The 2d Cir found no prejudice from alleged violation of DHS regulations that permit asylum applicants to withdraw asylum applications rather than be denied, because DHS denied prosecutorial discretion. Found that challenge to DHS decision to institute removal proecedings was barred by 8 USC 1252(g), unless it raised a constitutional question or question of law.
The 2d Cir considered whether applying the stop-time rule to pre-1996 crimes (where conviction comes after 97) is retroactive; found the statute unclear, but found no retroactive effect, because Petitioner merely passively awaited prosecution, and did not take any other steps; and where the act at issue is not legal but real (i.e., committing the crime), it makes no sense to ask whether he acted in reliance on the old law. Straub, concurring, would find that the law has retroactive effect, but would uphold under 2d cir precedent because no reasonable reliance.
The 2d Cir rejected the argument that the Federal Rules of Civil Procedure acted to add 3 days to the 30 day appeal period. However, though the derivative citizenship claim was also unexhausted, found that because someone cannot “unintentionally relinquish U.S. citizenship,” there could not be waiver. On the merits, the court remanded to the BIA, to consider whether INS delay in adjudicating the citizenship application of Petitioner’s mother until after he turned 18, as well as the Petitioner’s equities, merited some consideration.
The 2d Cir found the INA's stalking provision at INA § 237(a)(2)(E)(i) to not be unconstitutionally vague, simply because it doesn't define stalking.Stalking was defined by "common understanding," and is criminalized federally and in all 50 states.
The 2d Cir. found no ineffective assistance of counsel where former counsel decided to withdraw the asylum application and seek VD, rather than face a possible frivolousness finding. The Second Circuit laid down, as if it were a general rule, that proceedings remain fundamentally fair where an attorney advises a client to seek voluntary departure rather than pursue other forms of relief.
Second Circuit 
