Lyttle v. Garland ( 2023 )

21-6389
Lyttle v. Garland
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 22nd day of March, two thousand twenty-three.
PRESENT: Rosemary S. Pooler,
Richard C. Wesley,
Steven J. Menashi,
Circuit Judges.
____________________________________________
OSSAIN OMAR LYTTLE,
Petitioner,
v. No. 21-6389
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
____________________________________________
For Petitioner: Joshua E. Bardavid, New York, NY.
For Respondent: Brian Boynton, Principal Deputy Assistant
Attorney General; Anthony P. Nicastro,
Assistant Director; Dana M. Camilleri, Trial
Attorney, Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.
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.
Petitioner Ossain Omar Lyttle, a citizen of Jamaica, seeks review of a June
17, 2021, decision of the BIA affirming a July 23, 2018, decision of an Immigration
Judge (“IJ”) ordering him removed as an alien present without admission or parole
and denying his application for adjustment of status and his motion for a
continuance. In re Ossain Omar Lyttle, No. A088 437 561 (B.I.A. June 17, 2021), aff’g
No. A088 437 561 (Immig. Ct. N.Y. City July 23, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the BIA’s and the IJ’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). “Congress has specified that ‘the administrative findings of fact are
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conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.’” Singh v. Garland, 11 F.4th 106, 112 (2d Cir. 2021) (quoting 8 U.S.C.
§ 1252(b)(4)(B)). Thus, “we review the agency’s decision for substantial evidence
and must defer to the factfinder’s findings based on such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. at 113(internal quotation marks omitted). “[W]e will uphold the BIA’s decision unless
the petitioner demonstrates that the record evidence was so compelling that no
reasonable factfinder could fail to find him eligible for relief. By contrast, we
review legal conclusions de novo.” Id. (internal quotation marks and citation
omitted). We deny the petition for review.
First, we see no error in the agency’s determination that Lyttle did not
establish admission and therefore did not overcome the charge of removability or
establish his eligibility to adjust status under 8 U.S.C. § 1255(a). He had the
“burden of establishing … by clear and convincing evidence” that he is “in the
United States pursuant to a prior admission.” 8 U.S.C. § 1229a(c)(2)(B); id. § 1361
(“[T]he burden of proof shall be upon [the alien] to show the time, place, and
manner of his entry into the United States.”); 8 C.F.R. § 1240.8(c) (providing that
once alienage is established, the burden shifts to the alien to establish by clear and
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convincing evidence that he was “lawfully in the United States pursuant to a prior
admission”); Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir. 2006)
(explaining that the government “must show only identity and alienage; the
burden then shifts to the [alien] to prove the time, place, and manner of his entry”).
Lyttle did not meet his burden. While he provided a Form I-94 and a copy
of a visitor visa in his name with a stamp indicating an admission to the United
States in New York City in November 1998, his passport also contained a stamp
showing he returned to Jamaica in December 1998. Lyttle offered no proof of
admission after December 1998. Moreover, Lyttle did not corroborate his claim
that his stepfather took the passport to Jamaica to have it stamped—by fraudulent
means—so that Lyttle would not appear to have overstayed his visitor’s visa.
Given the lack of evidence on this point, we find no basis to disturb the agency’s
decision. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008) (“[W]hen
a petitioner bears the burden of proof, his failure to adduce evidence can itself
constitute the ‘substantial evidence’ necessary to support the agency’s challenged
decision.”); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
(noting that the weight to afford evidence “lies largely within the discretion of the
IJ”) (internal quotation marks and alteration omitted).
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The IJ considered all the evidence and noted multiple inconsistencies
between Lyttle’s statements—as well as between his statements and the
documentary evidence—and there is substantial evidence supporting the IJ’s
conclusion that Lyttle’s testimony as to admission was not credible. See Likai Gao
v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might
preclude an alien from showing that an IJ was compelled to find him credible.
Multiple inconsistencies would so preclude even more forcefully.”).
Second, to the extent Lyttle argues that the agency deprived him of due
process when it denied his motion to continue to pursue adjustment of status
under 8 U.S.C. § 1255(i), we also deny the petition. Due process requires notice and
an opportunity to be heard. Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007). To
state a due process claim, a petitioner must show “some cognizable prejudice,”
Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (quoting Lattab v. Ashcroft,
384 F.3d 8, 20 (1st Cir. 2004)), and the petitioner bears the burden to demonstrate
“that the outcome of his removal proceedings would have been … different” but
for the alleged due process violation, Debeatham v. Holder, 602 F.3d 481, 486 (2d Cir.
2010). Lyttle has not shown he was deprived of a full and fair hearing; he knew as
of November 2012 that admission was the main issue in his case. He also knew
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that the December 1998 Jamaican entry stamp supported the charge of
removability and undercut his claim to a lawful admission. While the IJ in Lyttle’s
August 2016 hearing said that the February 2017 hearing may not be the final
hearing as to adjustment of status, the IJ was clear that the purpose of the hearing
was to address whether Lyttle had been admitted. Furthermore, Lyttle has not
stated that he has since undertaken efforts to obtain further information on his
potential eligibility for adjustment of status under 8 U.S.C. § 1255(i) that he could
have obtained during a continuance. As a result, he has not shown the requisite
prejudice to establish a due process violation.
We have considered Lyttle’s remaining arguments, which we conclude are
without merit. For the foregoing reasons, the petition for review is denied.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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