Persaud v. Holder

10-3962
Persaud v. Holder
BIA
A096 435 503
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of September, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 PATRICK PERSAUD,
14 Petitioner,
15
16 v. 10-3962
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Patrick Persaud, Pro Se, Hackensack,
24 New Jersey.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Shelley R. Goad,
28 Assistant Director; Jennifer P.
29 Levings, Senior Litigation Counsel,
30 Office of Immigration Litigation,
31 Civil Division, United States
32 Department of Justice, Washington,
33 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Patrick Persaud, a native and citizen of
6 Guyana, seeks review of an August 30, 2010, decision of the
7 BIA denying his motion to reopen. In re Patrick Persaud,
8 No. A096 435 503 (B.I.A. Aug. 30, 2010). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
13 Cir. 2005) (per curiam). It is well established that the
14 BIA may deny an alien’s motion to reopen on the basis that
15 the alien failed to produce previously unavailable, material
16 evidence. See INS v. Abudu, 485 U.S. 94, 104-05, 107
17 (1988); see also Poradisova v. Gonzales, 420 F.3d 70, 78 (2d
18 Cir. 2005).
19 Persaud argues that he did not have the requisite
20 intent to commit the assault for which he was convicted in
21 1995, and that his assault conviction did not constitute a
22 crime involving moral turpitude (“CIMT”). To the extent
2
1 Persaud challenges the validity of his assault conviction,
2 we lack jurisdiction to consider this collateral attack on
3 his criminal conviction. See Lanferman v. BIA, 576 F.3d 84,
4 88 (2d Cir. 2009) (finding that petitioner’s argument that
5 the agency erred in relying on his guilty plea that was
6 obtained in violation of his constitutional rights was
7 without merit because a collateral attack on a conviction is
8 not available in removal proceedings). Moreover, contrary
9 to Persaud’s argument, the BIA did not err in finding that
10 his conviction continued to constitute a CIMT in light of
11 its recent decision in Matter of Pedroza, 25 I. & N. Dec.
12 312, 314 (BIA 2010), because his conviction was for an
13 offense that carried a maximum sentence of one year of
14 imprisonment, see N.Y. Penal Law §§ 120.00, 70.15(1). See
15 Pedroza, 25 I. & N. Dec. at 314 (standing for the
16 proposition that, to constitute a CIMT, an offense “must be
17 punishable by a sentence to imprisonment for a year or
18 longer” and not fall under the petty offense exception).
19 Furthermore, as the BIA found, Persaud’s pending motion
20 to vacate his conviction is not a basis for reopening
21 because it does not affect the finality of his conviction
22 for immigration purposes. See 8 C.F.R. § 1003.2 (requiring
3
1 that a motion to reopen present new, material evidence);
2 Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) (conviction is
3 final upon conclusion of appellate review); Matter of Ponce
4 de Leon, 21 I.& N. Dec. 154, 157 (A.G. 1997; BIA 1996, 1997)
5 (noting that the pendency of a post-conviction motion or
6 other form of collateral attack on a criminal conviction
7 does not negate the finality of that conviction for
8 immigration purposes). Because Persaud did not present new,
9 material evidence, the BIA did not abuse its discretion in
10 denying his motion to reopen. See Kaur, 413 F.3d at 233.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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