In seeking to equitably toll filing deadline for motion to reopen based on ineffectiveness assistance of counsel, petitioner must establish due diligence during the entire period he seeks to toll, including both the period of time before the IAC was or should have been discovered, and the period from that point until the motion to reopen is filed (more below).
The 2nd cir held that it had jurisdiction to review the quesiton of whether a particular crime is a particularly serious crime, notwithstanding 1252(a)(2)(B)(ii):
we hold that, when a statute authorizes the Attorney General to make a determination, but lacks additional language specifically rendering that determination to be within his discretion (e.g., “in the discretion of the Attorney General,” “to the satisfaction of the Attorney General,” etc.), the decision is not one that is “specified . . . to be in the discretion of the Attorney General” for purposes of § 1252(a)(2)(B)(ii).
Accord Alaka v.Att’y Gen., 456 F.3d 88, 98, 101-02 (3d Cir. 2006); contra Ali v. Achim, 468 F.3d 462, 468-69 (7th Cir. 2006). However, it upheld the Board's application of the Frentescu factors.
Then, the 2d cir rejected the argument that only aggravated felonies can be "particularly serious crimes" for withholding and asylum. It found the statute ambiguous, finding that the text could either help define PSCs, or could simply clarify the authoriy of the Board - as such, it deferred under Chevron to the Board's decision in In re N-A-M, 24 I. & N. Dec. 336, 337-41 (B.I.A. 2007). Contra Alaka v.Att’y Gen., 456 F.3d 88, 104-05 (3d Cir. 2006); accord Ali v. Achim, 468 F.3d 462 (7th Cir. 2006).
The 2d Cir upheld the reinstatement of removal regulations (which permit a deportations officer to decide reinstatement, rather than an IJ) against a challenge that they were ultra vires to the statute, under step 2 of Chevron. The CtApp also upheld the regulations against facial and as-applied due process challenges, and (pursuant to its earlier decision in Tenesaca Delgado v. Mukasey, 516 F.3d 65 (2d Cir. 2008)), found no ability to obtain adjudication of I-485 and waiver before reinstatement order was executed.
The Court further refused to permit a collateral attack on the underlying removal order:
This outcome does not offend due process because, “regardless of the process afforded in the underlying order,” reinstatement of the prior deportation order does not alter petitioner’s legal condition. Morales-Izquierdo, 486 F.3d at 497. The statute “does not penalize an alien for the reentry (criminal and civil penalties do that).” Fernandez-Vargas, 548 U.S. at 44. It merely gives effect to a final order issued after a formal hearing before an immigration judge. The purpose is to “stop an indefinitely continuing violation that the alien himself could end . . . by voluntarily leaving the country.” Id. As the Ninth Circuit put it, “[w]hile aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.” Morales-Izquierdo, 486 F.3d at 498.
Accord: Lorenzo v. Mukasey, 508 F.3d 1278, 1283-84 (10th Cir. 2007); Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489-95 (9th Cir. 2007) (en banc); De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1280-83 (11th Cir. 2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); Lattab v. Ashcroft, 384 F.3d 8, 17-20 (1st Cir. 2004); see also Tilley v. Chertoff, 144 F. App’x 536, 539-40 (6th Cir. Aug. 15, 2005) (unpublished).
[Analysis: The decision contains several unfortunate pieces of dicta. In passing, the Court suggested that 240(a)(3) requires a formal hearing "only [for] aliens already admitted to the U.S."; which seems at odds with the text, which says that 240 is the exclusive means ot determining "whether an alien may be admitted to the United States." The Court's decision that it could not employ constitutional doubt pre-Chevron seems at odds with St. Cyr. The due process analysis seems to require that the alien be in unlawful status before and after the reinstatement; but that is an assumption not always true. And most fundamentally, this applicant simply could not show any prejudice, having admitted an unlawful reentry - the rest of the analysis was really just unnecessary. - CR]
A Canadian/Syrian citizen was deported to Syria with (allegedly) the express intention that Syria torture him; he brought suit arguing that various individuals had personal and official liability under the TVPA and under a Bivens theory.
Holdings: (1) The Court held that US Govt officials were not acting "under color of foreign law" because they were not subject to the jurisdiction of Syria. (2) The CtApp held that the INA's administrative appeal and judicial appeal routes counseled against permitting a Bivens claim, notwithstanding the claim that the Govt acted to obstruct his filing of an appeal. (3) The states secret privilege, as well as national security considerations, counsel strongly against permitting a Bivens claim here. (4) That his Due Process claim re treatment inside US - that he was deprived of his right to counsel - fails because he had no right to counsel since that is only triggered by asylum or removal proceedings, and the Govt excluded him under 235(c) where you get no hearing before an IJ. (5) Argument that he should have been able to seek a court order to protect him from torture wasn't raised with specificity in the complaint. (6) Conditions claim was rejected because no "gross physical abuse," and he didn't allege a punitive intent where they deprived him of food and sleep and interrogated him for hours at a time (!?) [no discussion of whether this was a "legitimate" use of the detention]. (7) Declaratory Judgment rejected because a declaration that the exclusion was illegal wouldn't undo it, he'd still be inadmissible. The Court raised - but did not decide - whether the "zipper clause" of 1252(b)(9) would bar these claims, particularly where he alleged that US Govt officials prevented him from appealing his case.
Sack, dissenting: Majority treats this as if it were an immigration case, whereas it's really about Govt tactics. Did not disagree re TVPA dismissal, but argued that Due Process analysis was unduly narrow, Bivens approach incorrect.
The 2d Cir held that CAT deferral is basically never permanent - that DHS is not precluded by the law of the case from reopening the matter (though CtApp noted that it would feel differently if DHS tried repeatedly to reopen a case). The CtApp reversed, finding that the IJ abrogated his duty to be fair and impartial, and showed bias against homosexuals. Remanded with instructions for new hearing before different IJ.
Second Circuit 
