Latty v. Lynch ( 2017 )

16-863
Latty v. Lynch
BIA
Straus, IJ
A087 555 925
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.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 12th day of January, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 Circuit Judges,
10 KATHERINE POLK FAILLA,
11 District Judge.*
12 _____________________________________
13
14 GARY LATTY,
15
16 Petitioner,
17
18 v. 16-863
19
20
21 LORETTA E. LYNCH, UNITED STATES
22 ATTORNEY GENERAL,
23
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONER: EMILY A. WALSH, Spar & Bernstein P.C.,
28 New York, NY.
29
30 FOR RESPONDENT: DAVID H. WETMORE; Benjamin C. Mizer,
* Judge Katherine Polk Failla of the United States District Court for
the Southern District of New York, sitting by designation.
1 Principal Deputy Assistant Attorney
2 General; Daniel E. Goldman, Senior
3 Litigation Counsel; Ashley Martin,
4 Trial Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a Board
9 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
10 ADJUDGED, AND DECREED that the petition for review is DENIED in part
11 and DISMISSED in part.
12
13 Petitioner Gary Latty, a native and citizen of Jamaica, seeks
14 review of a February 19, 2016, decision of the BIA, affirming a July
15 18, 2014, decision of an Immigration Judge (“IJ”) denying Latty’s
16 application for cancellation of removal and ordering him removed to
17 Jamaica. In re Gary Latty, No. A087 555 925 (B.I.A. Feb. 19, 2016),
18 aff’g No. A087 555 925 (Immig. Ct. Hartford July 18, 2014). We assume
19 the parties’ familiarity with the underlying facts and procedural
20 history in this case.
21
22 Under the circumstances of this case, we have reviewed the
23 decisions of both the BIA and the IJ “for the sake of completeness.”
24 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
25 The applicable standards of review are well established: we review
26 the IJ’s factual findings for substantial evidence and questions of
27 law de novo. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
28 F.3d 510, 513 (2d Cir. 2009). We decline to consider Latty’s
29 unexhausted arguments concerning bias and ineffective assistance.
30 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123-25 (2d Cir.
31 2007). We address below Latty’s challenge to the agency’s
32 determination that he failed to establish that he “has been a person
33 of good moral character” for the ten years preceding his application
34 for cancellation of removal, as required by 8 U.S.C.
35 § 1229b(b)(1)(B).
36
37 In order for an alien like Latty, who is not a lawful permanent
38 resident, to demonstrate eligibility for cancellation of removal,
39 he must establish, among other things, that he “has been a person
40 of good moral character” for the ten years preceding his application.
41 8 U.S.C. § 1229b(b)(1)(B). “No person shall be regarded as, or found
42 to be, a person of good moral character” if, as set forth in 8 U.S.C.
43 § 1182(a)(2)(C), the “Attorney General knows or has reason to believe
44 [that he] is or has been an illicit trafficker in any controlled
45 substance.” 8 U.S.C. § 1101(f)(3). Although our jurisdiction to
46 review the denial of cancellation of removal is limited, “we retain
47 jurisdiction to review certain agency determinations regarding two
48 of the four eligibility requirements for cancellation of removal,”
2
1 including the good moral character requirement. Mendez v. Holder,
2 566 F.3d 316, 319-20 (2d Cir. 2009). Accordingly, we have
3 jurisdiction to consider Latty’s challenge to the denial of
4 cancellation.
5
6 The record supports the agency’s conclusion that Latty failed
7 to sustain his burden to demonstrate good moral character, because
8 there was reason to believe that Latty was a drug trafficker.
9 Although Latty’s drug conviction was vacated, the arrest report
10 detailed that police found eight bags of marijuana in Latty’s car,
11 that Latty directed police to his “stash house,” and that in the stash
12 house police found more marijuana, “numerous cardboard boxes and
13 packaging material,” and a scale “that had a green plant like
14 substance on it next to a[n] open box of sandwich bags.” The plain
15 terms of § 1182(a)(2)(C)(i) require only a reasonable belief that
16 the applicant has been engaged in drug trafficking; a conviction is
17 not required. See Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1345
18 (11th Cir. 2010); Matter of Rico, 16 I. & N. Dec. 181, 184 (BIA 1977).
19
20 Latty argues that the arrest report is hearsay and unreliable,
21 and that his attorney duly objected to its admission at his merits
22 hearing. Latty’s argument is misplaced. “The Federal Rules of
23 Evidence do not apply in removal proceedings; rather, ‘[e]vidence
24 is admissible provided that it does not violate the alien’s right
25 to due process of law.’” Zerrei v. Gonzales, 471 F.3d 342, 346 (2d
26 Cir. 2006) (quoting Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d
27 255, 268 (2d Cir. 2006)). “The standard for due process is satisfied
28 if the evidence ‘is probative and its use is fundamentally fair,’
29 fairness in this context being ‘closely related to the reliability
30 and trustworthiness of the evidence.’” Id. (quoting Zhen Nan Lin,
31 459 F.3d at 268). Further, Latty’s claim that the report is
32 unreliable is not supported by the record: the report contained
33 detailed accounts of the officers’ personal observations and
34 evidence found during both the initial arrest and the search of
35 Latty’s stash house.
36
37 We have considered Latty’s remaining arguments and conclude
38 that they are without merit. Accordingly, Latty’s unexhausted
39 arguments concerning bias and ineffective assistance are DISMISSED
40 and the remainder of his petition for review is DENIED.
41
42 FOR THE COURT:
43 Catherine O’Hagan Wolfe, Clerk
3