Forbes v. Lynch

15-2445
Forbes v. Lynch
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 14th day of March, two thousand sixteen.
PRESENT:
Ralph K. Winter,
Dennis Jacobs,
Gerard E. Lynch,
Circuit Judges.
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Rasmiean Ahijan Hassan Forbes,
Petitioner,
-v.- 15-2445
NAC
Loretta E. Lynch, United States Attorney General,
Respondent.*
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FOR PETITIONER: Renee C. Redman, Law Office of
Renee C. Redman LLC, New
Haven, CT
FOR RESPONDENT: Benjamin C. Mizer, Principal
Deputy Assistant Attorney
General, Holly M. Smith,
Senior Litigation Counsel,
*
We direct the Clerk of Court to amend the caption as noted.
Joseph D. Hardy, Trial
Attorney, Office of
Immigration Litigation, Civil
Division, U.S. Department of
Justice, Washington, D.C.
Petition for review of a final decision of the Board of
Immigration Appeals.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED and that the
motion for a stay of deportation is DENIED as moot.
Petitioner Rasmiean Ahijan Hassan Forbes petitions for
review of a March 2015 decision of the Board of Immigration
Appeals ("BIA") denying his motion to reconsider removal
proceedings. Petitioner also asks that we stay his removal.
Respondent moves to dismiss for lack of jurisdiction. We assume
familiarity with the facts, the procedural history, and the scope
of the issues presented on appeal.
"We review the BIA's denial of a motion to reconsider for
abuse of discretion." Nolasco v. Holder, 637 F.3d 159, 162 (2d
Cir. 2011). An abuse of discretion may be found where the BIA's
decision "provides no rational explanation, inexplicably departs
from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements; that is to say,
where the Board has acted in an arbitrary or capricious manner."
Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir.2005) (per curiam)
(quoting Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.
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2001). Even if the BIA errs, a ruling will not be overturned if
it was harmless. See Adjin v. Bureau of Citizenship &
Immigration Servs., 437 F.3d 261, 266 (2d Cir. 2006); Lin v.
Gonzalez, 150 Fed.Appx. 60, 61 (2d Cir. 2005).
Petitioner argues that the BIA, in denying his motion to
reconsider, departed without explanation from its decision in In
re Garcia-Madruga, 24 I. & N. 436 (BIA 2008) by not examining
whether third degree larceny under Connecticut law always has a
"without consent" element. In Garcia-Madruga, the BIA determined
that, as a deportable aggravated felony, a "theft offense . . .
consists of the taking of, or exercise of control over, property
without consent whenever there is criminal intent to deprive the
owner of the rights and benefit of ownership, even if such
deprivation is less than total or permanent." Id. at 440-41
(emphasis added and footnote omitted). The BIA noted there that
a "theft offense" is generally different from an "offense that
involves fraud or deceit," in that the latter "ordinarily
involves the taking or acquisition of property with consent that
has been fraudulently obtained." Id. at 440 (emphasis added).
In applying Garcia-Madruga to the present matter, the BIA
would need to determine whether Connecticut's third degree
larceny statute, Conn. Gen. Stat. § 53a-124, always--for all
possible crimes--has a "without consent" element. See Dickson v.
Ashcroft, 346 F.3d 44, 48 (2d Cir. 2003) (describing the
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"categorical approach" to criminal statutory interpretation
whereby "every set of facts violating a statute must satisfy the
criteria for removability in order for a crime to amount to a
removable offense").
However, even if the BIA departed from Garcia-Madruga by not
analyzing whether Connecticut third degree larceny law has a
"without consent" requirement, any such oversight was harmless
because under applicable state and federal precedent Section
53a-124 has a "without consent" requirement. See State v. Huot,
170 Conn. 463, 467-68 (1976) ("The elements of larceny, on the
other hand, are: (1) the wrongful taking or carrying away of the
personal property of another; (2) the existence of a felonious
intent in the taker to deprive the owner of it permanently; and
(3) the lack of the consent of the owner.") (internal quotation
marks omitted); State v. Calonico, 256 Conn. 135, 154 (2001)
(noting that, even though Conn. Gen. Stat. § 53a-119, which
defines larceny for purposes of § 53a-124, does not "specifically
enumerate[] lack of consent as an element of larceny,"
Connecticut law recognizes that "a conviction for larceny cannot
stand when the property is taken with the knowing consent of the
owner") (internal modifications and citation omitted). And,
courts in Connecticut have applied the “without consent”
requirement to fraud-like claims brought under § 53a-124. See
State v. Torres, 111 Conn.App. 575, 584 (2008), cert. denied, 290
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Conn. 907 (2009) (noting the "lack of consent" requirement for
third degree larceny in a case where defendant deposited forged
cashier checks).
Finally, in Almeida v. Holder, we held that second degree
larceny under Connecticut law “categorically qualifies as a
‘theft offense.’” 588 F.3d 778, 790 (2d Cir. 2009). Although
that case involved second degree larceny, it rested on an
interpretation of Conn. Gen. Stat. § 53a-119, id. at 786, which
defines larceny for both second and third degree larceny. See
Conn. Gen. Stat. § 53a-123; Conn. Gen. Stat. § 53a-124.
Moreover, that decision came after Garcia-Madruga and made no
suggestion that Garcia-Madruga had any bearing on the issue.
In sum, any error by the BIA was harmless because "we can
state with confidence that the [the BIA] would adhere to [its]
decision if we were to remand." See Xiao Ji Chen v. USDOJ, 434
F.3d 144, 158 (2d Cir. 2006). A stay of removal would therefore
be inappropriate. See Nken v. Holder, 556 U.S. 418, 433-34
(2009) ("The party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that discretion.").
Moreover, petitioner raised the Garcia-Madruga issue in his
direct appeal from the IJ’s ruling to the BIA, which rejected the
argument. Denial of the motion to reconsider, which merely
rehashed the argument rejected in the BIA’s earlier decision, was
not an abuse of discretion. See Liu v. Gonzalez, 439 F.3d 109,
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111 (2d Cir. 2006) (per curiam). The petition for review of the
denial of the motion for reconsideration is, therefore,
frivolous, and we deny it. See Fitzgerald v. First East Seventh
Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000).
For the forgoing reasons, we order that the petition for
review is DENIED and the motion for a stay of deportation is
DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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