USCIS to consider and more clearly explain whether, in light of plaintiff's duress defense, his conduct was unlawful under the laws of the United States and thus qualifies as a terrorist activity under section 1182(a)(3)(B)(iii). View "Kakar v. United States Citizenship and Immigration Services" on Justia Law

The Second Circuit concluded that, under its precedents, there can be no doubt that a Notice to Appear that omits information regarding the time and date of the initial removal hearing is nevertheless adequate to vest jurisdiction in the Immigration Court, so long as a notice specifying this information is later sent to the alien. The court also concluded that using a false document in connection with petitioner's application for a U.S. passport, in violation of 18 U.S.C. 1001(a), requires that an offender make a material misrepresentation with the intent to impair the efficiency and lawful functioning of the government, and thus it is a crime involving moral turpitude that renders petitioner ineligible for cancellation of removal under 8 U.S.C. 1229b. Accordingly, the court denied the petition for review of the BIA's decision affirming the IJ's denial of petitioner's motion to terminate removal proceedings and his application for cancellation of removal. View "Cupete v. Garland" on Justia Law

In connection with his leading role in a Chinese construction company in 2010-2016, Zhong was convicted of forced-labor conspiracy 18 U.S.C. 1594(b); forced labor, section 1589(a) and (b); concealing passports and immigration documents in connection with forced labor, section 1592(a); alien smuggling conspiracy, 8 U.S.C. 1324(a)(1)(A)(v)(I); and visa fraud conspiracy, 18 U.S.C. 371.The Second Circuit vacated in part. The district court committed evidentiary errors that may have affected the jury’s decision to convict Zhong on the three forced-labor counts. The court allowed testimony about 2001-2002 preindictment conduct, preventing Zhong’s attempts to impeach a witness by offering evidence of the witness’s reputation for truthfulness, and permitting expert witness testimony that exceeded its proper scope. .Those errors were unconnected to Zhong’s other two counts. The government presented sufficient evidence to allow a jury to convict him on the alien smuggling and visa fraud counts. The district court did not abuse its discretion in declining to give an “adverse but legitimate consequences” jury instruction regarding threats made to the workers. View "United States v. Zhong" on Justia Law

Ferreiras became a lawful permanent resident in 2011. On three separate occasions in 2017, he was convicted of New York petit larceny. Ferreiras was charged as removable as a noncitizen convicted of two or more crimes involving moral turpitude (CIMT), 8 U.S.C. 1227(a)(2)(A)(ii). The IJ found that Ferreiras’s petit larceny convictions were CIMT. The BIA affirmed.The Second Circuit certified to the New York State Court of Appeals the question: Does an intent to "appropriate" property under New York Penal Law 155.00(4)(b) require an intent to deprive the owner of his or her property either permanently or under circumstances where the owner's property rights are substantially eroded?The New York Court of Appeals declined to answer the question. The Second Circuit then denied the petition for review. The court held that, as a matter of New York law, New York petit larceny requires an intent to deprive the owner of his or her property either permanently or under circumstances where the owner’s property rights are substantially eroded and is categorically a crime involving moral turpitude. View "Ferreiras v. Garland" on Justia Law

The Second Circuit granted the petition for review and vacated the agency's denial of petitioner's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) because those determinations were permeated with several legal and procedural errors.Insofar as petitioner's request for asylum was rejected as untimely, the court concluded that the agency applied the wrong legal standard to his claim of changed circumstances and the agency's alternative discretionary determination failed to indicate the requisite examination of the totality of the circumstances. In regard to petitioner's application for withholding of removal, the court concluded that the agency erred when it incorrectly categorized his federal conviction for wire fraud and identity theft as "crimes against persons," and concluded that they fell within the ambit of "particularly serious crimes" without evaluating the elements of the offenses as required under the agency's own precedent. Finally, in regard to petitioner's CAT claim, the court concluded that the agency erred in determining that petitioner lacked a reasonable fear of future persecution or torture in Nigeria due to his status as a criminal deportee without even addressing the declaration of his expert supporting his claim. The court remanded for further proceedings. View "Ojo v. Garland" on Justia Law

Petitioner sought review of the BIA's decisions affirming the IJ's decision to allow petitioner to withdraw his application for admission to the United States, denying his motion to reopen, and affirming the IJ's finding that he was inadmissible. Petitioner, a Polish citizen, was a lawful permanent resident (LPR) of the United States, but he effectively abandoned his LPR status and was inadmissible after he stayed overseas too long to take care of his ailing grandfather.The Second Circuit held that it lacked jurisdiction to review both the agency's decision to allow petitioner to withdraw his application and to deny his motion to reopen. Accordingly, the court dismissed the petitions insofar as they challenge those decisions. However, the court concluded that its jurisdiction to review the IJ's inadmissibility finding depends on whether that finding survives the withdrawal of petitioner's application for admission and therefore qualifies as a final order of removal, and this appears to be a question of first impression in this circuit that also has not been resolved by the agency. Therefore, the court granted the petition for review in 19-3001 in part and remanded for the BIA to clarify what, if any preclusive effect the IJ's inadmissibility finding, affirmed by the Board, would be given in subsequent immigration proceedings. View "Juras v. Garland" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reopen proceedings. The court explained that recent Supreme Court jurisprudence has established that Notices to Appear issued under 8 U.S.C. 1229(a)(1) that fail to provide time-and-place information for removal proceedings in a single document do not satisfy the statutory requirements in 8 U.S.C. 1229(a)(1), and thus do not cut off the alien's time of continuous presence in the United States needed for discretionary relief from removal.In this case, the court concluded that an Order to Show Cause, an older version of a charging document issued pursuant to 8 U.S.C. 1252b(a)(1) (1994) prior to the enactment of 8 U.S.C. 1229(a)(1), need not provide that information in a single document in order to cut off the alien's continuous presence in the United States. The court considered petitioner's remaining arguments and found them to be without merit. Accordingly, the court denied all pending motions and applications and vacated all stays. View "Naizhu Jiang v. Garland" on Justia Law