Persaud v. Lynch , 645 F. App'x 49 ( 2016 )

15-9
Persaud v. Lynch
BIA
A089 009 778
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 5th day of April, two thousand sixteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 RANALD PERSAUD, AKA RONALD
14 PERSAUD,
15 Petitioner,
16
17 v. 15-9
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Samuel N. Iroegbu, Albany, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Daniel
28 E. Goldman, Senior Litigation
29 Counsel; Jonathan Robbins, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DISMISSED.
5 Petitioner Ranald Persaud, a native and citizen of Guyana,
6 seeks review of a December 8, 2014, decision of the BIA denying
7 his motion for reconsideration. In re Ranald Persaud, No. A089
8 009 778 (B.I.A. Dec. 8, 2014). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 in this case.
11 We review the BIA’s denial of a motion to reconsider for
12 abuse of discretion. Zhao Quan Chen v. Gonzales, 492 F.3d 153,
13 154 (2d Cir. 2007). Because a motion to reconsider must be
14 filed within 30 days of the challenged decision, and Persaud
15 moved for reconsideration more than seven months after the
16 decision he asked the BIA to reconsider, the BIA did not abuse
17 its discretion in denying the motion as untimely. 8 U.S.C.
18 § 1229a(c)(6)(B).
19 We otherwise lack jurisdiction to review the BIA’s
20 determination that Persaud did not warrant the exercise of its
21 sua sponte authority to reconsider. See Ali v. Gonzales, 448
2
1 F.3d 515, 518 (2d Cir. 2006). Although we may remand if the
2 BIA may have declined to exercise its sua sponte authority
3 “because it misperceived the legal background,” Mahmood v.
4 Holder, 570 F.3d 466, 469 (2d Cir. 2009), there is no such
5 misperception here.
6 Cancellation of removal for a non-permanent resident alien
7 like Persaud has four conditions, all of which must be met for
8 relief. 8 U.S.C. § 1229b(b)(1)(A)-(D). One condition is a
9 finding of good moral character, § 1229b(b)(1)(B); another is
10 that the alien has not been convicted of (inter alia) a crime
11 involving moral turpitude (“CIMT”), § 1229b(b)(1)(C). A CIMT
12 both serves as an independent basis for denying cancellation
13 of removal and precludes a finding of good moral character.
14 §§ 1101(f), 1229(b)(1)(C). In this case, the IJ and the BIA
15 initially found that Persaud could not establish good moral
16 character, but did not find that any of his crimes involved moral
17 turpitude.
18 In requesting reconsideration , Persaud argued that he had
19 not been convicted of any crimes involving moral turpitude.
20 But the BIA did not misperceive Persaud’s eligibility, as
21 criminal history can render an alien unable to demonstrate good
3
1 moral character even if none of the crimes are CIMTs. 8 U.S.C.
2 § 1101(f). Accordingly, the BIA’s denial of reconsideration
3 did not rest on any misperception in the law, and we lack
4 jurisdiction to consider Persaud’s petition further.
5 For the foregoing reasons, the petition for review is
6 DISMISSED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O=Hagan Wolfe, Clerk
4