Ottey v. Barr
965 F.3d 84
| 2d Cir. | 2020Background
- Dwayne Ottey, a Jamaican national brought to the U.S. as a toddler, pleaded guilty in 2016 to third-degree criminal possession of stolen property (N.Y. Penal Law §165.50) and faced removal for being present without admission and for a conviction of a crime involving moral turpitude (CIMT).
- Ottey conceded unlawful presence but argued he had been "admitted" in 1991 (procedurally regular entry) so he could seek adjustment of status through his U.S.-citizen wife; he bore the burden of proof.
- Evidence offered: father’s declaration and telephone testimony asserting a woman (“Janet”) brought Ottey to JFK and presented him as her son; multiple declarations from his mother recounting hearsay about the arrival; childhood immunization records; testimony was patchy, declarations were withdrawn or not cross-examined, and some records conflicted with father’s account.
- The IJ credited minimal weight to the parent declarations (lack of first‑hand knowledge and lack of cross‑examination), found Ottey failed to prove procedural regularity, denied termination and reopening, and ordered removal; the BIA affirmed.
- Ottey separately moved to reopen based on intervening authority (Obeya and Mellouli) arguing his possession conviction was not a CIMT; the BIA denied reopening; Ottey appealed to the Second Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ottey proved a "procedurally regular" admission under 8 U.S.C. §1101(a)(13)(A) | Ottey: father’s declaration/testimony + immunization records suffice to show he was inspected and admitted in 1991 | DHS: proffered evidence was hearsay, father lacked first‑hand knowledge, testimony unreliable and not fully cross‑examined; evidence insufficient | Court: factual weight and credibility determinations not reviewable; petition dismissed in part for lack of jurisdiction and BIA/IJ decision upheld as to merits |
| Whether IJ’s evidentiary rulings and limits on telephonic testimony denied due process | Ottey: IJ curtailed father’s testimony and refused to take mother’s testimony by phone, denying a fair chance to prove admission | DHS: IJ afforded multiple hearings, continuances, and accommodations; withdrawals were Ottey’s choice; no prejudice shown | Held: due process claim denied — record shows sufficient opportunity and no prejudice |
| Whether BIA abused discretion by denying motion to reopen to pursue new evidence (identity of "Janet") | Ottey: mother later provided Janet’s identifying information, warranting reopening/continuance to obtain records | DHS: information was or could have been discovered earlier; no showing it was previously unavailable | Held: BIA did not err; denial affirmed (and discretionary/factual rulings not reviewable) |
| Whether N.Y. Penal Law §165.50 (3d-degree possession of stolen property) is a CIMT and whether Mellouli/Obeya required reopening | Ottey: intervening decisions (Obeya, Mellouli) undermine CIMT classification of his conviction | DHS: long-standing precedent (Michel and BIA precedent) treats possession of stolen property as CIMT; Obeya and Mellouli do not alter that analysis or apply to possession offenses | Held: §165.50 is a CIMT; BIA properly denied reopening on intervening-authority grounds |
Key Cases Cited
- Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018) (held BIA change on larceny moral‑turpitude rule not retroactively applicable to pre‑change convictions; discussed retroactivity in immigration context)
- Mellouli v. Lynch, 575 U.S. 798 (2015) (Supreme Court decision on interplay of state crime elements and federal immigration consequences; not dispositive for property‑crime moral‑turpitude analysis)
- Michel v. INS, 206 F.3d 253 (2d Cir. 2000) (held New York criminal possession of stolen property (fifth degree) is a CIMT)
- Mendez v. Mukasey, 547 F.3d 345 (2d Cir. 2008) (explains BIA deference and that moral turpitude focuses on corrupt or evil intent)
- Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (describes categorical approach — focus on statutory elements, not particular facts)
- Boluk v. Holder, 642 F.3d 297 (2d Cir. 2011) (courts lack jurisdiction to reweigh IJ’s evidentiary weight determinations)
- Barco‑Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008) (petition that essentially disputes IJ’s factfinding is not reviewable)
- Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (No jurisdictional defect where Notice to Appear omitted time/place; preserves challenge but rejects as grounds for relief)