Mohamud Mohamed Hassan v. Eric H. Holder, Jr. ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2021
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Mohamud Mohamed Hassan, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the
* Board of Immigration Appeals.
*
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
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Submitted: December 28, 2011
Filed: January 4, 2012
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
Mohamud Mohamed Hassan petitions for review of an order of the Board of
Immigration Appeals (BIA), affirming an immigration judge’s denial of withholding
of removal.1 Upon review, we conclude that the BIA did not abuse its discretion in
determining that Hassan was ineligible for withholding of removal because he had
been convicted of a particularly serious crime and was a danger to the community.
1
Hassan also requested asylum and deferral of removal under the Convention
Against Torture, but he no longer pursues those requests.
See 8 U.S.C. § 1231(b)(3)(B)(ii) (alien is not eligible for withholding of removal if
Attorney General decides that alien, having been convicted by final judgment of
particularly serious crime, is danger to community); Doe v. Holder, 651 F.3d 824, 829
(8th Cir. 2011) (alien convicted of particularly serious crime is ineligible for
withholding of removal); see also Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir.
2011) (en banc) (concluding that 8 U.S.C. § 1252(a)(2)(B)(ii) did not bar review of
BIA’s determination that alien had been convicted of particularly serious crime
(citing Kucana v. Holder, 130 S. Ct. 827, 836-37 (2010))); Dennis v. Att’y Gen. of
U.S., 633 F.3d 201, 217 (3d Cir. 2011) (BIA properly exercised its discretion in
applying legal standard to facts “in finding [alien’s] crime particularly serious”); Tian
v. Holder, 576 F.3d 890, 896-97 (8th Cir. 2009) (setting forth factors to be considered
in determining whether crime was particularly serious).
We also conclude that it was proper for the BIA--in recognition of the finality
of Hassan’s prior conviction--to reject his request for a remand under Padilla v.
Kentucky, 30 S. Ct. 1473 (2010). Cf. Paredes v. Att’y Gen. of U.S., 528 F.3d 196,
198-99 (3d Cir. 2008) (unless and until conviction is overturned, pendency of
collateral attack does not vitiate finality for immigration purposes); Gouveia v. INS,
980 F.2d 814, 817 (1st Cir. 1992) (“Criminal convictions cannot be collaterally
attacked during immigration proceedings.”).
Accordingly, we deny the petition. See 8th Cir. R. 47B.
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