Second Circuit Holds Conspiracy to Retaliate Against a Witness Is a Crime Involving Moral Turpitude

The Second Circuit has denied a petition for review filed by a Polish lawful permanent resident convicted of conspiring to retaliate against employees who sued his construction company for wage violations, holding that the offense is categorically a crime involving moral turpitude and that the moral turpitude removability ground is not unconstitutionally vague as applied to him.

The Court held that even the least culpable conduct covered by the statute, threatening property damage in retaliation for someone's participation in official proceedings, involves both the requisite culpable intent and reprehensible conduct because it strikes at the administration of justice itself. The Court also rejected the petitioner's argument that the removability ground does not reach inchoate conspiracy offenses, and declined to revisit several other arguments already rejected in an earlier petition under the law of the case doctrine.

The full text of Dziedziach v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/23-6837_opn.pdf

Second Circuit Holds New Jersey Disorderly Persons Offense Was a "Conviction" Under the INA

On remand from the Supreme Court in light of Loper Bright, the Second Circuit has again denied a petition for review filed by a Hong Kong-born lawful permanent resident found removable for two crimes involving moral turpitude, one of which was a New Jersey disorderly persons offense for theft by deception.

Applying independent judgment rather than deferring to the BIA's interpretation, the Court held that a "conviction" under 8 U.S.C. § 1101(a)(48)(A) means a formal judgment of guilt reached through a proceeding affording the accused core criminal-procedural protections and resulting in a criminal sentence, regardless of how a state labels the offense or what collateral consequences it carries. Because the petitioner's disorderly persons proceeding provided those protections and exposed him to potential incarceration, the Court held it was a conviction under the INA and again denied his petition.

The full text of Wong v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/22-6185_2_opn.pdf

Second Circuit Holds Immigration Judges May Require Corroboration Without an Adverse Credibility Finding

The Second Circuit has denied a petition for review filed by a Yemeni man seeking deferral of removal under the Convention Against Torture after his conviction for stabbing two members of a rival family, holding that the BIA properly found his challenge to the corroboration requirement forfeited and that the agency's denial of relief was supported by substantial evidence.

The Court held that an immigration judge need not make an adverse credibility finding before requiring corroboration of otherwise credible testimony, since credibility and corroboration are distinct statutory inquiries, and clarified that this same rule applies to CAT claims even though the CAT regulations do not contain the same explicit corroboration language found in the asylum and withholding statutes. The Court also held that the agency reasonably found the petitioner failed to show a likelihood of torture given the multiple speculative links in his theorized chain of harm and his ability to relocate within Yemen.

The full text of Al Saidi v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/21-6589_opn.pdf

Second Circuit Holds Immigration Judges May Require Corroboration Without an Adverse Credibility Finding

The Second Circuit has denied a petition for review filed by a Yemeni man seeking deferral of removal under the Convention Against Torture after his conviction for stabbing two members of a rival family, holding that the BIA properly found his challenge to the corroboration requirement forfeited and that the agency's denial of relief was supported by substantial evidence.

The Court held that an immigration judge need not make an adverse credibility finding before requiring corroboration of otherwise credible testimony, since credibility and corroboration are distinct statutory inquiries, and clarified that this same rule applies to CAT claims even though the CAT regulations do not contain the same explicit corroboration language found in the asylum and withholding statutes. The Court also held that the agency reasonably found the petitioner failed to show a likelihood of torture given the multiple speculative links in his theorized chain of harm and his ability to relocate within Yemen.

The full text of Al Saidi v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/21-6589_opn.pdf

Second Circuit Grants Bail Pending Appeal to Detainee with End-Stage Renal Disease

The Second Circuit has granted bail pending appeal to Raheem Fulton, a Jamaican national subject to a final removal order who has End Stage Renal Disease and has been detained by ICE for over two years while litigating what medical arrangements the government must make before removing him to Jamaica for dialysis treatment.

Applying the standard from Mapp v. Reno, the Court held that Fulton raised a substantial claim regarding medical-discharge planning and that extraordinary circumstances, including a prior near-fatal missed dialysis appointment in custody and the risks of prolonged detention, made bail necessary to make habeas relief effective. A dissenting judge argued that Fulton himself was responsible for the length of his detention by litigating the manner of his removal rather than accepting it, that he receives adequate dialysis in custody, and that his petition sought relief resembling an injunction rather than the release habeas is meant to secure.

The full text of Fulton v. Mullin can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/25-194_complete_opn.pdf

Second Circuit Holds Zipper Clause Strips Jurisdiction Over Detained Columbia Activist's Habeas Petition

The Second Circuit has vacated a district court order releasing Mohsen Mahdawi, a lawful permanent resident and Columbia University student detained after the Secretary of State determined that his pro-Palestinian activism posed foreign policy consequences warranting removal. Mahdawi's habeas petition alleged that his detention and targeting for removal violated the First Amendment and due process.

