Many of my immigration cases have been petitions for review that were litigated in the U.S. Court of Appeals. Most decisions from the U.S. Court of Appeals are available to the public on the internet. Below are summaries of cases that I litigated in the U.S. Court of Appeals and won. I have provided links to the actual decisions, so that you can see that my name appears on the decision and you can read the decision for yourself. Most of all, by reading these decisions, you can see the creative and imaginative arguments that I made in these cases.
Many of these decisions are precedent decisions. A precedent decision is when a court renders a decision that is published because it is important due to the fact that it creates a rule of law that other courts are bound by. The quality of my legal representation is demonstrated by the fact that I have successfully litigated numerous precedent decisions in the U.S. Court of Appeals. Most of these precedent decisions have been in the Second Circuit.
The precedent decisions that I have won in the Second Circuit have impacted the way that Immigration Law is practiced in New York. Many of these decisions were reported on the front page of the New York Law Journal. Before you hire an immigration lawyer to do your petition for review or appeal to the Board of Immigration Appeals, you should ask them how many precedent decisions that they have litigated.
Mr. Garcia’s application was found to be ineligible for a waiver pursuant to INA § 212(c) by both an immigration judge and the Board of Immigration Appeals. A waiver pursuant to INA § 212(c) will permit a lawful permanent resident who has been convicted of certain crimes to remain in the United States. In 1996, a law was passed called the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) that placed limitations on 212(c) relief. Mr. Garcia-Padron was convicted of offenses both before and after AEDPA was enacted. I won Mr. Garcia-Padron a hearing before an immigration judge were he was permitted to apply for 212(c) relief because he was placed in deportation proceedings before AEDPA was enacted. Since he was in deportation proceedings before the enactment of AEDPA, the limitations of AEDPA on 212(c) relief did not apply to him.
Mr. Samuels applied for a green card with a waiver of his criminal history. Mr. Samuels’ case was initially denied because the Board of Immigration Appeals concluded that the regulations required him to show “exceptional and extremely unusual hardship” to his family. I won Mr. Samuels a new hearing before an immigration judge because the regulations permit other factors besides hardship to be considered, which were not considered by the Board.
Mr. Martinez was found to be ineligible for relief from removal because his misdemeanor convictions for sale of marijuana were classified as an aggravated felony conviction. The Board of Immigration Appeals treated Mr. Martinez’s very minor convictions as being very serious. Someone who is convicted of offense that is classified as an aggravated felony is only eligible for relief in very limited circumstances. Because this case was so important, the Immigrant Defense Project and NYU Law School Clinic filed amicus curiae briefs in support of Mr. Martinez. We convinced the court that Mr. Martinez’s misdemeanor convictions should not be treated as an aggravated felony. As a result, Mr. Martinez was granted a hearing before an immigration judge where he was permitted to apply for a form of relief from removal called cancellation of removal.
This case was the last of three cases that I litigated involving whether a waiver pursuant to INA § 212(c) is available to individuals who were convicted by trial before the repeal of 212(c) relief. In 2001, the Supreme Court rendered a decision, INS v. St. Cyr, 533 US 289 (2001), where the Supreme Court held that 212(c) relief remains available to individuals that pleaded guilty before the repeal of 212(c). However, the Supreme Court did not address what would happen to individuals who went to trial. In cases that I had previously won, Restrepo and Wilson, the Second Circuit held that it could be possible for someone who went to trial before the repeal of 212(c) to still be eligible for 212(c) relief. The Government argued that Mr. Walcott’s case was different from Restrepo and Wilson because Walcott’s conviction was on appeal when 212(c) was repealed. I won Mr. Walcott a hearing before an immigration judge on whether he is eligible for 212(c) relief.
I took over the Romero family’s case after the Board of Immigration Appeals had dismissed their appeal that denied their application for asylum. It took two petitions for review to convince the Second Circuit that the Board erred in concluding that wealthy business class was not a social group in Colombia that faces persecution. On remand, the Romero family was granted asylum by an Immigration Judge.
I represented two out of the four petitioners that the Second Circuit addressed in its decision. Both of my clients prevailed and were granted hearings on their applications for 212(c) relief before an immigration judge. Both Mr. Blake and Mr. Chong eventually received 212(c) relief from an immigration judge. This is an important case because the Second Circuit overturned the Board of Immigration Appeals’ precedent decisions in Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005), and Matter of Brieva, 23 I. & N. Dec. 766 (BIA 2005). The Second Circuit was the first court to reject the Board’s decisions in Blake and Brieva. Prior to this decision, the First, Seventh, and Ninth circuits had all upheld Matter of Blake and Matter of Brieva. It is unusual for one Court of Appeals to render a decision that goes against the decision of another Court of Appeals. It is even more remarkable that the Second Circuit rendered a decision that went against three other circuits.
