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

The district court decided that the government was not authorized under 8 C.F.R. 241.14(d) to continue holding petitioner in immigration detention pending his removal from the United States and ordered the government to release him. The government appealed and argued that section 241.14(d) is not inconsistent with its authorizing statute, 8 U.S.C. 1231(a)(6), and that it provides adequate procedural due process.The Second Circuit granted the government's motion for a stay pending appeal, holding that the government has made a strong showing that it is likely to succeed on the merits of its argument that the district court erred in holding that section 241.14(d) is inconsistent with section 1231(a)(6) and does not provide adequate procedural due process. The court also held that the government has made a strong showing of a likelihood of success on its argument that the district court erred in holding that section 241.14(d) is not a permissible reading of section 1231(a)(6). Furthermore, considerations of irreparable harm and the equities favor a stay of petitioner's release pending appeal. View "Hassoun v. Searls" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision upholding the IJ's order of removal and denial of petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner argues that he should be granted relief from removal because he faces religious persecution if removed to China.The court identified no error in the denial of petitioner's claims where the agency's adverse credibility finding was supported by substantial evidence consisting of numerous testimonial inconsistencies and petitioner's evasive demeanor. Furthermore, the court rejected petitioner's argument that he satisfactorily explained the inconsistencies, because the explanations would not compel a reasonable factfinder to excuse the inconsistencies or credit petitioner's testimony. View "Likai Gao v. Barr" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's order of removal and affirming the IJ's denial of petitioner's motion to reopen his immigration case. The court held that Pierre v. Holder, 738 F.3d 39 (2d Cir. 2013), foreclosed petitioner's claim that the application of former 8 U.S.C. 1432(a)(3) as written violates his right to equal protection. Furthermore, the Supreme Court's decision in Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017). Pet. Br. at 14, did not invalidate Pierre.As to petitioner's alternative argument that the BIA must consider in the first instance whether his conviction for assault in the second degree under NYPL 120.05(2) is an aggravated felony crime of violence under 18 U.S.C. 16(a), the court held that his argument is precluded by Singh v. Barr, 939 F.3d 457 (2d Cir. 2019) (per curiam). View "Dale v. Barr" on Justia Law

The Second Circuit affirmed the district court's conclusion that defendant's denial of plaintiff's application pursuant to the Child State Protection Act (CSPA) for adjustment of status to lawful permanent resident was arbitrary and capricious under the Administrative Procedure Act (APA). The district court set aside defendants' October 2017 decision denying plaintiff's adjustment of status application and directed defendants to reopen and readjudicate the application.The court held that the government is equitably estopped from initiating rescission proceedings to reopen plaintiff's adjustment of status application or placing her in removal proceedings. In this case, the undisputed facts show that USCIS failed to issue a rejection notice, despite controlling regulation and, consequently, plaintiff was not advised of any defect in her application, depriving her of the opportunity to correct the issue. View "Schwebel v. Crandall" on Justia Law

The Second Circuit granted petitions for review of the BIA's decisions ordering petitioners removed based on their New York firearms convictions. The court principally concluded that the statutes of conviction, sections 265.03 and 265.11 of the New York Penal Law, criminalize conduct involving "antique firearms" that the relevant firearms offense definitions in the Immigration and Nationality Act do not. Therefore, the court held that this categorical mismatch precludes petitioners' removal on the basis of their state convictions. Accordingly, the court vacated the BIA's decisions and remanded with instructions to terminate the removal hearings. View "Jack v. Barr" on Justia Law

The Second Circuit granted a petition for review of a BIA decision dismissing petitioner's appeal of an IJ's denial, without an evidentiary hearing, of her motion to suppress evidence. The court held that the agency erred by requiring that petitioner rely on her documentary evidence alone and make a prima facie showing of an egregious Fourth Amendment violation before it would conduct a suppression hearing. The court also held that, because sworn statements and the police incident report that petitioner submitted "could support" suppression under the Cotzojay standard, she was entitled to a hearing. Accordingly, the court remanded for further proceedings. View "Millan-Hernandez v. Barr" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision denying petitioner's motion to remand and dismissing his appeal of the denial of his asylum and statutory withholding claims under the Immigration and Nationality Act (INA). The court held that the BIA failed to adequately explain its conclusion that petitioner's proposed social group of former gang members in Guatemala was not particular. Furthermore, the BIA failed to adequately explain its reasons for denying petitioner's motion to remand based on evidence of new country conditions.The court also held that under 8 U.S.C. 1158(a)(2)(D), changed circumstances presenting an exception to the one-year deadline for filing an asylum application need not arise prior to the filing of the application. In this case, the BIA erred when it refused to consider petitioner's alleged changed circumstances on the ground that the change occurred while his application was pending. Therefore, the court vacated the BIA's decision and remanded for reconsideration. View "Ordonez Azmen v. Barr" on Justia Law

In petition No. 18-834, petitioner contends principally that the BIA erred (a) in rejecting his challenge to the IJ's ruling that he failed to carry his burden of showing his procedurally regular admission to the United States, (b) in rejecting his contention that he was denied due process by the IJ's evidentiary rulings minimizing or curtailing evidence to show his procedurally regular admission, and (c) in denying his motion to reopen the proceeding to present newly discovered evidence. In petition No. 19-737, petitioner contends that the BIA erred in rejecting his contention that intervening legal authority requires the conclusion that criminal possession of stolen property was not a crime involving moral turpitude at the time of his conviction.The Second Circuit denied so much of Petition No 18-834 as contends that petitioner was denied due process. The court dismissed the remainder of that petition for lack of jurisdiction. In regard to Petition No. 19-737, the court held that there was no error in the Board's determination that petitioner's conviction for criminal possession of stolen property was a crime involving moral turpitude. Furthermore, the Board did not err by rejecting petitioner's motion to reopen removal proceedings based on petitioner's claim of an intervening change in the law. Therefore, the court denied the petition in No. 19-737. View "Ottey v. Barr" on Justia Law

The Second Circuit granted a petition for review of the BIA's denial of petitioners' third motion to reopen. Petitioners argued that the BIA abused its discretion in denying their motion to reopen because it failed to address their primary evidence of changed country conditions for Christians in Indonesia and incorrectly concluded that their failure to submit a new asylum application with their motion made the motion procedurally deficient under 8 C.F.R. 1003.2(c)(1).The court held that the BIA's one-and-a-half page order failed to account for relevant evidence of changed country conditions. The court also held that section 1003.2(c)(1) does not require the submission of a new asylum application for motions such as this one. Accordingly, the court vacated the BIA's decision and remanded for explicit consideration of the changed country conditions evidence. View "Tanusantoso v. Barr" on Justia Law

To hold categorically that an applicant for relief under the Convention Against Torture must be threatened more than once and that such a person must suffer physical harm before fleeing is an error of law.The Second Circuit granted a petition for review challenging the denial of petitioner's application for asylum, withholding of removal, and protection under the CAT. The court held that the IJ erred as a matter of law for penalizing petitioner for her prompt flight. Although the IJ credited petitioner's testimony that the threats received by the MS-13 gang were believable and no way remote, it erred by requiring that petitioner and her family wait until they suffered physical harm or until the threats recurred before they fled. The court remanded for further proceedings. View "Martinez De Artiga v. Barr" on Justia Law