Vaskovska v. Lynch , 655 F. App'x 880 ( 2016 )

14-4382 (L)
Vaskovska v. Lynch
BIA
Connelly, IJ
A099 097 347
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.
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
31st day of August, two thousand sixteen.
PRESENT:
ROSEMARY S. POOLER,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
KATERYNA SERGEEVNA VASKOVSKA,
Petitioner,
v. 14-4382 (L),
15-145 (Con)
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Benjamin Nelson, Student Attorney,
Buffalo, New York (Anjana Malhotra,
SUNY Buffalo Law School, on the
brief)
FOR RESPONDENT: C. Frederick Sheffield, Trial
Attorney, Office of Immigration
Litigation, Civil Division,
Department of Justice, Washington,
DC (Benjamin C. Mizer, Principal
Deputy Assistant Attorney General,
and Erica B. Miles, Senior
Litigation Counsel, on the brief)
FOR AMICI CURIAE: Philip L. Torrey, Sarah B. Cohen, and
Emma I. Scott (Law Students),
Harvard Immigration and Refugee
Clinic, Cambridge, Massachusetts,
on behalf of amici curiae Harvard
Immigration and Refugee Clinical
Program, Immigrant Defense Project,
and National Immigration Project of
the National Lawyers Guild.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
In these consolidated petitions, Kateryna Sergeevna
Vaskovska, a native of the former Soviet Union and a citizen
of Ukraine, seeks review of an October 31, 2014, decision of
the BIA affirming an August 8, 2013, decision of an immigration
judge (“IJ”) denying asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”); she also seeks
review of a January 15, 2015, decision of the BIA denying her
2
motion for reconsideration. In re Vaskovska, No. A099 097 347
(B.I.A. Oct. 31, 2014), aff’g No. A099 097 347 (Immig. Ct.
Batavia Aug. 8, 2013); In re Vaskovska, No. A099 097 347 (B.I.A.
Jan. 15, 2015). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
completeness[.]” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). Since Vaskovska’s brief does not
specifically address the standards applicable to denials of
remand and reconsideration, we limit our review to the issues
raised in her petition.
Pursuant to 8 U.S.C. § 1252(a)(2)(C) and (D), we lack
jurisdiction to review the final order of removal of a
noncitizen like Vaskovska who is removable for having committed
a controlled substance offense unless the petition raises
constitutional claims or questions of law. We review those
issues de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir.
2009).
3
Particularly Serious Crime Determination
Asylum and withholding of removal under the Immigration and
Nationality Act (“INA”) and the CAT are unavailable to a
noncitizen who has been convicted of a particularly serious
crime. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).
For purposes of asylum, an aggravated felony is per se
particularly serious, 8 U.S.C. § 1158(b)(2)(B)(i), and for
purposes of withholding, “an aggravated felony (or felonies)
for which the alien has been sentenced to an aggregate term of
imprisonment of at least 5 years shall be considered . . .
particularly serious[,]” 8 U.S.C. § 1231(b)(3)(B). Although
Vaskovska’s conviction for drug possession was a felony, as the
agency acknowledged, it was not an aggravated felony because
it was not a drug trafficking crime. It was thus not per se
a particularly serious crime. In such circumstances, the
agency may make an individualized inquiry into whether a
conviction is particularly serious under the facts and
circumstances of each case. Nethagani v. Mukasey, 532 F.3d
150, 155 (2d Cir. 2008).
When a conviction is not per se particularly serious, the
agency first considers whether “the elements of the offense
4
. . . potentially bring the crime into a category of
particularly serious crimes.” Matter of N-A-M-, 24 I. & N. Dec.
336, 342 (B.I.A. 2007). If the crime satisfies this initial
inquiry, the agency may then consider “all reliable
information” in assessing “(1) ‘the nature of the conviction,’
(2) ‘the circumstances and underlying facts of the conviction,’
(3) ‘the type of sentence imposed’ and (4) ‘whether the type
and circumstances of the crime indicate that the alien will be
a danger to the community[.]’” Nethagani, 532 F.3d at 155,
quoting In re Frentescu, 18 I. &. N. Dec. 244, 247 (B.I.A. 1982).
