Magassouba v. Holder ( 2013 )

11-4982 BIA
Magassouba v. Holder Page, IJ
A078 430 196
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 10th day of June, two thousand thirteen.
PRESENT:
Pierre N. Leval,
Robert A. Katzmann,
Peter W. Hall,
Circuit Judges.
______________________________________
Moustapha Magassouba,
Petitioner,
v. 11-4982
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Moustapha Magassouba, pro se, New
York, NY.
FOR RESPONDENT: Sarah L. Vuong, Stephen M. Elliott,
United States Department of Justice,
Civil Division, Office of
Immigration Litigation, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision by the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Moustapha Magassouba, a native and citizen of Guinea,
seeks review of a November 3, 2011 order of the BIA. That
order affirmed the May 27, 2011 decision of an Immigration
Judge (“IJ”), which denied Magassouba’s application for
cancellation of his removal under section 240A(b)(1) of the
Immigration and Nationality Act (“INA”) and adjustment of
status under INA § 245. In re Magassouba, No. A078 430 196
(B.I.A. Nov. 3, 2011), aff’g No. A078 430 196 (Immig. Ct.
New York City, May 27, 2011). Magassouba also asks the
Court to reconsider its denial of his motion to file an
addendum to his reply. We assume the parties’ familiarity
with the underlying facts and procedural history of this
case.
I. Motion for Reconsideration
We turn first to Magassouba’s request that we
reconsider our decision not to permit him to file an
addendum to his reply brief. In his proposed addendum,
Magassouba provided information pertaining to his proposed
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applications for asylum and for relief under the Convention
Against Torture (“CAT”). Nonetheless, because Magassouba
has been convicted of conspiring to distribute heroin—which
is both an aggravated felony and a drug trafficking crime—he
is ineligible for both asylum and CAT relief. See 8 U.S.C.
§§ 1158(b)(2)(A)(ii) & (B)(I) (asylum); 8 C.F.R.
§ 1208.16(d)(2) (CAT relief). Accordingly, no additional
information can help him to obtain the relief he seeks, and
his motion for reconsideration is denied as futile.
II. Adjustment of Status Under INA § 245
Section 245(a) of the INA provides that the Attorney
General may adjust the status of an alien, such as
Magassouba, who was inspected or paroled into the United
States, to that of a lawful permanent resident if, inter
alia, “the alien is eligible to receive an immigrant visa
and is admissible to the United States for permanent
residence.” 8 U.S.C. § 1255(a). In other words, in order
to be eligible for adjustment of status, an alien must be
admissible to the United States at the time of adjustment.
See Varaghese v. Holder, 629 F.3d 272, 275 (2d Cir. 2010).
The agency determined that Magassouba was inadmissible under
INA § 212(a)(2)(C) because, by virtue of his federal
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narcotics conviction, Magassouba was an “alien who . . . the
Attorney General knows or has reason to believe . . . is or
has been an illicit trafficker in any controlled substance.”
8 U.S.C. § 1182(a)(2)(C).
Magassouba asserts that the agency erred in relying on
that conviction because it was not yet final when his
application for adjustment of status was denied.1
Nonetheless, we have previously noted that “the ‘reason to
believe’ language [in § 1182(a)(2)(C)] evidences a clear
Congressional intent not to limit inadmissability to those
who have been . . . convicted of a drug trafficking
offense.” Neptune v. Holder, 346 F. App’x 671, 673 (2d Cir.
2009) (summary order) (some alterations and internal
quotations marks omitted). Because a showing that does not
include a conviction can provide the Attorney General with
“reason to believe” that Magassouba has trafficked drugs, a
not-yet-final conviction can do so as well. Therefore, the
BIA did not err when, relying on Magassouba’s narcotics
conviction, it concluded that he was inadmissible under INA
§ 212(a)(2)(C).
1
Magassouba’s conviction is now final, as this Court
affirmed the district court’s judgment, see United States v.
Magassouba, 433 F. App’x 10 (2d Cir. 2011), and the Supreme
Court denied his petition for a writ of certiorari, see
Magassouba v. United States, 132 S. Ct. 386 (2011).
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III. Cancellation of Removal Under INA § 240A(b)
In order for an alien who is not a lawful permanent
resident to establish his eligibility for cancellation of
removal under INA § 240A, he must show, inter alia, that he
“has not been convicted of an offense under . . . [8 U.S.C.
