The 2nd Cir. held that, in order to establish eligiblity for asylum, WH, and CAT claims based exclusively on activities undertaken after applicant's arrival in U.S., applicant must make some showing that authorities in his country of nationality are (1) aware of his activities or (2) likely to become aware of his activities.
Petition for review granted in part, remanded to consider whether authorities of PRC were aware or likely to become aware of petitioner's activities.
Petitioner was convicted of both a state felony and a federal felony in 1990. He was placed into removal proceedings and ordered removed in 1994 based on the federal aggravated felony conviction. When the federal conviction was vacated in 1998, the gvt reopened the case and vacated the removal order but a few months later issued a new NTA charging petitioner with removability as an ag fel based on his 1990 state felony conviction. The 2nd Cir. held that res judicata did not bar DHS from this, rejecting petitioner's argument that DHS was barred from charging him twice with removability as an ag fel, since each removal claim was predicated on a separate conviction for a distinct offense prosecuted in a different jurisdiction.
Also, claim preclusion did not apply, nor did 8 CFR 1003.30 (stating that DHS may lodge additional charges and allegations during removal proceedings) require that DHS lodge all deportation charges in a single proceeding.
The Govt sought rehearing of the 2d cir's earlier decision remanding a case to the Board for consideration of whether the person might be a citizen. Govt argued that CtApp needed to transfer case to DistCt, instead of remanding to BIA. CtApp disagreed: "We believe the power to decide the merits of a claim for citizenship, initially presented to an administrative agency, necessarily encompasses the power to remand to that agency." Though the Court conceded that mom's failure to naturalize before child turned 18 might doom claim, it remanded to Board to get its views. Noted that Govt usually wants the CtApp to defer to the Board's views, found it appropriate in this case.
This 2d Cir panel found "persuasive" the arguments made by Petitioner that the CtApp has authority to review the "extraordinary and extremely unusual hardship" prong of non-LPR cancellation; but found itself barred by circuit precedent from holding in that manner.
Atty for an alien failed to file necessary documentation in the CtApp, case was dismissed - client later paid, and atty tried to get case reinstated - in the course of which, he explained that he didn't work because client didn't pay. CtApp found that unethical, because once he began, he had to continue until granted leave to withdraw. Reinstated petition, but referred lawyer for potential discipline.
Second Circuit 
