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Second Circuit

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  • CA2 Finds Economic Harm May Amount to Fear of Future Persecution(670 KB - 12/8/2014)
    The court granted the petition as it pertained to feared future persecution, finding that imposition of an extraordinarily severe fine, even without payment, can support an alien’s well-founded fear of future economic persecution if returned to his native country. (Chen v. Holder, 12/5/14)
    AILA Doc. No. 14120850.
  • CA2 Says Smuggling Bar Applies to Federal Aiding and Abetting Statute(873 KB - 11/18/2014)
    Unpublished decision upholding the BIA’s finding that the smuggling bar under INA §212(a)(6)(E)(i) applies to an aiding and abetting conviction under 8 USC §1325(a)(1) and prevents a showing of good moral character, and also declining to apply categorical approach. Courtesy of Alison Berry.
    AILA Doc. No. 14111851.
  • CA2 Says Persecutor Bar Prevents Chinese Petitioner from Seeking Asylum(605 KB - 11/10/2014)
    The court found the record evidence sufficient to support a finding that petitioner assisted in persecution and was ineligible for asylum, since for two decades she reported women with unauthorized pregnancies, knowing they would be subjected to forced abortions. (Meng v. Holder, 11/3/14)
    AILA Doc. No. 14111048.
  • CA2 Agrees with BIA that Vacated Conviction Remains Valid for Removability Purposes(763 KB - 10/17/2014)
    The court held it lacked jurisdiction, upholding the BIA’s determination that the 1997 Arizona conviction remained a removable offense because the petitioner obtained vacatur solely for rehabilitative reasons and to avoid adverse immigration consequences. (Sutherland v. Holder, 10/8/14)
    AILA Doc. No. 14101752.
  • CA2 Says Unlawful Possession of Ammunition Is an Aggravated Felony(592 KB - 10/17/2014)
    The court denied the petition for review, upholding the BIA’s decision concluding that the petitioner’s conviction for the unlawful possession of ammunition under 18 U.S.C. § 922(g)(1) qualifies as an aggravated felony under INA §101(a)(43)(E)(ii). (Oppedisano v. Holder, 10/8/14)
    AILA Doc. No. 14101750.
  • CA2 Says Asylum Applicant Is Not Required to Establish Nationality Through Documentary Evidence Alone(570 KB - 10/8/2014)
    The court vacated and remanded with instructions to review the IJ’s adverse credibility finding, and that the BIA erroneously required the petitioner, who claimed he was a stateless Tibetan born in Nepal, to prove his nationality through documentary evidence alone. (Urgen v. Holder, 10/2/14)
    AILA Doc. No. 14100843.
  • CA2 Says BIA Did Not Err in Denying Suppression Motion or Asylum(708 KB - 10/6/2014)
    The court held that because the petitioner voluntarily conceded his removability in a motion to change venue, the BIA did not err in denying the suppression motion, and also did not err in denying the asylum application. (Vanegas-Ramirez v. Holder, 9/25/14)
  • CA2 Denies Relief, Says Organized Crime Convention Is Not Self-Executing(625 KB - 9/3/2014)
    The court denied the petition for review, finding that the witness protection provisions of the United Nations Convention Against Transnational Organized Crime (CATOC) were not self-executing and could not be enforced absent implementing legislation. (Doe v. Holder, 8/19/14)
    AILA Doc. No. 14090351.
  • CA2 Says Chinese Petitioner’s Pro-Democracy Activism Constitutes Changed Circumstances(561 KB - 9/3/2014)
    The court remanded, finding the IJ erred when holding that because petitioner’s pro-democracy political opinion reflected views he had when he emigrated, the activism did not constitute changed circumstances that excused untimeliness pursuant to INA §208 (a)(2)(D). (Lin v. Holder, 8/19/14)
    AILA Doc. No. 14090350.
  • CA2 Says New York Third Degree Arson Is an Aggravated Felony(691 KB - 9/3/2014)
    The court deferred to the BIA’s reasonable determination that a conviction for attempted third degree arson under New York Penal Law §§110 and 150.10 constitutes an aggravated felony, rendering the petitioner ineligible for cancellation of removal. (Torres v. Holder, 8/20/14)
    AILA Doc. No. 14090347.
