Memet Gezer v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-3180
___________
MEMET GEZER,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A209-173-321)
Immigration Judge: Emily Farrar-Crockett
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 25, 2022
Before: JORDAN, GREENAWAY, JR., and NYGAARD, Circuit Judges
(Opinion filed December 8, 2022)
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OPINION*
___________
PER CURIAM
Memet Gezer petitions for review from a decision of the Board of Immigration
Appeals (BIA). For the reasons that follow, we will deny the petition for review.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Gezer, a citizen of Turkey, was admitted to the United States in 2016 for the
purpose of criminal prosecution. He pleaded guilty to conspiracy to aid and abet the
possession of firearms in furtherance of a drug trafficking offense and was sentenced to
five years in prison. After serving his sentence, he was charged as removable as a
noncitizen who was not in possession of a valid entry document. Proceeding pro se, he
applied for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). An Immigration Judge (“IJ”) determined that Gezer was ineligible for
asylum or withholding of removal because he had been convicted of a particularly serious
crime. After a hearing, the IJ denied Gezer’s application for deferral of removal, having
determined that he was not credible and that he had not shown that he was entitled to
relief.
Gezer filed a counseled appeal to the BIA, challenging, inter alia, the IJ’s serious
crime analysis and adverse credibility determination. The BIA determined that Gezer’s
conviction for conspiracy to aid and abet the possession of firearms in furtherance of a
drug trafficking offense was an aggravated felony drug trafficking crime and, because he
was sentenced to five years in prison, a particularly serious crime. See 8 U.S.C. §
1231(b)(3)(B) (noncitizen is considered to have been convicted of a particularly serious
crime if convicted of an aggravated felony and sentenced to a term of imprisonment of at
least five years). The BIA adopted and affirmed the IJ’s adverse credibility
determination and denial of deferral of removal. The BIA dismissed the appeal and
ordered Gezer removed to Turkey. Gezer filed a pro se petition for review.
2
We have jurisdiction under 8 U.S.C. § 1252. We will address those issues raised
by Gezer in his brief that were also exhausted before the BIA. 8 U.S.C. 1252(d)(1)
(providing that court may review final order of removal only if “the alien has exhausted
all administrative remedies available to the alien as of right”); see Barna v. Bd. of Sch.
Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017) (“[W]e have
consistently refused to consider ill-developed arguments or those not properly raised and
discussed in the appellate briefing.”).
Gezer argues in his brief that the BIA erred in determining that his conviction was
an aggravated felony because only the most similar federal offense should be used for the
categorical approach. In support, he cites to a case in which this Court compared state
court convictions to the proper federal analogue. See Rosa v. Att’y Gen., 950 F.3d 67(3d Cir. 2020). Here, however, Gezer’s conviction is for violating a federal statute, and
choosing a federal analogue is not necessary. See generally Doe v. Sessions, 886 F.3d
203, 208 (2d Cir. 2018).
Gezer also contends that the IJ and BIA overlooked the submission of his plea
transcripts containing the details of his criminal admissions. He believes those
transcripts demonstrate that his conviction is not a particularly serious crime. His plea
transcripts, however, are not in the administrative record, and we must “decide the
petition only on the administrative record on which the order of removal is based.” 8
U.S.C. § 1252(b)(4)(A).
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Without addressing the details of his conduct, Gezer argues that he qualifies for
the exception set forth by the Attorney General in In re Y-L-, A-G-, & R-S-R-, 23 I. & N.
Dec. 270, 276-77 (A.G. 2002), to the rule that drug trafficking offenses are particularly
serious crimes. He suggests that there was a small amount of controlled substance
involved, little to no money was paid for the drugs, he was peripherally involved, and
there was the absence of violence, organized crime, and any adverse effect on juveniles.
Citing to the criminal complaint against Gezer, the BIA concluded that Gezer did not
qualify for that exception due to the circumstances of his offense. In the criminal
complaint, Gezer was described as having negotiated, over the course of more than six
months, a deal to provide high-powered weapons with the understanding that they would
be used by a Mexican drug cartel to protect its drug shipments into the United States.
A.R. at 434-445. The BIA did not abuse its discretion in determining that Gezer’s
conviction for conspiring to aid and abet the possession of firearms in furtherance of drug
trafficking did not fall within that exception. See Sunuwar v. Att’y Gen., 989 F.3d 239,
250 (3d Cir. 2021) (noting that the BIA has “broad discretion” in determining whether a
conviction is for a particularly serious crime).1
Gezer sought deferral of removal under the CAT. In evaluating a CAT claim, the
agency must first determine whether it is more likely than not that the applicant would be
tortured if removed. This question involves both a factual finding of what is likely to
1
Gezer admits that the BIA may consider “all reliable information” when making that
determination, including not only conviction records and sentencing information but also
4
happen to the applicant and the legal question of whether it constitutes torture. Quinteros
v. Att’y Gen., 945 F.3d 772, 786-87 (3d Cir. 2019). The agency then determines how
public officials will respond, including whether public officials will acquiesce in any
torture. Id. at 786. We review the agency’s factual findings for substantial evidence.
Thus, its findings “are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8
U.S.C. § 1252(b)(4)(B)).
In his brief, Gezer argues that he submitted evidence that he would be harmed if
removed to Turkey because he will be tortured by terrorist groups and the government.
He cites generally to reports on country conditions in Turkey by the State Department
Report and Amnesty International but does not quote or describe any evidence that
supports his claim. He has not shown that any reasonable adjudicator would be
compelled to conclude that he is entitled to relief.
He also contends that the IJ failed to grant a continuance. However, as noted by
the BIA, Gezer did not request a continuance, and he has not established that the IJ was
required to order a continuance sua sponte.
For the above reasons, we will deny the petition for review.
the actual circumstances of the crime. Sunuwar, 989 F.3d at 249.
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