Ragbir v. Lynch

12-2345
Ragbir v. Lynch
BIA
A044 248 862
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 TO 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
4th day of March, two thousand sixteen.
PRESENT:
RALPH K. WINTER,
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
RAVIDATH LAWRENCE RAGBIR,
Petitioner,
v. 12-2345
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Alina Das, Attorney; Kendal Nystedt,
Jessica Rofé, Legal Interns,
Washington Square Legal Services,
Inc., New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; Douglas E.
Ginsburg, Assistant Director; Karen
L. Melnik, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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
DISMISSED.
Petitioner Ravidath Lawrence Ragbir, a native and citizen
of Trinidad and Tobago, seeks review of a May 15, 2012, decision
of the BIA, denying his motion to reconsider and reopen. In
re Ravidath Lawrence Ragbir, No. A044 248 862 (B.I.A. May 15,
2012). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
We lack jurisdiction to review a final order of removal,
including an order denying a motion to reconsider and reopen,
against an alien, such as Ragbir, “who is removable by reason
of having committed [an aggravated felony].” 8 U.S.C.
§ 1252(a)(2)(C); see also Santos-Salazar v. U.S. Dep’t of
Justice, 400 F.3d 99, 102 (2d Cir. 2005); Durant v. INS, 393
F.3d 113, 115-16 (2d Cir. 2004). Although we retain
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jurisdiction to consider constitutional claims and questions
of law, see 8 U.S.C. § 1252(a)(2)(D), Ragbir raises no
colorable constitutional claims or questions of law in
challenging the BIA’s denial of his motion as untimely, see
Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008).
He did not argue before the BIA that the time period for filing
his motion should be equitably tolled, and he was not eligible
for an exception to the applicable time limitations based on
his purported eligibility to adjust status. See 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter of
Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009).
Because Ragbir’s untimely filing “was not excused by any
regulatory exception, his motion . . . could only be considered
upon exercise of the Agency’s sua sponte authority.” Mahmood
v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); see also 8 C.F.R.
§ 1003.2(a). Although the agency’s exercise of its sua sponte
authority “is entirely discretionary” and beyond the scope of
this Court’s review, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
2006), remand is appropriate “where the Agency may have declined
to exercise its sua sponte authority because it misperceived
the legal background and thought, incorrectly, that a reopening
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would necessarily fail,” Mahmood, 570 F.3d at 469. The BIA made
no such error here.
Motion to Reconsider
Ragbir’s conviction for one count of conspiracy to commit
wire fraud and six counts of wire fraud in violation of 18 U.S.C.
§ 371, 1343 & 2 rendered him removable for having been convicted
of an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(M)(i)—“an offense that . . . involves fraud or
deceit in which the loss to the victim or victims exceeds
$10,000.” He argues that the BIA failed to consider his
argument that his conviction was not categorically a “fraud or
deceit” aggravated felony in light of the Supreme Court’s
intervening decision in Skilling v. United States, 561 U.S. 358(2010), which limited the broad language of § 1343 to
criminalize only certain conduct. However, Ragbir’s
conclusory assertion in his motion (clarified in his briefs
here) was insufficient to apprise the BIA of his argument. In
any event, the BIA reasonably construed his lengthy discussion
of the jury instructions in his criminal proceedings as a
challenge to his underlying conviction, which was not
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appropriately raised in removal proceedings. See Lanferman v.
BIA, 576 F.3d 84, 88 (2d Cir. 2009).
Regardless, Ragbir’s argument is based on the premise,
rejected by the Supreme Court, that a “fraud or deceit”
aggravated felony requires that the underlying statute of
conviction contain fraud as an element. See Kawashima v.
Holder, 132 S. Ct. 1166, 1172 (2012). While pre-Skilling
convictions under 18 U.S.C. § 1343, including Ragbir’s, may have
included conduct broader than that categorized as fraud,
including schemes that merely failed to comport with
“fundamental honesty, fair play and right dealing,” Skilling,
561 U.S. at 418 (Scalia, J. concurring), such offenses
nevertheless “involve[] . . . deceit” and thus categorically
constitute crimes involving “fraud or deceit” under 8 U.S.C.
§ 1101(a)(43)(M)(i). See Kawashima, 132 S. Ct. at 1172(defining deceit); see also Doe v. Att’y Gen., 659 F.3d 266,
274-75 (3d Cir. 2011).
The BIA also did not misperceive the law in declining to
remand for reconsideration of Ragbir’s removability in light
of the Supreme Court’s intervening decision in Nijhawan v.
Holder, 557 U.S. 29 (2009), which clarified that the agency
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should apply a circumstance-specific approach to analyze the
loss amount for purposes 8 U.S.C. § 1101(a)(43)(M)(i). We
adhere to our decision rejecting this argument in Ragbir’s
previous petition for review. See Johnson v. Holder, 564 F.3d
95, 99 (2d Cir. 2009) (“The law of the case doctrine commands
that ‘when a court has [explicitly or implicitly] ruled on an
issue, that decision should generally be adhered to by that
court in subsequent stages in the same case.’” quoting United
States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)).
As we previously noted, remand for reconsideration in light
of Nijhawan is not warranted given that the agency applied a
circumstance-specific approach to the loss determination in
Ragbir’s case. And, “[d]espite repeated adjournments, Ragbir
failed to obtain [sentencing and related] transcripts or to
introduce other evidence in opposition to the government’s loss
calculations.” Ragbir v. Holder, 389 F. App’x 80, 85 (2d Cir.
2010) (summary order). Furthermore, although Ragbir submitted
in support of reconsideration and reopening evidence that the
victim’s loss in his case might have been offset by two
properties used to secure two of the six fraudulent loans for
which he was convicted, that evidence is insufficient to support
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“his urged inference that the indicted loans were repaid nearly
in full,” i.e., that the victim has recouped all but $10,000
for the $426,048.03 in indicted loans. Id. at 84 n.5.
Accordingly, we find that the BIA did not misperceive the
law in declining to reconsider its order of removal. See
Mahmood, 570 F.3d at 469; see also Ali, 448 F.3d at 517.
Motion to Reopen
The BIA also did not misperceive the law in declining to
reopen sua sponte. Contrary to Ragbir’s contention, the BIA
did not fail to adhere to the standard in Matter of
Velarde-Pacheco, 23 I & N Dec. 253 (BIA 2002). Ragbir did not
satisfy the first requirement in Velarde-Pacheco (that he file
a timely motion), and thus the BIA was not required to evaluate
the remaining Velarde-Pacheco factors or consider Ragbir’s
evidence of his purported eligibility to adjust status. See
id. at 256. Moreover, there is no merit to Ragbir’s due process
claim because a grant of adjustment of status is discretionary,
and an alien has no constitutionally protected liberty or
property interest in a grant of discretionary relief. See Yuen
Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008); see also
Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006).
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Accordingly, because the BIA did not misperceive the law
in declining to reconsider or reopen Ragbir’s removal
proceedings, remand is not warranted, see Mahmood, 570 F.3d at
469; see also Ali, 448 F.3d at 517, and we are without
jurisdiction over his petition, see 8 U.S.C. § 1252(a)(2)(C).
For the foregoing reasons, the petition for review is
DISMISSED. As we have completed our review, Ragbir’s motion
for leave for law students to argue is DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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