The Court held that 8 U.S.C. § 1252(b)(9), the INA's "zipper clause," channels Mahdawi's claims into the petition-for-review process because his challenge to detention was, in substance, a challenge to the government's basis for removing him. Following the Third Circuit's reasoning in Khalil v. President, United States, the Court concluded that Mahdawi's detention and removal arguments were identical, that he could have sought release through an administrative Joseph hearing, and that channeling his claims did not foreclose meaningful review since he could raise them in his now-pending petition for review. The Court remanded with instructions to dismiss the habeas petition.

The full text of Mahdawi v. Trump can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/25-1113_complete_opn.pdf

Second Circuit Vacates CAT Denial for Failure to Assess Torture Conditions in Salvadoran Prisons

The Second Circuit has granted in part a petition for review filed by a Salvadoran former gang member found removable after a firearms conviction. The agency had denied asylum, withholding of removal, and protection under the Convention Against Torture, finding the petitioner not credible and unlikely to be tortured if detained upon return to El Salvador.

The Court upheld the adverse credibility finding, concluding it was supported by substantial evidence given inconsistencies in the petitioner's account of his gang involvement. However, the Court found that the agency failed to properly evaluate whether the harsh conditions in Salvadoran prisons, imposed under the government's "state of exception," amount to torture, and did not consider evidence that those conditions are intentionally maintained rather than merely the product of neglect or lack of resources. The case was remanded for further consideration of the CAT claim.

The full text of Aguilar-Villalobos v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/23-6899_opn.pdf

Second Circuit Requires But-For Eligibility Determination for Material Support Waiver Process

The Second Circuit has granted in part and denied in part a petition for review filed by a Sri Lankan respondent who was found to have provided material support to the LTTE by translating during an interrogation. The BIA treated the material support bar as dispositive of the respondent’s asylum, statutory withholding, and CAT withholding claims, and therefore declined to reach the merits of those claims.

The Court held that the BIA erred by failing to determine whether the respondent would be eligible for asylum or statutory withholding of removal but for the material support bar. Without that determination, the respondent could not pursue a discretionary waiver of the material support bar from DHS, which frustrated the statutory and regulatory waiver scheme. However, the Court denied the petition as to CAT protection, finding that substantial evidence supported the agency’s conclusion that the respondent had not shown that he would more likely than not be tortured if returned to Sri Lanka.

The full text of Sufiyan v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/22-6392_complete_amd_opn.pdf

Second Circuit Finds that Individuals who Entered without Inspection Years Ago are Detained under 1226(a)

The Second Circuit has determined that non-citizens who entered the United States without inspection years ago are detained under 8 USC 1226, not 8 USC 1225.

The full text of Barbosa da Cunha v. Freden can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/25-3141_complete_opn.pdf

Second Circuit Grants Reopening Based on Change in Law

The Second Circuit has determined that a deported LPR acted with diligence when he filed a motion to reopen or reconsider within 30 days of the Second Circuit determining that his conviction was not a removable offense.

The full text of Ramsay v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/8ea3a373-602c-4410-a9b8-13d57d47d94e/3/doc/23-8121_opn.pdf

Second Circuit Requires BIA to Address Merits of Asylum Claim Barred by Terrorism Bar

The Second Circuit has determined that even when an applicant is ineligible for asylum due to the material support for terrorism bar, the agency must analyze whether it would have otherwise granted the request, so that the applicant can proceed with requesting any available discretionary waivers of the terrorism bar from USCIS.

The full text of Sufiyan v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/7bf51ec7-61b5-4a34-b756-7bdaeb7cc713/4/doc/22-6392_complete_opn.pdf

Second Circuit Remands Motion to Reopen

The Second Circuit has remanded an untimely motion to reopen based on both post-conviction relief and a change in case law related to deportability. The “BIA abused its discretion in finding that Pinilla failed to demonstrate due diligence in pursuing his motion to reopen. In its decision, the BIA explained only that Pinilla was not entitled to tolling because he waited ‘approximately 2 years’ after New York revised its marijuana laws to file his motion. The agency’s stated justification is not the ‘minimum level of analysis’ that we require ‘if judicial review is to be meaningful.’ ‘[T]he test for equitable tolling, both generally and in the immigration context, is not the length of the delay in filing the [motion]; it is whether the claimant could reasonably have been expected to have filed earlier.’”

The full text of Pinilla Perez v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/5b8de542-619b-4223-b191-466cb013720f/9/doc/23-6363_opn.pdf

Second Circuit Grants PFR for Guatemalan Ex-Gang Member Seeking CAT Protection

The Second Circuit has granted the petition for review of a Guatemalan ex-gang member, finding that the acquiesce to torture inflicted by other gang members in prison settings.