Vaskovska argues that the BIA erred by failing to make a
threshold determination that the elements of her possession
offense potentially bring it within a category of particularly
serious crimes. This argument is unexhausted. Before the
BIA, Vaskovska argued only that the circumstances and
underlying facts of her conviction did not merit a finding that
it was a particularly serious crime. She urged the BIA to
exercise its discretion under a six-factor test articulated in
Matter of Y-L-, 23 I. & N. Dec. 270, 276-77 (B.I.A. 2002).
Vaskovska thus disputed the IJ’s weighing of the facts and
circumstances of her conviction, and she did not argue that the
5
IJ failed to make a threshold determination that the elements
of her possession offense did not potentially bring it within
the ambit of a particularly serious crime. She also did not
raise this threshold issue in briefing her motion for
reconsideration before the BIA. Vaskovska’s threshold
argument is not a “subsidiary legal argument[]” to those raised
below, nor is it an “argument[] by extension[.]” Gill v. INS,
420 F.3d 82, 86-87 (2d Cir. 2005). Accordingly, the argument
is unexhausted and we will not consider it.1 See Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 118-19 (2d Cir. 2006).
Vaskovska also argues that the particularly serious crime
determination was flawed because the agency erroneously relied
on Matter of Y-L-, 23 I. & N. Dec. at 276, and its presumption
that drug trafficking convictions are particularly serious
because they are aggravated felonies. However, the BIA
expressly stated that Vaskovska’s “offense was a simple
possession offense, and was not an aggravated felony,” but
determined that it was a particularly serious crime under the
1
Because this argument is unexhausted, we express no view as
to whether there are indeed two distinct “steps” to the
particularly serious crime determination, as the N-A-M-
decision appears to hold.
6
circumstances. C.A.R. 500.2 It apparently relied on Y-L- for
the general proposition that crimes involving drug trafficking
are particularly serious, which was relevant for purposes of
the individualized inquiry in this case because Vaskovska
testified before the IJ that she sold drugs in connection with
her conviction.
We lack jurisdiction to consider the agency’s particularly
serious crime determination to the extent that its decision is
based on the facts and circumstances of Vaskovska’s underlying
crime. Although we retain jurisdiction to review whether the
agency applied the correct legal standard, we lack jurisdiction
to review the agency’s weighing of the discretionary factors.3
See 8 U.S.C. § 1252(a)(2)(C), (D); see also Argueta v. Holder,
617 F.3d 109, 112 (2d Cir. 2010); Nethagani, 532 F.3d at 155.
2
There are two administrative records in this case, the first
docketed with the initial petition in No. 14-4382, and the
second with the later petition in No. 15-145. Our citations
are to the record filed in No. 15-145 at Docket No. 64.
3
Vaskovska argues that the agency erred by not considering
mitigating factors, including her serious mental illness.
However, personal circumstances such as mental illness are not
among the listed Frentescu factors and we lack jurisdiction to
consider the agency’s evaluation of the facts and circumstances
of the case.
7
Here, the record shows that the agency considered Vaskovska’s
testimony and an investigative report in determining that,
while Vaskovska pled guilty to unlawful possession, the
circumstances of her offense involved the sale of a large
quantity of narcotic pain medication for approximately $1,200,
and a substantial sentence of three years in prison.4
Accordingly, the agency neither mischaracterized the nature of
Vaskovska’s conviction nor misapplied the legal standard when
determining that she committed a particularly serious crime.
Next, Vaskovska and amici argue that the BIA’s
interpretation of what constitutes a particularly serious crime
contravenes the language of the asylum and withholding statutes
as well as the Refugee Convention. See 8 U.S.C.
§§ 1158(b)(2)(A)(ii) (asylum), 1231(b)(3)(B)(ii) (withholding
of removal). They argue that the BIA’s interpretation of what
constitutes a particularly serious crime is too broad, as both
Congress and the United Nations intended only exceptionally
grave convictions to be particularly serious. However, in
Frentescu, 18 I. & N. Dec. at 247, the BIA set the standard for
4
She ultimately served eight months in prison under a shock
incarceration program.
8
determining whether a crime is particularly serious, and
refined that standard in N-A-M-, 24 I. & N. Dec. at 338-44. We
have deferred to the BIA’s interpretation. Nethagani, 532 F.3d
at 154-55 & n.1.5
Vaskovska and amici also argue that, in determining whether
a person has been convicted of a particularly serious crime,
the BIA is required to engage in a separate and independent
analysis of whether an alien is a danger to the community. The
INA provides that asylum and withholding of removal will not
be granted to a noncitizen who “having been convicted by a final
judgment of a particularly serious crime, constitutes a danger
to the community of the United States.” 8 U.S.C.
