Brempong v. Holder ( 2013 )

12-4337
Brempong v. Holder
BIA
Straus, IJ
A041 586 151
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 13th day of November, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
PETER W. HALL,
Circuit Judges.
_____________________________________
ALBERT ADU BREMPONG,
Petitioner,
v. 12-4337
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Justin Conlon, North Haven,
Connecticut.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Terri J. Scadron,
Assistant Director; Manuel A. Palau,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Albert Adu Brempong, a native and citizen of Ghana,
seeks review of a September 27, 2012, decision of the BIA
affirming the May 10, 2011, decision of Immigration Judge
(“IJ”) Michael W. Straus, which denied his application for
deferral of removal under the Convention Against Torture
(“CAT”), and denying remand for consideration of a request
for relief under former section 212(c) of the Immigration
and Nationality Act (“INA”). In re Albert Adu Brempong, No.
A041 586 151 (B.I.A. Sept. 27, 2012), aff’g No. A041 586 151
(Immig. Ct. N.Y. City May 10, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Brempong challenges only the denial of his motion to
remand to apply for relief under former INA § 212(c).
Although our jurisdiction to review the agency’s order is
limited to constitutional claims and questions of law by
reason of the fact that Brempong was found deportable based
on a conviction for an aggravated felony and controlled
substance offense, see 8 U.S.C. §§ 1227(a)(2)(A)(iii), (B);
1252(a)(2)(C), (D), Brempong raises a question of law as to
his eligibility for § 212(c) relief, see Sepulveda v.
Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005). However, the
BIA did not abuse its discretion by denying remand as
Brempong failed to establish his prima facie eligibility for
§ 212(c) relief. See INS v. Abudu, 485 U.S. 94, 104-05, 110
(1988); Abu Hasirah v. Dep’t of Homeland Sec., 478 F.3d 474,
476-77 (2d Cir. 2007) (per curiam) (noting that an abuse of
discretion may be found if the BIA “has misunderstood or
misapplied the governing law.”).
To establish eligibility for a waiver under former
§ 212(c), a lawful permanent resident (“LPR”) must
demonstrate that he has maintained a “lawful unrelinquished
domicile of seven consecutive years.” 8 U.S.C. § 1182(c)
(1994). The length of time of the domicile may accrue under
any lawful status so long as the alien eventually obtains
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LPR status and maintains that status when applying for
§ 212(c) relief. See Lok v. INS, 548 F.2d 37, 40 (2d Cir.
1977) (“Lok I”). Accrual terminates, at the latest, when
the BIA finalizes a removal order. Lok v. INS, 681 F.2d
107, 110 (2d Cir. 1982) (“Lok II”); see also Vargas v. INS,
938 F.2d 358, 361 (2d Cir. 1991) (highlighting Lok II’s
holding).
It is undisputed that Brempong was ineligible for a
§ 212(c) waiver at the time of his initial hearing as he had
accrued only six years of unrelinquished domicile when his
accrual terminated upon entry of his deportation order. See
Lok II, 681 F.2d at 110. Brempong advances several
arguments asserting he has become eligible for a § 212(c)
waiver based on accrual of time after the BIA reopened his
proceedings in 2010, all of which lack merit.
Primarily, he argues that the BIA’s reopening of
proceedings to allow him to apply for deferral of removal
under the CAT effectively vacated his deportation order,
reinstated his LPR status, and recommenced his accrual of
time to meet the § 212(c) domicile requirement. The plain
language of the statute, however, contradicts this assertion
as it requires the seven years of domicile to be consecutive
and domicile to be unrelinquished. See 8 U.S.C. § 1182(c)
(1994). Here, the years of domicile are not consecutive but
separated by a gulf of sixteen years between Brempong’s 1994
deportation order and the 2010 reopening of proceedings.
Additionally, Brempong relinquished his domicile when he was
found deportable, and he does not challenge, and did not
challenge below, the agency’s finding that he was deportable
based on his conviction. See Dobrova v. Holder, 607 F.3d
297, 302 (2d Cir. 2010) (noting that LPR status terminates
when, on appeal, the BIA makes final an order of
deportation); Lok I, 548 F.2d at 40 (holding that domicile
for purposes of § 212(c) relief can only be established
while under lawful status).
Further, in interpreting legislative intent regarding
the domicile requirements, we have previously held that an
alien may not tack additional time onto a prior period of
domicile after he is ordered deported. See Lok II, 681 F.2d
at 110. The only exception to this rule is when the finding
of deportability that vitiated the alien’s lawful status is
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reversed by a court or by the agency through reopening or
reconsideration. Matter of Lok, 18 I. & N. Dec. 101, 105-06
(BIA 1981). That exception is not applicable here and
Brempong does not challenge the finding that he is
deportable. The BIA did not err, therefore, in finding that
Brempong did not fulfill the domicile requirement under
§ 212(c) and did not abuse its discretion in denying remand.
Brempong also argues that despite his failure to
challenge directly the finding that he was deportable,
reopening always undermines such a finding. While the BIA
did not explicitly preclude consideration on remand of any
relief other than deferral under the CAT, see Arias Chupina
v. Holder, 570 F.3d 99, 103-05 (2d Cir. 2009), the IJ did
not have the authority to re-adjudicate whether Brempong was
deportable absent new evidence calling into question the
conviction underlying that finding, see Matter of Patel, 16
I. & N. Dec. 600, 601 (BIA 1978) (permitting review of new
evidence on remand). Moreover, the potential that Brempong
would be granted relief from removal under the CAT did not
affect his deportability or his ability to accrue further
time towards the domicile requirement, because deferral of
removal does not confer any lawful immigration status. See
8 U.S.C. § 1182(c) (1994); 8 C.F.R. § 1208.17(b). Thus,
because the 1994 deportation order was unaffected by the
reopening and proceedings examining CAT relief, Brempong
remained without a lawful status to establish lawful
domicile in the United States and lacked LPR status to apply
for § 212(c) relief.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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