Mousa v. Holder , 354 F. App'x 484 ( 2009 )

09-0400-ag
Mousa v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS
COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN
W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL
APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING
A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE
W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE
AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF
THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE
ORDER W AS ENTERED.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 25th day of November two thousand and nine.
Present: ROGER J. MINER,
ROSEMARY S. POOLER,
ROBERT A. KATZMANN,
Circuit Judges.
ASSEM ABDEL HALIM MOUSA,
Petitioner,
-v- 09-0400-ag
ERIC H. HOLDER, JR., Attorney General of the
United States,
Respondent.
For Petitioner: Parker Waggaman, Law Offices of Parker Waggaman, P.C., New York,
NY.
For Respondent: Paul Fiorino, Trial Attorney (Tony West, Assistant Attorney General, and
Richard M. Evans, Assistant Director, on the brief), Office of Immigration
Litigation, Washington, DC.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for review of the Board of Immigration Appeals’ decision is
DENIED.
Petitioner Assem Abdel Halim Mousa petitions for review of an order of the Board of
Immigration Appeals (“BIA”) affirming the decision of an immigration judge (“IJ”) that
determined Mousa was removable and denied him cancellation of removal. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.
We lack jurisdiction to review a final removal order against an alien removable for
having committed a crime of moral turpitude, 8 U.S.C. § 1252(a)(2)(C), but retain jurisdiction to
review “constitutional claims or questions of law.” Id. § 1252(a)(2)(D). Mousa asserts that the
record of conviction is inaccurate. This argument suggests a claim that the government has not
demonstrated by clear and convincing evidence that he was convicted under South Carolina Code
of Laws Section 38-55-540(A)(2). See Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d 72, 78
(2d Cir. 2008) (stating that the government must show by “clear, unequivocal, and convincing
evidence” that the alien was convicted of a crime of moral turpitude (quotation marks omitted)).
An IJ can properly rely on “[a]n official record of judgment and conviction” as proof of an
alien’s conviction. 8 U.S.C. § 1229a(c)(3)(B)(i). The record of conviction here states that
Mousa pleaded guilty to making a false statement in violation of South Carolina Code of Laws
Section 38-55-540(A)(2). The IJ permissibly relied on the record as proof of the fact of Mousa’s
conviction. To the extent Mousa asserts that his plea was not knowing and voluntary, this
argument is not cognizable on a petition for review of a final removal order. See Arriaga v.
Mukasey, 521 F.3d 219, 224 (2d Cir. 2008) (“[C]ollateral attack on a state criminal conviction is
not available on a petition to review the BIA’s removal decision.”).
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By______________________________
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