The full text of B.G.S. v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/4efc466b-0c89-4622-8b1e-ff3fd98078ce/23/doc/23-6862_complete_opn.pdf

Second Circuit Finds that Child Must Remain under 21 on Date of Adjudication of Cancellation of Removal Application

The Second Circuit has affirmed the denial of a motion to reopen, filed by an applicant for cancellation of removal, because his daughter had reached the age of 21 during the pendency of the motion to reopen. “Under 8 U.S.C. § 1229b(b)(1)(D), a qualifying ‘child’ must be under the age of 21 at the time an application for cancellation of removal is adjudicated.”

The full text of Yupangui-Yunga v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/a63f27ea-ec10-481a-8b77-097dadbbc82f/12/doc/23-6522_opn.pdf

Second Circuit Remands CAT Claim

The Second Circuit has remanded a tattooed Salvadoran man’s CAT claim, which the IJ had originally granted, finding the BIA gave insufficient justification under the clear error standard for disturbing the IJ’s decision.

The full text of Villalta Martinez v. Bondi can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/1cc5b830-c675-4753-8a34-321a78bedcdc/3/doc/24-115_opn.pdf

Second Circuit Finds that FL AttemptedSecond Degree Murder Conviction is Crime of Violence

The Second Circuit has determined that a Florida conviction for attempted second degree murder is a crime of violence. Because Florida attempted second-degree murder requires an intentionally committed act which would have resulted in death, the offense plainly satisfies the physical force requirement. The court also noted the mens rea for attempted second degree murder was simple higher than simple recklessness.

The full text of U.S. v. Delgado can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/be3b17b7-ac65-4eff-abe1-2ec823cacddb/6/doc/23-8120_opn.pdf

Second Circuit Affirms that NY Second-Degree Sexual Abuse is Aggravated Felony

The Second Circuit has reaffirmed that a New York conviction for second-degree sexual abuse is a child sexual abuse aggravated felony.

The full text of Garcia Pinach v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/117ad671-34e9-4aaf-96ca-50888f6f73f9/42/doc/22-6421_opn

Second Circuit Finds that Former Asylee not Eligible for 209 Adjustment

The Second Circuit has determined that a non-citizen can only apply for adjustment of status under section 209 of the INA if he still maintains his asylum status. The court reaffirmed that the Immigration Judge has the authority to defer termination of asylum in order to permit the non-citizen to file for adjustment.

The full text of Wassily v. Bondi can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/117ad671-34e9-4aaf-96ca-50888f6f73f9/38/doc/22-6247_23-6289_complete_opn.pdf

Second Circuit Construes Legitimation under Salvadoran Law

The Second Circuit has interpreted what impact the 1983 Salvadoran Constitution had on the rights of a child born out of wedlock, and thus, that child’s ability to derive citizenship through his mother’s naturalization. “We must decide whether Lainez’s paternity was established by legitimation, as that phrase is used in former § 321, by El Salvador’s promulgation of a new constitution in 1983 granting all children equal rights before their parents. To answer that question, we first determine what it means for paternity to be established by legitimation in former § 321.” “We conclude that paternity is established by legitimation when a father’s parental rights with respect to his child are established in connection with an act of legitimation. We then conclude that El Salvador’s constitutional reform granting children equal rights and prohibiting discrimination did not establish Lainez’s father’s parental rights, and so did not establish Lainez’s paternity by legitimation. Therefore, Lainez was free to derive citizenship from his mother’s naturalization and is not removable.”

“First, paternity is not established automatically by the enactment of a 12 general legitimation law. Second, former § 321’s protections for the rights of noncitizen parents depend, naturally, on the establishment that a particular person has parental rights with respect to the child.” “The difference between establishment of paternity for purposes of former § 321, on the one hand, and mere legitimation, on the other, is that establishing paternity means establishing who has parental rights with respect to a given child.”

“Lainez’s father did not take any relevant actions to establish his paternity by legitimation under El Salvador law. It is undisputed that Lainez’s parents did not marry before or after his birth. At oral argument, the government conceded that his father’s name appearing on his birth certificate does not actually matter in this case, and we agree.” “ While there is no dispute about who Lainez’s father is, that does not mean he obtained parental rights. Because that is the relevant inquiry under former § 321, we conclude Lainez could and did derive citizenship from his mother’s naturalization.”

The full text of Lainez v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/c8056d4d-b9a8-4a63-9693-0713e966764e/4/doc/21-6386_complete_opn.pdf

Second Circuit finds DOS Violated US Citizen's Due Process Rights when Revoking CRBA

The Second Circuit has determined that the Department of State violated a U.S. citizen’s due process rights when it confiscated and revoked his Consular Report of Birth Abroad and would not issue him a temporary passport to return to the United States to attend an administrative hearing contesting the revocation. The court also expressed skepticism that the only proof of fraud DOS produced was a written “confession” entirely in English signed by a person who is illiterate in English.

The full text of Hadwan v. Department of State can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/65d213a2-d436-4be7-a7f0-e13649f58212/9/doc/22-1624_complete_opn.pdf