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

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

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