CA2 Teleconference on Thursday, Oct. 25, 2012 re Pending Immigration Petitions for Review

New York attorney Theodore N. Cox is hosting: NOTICE OF CONFERENCE CALL with Catherine O'Hagan Wolfe, Clerk, Court of Appeals for the Second Circuit, concerning a new procedure for remanding pending cases for consideration of prosecutorial discretion. (Please carefully read the decision, excerpted...

CA2 Reverses Criminal Conviction of Immigration Lawyer: U.S. v. Gupta

"A lawyer's immigration fraud conviction has been vacated because of the trial judge's "intentional, unjustified" closure of the courtroom to the public during the entirety of voir dire. In an unusual move, the original panel at the U.S. Court of Appeals for the Second Circuit...

CA2 on Social Group, Cooperating Witnesses: Gashi v. Holder

"Azem Gashi, a citizen of Serbia, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the oral decision of Immigration Judge (“IJ”) Alan A. Vomacka, which denied Gashi’s application for asylum, withholding of removal, and relief under...

CA2 Amends Shabaj v. Holder: What Happened to Footnote 4?

"[W]hile the amended Shabaj decision has deleted language which seemed to give the blessing of the Court of Appeals to a creative strategy for seeking judicial review of certain USCIS decisions, it has not precluded such a strategy. In addition, it may implicitly have acknowledged that some Visa...

CA2 on False Claim, 'Purpose or Benefit' - Richmond v. Holder (UPDATED)

"Petitioner Keon Richmond, a native and citizen of Trinidad and Tobago, remained in the United States beyond the term of the tourist visa which allowed his initial entry here in May 2001. When removal proceedings were brought against him, Richmond conceded removability but sought an adjustment of...

CA2 on Motion to Reopen, New Evidence: Chen v. Holder (Unpub.)

"We remand to the BIA to reopen the proceedings to give full consideration to Chen's evidence and determine whether he has presented sufficient evidence to support an objectively reasonable fear of future persecution." - Chen v. Holder, Apr. 29, 2013 . [Hats off to Joshua Bardavid !]

CA2 on Unreliability of Pre-Sentence Report: Wassily v. Holder

Kerry Bretz writes: "Mr. Wassily (A026-102-429), was previously granted asylum in 2000 based on a well-founded fear of religious persecution in Egypt as a Coptic Christian. On March 22, 2004, he was convicted under NYPL § 120.50 for 3rd degree stalking and NYPL § 260.10 for endangering...

CA2 on NACARA Special Rule Cancellation: Reyes v. Holder (UPDATED)

"8 C.F.R. § 1240.66(b)(1) means what it says: In order to be eligible for special rule cancellation of removal under that provision, an alien must not be inadmissible by virtue of having committed certain crimes specified in § 212 of the INA or deportable by virtue of having committed...

CA2 on Statelessness, Motions to Reopen: Jourbina v. Holder (Unpub.)

C. Mario Russell writes: "I am delighted to report that a stateless family’s petition for review to the Second Circuit Court of Appeals was granted and the decision of the BIA denying a motion to reopen vacated. Jourbina v. Holder 11-1540 (2CA 2013)(attached) . The Jourbina family was made...

A Pair of CA2 Decisions on the Exclusionary Rule: Pretzantzin v. Holder; Sicajau Cotzojay v. Holder

"We are persuaded that the facts as alleged by Sicajau portray an egregious Fourth Amendment violation requiring application of the exclusionary rule. ... the decision of the Board of Immigration Appeals is hereby VACATED and REMANDED. On remand, the Government bears the burden of proof to show...

CA2 on Evidence, Persecution: Huang v. Holder (Unpub.)

"The agency’s finding that Huang did not meet his burden of proof because he failed to submit corroborating evidence is not supported by substantial evidence. Although the agency identified what evidence should have been obtained and why such evidence was required, it neither explained why...

CA2 on Derivative Citizenship; Overrules ID 3621: Nwozuzu v. Holder

"The question presented is whether Nwozuzu's failure to become a lawful permanent resident before turning eighteen years old bars him from claiming derivative citizenship from his parents. We hold it does not. ... Nwozuzu applied for citizenship in August 2005 and April 2006, but his application...

