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

The Second Circuit affirmed the district court's dismissal of plaintiffs' Second Amended Complaint (SAC) based on lack of subject matter jurisdiction. The SAC sought review of the USCIS's revocation of Plaintiff Nouritajer's previously-approved Form I-140, Immigrant Petition for Alien Worker (I-140); the USCIS Administrative Appeals Office's (AAO) denial of Nouritajer's revocation appeal on August 1, 2018; and the May 29, 2019 denial of plaintiffs' motion to reopen and reconsider the revocation. The court agreed with the district court that the jurisdictional bar to a substantive challenge to a discretionary decision by the Secretary of Homeland Security applies here, because plaintiffs do not assert a procedural challenge to the revocation decision. Rather, plaintiffs assert several arguments which essentially challenge the underlying reasons for the revocation of the immigration petition. View "Nouritajer v. Jaddou" on Justia Law

The Second Circuit denied petitions for review of the BIA's decisions affirming the IJ's order of removal and denial of Petitioner Graham's motion to reopen. The court concluded that petitioners' narcotics convictions under Connecticut General Statute 21a-277(a) are controlled substance or aggravated felony drug trafficking offenses under the Immigration and Nationality Act. The court also concluded that its jurisdictional holding in Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), that a notice to appear that omits the hearing date and time is nonetheless sufficient to vest jurisdiction in the immigration courts, survives the Supreme Court's ruling in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). View "Chery v. Garland" on Justia Law

In 2006, petitioner was convicted under New York's child endangerment statute, N.Y. Penal Law 260.10(1). In 2017, the United States initiated removal proceedings against him, citing as a ground of removal defendant's conviction of a crime of child abuse, child neglect, or child abandonment pursuant to 8 U.S.C. 1227(a)(2)(E)(i). In 2010, the BIA held that this provision included convictions under child-endangerment statutes for which "actual harm" is not an element of the crime.The Second Circuit held that the holding in Matter of Soram, 25 I. & N. Dec. 378, 381 (B.I.A. 2010), applies retroactively, rendering petitioner removable. The court also held that it lacked jurisdiction to review the denial of petitioner's cancellation of removal because the agency retains discretion to weigh the probative value of uncorroborated arrest reports. Accordingly, the court denied in part and dismissed in part. View "Marquez v. Garland" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner left India because he feared being harmed by members of a rival political party.The court concluded that the agency properly determined that petitioner could safely relocate within India to avoid the possibility of future persecution or torture and that it would be reasonable to expect him to do so. The court explained that petitioner cannot challenge the agency's determination by relying on general country conditions evidence without showing how the evidence demonstrates that a person in his particular circumstances would be subject to persecution or torture. In this case, petitioner's allegation that he was mistreated by members of a political party that is aligned with a party in power nationally does not undermine the agency's conclusion that he can safely relocate within the country. View "Singh v. Garland" on Justia Law

The Second Circuit denied a petition challenging the denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture following a determination by an IJ that he was not credible. The IJ concluded that petitioner was attempting to bolster his application through false testimony and determined that petitioner was not credible.The court explained that, while a factual omission is ordinarily less probative of credibility than an inconsistency, the omission here concerned material information that petitioner would be expected to have divulged earlier in the process. In this case, petitioner's inclusion on a blacklist was the difference between him being the victim of a discrete instance of harassment at the hands of local police on the one hand and the target of a coordinated campaign by national officials to persecute petitioner because of his religion on the other. Therefore, how petitioner knew that he was on that list, then, was critical to his application. Because petitioner failed to raise these facts earlier, and given petitioner's father also omitted this information from his letter, the court concluded that there was substantial evidence supporting the agency's adverse credibility determination. View "Jian Liang v. Garland" on Justia Law

The Second Circuit granted a petition for review of the BIA's order affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture, based on adverse credibility grounds. In this case, petitioner sought relief from political persecution in his home country.The court concluded that the IJ and the BIA erred in treating three of the four instances of perceived inconsistencies as casting doubt on petitioner's credibility. The court explained that they did not involve inconsistency, at least not of the sort that can reasonably support doubt about the speaker's credibility. Although the fourth instance, unlike the first three, did indeed involve inconsistency, the court concluded that the inconsistency related to a trivial detail. Therefore, this trivial inconsistency by itself, without more, could not reasonably justify finding that petitioner is not credible. View "Singh v. Garland" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision denying petitioner's application for statutory withholding of removal and protection under the Convention Against Torture (CAT). The court concluded that any failure by the IJ to make an explicit credibility finding requires no remand because the BIA explicitly assumed petitioner's credibility in upholding the IJ's decision, consistent with 8 U.S.C. 1158(b)(1)(B)(iii) & 1231(b)(3)(C). The court also concluded that the IJ, sua sponte, effectively considered the social groups identified by petitioner in this court, and the record evidence considered in light of controlling precedent does not support, much less compel, the conclusion that these social groups bear the particularity or social distinction required for withholding of removal. Finally, the court concluded that the record evidence also does not compel the conclusion that petitioner faces likely torture either directly by or indirectly with the acquiescence of Salvadoran police, as required for CAT relief. View "Quintanilla v. Garland" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal based on petitioner's failure to offer sufficient evidence that his criminal conviction—filed after the initial period for filing a direct appeal expired—goes to the merits of his conviction. The court concluded that the BIA's decision was premised on an unreasonable construction of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).The court held that the IIRIRA's definition of "conviction" is ambiguous and that the BIA reasonably determined that the finality requirement persists. However, the court need not determine whether the BIA may put limits on the finality requirement because, even assuming it may, the court held that the limitations the BIA imposed in Matter of J.M. Acosta, 27 I. & N. Dec. 420 (BIA 2018), are unreasonable. Therefore, the BIA's burden-shifting scheme and its accompanying evidentiary requirement amounts to an unreasonable and arbitrary interpretation of the IIRIRA. The court remanded for further proceedings. View "Brathwaite v. Garland" on Justia Law

Petitioner sought review of the BIA's final order finding that petitioner was removable as a non-citizen convicted of two or more crimes involving moral turpitude based on its determination that New York petit larceny constitutes such a crime.The Second Circuit certified the following question to the New York State Court of Appeals: 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? View "Ferreiras Veloz v. Garland" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal from the IJ's order removing him on the ground that he had been convicted of an aggravated felony crime of violence. The court concluded that petitioner's conviction for second-degree assault under New York Penal Law 120.05(1) is a crime of violence as defined in 18 U.S.C. 16(a). In this case, petitioner's conviction for second-degree assault meets section 16(a)'s physical force requirement because NYPL 120.05(1) requires that a defendant (1) cause a serious physical injury to another (2) with the intent to do so. The court explained that a person who causes serious physical injury with the intent to do so, in violation of NYPL 120.05(1), necessarily uses physical force. Finally, the court rejected defendant's contention that NYPL 120.05(1) is overbroad. View "Thompson v. Garland" on Justia Law