Second Circuit Certifies NY Theft Case to State High Court

The Second Circuit has certified to the New York State Court of Appeals the question of whether an intent to “appropriate” property under New York Penal Law § 155.00(4)(b) requires an intent to deprive the owner of his or her property either permanently or under circumstances where the owner’s property rights are substantially eroded. The Court determined that an answer from the state high court was necessary to determine if New York convictions for petit larceny constitute crimes involving moral turpitude.

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

https://www.ca2.uscourts.gov/decisions/isysquery/eb96ed83-0767-49a4-9c47-cceb74705746/18/doc/19-4111_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/eb96ed83-0767-49a4-9c47-cceb74705746/18/hilite/

Third Circuit Finds No Jurisdiction to Review BIA's Refusal to Certify Late-Filed Appeal

The Third Circuit has determined that it has no jurisdiction to review the Board of Immigration Appeals’ decision not to certify a late-filed appeal to itself because such a determination (absent certain exceptions not applicable in this case) is a purely discretion decision lacking sufficient benchmarks for review.

The full text of Abdulla v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/191167p.pdf

Ninth Circuit Amends Prior Decision Regarding Review of BIA Refusal to Certify Case

The Ninth Circuit has amended its decision in Idrees v. Whitaker, which found that the Board of Immigration Appeals’ decision to certify a case was not subject to judicial review. In the amended opinion, the court stated that, “We do not hold that judicial review of the BIA’s refusal to certify a case is never appropriate. In other contexts, we have held that, even where a regulation commits a matter to agency discretion, the court may review the decision if there is ‘law to apply’ in doing so. But, Idrees does not assert that the BIA and IJ’s refusal to certify his claim for ineffective assistance of counsel rested on any constitutional or legal error. He challenges only the BIA’s exercise of its discretion in refusing to certify his claim, which is not subject to judicial review.”

The amended decision in Idrees v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/30/15-71573.pdf

My blog post on the original decision in Idrees v. Whitaker can be found here: http://www.sabrinadamast.com/journal/2019/1/1/ninth-circuit-finds-that-bias-decision-to-certify-an-appeal-is-discretionary

Ninth Circuit Finds that BIA's Decision to Certify an Appeal is Discretionary

The Ninth Circuit has determined that the Board of Immigration Appeals’ decision to certify an untimely appeal is a discretionary determination, not subject to judicial review. “The regulation contains no standard for how the agency should exercise its discretion in determining whether to certify a claim for review. And no other regulation or statute provides guidance on this issue. The BIA has stated that it will certify claims in ‘exceptional circumstances,’ In re Liadov, 23 I. & N. Dec. 990, 993 (BIA 2006), but it has not elaborated on which circumstances are considered to be exceptional and thus sufficient to merit certification.”

The full text of Idrees v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/13/15-71573.pdf