Second Circuit Addresses Due Process Rights of Mentally Incompetent Applicant

The Second Circuit has addressed the required findings that an Immigration Judge must make when adjudicating an application filed by a mentally incompetent individual.

“[W]e hold that to protect the rights and privileges of noncitizens who may be incompetent, an IJ must: (1) make a finding as to whether the noncitizen is incompetent; and, if so, (2) generate a record of sufficient findings regarding the character, scope, and severity of the noncitizen’s incompetency; (3) implement safeguards that address the character, scope, and severity of the noncitizen’s incompetency; and (4) articulate how and why the safeguards adequately and appropriately protect the noncitizen’s rights and privileges under the INA and the Due Process Clause. These findings are interdependent and obligatory, and a reviewing court cannot affirm the ultimate adequacy and appropriateness of safeguards to protect the noncitizen’s rights and privileges in the absence of sufficient findings at each step of the Matter of M-A-M- framework. We note that in cases of plausibly remediable incompetency, the range of safeguards IJs may consider includes halting the proceedings via administrative closure or termination without prejudice as to the government’s right to reopen.”

“It is troubling and hard to understand why other measures that could have helped ameliorate the ways Reid’s limitations disadvantaged him during the hearing were not discussed or implemented. For example, it appears that if Reid is indeed incompetent, his psychologist Dr. Cort and his social worker Alexis Donovan both alluded to the possibility of his continued treatment allowing him to recover some measure of competency and participate more fully in his deportation hearing. If that is true, a continuance or administrative closure to await his possible restoration to or improvement of competence might be a desirable safeguard. It is also possible that other safeguards would enable Reid’s counsel to more definitively establish the number of days he was imprisoned. We do not know, however, what would be appropriate without a record of sufficient findings on whether Reid is incompetent and if so, what safeguards would address his limitations.”

The full text of Reid v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/3b0b7b8b-3834-4588-857b-8c91bf7750ad/6/doc/20-3324_opn.pdf

Second Circuit Remands Gender Violence Asylum Case

The Second Circuit has remanded an asylum claim for a Honduran woman who had been the victim of family violence. “The agency reasonably relied in part on Castellanos-Ventura’s failure to report. But it failed to consider whether it would have been ‘futile or dangerous for an abused child,’ as Castellanos-Ventura was during much of her abuse, ‘to seek protection from the authorities.’”

The full text of Castellanos-Ventura v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/ac1b6a99-f14d-423b-a6e6-c89990596c3c/4/doc/21-6293_opn.pdf

Second Circuit Finds that Death Threats are not Per Se Past Persecution

The Second Circuit has determined that death threats are no per se past persecution, noting that they will rise to the level of persecution only if the applicant can point to aggravating circumstances indicating that the death threat was “so imminent or concrete” or “so menacing as itself to cause actual suffering or harm.”

The full text of KC v. Garland can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/ffede890-ad84-46c5-93e1-549ef45053a5/9/doc/20-3043_opn.pdf

Second Circuit Finds no Authority for 237(a)(1)(H) Waiver for Conditional Resident who Failed to File Joint I-751 Petition

The Second Circuit has determined that a non-citizen whose conditional residence is terminated for failure to file a joint petition to remove the conditions is not eligible to seek a waiver under section 237(a)(1)(H) of the INA, even if the failure to file the joint petition is related to to marriage fraud.

The full text of Bador v. Garland can be found be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/413f83c3-2f65-479a-a951-2b9c1c3c5908/3/doc/22-6492_opn.pdf

Second Circuit Finds that NJ Conviction for Distribution of Controlled Substance near a School is not an Aggravated Felony

The Second Circuit has determined that a New Jersey conviction for distribution a controlled substance near a school is not an aggravated felony. The Court noted that the New Jersey statute criminalizes dispensing a controlled substance near a school, while the federal school zone prohibition does not. In addition, New Jersey criminalizes conduct on school buses, while the federal statute only criminalizes conduct within 1000 feet of a school’s real property. Third, the general federal distribution statute exempts distribution of a small amount of marijuana for no remuneration, while the New Jersey statute does not. The Court determined the statute was not divisible, and as such, was not an aggravated felony.