§ 1158(b)(2)(A)(ii) (asylum); id. § 1231(b)(3)(B)(ii)
(withholding of removal). The BIA has held that the
5
This argument is also inconsistent with the expansive list of
crimes that are “aggravated felonies,” and therefore
presumptively particularly serious in the context of asylum,
8 U.S.C. § 1158(b)(2)(B)(i), and in connection with an
application for withholding of removal if a person received a
five-year sentence, id. § 1231(b)(3)(B). Many offenses that
do not come within Vaskovska’s and amici’s extremely narrow
categorization of what constitutes a particularly serious
offense are aggravated felonies under the INA. See id.
§ 1101(a)(43) (aggravated felonies include, inter alia, drug
trafficking, disclosing classified information, failure to
appear to serve a sentence of five years or more, perjury, and
obstruction of justice).
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dangerousness inquiry is subsumed within the analysis of
whether the crime is particularly serious and does not require
a separate inquiry into an individual’s danger to the community.
Matter of Carballe, 19 I. & N. Dec. 357, 360 (B.I.A. 1986); see
Matter of G-G-S-, 26 I. & N. Dec. 339, 347 (B.I.A. 2014) (“[T]he
focus in a particularly serious crime analysis is whether the
offense justifies a determination that the respondent is a
danger to the community[.]” (emphasis added) (internal
quotation marks omitted)). We have on several occasions
accepted that interpretation, and we are bound by those prior
decisions. E.g., Ahmetovic v. INS, 62 F.3d 48, 53 (2d Cir.
1995); Flores v. Holder, 779 F.3d 159, 167 (2d Cir. 2015) (“We
have accorded Chevron deference . . . to the BIA’s
interpretation that no separate danger to the community
analysis is required when determining whether a crime is
particularly serious.”).
Accordingly, the agency did not err in determining that
Vaskovska’s conviction was for a particularly serious crime
rendering her ineligible for asylum and withholding of removal.
Because the particularly serious crime determination is
dispositive of Vaskovska’s asylum application, we decline to
10
consider her arguments regarding the timeliness of that
application. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
Deferral of Removal under the CAT
Like asylum and withholding of removal, our review of
Vaskovska’s CAT claim is limited to constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(C), (D); see
Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015).
Deferral under the CAT is a mandatory form of relief that
requires an applicant to show that it is more likely than not
that she will be tortured in the country of removal. 8 C.F.R.
§ 1208.17(a). If those who would harm the applicant are not
government actors, the applicant must also show that government
officials will acquiesce in her torture. An applicant thus
must demonstrate that “government officials know of or remain
willfully blind to an act and thereafter breach their legal
responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d
161, 171 (2d Cir. 2004).
Vaskovska argues that the agency applied the wrong legal
standard for acquiescence. However, the IJ stated that
“[a]cquiescence requires that the public official have prior
awareness of the activity and thereafter breach his or her legal
11
responsibility to intervene to prevent such activity” and then
considered the country conditions in Ukraine that relate to
domestic violence. C.A.R. 676. The IJ noted that domestic
violence against women in Ukraine remained “a serious problem”
but “the government of Ukraine, including the police, have taken
proactive steps to attempt to curb domestic violence.” C.A.R.
676, 677. Accordingly, he accurately stated and applied the
standard. See Khouzam, 361 F.3d at 171. Vaskovska’s other
argument challenges “the correctness of [the] IJ’s
fact-finding[s]” and thus does not present a question of law
that we may review. Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 329 (2d Cir. 2006).6
6
In particular, Vaskovska contends that the IJ mischaracterized
the evidence in concluding that she “remained in . . . Ukraine
from the age of 5 until approximately 17 apparently without harm
from her father.” C.A.R. 675. Although she points to evidence
in the record in an attempt to contradict this finding, that
evidence details a single incident when Vaskovska’s father
threatened her mother with a gun. While certainly traumatic,
the evidence does not show that Vaskovska was physically harmed.
Thus, the IJ did not “unambiguously mischaracterize a central
element of the record.” Liu v. INS, 508 F.3d 716, 720 (2d Cir.
2007).
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For the foregoing reasons, the petitions for review
are DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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