  • CA2 Says Affidavits Do Not Suggest Egregious Constitutional Violations(717 KB - 8/26/2014)
    The court denied the petitions for review, finding that the affidavits did not suggest egregious constitutional violations, as the day laborer petitioners were self-selected, and this could not support a basis for excluding the evidence. (Maldonado v. Holder, 8/14/14)
    AILA Doc. No. 14082643.
  • CA2 Says Written Warning on Asylum Application Satisfies Notice Requirement Under INA §208 (d)(4)(A)(467 KB - 8/20/2014)
    The court held the BIA did not err in denying the adjustment application, as the petitioner received adequate notice of the consequences of filing a frivolous asylum claim through the written warning on the application, and the IJ did not need to warn him. (Niang v. Holder, 8/13/14)
    AILA Doc. No. 14082041.
  • CA2 Says Term of Imprisonment Under INA §101(a)(43)(G) Includes Recidivist Enhancements(520 KB - 8/14/2014)
    The court held the BIA did not err in finding the petitioner removable, since it is the actual sentence imposed, including any recidivist enhancements applied, that is considered when determining the term of imprisonment under INA §101(a)(43)(G). (Dawkins v. Holder, 8/12/14)
    AILA Doc. No. 14040803.
  • CA2 Asks BIA for Redetermination of Particular Social Group Analysis for Albanian Women(506 KB - 8/13/2014)
    The court vacated and remanded in consideration of In re M-E-V-G- and In re W-G-R-, which clarified the BIA’s interpretation of “particular social group,” in order to determine whether young Albanian women is a cognizable social group. (Paloka v. Holder, 8/7/14)
    AILA Doc. No. 14081361.
  • CA2 Remands, Says IJ Applied Incorrect and Overly Stringent Legal Standard in Nepali Asylum Claim(11282 KB - 8/6/2014)
    The court remanded, finding that the IJ erred when it held the petitioner to the requirement of demonstrating that political opinion was the “central” as opposed to “at least one central” ground for persecution by the Nepali Maoists. (Acharya v. Holder, 8/5/14)
    AILA Doc. No. 14080649.
  • CA2 Finds Denial of Continuance Was Abuse of Discretion(669 KB - 6/25/2014)
    Unpublished summary order granting the petition for review in part, denying in part, and remanding to the BIA, finding that because the IJ found petitioner was likely to succeed on the adjustment application, the denial of a continuance was an abuse of discretion. Courtesy of Kevin E. Dehghani.
    AILA Doc. No. 14062548.
  • CA2 Finds Petitioner Ineligible for §212(c) Relief(606 KB - 6/23/2014)
    The court dismissed the petition for review, finding no basis to conclude that Vartelas overruled Domond, and because petitioner’s conviction for a controlled substance post-dated IIRIRA, he was ineligible for a waiver of deportation under §212(c). (Centurion v. Holder, 6/17/14)
    AILA Doc. No. 14062342.
  • CA2 Certifies Mens Rea Questions for CIMT Evaluation to Connecticut Supreme Court(651 KB - 5/27/2014)
    In a crime of moral turpitude (CIMT) evaluation, the court was unable to determine what level of mens rea applied to the lack of consent element of a conviction for CT sexual assault in the fourth degree and certified the issue to the CT Supreme Court. (Efstathiadis v. Holder, 5/20/14)
    AILA Doc. No. 14052748.
  • CA2 Finds Petitioner Is Not Entitled to Documentary Proof of U.S. Citizenship(722 KB - 3/26/2014)
    Although the court found equities overwhelmingly favoring the petitioner, it reversed and remanded, finding he was not entitled to documentary proof of U.S. citizenship because he was not a U.S. citizen and the application of INA §361(a) did not apply retroactively. (Hizam v. Kerry, 3/12/14)
    AILA Doc. No. 14032660.
  • CA2 Affirms Denial of Motion to Reopen (MTR)(593 KB - 3/11/2014)
    Petitioner argued she should have been placed in exclusion proceedings, not deportation proceedings, but since she conceded she was deportable, the court held the BIA did not abuse its discretion in affirming the denial of the MTR. (Li v. Holder, 2/21/14)
    AILA Doc. No. 14031152.