The full text of Stankiewicz v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/576dc939-def0-4fbb-a9ea-818732765688/3/doc/21-6265_22-6121_opn.pdf

Second Circuit Defers to BIA's Definition of Conviction

The Second Circuit has deferred to the BIA’s decision in Matter of Wong addressing what minimal constitutional protections must be accorded to a defendant for the proceeding to result in a conviction for immigration purposes. The court further determined that the “minimum constitutional protections” test espoused in Wong could be applied retroactively. Finally, the court concluded that a second-degree forgery conviction in New York categorically matches the definition of a crime involving moral turpitude. The court rejected the petitioner’s void-for-vagueness challenge to the term “crime involving moral turpitude.”

The full text of Wong v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/dcca81a9-a8f1-4254-bef7-5aee7c442985/23/doc/22-6185_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/dcca81a9-a8f1-4254-bef7-5aee7c442985/23/hilite/

Second Circuit Finds that NY Possession for Sale is not a Controlled Substance Offense

The Second Circuit has determined that a New York conviction for possession for sale of a controlled substance is not a controlled substance offense because it criminalizes possession of several cocaine isomers not found in the federal drug statutes and the statute is indivisible.

The full text of US v. Chaires can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/a3eff4c5-8ea3-4d44-b8f2-ca139dc304b1/11/doc/20-4162_complete_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/a3eff4c5-8ea3-4d44-b8f2-ca139dc304b1/11/hilite/

Second Circuit Finds that Arkansas Conviction for Abuse of a Corpse is not Categorically a CIMT

The Second Circuit has determined that an Arkansas conviction for abuse of a corpse is not categorically a crime involving moral turpitude because it includes mere disinterment of a corpse. The court also concluded that the statute is divisible between disinterment and mistreatment of a corpse.

The full text of Giron-Molina v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/db521802-9889-4682-9b27-66095f2ebbfd/7/doc/22-6243_amd_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/db521802-9889-4682-9b27-66095f2ebbfd/7/hilite/

Second Circuit Applies Sanchez Sosa to Motion to Remand

The Second Circuit has applied the factors outlined in Matter of Sanchez Sosa - which typically apply to a motion to continue due to a pending U visa application - to a motion to remand a case pending before the Board of Immigration Appeals.

The full text of Paucer v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/doc/21-6043_amd_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/hilite/

Second Circuit Declines to Give Retroactive Effect to New York Sentencing Reform

The Second Circuit has declined to give retroactive effect to New York’s sentencing reform for misdemeanors (reducing the maximum sentence from 365 to 364 days of incarceration) in immigration proceedings.

The full text of Vasquez v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/fe90911e-cb1d-4077-83eb-4b6a4ff087c6/9/doc/21-6380_complete_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/fe90911e-cb1d-4077-83eb-4b6a4ff087c6/9/hilite/

Second Circuit Casts Doubt on Reliability of Border Interviews

The Second Circuit has again cast doubt on the reliability of border interviews in a credibility determination. The court reiterated that “a border interview record is “‘inherently less reliable’ if (1) the record ‘merely summarizes or paraphrases the [noncitizen’s] statements’ rather than include ‘a verbatim account or transcript,” (2) “the questions asked are not designed to elicit the details of an asylum claim, or the . . . officer fails to ask follow-up questions that would aid the [noncitizen] in developing his or her account,’ (3) ‘the [noncitizen] appears to have been reluctant to reveal information to INS officials because of prior interrogation sessions or other coercive experiences in his or her home country,’ or (4) ‘the [noncitizen’s] answers to the questions posed suggest that the [noncitizen] did not understand English or the translations provided by the interpreter.’” An IJ is required to consider these factors before relying on a border interview for an adverse credibility determination if the record indicates the factors may be relevant.

The full text of Pomavilla-Zaruma v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/e263f00e-d425-4546-a54b-58a3fa367add/10/doc/20-3230_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e263f00e-d425-4546-a54b-58a3fa367add/10/hilite/

Second Circuit Applies Sanchez Sosa to Motions to Remand

The Second Circuit has determined that the factors outlined in Matter of Sanchez Sosa apply to a motion to remand filed when a case is on appeal to the Board of Immigration Appeals.