CA2 on Physical Presence: Hernandez v. Holder

"As the government concedes, the IJ made no adverse credibility determination in this case. Without such a finding, this Court assumes that Hernandez’s testimony is credible. See 8 U.S.C. § 1229a(c)(4)(C) (“[I]f no adverse credibility determination is explicitly made, the applicant...

CA2 on Evidence: Indradjaja v. Holder

"The BIA denied Indradjaja’s motion to reopen because she had not submitted an affidavit in support of the new evidence she proffered, and because she had not submitted copies of the sources on which her expert relied, it refused to consider the expert report supporting her motion. By attaching...

CA2 on 'Found In' - USA v. Vasquez Macias

"Defendant Walter Yovany Vasquez Macias appeals from a judgment of the United States District Court for the Western District of New York (Richard Arcara, Judge), in which he was convicted after a jury trial of being “found in” the United States as a previously‐deported alien, in violation...

CA2 on Credibility, 'Bible Test' - Zhu v. Holder

"The agency based its credibility determination primarily on Zhu's testimony concerning his telling of the story of the biblical figure Paul to Chinese authorities during his detention. The agency found that Zhu's demeanor while testifying was "hesitant" and "evasive"...

CA2 Commands BIA to Issue Precedential Decision on Material Support Bar, Duress Exception: Ay v. Holder

"We find no error in the agency’s factual conclusion that Ay provided material support to a terrorist organization. We remand, however, to permit the BIA to address in a precedential decision whether the Immigration and Nationality Act (the “Act”) should be construed to include...

CA2 on Coram Nobis, Strickland, Prejudice: Kovacs v. U.S.

"We conclude that a defense lawyer’s incorrect advice about the immigration consequences of a plea is prejudicial if it is shown that, but for counsel’s unprofessional errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration...

CA2 on Jurisdiction, Equity, CRBAs: Hizam v. Kerry

"Section 1503(a) allows a district court to grant just one type of relief: a declaration that a person is a U.S. national. The statute provides no authority for the remedy ordered by the district court: the return of Hizam’s CRBA. Moreover, the enactment of Section 1504 did not change the...

CA2 on 212(c), Rankine, Vartelas: U.S. v. Gill

"This case requires us to decide whether the petitioner Ricardo Allen Gill can sustain a collateral challenge to his order of deportation, which is a defense to a prosecution for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2). The resolution of this question turns on whether the...

CA2 on CIMT, Mens Rea: Efstathiadis v. Holder

"Under federal immigration law, Efstathiadis’ removal turns on whether the crime he was convicted of—C.G.S. § 53a‐73a(a)(2)—is a CIMT. The answer to that question, in turn, implicates the level of mens rea applicable to C.G.S. § 53a‐73a(a)(2)’s lack of consent element...

CA2 Suppression Victory, Remand: Guillen-Jimenez v. Holder (Unpub.)

James A. Welcome writes: "I am pleased to attach a Summary Order issued today on a Petition for Review. The PFR was granted and remanded to the BIA. The matter involved a motion to suppress and the IJ's refusal to grant a hearing on the motion to suppress an unlawful arrest. Included in the...

CA2 on Social Group, Albania: Paloka v. Holder

"The primary issue on this appeal is whether “young Albanian women” or “young Albanian women between the ages of 15 and 25" qualify as a “particular social group” for asylum purposes. 8 U.S.C. § 1101(a)(42)(A). ... In view of the BIA’s two recent precedential...

CA2 on 'Changed Circumstances,' Asylum: Lin v. Holder

"The statute states that an otherwise untimely asylum application “may be considered . . . if the alien demonstrates to the satisfaction of the Attorney General . . . the existence of changed circumstances which materially affect the applicant’s eligibility.” 8 U.S.C. § 1158...

CA2 on Evidence: Urgen v. Holder

"Petitioner contends that his testimony and evidence were sufficient to establish that he is a stateless Tibetan born in Nepal. Because the Board of Immigration Appeals erroneously required Petitioner to prove his nationality through documentary evidence alone, we VACATE and REMAND the Board of...