  • CA2 Asks BIA to Rule on Duress Exception to Material Support Bar(624 KB - 3/11/2014)
    The court granted the petition in part, to permit the BIA to make a precedential ruling on whether a duress exception to the material support bar is implicit in INA §212 (a)(3)(B)(iv)(VI), (a)(3)(B)(i)(I). (Ay v. Holder, 2/20/14)
    AILA Doc. No. 14031148.
  • CA2 Certifies Question of Incest to New York Court of Appeals(606 KB - 3/6/2014)
    To properly evaluate the order of removal and denial of the petition to remove conditions, the court certified to the NY Court of Appeals the question of whether the petitioner’s marriage to her half-uncle was void for incest under NY Domestic Relations Law. (Nguyen v. Holder, 2/19/14)
    AILA Doc. No. 14030658.
  • CA2 Denies Asylum to Pro-Democracy Petitioners from China(640 KB - 12/30/2013)
    The court denied the petitions for review, concluding there was insufficient evidence to suggest that the Chinese authorities would become aware of the petitioners’ pro-democracy activities while in the U.S. or that they would be targeted on that basis. (Y.C. v. Holder, 12/18/13)
    AILA Doc. No. 13123042.
  • CA2 Finds BIA Abused Its Discretion in Chinese Christian’s MTR(624 KB - 12/12/2013)
    The court found the BIA abused its discretion when it denied petitioner’s MTR because she had not submitted a sworn statement in support of the new evidence she proffered, and because her expert witness had not provided copies of the sources on which he relied. (Indradjaja v. Holder, 12/9/13)
    AILA Doc. No. 13121248.
  • CA2 Rejects Claim to Automatic Derivative Citizenship(760 KB - 12/11/2013)
    The court held that petitioner was not entitled to automatic citizenship under former INA §321(a)(3) because his parents were never married and thus there could be no “legal separation” as required under the statute. (Pierre v. Holder, 12/10/13)
    AILA Doc. No. 13121146.
  • CA2 Remands Denial of Motion to Reopen for Cancellation(348 KB - 11/25/2013)
    The court found that in refusing to reopen proceedings, the BIA erred by finding petitioner had not met his burden of proving ten years of physical presence, and thus remanded to the BIA where the petitioner may present new evidence of hardship. (Hernandez v. Holder, 11/25/13)
    AILA Doc. No. 13112546.
  • CA2 Dismisses Due Process Challenges for Lack of Jurisdiction(533 KB - 10/22/2013)
    The court dismissed the petitions for review, finding that INA §242(a)(2)(A) deprived the court of jurisdiction to hear the petitioner’s due process challenge to the 1997 order of expedited removal underlying the BIA’s finding of ineligibility for adjustment. (Shunaula v. Holder 10/16/13)
    AILA Doc. No. 13102256.
  • Court Says IJ/BIA Failed to Adequately Explain Need for Corroborating Evidence(57 KB - 8/27/2013)
    In an unpublished Summary Order, the court remanded, concluding inter alia that the IJ’s finding that Petitioner did not meet his burden of proof was not supported by substantial evidence. (Huang v. Holder, 8/1/13) Courtesy of Donglai Yang.
    AILA Doc. No. 13082747.
  • CA2 on Lopez-Mendoza and Suppression of Evidence Following a Fourth Amendment Violation(499 KB - 8/23/2013)
    The court remanded the case to determine whether ICE agents seized evidence of alienage while committing an egregious 4th Amendment violation, noting that a nighttime, warrantless raid of a person’s home “frequently will constitute” such a violation. (Pretzantzin v. Holder, 7/31/13)
    AILA Doc. No. 13082351.
  • CA2 Vacates Denial of Motion to Suppress and Remands Case(70 KB - 8/23/2013)
    The court held that the IJ erred in interpreting case law to require physical threat or harm before a Fourth Amendment violation becomes sufficiently egregious to require suppression, and vacated the BIA’s decision affirming the denial of the motion to suppress. (Cotzojay v. Holder, 7/31/13)
    AILA Doc. No. 13082350.
