Wassily v. Holder ( 2013 )

10-2804-ag
Wassily v. Holder
BIA
Schoppert, I.J.
A026 102 429
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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
Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of May, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
CHRISTOPHER F. DRONEY,
Circuit Judges.
CATHY SEIBEL,*
District Judge.
_____________________________________
TAMER S. WASSILY,
Petitioner,
v. 10-2804-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Brian N. Wolf, Amanda E. Gray,
(Kerry W. Bretz, Jules E. Coven, on
the brief), Bretz & Coven, New York,
New York.
*
The Honorable Cathy Seibel, United States District Court for the Southern
District of New York, sitting by designation.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Mary Jane Candaux,
Assistant Director; David H.
Wetmore, 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 GRANTED.
Tamer S. Wassily, a native and citizen of Egypt, seeks
review of a June 14, 2010, order of the BIA, denying his
motion to remand based on the ineffective assistance of his
former counsel, and affirming the September 3, 2008,
decision of the Immigration Judge (“IJ”), which terminated
his asylum status and denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Wassily, No. A026 102 429
(B.I.A. June 14, 2010), aff’g No. A026 102 429 (Immig. Ct.
N.Y.C. Sept. 3, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
I. Asylum, Withholding of Removal, and CAT
Under the circumstances of this case, we have
considered both the IJ’s and the BIA’s opinions “for the
2
sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
(2d Cir. 2008). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanquin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The Government now concedes that in light of our
holding in Nethgani v. Mukasey, 532 F.3d 150, 155 (2d Cir.
2008), 8 U.S.C. § 1252(a)(2)(B)(ii) does not deprive us of
jurisdiction to review the agency’s decision in this case.
Nor does 8 U.S.C. § 1252(a)(2)(C) deprive us of jurisdiction
over this petition, because the agency did not originally
find Wassily removable due to his criminal convictions, but
rather for having overstayed the terms of his visa. See
Alvarez-Santos v. INS, 332 F.3d 1245, 1253 (9th Cir. 2003).
The agency found that Wassily’s conviction for stalking
in the third degree in violation of New York Penal Law
§ 120.50(3) constituted a particularly serious crime barring
him from asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and withholding of
removal under the CAT. See 8 U.S.C. §§ 1158(b)(2)(A)(ii),
1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(c). In finding that
Wassily was convicted of a particularly serious crime, the
agency relied on the factual narrative contained in a pre-
3
sentence report (“PSR”). The BIA has held that “all
reliable information may be considered in making a
particularly serious crime determination, including the
conviction records and sentencing information, as well as
other information outside the confines of a record of
conviction.” In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A.
2007) (emphasis added). However, we have held that the
factual narrative contained in a PSR is “inherently
unreliable.” Dickson v. Ashcroft, 346 F.3d 44, 54 (2d Cir.
2003). Although the IJ also relied in some measure on
Wassily’s plea colloquy, which we have noted “do[es] not
pose the potential reliability problems of a factual
narrative in a PSR,” id., remand is required for the BIA to
reconsider whether the IJ was entitled to rely on the PSR,
and, if not, whether Wassily’s crime is particularly serious
based only on the plea colloquy or other reliable evidence,
see id. at 55. If the agency determines that no reliable
evidence supports a particularly serious crime
determination, the termination of Wassily’s asylee status
was in error, and that status should be reinstated.
We do not find error in the agency’s denial of deferral
of removal under the CAT based on Wassily’s failure to show
4
that he is more likely than not to face torture in Egypt.
See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
Contrary to Wassily’s contention, we find no indication that
the IJ’s adverse credibility findings impacted the denial of
CAT relief. Likewise, Wassily’s argument based on the “past
persecution” he suffered in Egypt is without merit, as the
IJ did not find that Wassily had established past
persecution, even in his 2000 decision granting asylum.
Moreover, because Wassily’s past persecution claim was based
largely on unfulfilled threats of harm, the IJ’s finding
that his past experiences did not amount to persecution or
torture was not in error. See Ivanishvili v. U.S. Dep’t of
Justice, 433 F.3d 332, 340-41 (2d Cir. 2006); Guan Shan Liao
v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002).
