Al-Shahin v. Holder ( 2009 )

07-0448-ag
Al-Shahin v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
AFTER JANUARY 1, 2007, IS PERMITTED 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 WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2 nd day of December, two thousand nine.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ CABRANES,
9 Circuit Judge. *
10
11 - - - - - - - - - - - - - - - - - - - -X
12 SAMI AL-SHAHIN,
13 Petitioner,
14
15 -v.- 07-0448-ag
16
17 ERIC HOLDER, JR., Attorney General of
18 the United States,
19 Respondent. **
20 - - - - - - - - - - - - - - - - - - - -X
*
The Honorable Sonia Sotomayor, originally a member of
the panel, was elevated to the Supreme Court on August 8,
2009. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. §
46(d); Local Rule 0.14(2); United States v. Desimone, 140
F.3d 457 (2d Cir. 1998).
**
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Holder is automatically
substituted for former Attorney General Michael Mukasey.
1
1 APPEARING FOR PETITIONER: WILLIAM O. RECKLER (Alexandra
2 A.E. Shapiro, Gregory L.
3 Acquaviva, and Allison M.
4 Herron, on the brief), Latham &
5 Watkins LLP, New York, New York.
6
7 APPEARING FOR RESPONDENT: KRISTIN K. EDISON (Michael F.
8 Hertz and John W. Blakeley, on
9 the brief), United States
10 Department of Justice, Civil
11 Division, Office of Immigration
12 Litigation, Washington, D.C.
13
14 Petition for review of a final order of removal from
15 the Board of Immigration Appeals (“BIA”).
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18 AND DECREED that the petition be DENIED.
19
20 Petitioner Sami Al-Shahin seeks review of a decision of
21 the BIA which affirmed an order the Immigration Judge (“IJ”)
22 denying his applications for waiver of inadmissibility,
23 adjustment of status, cancellation of removal, asylum, and
24 withholding of removal. Because the BIA adopted and
25 supplemented the decision of the IJ, we review the decision
26 of the IJ as supplemented by the BIA. Chen v. Gonzales, 417
27 F.3d 268, 271 (2d Cir. 2005).
28
29 We assume the parties’ familiarity with the underlying
30 facts, the procedural history, and the issues presented for
31 review.
32
33 [1] Al-Shahin first contends that the IJ committed legal
34 error in failing to consider evidence of rehabilitation and
35 in denying his application for § 212(h) relief. See 8
36 U.S.C. § 1182(h). Our review of an IJ’s § 212(h) decision
37 is limited to “constitutional claims or questions of law.”
38 See 8 U.S.C. § 1252(a)(2)(D). Al-Shahin’s argument fails
39 because it raises a factual challenge, not a legal one; we
40 presume, as we must, that the IJ did consider the evidence
41 of Al-Shahin’s rehabilitation. See Xiao Ji Chen v. U.S.
42 Dep’t of Justice, 434 F.3d 144, 159 n.13 (2d Cir. 2006)
43 (“[W]e presume that an IJ has taken into account all of the
2
1 evidence before him, unless the record compellingly suggests
2 otherwise.”). We therefore treat the IJ’s finding of an
3 “absen[c]e of rehabilitation” as a conclusion based on the
4 evidence, and not as a failure to consider the evidence.
5 Accordingly, we have no jurisdiction to consider his
6 argument.
7
8 [2] Al-Shahin also argues that the IJ erred in denying his
9 applications for asylum and withholding of removal because
10 the IJ applied an erroneous legal standard to determine that
11 Al-Shahin had been convicted of a “particularly serious
12 crime.” See Matter of Frentescu, 18 I. & N. Dec. 244, 245
13 (BIA 1982), superseded in part by statute as recognized in
14 In re L-S-, 22 I. & N. Dec. 645, 650 (BIA 1999). This is a
15 question of law that we have jurisdiction to review. See 8
16 U.S.C. § 1252(a)(2)(D). Under governing BIA precedent, four
17 factors bear on whether a crime is “particularly serious” so
18 as to render an alien ineligible for asylum and withholding
19 of removal: “the nature of the conviction, the circumstances
20 and underlying facts of the conviction, the type of sentence
21 imposed, and, most importantly, whether the type and
22 circumstances of the crime indicate that the alien will be a
23 danger to the community.” Id. at 247. There is no error in
24 the IJ’s application of these principles.
25
26 [3] Al-Shahin challenges the IJ’s conclusion that he failed
27 to accrue the seven years of continuous residency required
28 for a grant of cancellation of removal. See 8 U.S.C.
29 § 1229b(a)(2). We have jurisdiction to review this legal
30 question, but there is no merit in Al-Shahin’s argument.
31 Under the relevant statute, any period of continuous
32 residence is deemed to end upon the commission of an offense
33 that renders the alien inadmissible to the United States.
34 See 8 U.S.C. § 1229b(d)(1)(B). The IJ properly applied the
35 statute to the facts and determined that Al-Shahin was
36 ineligible for cancellation of removal.
37
38 [4] Finally, Al-Shahin contends that the IJ committed legal
39 error in administratively closing his case in November 2002.
40 But on appeal Al-Shahin concedes that any error caused him
41 no prejudice. Accordingly, and without addressing the
42 merits, we will not remand on this ground. See Xiao Ji Chen
43 v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006).
3
1 Finding no merit in Al-Shahin’s remaining arguments, we
2 hereby DENY the petition.
3
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8 By:___________________________
4