29 F.4th 53
2d Cir.2022Background
- Petitioner Roberto Cupete, a Dominican national, pleaded guilty in 2014 to making/using a false document in violation of 18 U.S.C. § 1001 in connection with a U.S. passport application.
- DHS served an initial Notice to Appear (NTA) that omitted the date and time of the removal hearing; a later notice containing date/time was mailed and ultimately received by Cupete.
- Cupete appeared, conceded removability, applied for cancellation of removal under 8 U.S.C. § 1229b (arguing hardship to his U.S.-citizen wife and children), and moved to terminate proceedings claiming lack of IJ jurisdiction due to the defective initial NTA.
- The IJ denied the motion to terminate (finding jurisdiction proper) and denied cancellation of removal, concluding Cupete’s § 1001 conviction was a crime involving moral turpitude (CIMT) making him ineligible.
- The Board of Immigration Appeals (BIA) affirmed the IJ: jurisdiction was proper under Second Circuit precedent and § 1001(a) categorically involves fraud/deceit and therefore is a CIMT.
- The Second Circuit denied Cupete’s petition for review, holding the court had jurisdiction and that § 1001(a) is a CIMT rendering Cupete ineligible for cancellation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Immigration Court lacked jurisdiction because the initial NTA omitted date/time | Cupete: Niz‑Chavez requires an NTA to include time/date; omission deprived court of jurisdiction | Government: Second Circuit precedent (Banegas Gomez) permits vesting of jurisdiction if a later notice of hearing supplies date/time | Held: Jurisdiction proper; Banegas Gomez and Chery remain controlling despite Niz‑Chavez |
| Whether conviction under 18 U.S.C. § 1001(a) is a CIMT making petitioner ineligible for cancellation of removal | Cupete: § 1001(a) not a CIMT (argues categorical mismatch or lack of moral turpitude) | Government: § 1001(a) requires knowing, material false statements to a government agency and intent to impair governmental functions, constituting moral turpitude | Held: § 1001(a) is a CIMT because it categorically involves deceit and intent to impair government efficiency; conviction renders petitioner ineligible |
Key Cases Cited
- Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (NTA lacking date/time does not defeat jurisdiction if later notice provides hearing date/time)
- Chery v. Garland, 16 F.4th 980 (2d Cir. 2021) (reaffirming Banegas Gomez post‑Niz‑Chavez)
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (interpreting statutory requirements for a valid NTA)
- Rodriguez v. Gonzalez, 451 F.3d 60 (2d Cir. 2006) (adopting Flores standard that crimes impairing government functions by deceit involve moral turpitude)
- United States v. Coplan, 703 F.3d 46 (2d Cir. 2012) (elements required to convict under § 1001)
- United States v. Gaudin, 515 U.S. 506 (1995) (materiality standard for false statements)
- Fayzullina v. Holder, 777 F.3d 807 (6th Cir. 2015) (holding § 1001 conviction is a CIMT)
- Ghani v. Holder, 557 F.3d 836 (7th Cir. 2009) (same conclusion regarding § 1001)
- Michel v. INS, 206 F.3d 253 (2d Cir. 2000) (review standard for BIA categorizations of crimes)