By Andrea Saenz The Second Circuit’s recent decision in Lora v. Shanahan, No. 14-2343-pr-, slip op. (2nd Cir. Oct. 28, 2015), gives immigration detainees a lot to be hopeful about, and gives scholars and advocates a lot of new questions to chew on. In Lora, the Second Circuit held that noncitizens cannot be subjected to prolonged no-bond detention under INA § 236(c) while their deportation cases are pending, and therefore must be given a bond hearing within six months of their detention. As Alina Das wrote on this blog, the decision represents a resounding victory for core due process [...]
A Light at the End of A Long, Dark Tunnel: The Second Circuit’s Limit on Indefinite Detention in Lora v. Shanahan
By Alina Das Every day, tens of thousands of immigrants experience immigration detention as punishment. Although characterized in law as “civil”, “non-punitive”, and “administrative” in nature, immigration detention presents all the hallmarks of punishment—immigrants are routinely locked up in county jails or private prisons, many miles away (and too often across state lines) from their families and communities, forced to wear prison uniforms, shackled when they appear in court, at the mercy of the jail or prison guards with respect to their ability to seek medical care and myriad other [...]
2 Cir: Broadens 212(h) eligibility; further isolates BIA & 8th Circuit
The U.S. Court of Appeals for the Second Circuit held that anyone who did not enter the country as a lawful permanent resident is eligible for a waiver of inadmissibility under INA § 212(h). Husic v. Holder, No. 14-607, slip op. (2d Cir. Jan. 8, 2015) (Katzmann, Winter, and Marrero). Chief Judge Katzmann wrote the panel’s decision. This case involves a 65-year-old migrant who entered the United States in 1994 on a B-2 nonimmigrant visa. About four years later he became an LPR by adjusting his status. In 2012, he pleaded guilty to attempted criminal possession of a weapon in the second [...]
2 Cir: NY sale of controlled substance is aggravated felony
The U.S. Court of Appeals for the Second Circuit held that a conviction under New York law for sale of a controlled substance is categorically an illicit trafficking in a controlled substance type of aggravated felony even though the conviction merely involved an attempt to sell. Pascual v. Holder, No. 12-2798, slip op. (2nd Cir. July 9, 2013) (Jacobs, Kearse, and Carney, JJ.) (per curiam). This case involved an individual who was convicted of violating New York Penal Law § 220.39, sale of a controlled substance, and on that basis ordered removed by an IJ. The BIA affirmed. In an earlier [...]
2 Cir: Sale of controlled substance is aggravated felony even if no sale occurred
The U.S. Court of Appeals for the Second Circuit held that a conviction for criminal sale of a controlled substance (narcotic) in New York, New York Penal § 220.39(1), constitutes drug trafficking, a type of aggravated felony. Pascual v. Holder, No. 12-2798, slip op. (2d Cir. Feb. 19, 2013) (Jacobs, Kearse, and Karney, J.) (per curiam). This case involves an LPR who was convicted in 2008. He sought but was denied cancellation of removal because the IJ concluded his conviction is an aggravated felony. On appeal to the Second Circuit, Pascual claimed that his conviction is not an aggravated [...]
BIA: Look at elements of offense to determine if statute is divisible
The BIA held that a statute of conviction is divisible if some conduct that satisfies an element of the offense could result in removal while other conduct would not. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s decision. This case involved an LPR convicted of menacing in the second degree, NY Penal Code § 120.14. An IJ determined that this was a firearms offense under INA § 237(a)(2)(C). Upon remand from the U.S. Court of Appeals for the Second Circuit, the BIA was required to determine whether the [...]