Wassily further argues that the IJ erred in denying his
CAT claim based on his fear that he will face torture as a
criminal deportee and former asylee. However, the agency
reasonably found that Wassily failed to show that the
Egyptian authorities were likely to become aware of his
former asylee status and criminal history. See Xiao Ji Chen
v. U.S. Dep’t of Justice, 434 F.3d 144, 163 (2d Cir. 2006)
(recognizing that “the applicant seeking CAT relief . . . is
required to establish that it is more likely than not that
5
she would be tortured”); In re J.F.F., 23 I. & N. Dec. 912,
917 (B.I.A. 2006) (holding that the IJ erred in granting CAT
relief where the IJ “strung together a series of
suppositions”). Indeed, although Wassily’s expert testified
that if he were detained there was a strong likelihood he
would be tortured, he also conceded that he did not know how
the Egyptian government would become aware of Wassily’s
conviction, stating only that there “is a good chance” that
Egyptian authorities would question a returnee. Similarly,
the IJ reasonably distinguished this case from Khouzam v.
Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004), in which we
found that an Egyptian citizen wanted for murder in Egypt
was eligible for CAT relief, because Wassily did not allege
that the Egyptian police had any interest in him
individually. See Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 160 (2d Cir. 2005) (denying CAT relief because
petitioner offered “no additional particularized evidence”
to support her claim). Accordingly, the agency did not err
in finding that Wassily failed to demonstrate that he was
more likely than not to face torture if returned to Egypt.
II. Motion to Remand
We review the BIA’s denial of a motion to remand for
abuse of discretion. See Liyong Cao v. U.S. Dep’t of
6
Justice, 421 F.3d 149, 157 (2d Cir. 2005). We review de
novo whether the assistance of petitioner’s prior counsel
was effective. See Esposito v. INS, 987 F.2d 108, 111 (2d
Cir. 1993) (per curium).
The BIA denied Wassily’s motion to remand based on the
ineffective assistance of his prior counsel, finding that he
failed to demonstrate that: (1) competent counsel would have
acted otherwise; and (2) he was prejudiced by his former
counsel’s performance. Because the BIA did not adequately
explain how it arrived at these conclusions, it abused its
discretion in denying Wassily’s motion to remand. See Ke
Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.
2001). The explanation of Wassily’s former counsel, that he
declined to apply for adjustment of status on Wassily’s
behalf in order to avoid bringing to the attention of the IJ
the negative equitable factors arising from details of
Wassily’s conviction for stalking, is unsatisfactory. See
Esposito, 987 F.2d at 111. CAT relief, unlike asylum, is
not dependant on the alien’s equities. See Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 115-16 (2d Cir. 2007).
Moreover, if the IJ had determined that Wassily was not
convicted of a particularly serious crime, any equitable
factors would have been irrelevant, because Wassily had
7
already been granted asylum in 2000, and negative equitable
factors are not a ground to terminate asylum. See 8 U.S.C.
§ 1158(b)(2), (c)(2); 8 C.F.R. § 1208.24. Accordingly, the
BIA abused its discretion in finding that Wassily failed to
demonstrate that competent counsel would have applied for
adjustment of status under 8 U.S.C. § 1159. See Zhao, 265
F.3d at 93.
The BIA also abused its discretion in concluding
without explanation that Wassily was not prejudiced by his
former counsel’s failure to apply for adjustment of status
on his behalf because “it does not appear that [he] would
be prima facie eligible for adjustment of status.” In so
stating, the BIA presumably meant that Wassily’s crime was
a crime involving moral turpitude, thus rendering him
inadmissible for adjustment of status. See 8 U.S.C. §§
1159(b)(5), 1182(a)(2)(A)(i)(I). However, even if
Wassily’s conviction does render him inadmissible, the IJ
would have had the discretionary authority to waive that
ground of inadmissibility under 8 U.S.C. § 1159(c), had his
attorney applied for adjustment. The BIA thus abused its
discretion in finding that Wassily was not prejudiced by
his former counsel’s failure to apply for adjustment of
status on his behalf based on its unexplained conclusion
8
that he was not prima facie eligible for adjustment of
status. See Zhao, 265 F.3d at 93.
For the foregoing reasons, the petition for review is
GRANTED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
9