This case was the second of three cases that I litigated involving whether a waiver pursuant to INA § 212(c) is available to individuals who were convicted by trial before the repeal of 212(c) relief. I won Mr. Wilson a hearing before an Immigration Judge on whether he is eligible for 212(c) relief. The Second Circuit held that for lawful permanent residents that went to trial before AEDPA amended 212(c) to be eligible for 212(c) relief, they must be able to show that they were aware that they could have applied for 212(c) relief directly with the former INS before 212(c) relief was repealed, but decided to delay filing the application until they were placed in deportation proceedings.
This is a criminal case that involved a conviction for reentry after deportation. The Second Circuit held that the District Court erred in denying Mr. Lopez’s motion to dismiss. I won Mr. Lopez’s appeal by arguing that his motion to dismiss should not have been denied without first providing him with a hearing on whether or not he would have won in immigration court, if he had been permitted to apply for a form of relief called 212(c).
Mr. Liu’s application for asylum was denied by both the Immigration Judge and the Board of Immigration Appeals. I filed a petition for review on his behalf to the Second Circuit and had the decision of the Board overturned. The Second Circuit rejected the Immigration Judge’s negative credibility findings against Mr. Liu. Among the alleged discrepancies that the Immigration Judge found in Mr. Liu’s testimony were that Mr. Liu referred to his in-laws as his parents.
I filed a petition for review for Mr. Sepulveda and the Government filed a motion to dismiss that argued that the court did not have jurisdiction over Mr. Sepulveda’s claims. Not every case that is denied by the Board of Immigration Appeals can be brought as a petition for review. One of the kinds of immigration cases that the Court of Appeals cannot consider are discretionary decisions by the Board. The Government claimed that Mr. Sepulveda’s challenge to the denial of his motion to reopen was barred because he was seeking adjustment of status, which is a discretionary form of relief. The Second Circuit did not dismiss the case because I argued that Mr. Sepulveda’s arguments on appeal would be based upon a legal issue and not a challenge to a discretionary decision by the Board.
The Fifth Circuit denied Mr. Zalawadia’s request for a stay of deportation and he was deported while his petition for review was pending. As a result of the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), Mr. Zalawadia’s deportation order was no longer valid, however, he had been deported while his case was pending. This case was the first Court of Appeals decision to hold that a non-citizen that is deported while his petition for review is pending can continue to fight their case from abroad. As a result of this decision, Mr. Zalawadia was permitted to return to the United States and he was eventually granted a waiver by an immigration judge.
This case was the first of three cases that I litigated involving whether a waiver pursuant to INA § 212(c) is available to individuals who were convicted by trial before the repeal of 212(c) relief. This case was the first decision by any Court of Appeals to hold that a permanent resident convicted by jury trial before the repeal of 212(c) relief could possibly be eligible for 212(c) relief. In INS v. St. Cyr, 533 U.S. 289 (2001), the U.S. Supreme Court held that permanent residents convicted by plea agreement before the repeal of 212(c) relief continue to be eligible for that form of relief. The Supreme Court’s decision did not address individuals who were convicted by jury trial. Before Restrepo every Court of Appeals to have addressed the issue concluded that 212(c) relief was not available to permanent residents that were convicted by jury trial prior to the repeal of 212(c).
As a result of this decision, Mr. Khouzam was not returned to Egpyt where he had been tortured. This case is often cited in cases about the Convention Against Torture. The Second Circuit rejected a finding by the Board of Immigration Appeals that torture committed by police officers to obtain a confession is not protected by the Convention Against Torture. The Second Circuit was critical of the Board of Immigration Appeals for requiring that applicants under the Convention Against Torture show that government officials have actual knowledge that the applicant will be tortured. The Second Circuit held that under the regulations, it is enough that the government officials are aware that their police engage in torture and “acquiesce” in their conduct.
Mr. Jobson was convicted of manslaughter in the second degree under NY law. Mr. Jobson was ordered removed by the Board of Immigration Appeals because he was deemed removable as someone convicted of a crime of violence. I was able to convince the Second Circuit that his conviction for manslaughter in the second degree was not a crime of violence. The Second Circuit utilizes the “categorical approach” for determining if an offense is a crime of violence. Under the categorical approach, the court does not look at the facts of the case, but instead, looks to see if the offense can be committed without using violence. Since manslaughter in the second degree can be committed by an act of omission or the failure to act, it is not an offense that is violent by nature. As a result, Mr. Jobson’s removal proceedings against him were terminated. This case was so important that the Immigrant Defense Project submitted an amicus curiae brief to the Second Circuit.
This was my first oral argument as an attorney before an actual court and I won. This case was not an immigration case, but a civil rights case. I worked on this case pro bono with Prisoners’ Legal Services of New York. A prison inmate had sued prison guards that he alleged beat him. A jury rendered a verdict against the inmate and in favor of the guards. I succeeded in having the jury verdict overturned. The Second Circuit agreed with me that the attorneys for New York State made improper arguments to the jury that they should believe the guards over Mr. Hynes because of his past conduct.