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

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

8 U.S.C. 1151(f)(2) incorporates the age-reduction formula in 8 U.S.C. 1153(h)(1), which deducts processing time from the age of an F2A visa beneficiary. The Second Circuit affirmed the district court's judgment, holding that plaintiff's daughter was statutorily under 21 years old when plaintiff naturalized and thus the daughter qualifies for an immediate-relative visa. At issue in this appeal was whether the term "age" in section 1151(f)(2) incorporates the age-reduction formula set forth in section 1153(h)(1). Based on the text, structure, purpose, and legislative history of the Child Status Protection Act, the court held that it does. View "Cuthill v. Blinken" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision denying petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner sought relief after he had been threatened and beaten by gang members and police officers who urged him to join the gang. The court concluded that petitioner's negative view of gangs does not amount to a "political opinion" within the meaning of the immigration laws, and that substantial evidence supports the BIA's decision that he has not established a likelihood of future torture if he were to be removed to El Salvador. The court considered petitioner's remaining arguments and found them to be without merit. View "Zelaya-Moreno v. Wilkinson" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision denying petitioner relief under the Convention Against Torture (CAT). Petitioner argues that he was tortured in Italy when he was subjected for more than six years to solitary confinement and other restrictive conditions in Italy’s 41-bis prison regime, and that he would more likely than not be tortured if removed to Italy. The court concluded that the conditions petitioner alleged he faced or would face do not rise to the level of torture as that term is used under the CAT and its implementing regulations at 8 C.F.R. 1208.18. In this case, although the court recognized that petitioner developed various persisting mental ailments while in 41-bis detention, the court cannot agree that he faced severe mental pain and suffering of the kind envisioned in section 1208.18(a)(4)(ii) View "Gallina v. Wilkinson" on Justia Law

After NYLAG sought access to non-precedential "unpublished opinions" issued by the BIA in immigrant cases under the Freedom of Information Act (FOIA), the district court dismissed the case and concluded that FOIA's remedial provision does not authorize district courts to order agencies to make records publicly available. NYLAG seeks disclosure of these opinions, which are not routinely made available to the public, in order to aid in its representation of low-income clients in removal and asylum proceedings.The Second Circuit vacated the district court's judgment, concluding that FOIA's remedial provision authorizes the relief NYLAG seeks. The court explained that FOIA's text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. 552(a)(2), including the obligation to make certain documents publicly available. Therefore, the court remanded for further proceedings. View "New York Legal Assistance Group v. Board of Immigration Appeals" on Justia Law