§] 1227(a)(2).” 8 U.S.C. § 1229b(b)(1)(C). In order to be
convicted of an offense described under § 1227(a)(2), the
offense must qualify as a crime involving moral turpitude
and must be punishable by a sentence of imprisonment of one
year or longer. See Matter of Cortez, 25 I. & N. Dec. 301,
307 (BIA 2010); see also 8 U.S.C. § 1227(a)(2). Magassouba
argues that the agency erred because his 1996 conviction for
forgery in the third degree in violation of N.Y. Penal Law
§ 170.05 is neither a crime involving moral turpitude, nor
one punishable by a sentence of at least one year of
imprisonment.
Magassouba was convicted under N.Y Penal Law § 170.05,
which provides that, “A person is guilty of forgery in the
third degree when, with intent to defraud, deceive or injure
another, he falsely makes, completes or alters a written
instrument. Forgery in the third degree is a class A
misdemeanor.” “[C]rimes in which fraud was an ingredient
have always been regarded as involving moral turpitude.”
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Jordan v. De George, 341 U.S. 223, 232 (1951); see also
Balogun v. Ashcroft, 270 F.3d 274, 278-79 (5th Cir. 2001)
(noting that forgery is a crime of moral turpitude). Thus,
the BIA did not err when it concluded that Magassouba has
been convicted of a crime of moral turpitude.
Moreover, contrary to Magassouba’s argument that his
conviction was not punishable by at least one year of
imprisonment, New York law provides that a class A
misdemeanor, such as third degree forgery, is punishable by
a term of imprisonment of up to one year. See N.Y. Penal
Law § 70.15(1). Although Magassouba argues that the maximum
sentence for a class A misdemeanor is only one year, rather
than “one year or longer,” 8 U.S.C. § 1227(a)(2)(A)(i)(II),
we have previously rejected this exact argument. See
Persaud v. Holder, No. 10–3962, 2012 WL 4122930, at *1 (2d
Cir. Sept. 20, 2012) (summary order) (“[T]he BIA did not err
in finding that his conviction . . . constitute[d] a [crime
described in § 1227(a)(2)] . . . because his conviction was
for an offense that carried a maximum sentence of one year
of imprisonment.”).2 Accordingly, Magassouba’s conviction
2
Magassouba cannot avail himself of the so-called
“petty offense exception,” see generally 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II), because § 1229b(b)(1)(C) excludes
aliens who were convicted of an offense described by either
§ 1182(a)(2) or § 1227(a)(2). See Matter of Pedroza, 25 I. &
6
falls within the description of § 1227(a)(2).
IV. Remaining Arguments
Next, Magassouba argues that the BIA erred in declining
to remand his case to the IJ so that he could apply for
asylum and CAT relief. Motions to remand are subject to the
same substantive requirements as motions to reopen
immigration proceedings, including the requirement that the
“evidence sought to be offered is material.” 8 C.F.R.
§ 1003.2(c); Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA
1992). For the reasons described above, Magassouba’s drug
conviction renders him ineligible for asylum and CAT relief,
and thus he can present no evidence that is material to an
application for such relief.
Finally, Magassouba’s constitutional claims present no
basis for granting him relief. He fails (1) to point to any
specific instance in the record where he was denied a full
and fair opportunity to present his claims, (2) to explain
how he was otherwise deprived of a fundamentally fair
hearing, or (3) to establish that he was prejudiced by the
N. Dec. 312, 314 (BIA 2010) (“[E]ven though the ‘petty
offense’ exception prevents the respondent from having a
conviction ‘described under’ section [1182](a)(2) of the Act,
he must also demonstrate that his . . . conviction is not for
an offense ‘described under’ section [1227](a)(2) of the
Act.”). As described above, Magassouba’s offense is described
under § 1227(a)(2).
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alleged lack of due process. See Garcia-Villeda v. Mukasey,
531 F.3d 141, 149 (2d Cir. 2008); Burger v. Gonzales, 498
F.3d 131, 134 (2d Cir. 2007). Moreover, although Magassouba
alleges that he received ineffective assistance of counsel
during the early stages of his immigration proceedings, he
fails to demonstrate that he was prejudiced by any of his
counsel’s purported errors. See Debeatham v. Holder, 602
F.3d 481, 485 (2d Cir. 2010) (“[A]n alien claiming
ineffective assistance of counsel must also show prejudice
resulting from counsel’s alleged deficiencies.”).
We have considered all of Magassouba’s remaining
arguments and find them to be without merit. For the
foregoing reasons, the petition for review and motion for
reconsideration are DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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