Mehmood v. Holder , 527 F. App'x 73 ( 2013 )

10-4617
Mehmood v. Holder
BIA
Straus, IJ
A071 993 787
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 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 17th day of June, two thousand thirteen.
PRESENT:
JOSEPH M. MCLAUGHLIN,
PIERRE N. LEVAL,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________
KHALID MEHMOOD, AKA KHALID MAHMOOD,
Petitioner,
v. 10-4617
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONERS: Glenn T. Terk, Wethersfield, CT
FOR RESPONDENT: Tony West, Assistant Attorney
General; Paul Fiorino, Senior
Litigation Counsel; Matthew B.
George, 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.
Khalid Mehmood, a native and citizen of Pakistan, seeks
review of an October 13, 2010, order of the BIA, affirming
the November 24 2008, decision of Immigration Judge (“IJ”)
Michael W. Straus, which denied Mehmood’s application for
adjustment of status and ordered him removed. In re
Mehmood, No. A071 993 787 (B.I.A. Oct. 13, 2010), aff’g No.
A071 993 787 (Immig. Ct. Hartford Nov. 24, 2008). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008) (per curiam). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Mehmood initially argues that he is not barred from
adjustment of status under Immigration and Nationality Act
(“INA”) § 212(a)(9)(C)(i)(II), 8 U.S.C. §
1182(a)(9)(C)(i)(II), a provision that went into effect in
April 1997 as part of the Illegal Immigration Reform and
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Immigrant Responsibility Act (“IIRIRA”), see Pub. L. No.
104-208, Div. C, § 309(a), 110 Stat. at 3009-625, because
“this provision was meant to apply to those aliens who had
been removed and who were still inadmissible.” Under that
provision, an alien is “admissible” if, after being removed,
he “enters or attempts to reenter the United States without
being admitted.” 8 U.S.C. § 1182(a)(9)C)(i)(II). Prior to
IIRIRA, an alien previously excluded was barred from seeking
readmission for one year, and because Mehmood remained
outside the United States for more than one year following
his exclusion, he would not jave beem inadmissible prior to
his reentry without inspection under . See 8 U.S.C.
§ 1182(a)(6)(A) (1994) (amended 1997, providing that “[a]ny
alien who has been excluded from admission and deported and
who again seeks admission within one year of the date of
such deportation is excludable”). Therefore, it is not
disputed that under the law in effect when Mehmood was
excluded in 1992, he was inadmissible for only one year.
However, Mehmood provides no authority in support of his
suggestion that INA § 212(a)(9)(C)(i)(II) “was meant to
apply to those aliens who had been removed and who were
still inadmissible, as a result, and reentered the United
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States unlawfully,” nor is any such limitation supported by
the statutory language.
Mehmood’s primary contention is that the agency erred
in retroactively applying INA § 212(a)(9)(C)(i)(II) to bar
him from adjusting his status, because he remained outside
the United States for more than one year following his 1992
exclusion, as was required under former 8 U.S.C.
§ 1182(a)(6)(A) (1994). In determining whether a statute is
impermissibly retroactive, we first look to whether the
statute clearly specifies that it is to have retroactive
effect. See Samuels v. Chertoff, 550 F.3d 252, 260 (2d Cir.
2008) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 257
(1994)). Where, as here, the statute has an effective date,
without explicit guidance as to its retroactive effect, we
proceed to determine whether the application of the statute
would produce an impermissible retroactive effect, i.e.,
whether it “‘takes away or impairs vested rights acquired
under existing laws, or creates a new obligation, imposes a
new duty, or attaches a new disability, in respect to
transactions or considerations already past.’” Id. (quoting
INS v. St. Cyr, 533 U.S. 289, 321 (2001)).
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Mehmood argues that applying INA § 212(a)(9)(C)(i)(II)
to his case would have an impermissible retroactive effect
because it would “impair[] a right he possessed prior to its
enactment,” meaning that before IIRIRA, having remained
outside the United States for the requisite one year,
Mehmood had an expectation that, if he returned to the
United States and married a United States citizen, he would
be eligible for adjustment of status. In Herrera-Molina v.
Holder, 597 F.3d 128, 135 (2d Cir. 2010), we considered the
case of an alien who married a United States citizen before
IIRIRA went into effect, but applied for adjustment of
status after the effective date of IIRIRA, a provision of
which barred him from adjustment. We concluded that
applying IIRIRA to the alien was not impermissibly
retroactive because the alien had not applied for adjustment
of status before IIRIRA’s effective date and therefore had
no vested right to adjustment of status. Id. at 135-38.
Here, Mehmood did not re-enter the United States, marry a
United States citizen, or apply for adjustment of status
until after the April 1, 1997 effective date of INA
§ 212(a)(9)(C)(i)(II). Therefore, his argument that
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applying INA § 212(a)(9)(C)(i)(II) to his case would have an
impermissible retroactive effect is a fortiori without
merit. See id.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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