The full text of Paucar v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/0c9c1407-6be4-4d19-b675-9781ca9b987f/7/doc/21-6043_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c9c1407-6be4-4d19-b675-9781ca9b987f/7/hilite/

Second Circuit finds that Arkansas Abuse of a Corpse Conviction is not CIMT

The Second Circuit has determined that an Arkansas conviction for abuse of a corpse is overbroad as compared to the generic definition of a crime involving moral turpitude because it includes the mere removal or disinterment of a corpse.

The full text of Giron-Molina v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/40b973a6-4b14-456c-9969-020104488757/9/doc/22-6243_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/40b973a6-4b14-456c-9969-020104488757/9/hilite/

Second Circuit Opines on Written Frivolous Asylum Warnings

The Second Circuit has determined that an applicant’s signature creates a rebuttable presumption that they understood the written frivolous asylum warnings on the asylum application. However, if the applicant “plausibly claims and presents credible evidence that he was unable to understand the printed Frivolousness Warning on his signed asylum application, the presumption of understanding established by his signature may not be determinative of notice.”

The full text of Ud Din v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/40b973a6-4b14-456c-9969-020104488757/2/doc/21-6586_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/40b973a6-4b14-456c-9969-020104488757/2/hilite/

Second Circuit Affirms Agency Interpretation in Castro Tum

The Second Circuit has determined that the agency’s now-defunct holding in Matter of Castro Tum, which held that Immigration Judges and the Board of Immigration Appeals lacked the general authority to administratively close proceedings, was a reasonable interpretation of the regulations, and the subsequent reversal of that interpretation in Matter of Cruz Valdez does not render it unreasonable.

The full text of Garcia v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/c2c5d174-0010-4129-8eda-dd15dd919752/3/doc/20-1641_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/c2c5d174-0010-4129-8eda-dd15dd919752/3/hilite/

Second Circuit Finds that NY Conviction for Second Degree Sexual Abuse is an Aggravated Felony

The Second Circuit has determined that a New York conviction for second degree sexual abuse qualifies as a sexual abuse of a minor aggravated felony. The opinion included a concurrence calling on the Second Circuit to reexamine its case law on the definition of sexual abuse of a minor in light of more recent Supreme Court case law.

The full text of Debique v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/2/doc/21-6208_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/2/hilite/

Second Circuit Finds NY Conviction for Attempted First-Degree Assault is a Crime of Violence

The Second Circuit has determined that New York’s first-degree assault statute is divisible, but the prongs that require intent to cause physical injury and use of a deadly weapon or dangerous instrument match the definition of a crime of violence.

The full text of Singh v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/10/doc/19-2910_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/10/hilite/

Second Circuit Clarifies CAT Standard

The Second Circuit has determined that acquiescence to torture by any official is sufficient to warrant protection under the Convention Against Torture. “Where, as here, the primary perpetrator of likely harm is a gang, the relevant state action question (should the BIA reach it) is whether any public official, or any other person, including low-level local police officers, when acting under color of law, will participate or acquiesce in harm that the gang is likely to inflict and that is recognized as torture under section 1208.18(a).”

The full text of Garcia-Aranda v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/b71fbe28-045a-4166-b765-a790b8752b29/6/doc/18-2281_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b71fbe28-045a-4166-b765-a790b8752b29/6/hilite/

Second Circuit Upholds One Central Reason Standard in Withholding of Removal Cases

The Second Circuit has deferred to the agency’s requirement that a protected ground be “one central reason” for persecution in order to qualify for withholding of removal. The Court concluded that the INA does not unambiguously provide the proper standard for assessing motive in withholding of removal claims, and thus, deferred to the agency’s interpretation as a reasonable one.

The full text of Quituizaca v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/doc/19-3470_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/hilite/

Second Circuit Rules on Standard of Review for Corroboration Determinations

The Second Circuit has determined that the Board of Immigration Appeals reviews de novo an Immigration Judge’s determination that an applicant should provide corroborating evidence because it is not a factual finding. However, the subsequent determination as to whether an applicant does not have the evidence and cannot reasonably obtain the evidence is a factual finding that the BIA reviews only for clear error.

The full text of Pinel-Gomez v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/doc/19-3124_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/hilite/