  • CA2 Holds LPR Status Not Required for Derivative Citizenship Under INA §321(a)(5)(223 KB - 8/19/2013)
    The court granted the petition for review and remanded to the BIA, holding that the Petitioner, who “resided permanently” in the U.S. before turning 18, could claim derivative citizenship from his parents under INA §321(a)(5), even though he was not an LPR. (Nwozuzu v. Holder, 8/12/13)
    AILA Doc. No. 13081946.
  • CA2 Cites Hoffman Plastic to Bar Backpay for Undocumented Workers(499 KB - 7/31/2013)
    The court concluded that the NLRB's interpretation of Hoffman Plastic was correct in categorically barring backpay for undocumented workers, but remanded to determine issues relating to petitioners' requested remedy of conditional reinstatement. (Palma v. NLRB, 7/10/13)
    AILA Doc. No. 13073153.
  • CA2 Holds That NY Criminal Sale of Controlled Substance Is an Aggravated Felony(468 KB - 7/22/2013)
    The court held that the petitioner is not eligible for cancellation of removal because his conviction under NY Penal Law §220.39(1) for third-degree criminal sale of a controlled substance is an aggravated felony. (Pascual v. Holder, 7/9/13)
    AILA Doc. No. 13072241.
  • CA2 Holds Petitioner Is Not Eligible for Cancellation of Removal(495 KB - 5/20/2013)
    The court held that the petitioner’s encounters with CBP were “formal, documented” processes through which he was determined to be inadmissible, and that his “voluntary returns” to Mexico therefore severed his physical presence. (Rosario-Mijangos v. Holder, 5/16/13)
    AILA Doc. No. 13052052.
  • CA2 on Eligibility for Special Rule Cancellation of Removal(624 KB - 5/15/2013)
    The court held that, as an unadmitted alien, the petitioner cannot be ineligible for NACARA relief because of a conviction that would make him deportable under INA §237, and that the BIA’s interpretation is inconsistent with the regulation. (Reyes v. Holder, 5/3/13)
    AILA Doc. No. 13051556.
  • CA2 on False Claims to U.S. Citizenship(551 KB - 5/7/2013)
    The court remanded the case the BIA to determine in the first instance whether an individual is inadmissible under §212(a)(6)(C)(ii)(I) if he or she makes a false claim to USC in order to avoid being placed in removal proceedings. (Richmond v. Holder, 4/30/13)
    AILA Doc. No. 13050746.
  • CA2 Holds District Court Did Not Have Jurisdiction to Review 212(i) Waiver(470 KB - 4/29/2013)
    The court upheld the district court’s determination that it did not have jurisdiction to review the decision of USCIS to deny the petitioner’s 212(i) waiver. (Shabaj v. Holder, 4/25/13)
    AILA Doc. No. 13042951.
  • CA2 Holds That NY Attempted Arson Is an Aggravated Felony(676 KB - 4/23/2013)
    The court held that the petitioner is not eligible for cancellation of removal because his conviction under NY Penal Law §§150.15, 110.00 for second degree attempted arson is a “crime of violence,” and therefore, an aggravated felony. (Santana v. Holder, 4/22/13)
    AILA Doc. No. 13042354.
  • Sample BIA Acknowledgement of Remand by Second Circuit(894 KB - 4/1/2013)
    Sample BIA “Acknowledgement of Court Order” issued in response to a case that was remanded by the Second Circuit pursuant to Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit. Courtesy of Gary Yerman.
    AILA Doc. No. 13040150.
  • CA2 Holds NY Sale of Controlled Substance Is an Aggravated Felony(913 KB - 2/25/2013)
    The court held that the petitioner’s conviction for third degree criminal sale of a controlled substance in violation of New York Penal Law § 220.39(1) is an aggravated felony. (Pascual v. Holder, 2/19/13)
    AILA Doc. No. 13022565.
  • CA2 Finds District Court Did Not Have Jurisdiction to Review 212(i) Waiver Denial(418 KB - 1/18/2013)
    The court held that it did not have jurisdiction to review the petitioner’s 212(i) waiver denial, noting that even if the complaint had raised constitutional claims, the district court did not have jurisdiction to review those claims. (Shabaj v. Holder, 1/15/13)
    AILA Doc. No. 13011843.
 
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