Anderson v. Holder

09-1550-ag Anderson v. Holder BIA Sagerman, IJ A 042 467 617 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 22 nd day of June, two thousand ten. 5 6 PRESENT: 7 RALPH K. WINTER, 8 JOSÉ A. CABRANES, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 FLOYD MCAURTHER ANDERSON, 14 Petitioner, 15 16 v. 09-1550-ag 17 NAC 18 ERIC H. HOLDER, JR., U.S. ATTORNEY 19 GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Jennifer Oltarsh, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Linda S. Wernery, Assistant 28 Director; James E. Grimes, Senior 29 Litigation Counsel, Office of 30 Immigration Litigation, Washington 31 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 Floyd McAurther Anderson, a native and 6 citizen of Jamaica, seeks review of the March 17, 2009, 7 order of the BIA affirming the November 5, 2008, decision of 8 Immigration Judge (“IJ”) Roger Sagerman denying his 9 application for withholding of removal and relief under the 10 Convention Against Torture (“CAT”). In re Floyd McAurther 11 Anderson, No. A 042 467 617 (B.I.A. Mar. 17, 2009), aff’g 12 No. A 042 467 617 (Immig. Ct. N.Y. City Nov. 5, 2008). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history in this case. 15 Under the circumstances of this case, we review the 16 IJ’s decision as supplemented by the BIA. See Yan Chen v. 17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Under 18 8 U.S.C. § 1252(a)(2)(C), “no court shall have jurisdiction 19 to review any final order of removal against an alien who is 20 removable by reason of having committed a criminal offense 21 covered” by INA § 237(a)(2)(A)(iii) or (B). The agency 22 found Anderson removable under INA § 237(a)(2)(A)(iii) and 2 1 (a)(2)(B)(i) based on his convictions for the attempted sale 2 and possession of cocaine. Therefore, we are without 3 jurisdiction to review the agency’s final order of removal, 4 except to the extent that Anderson’s petition raises 5 “constitutional claims or questions of law.” See 8 U.S.C. 6 § 1252(a)(2)(D). 7 Anderson argues that the BIA committed legal error by 8 failing to consider his eligibility for equitable relief. 9 This is a question of law sufficient to invoke our 10 jurisdiction under 8 U.S.C. § 1252(a)(2)(D). See Ilyas Khan 11 v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007). Nevertheless, 12 his claim is without merit. Anderson did not derive U.S. 13 citizenship through his mother’s naturalization because he 14 was not “under the age of eighteen years” at the time she 15 was naturalized. See 8 U.S.C. § 1432(a) (repealed 2000). 1 16 Furthermore, contrary to Anderson’s argument, the BIA did 17 not err in declining to grant him nunc pro tunc relief due 18 to the government’s delay in processing his mother’s 19 naturalization application. Anderson presented no evidence 20 that the delay was untoward or that his mother took any 1 The law that applies to Anderson is the law in effect at the time he turned eighteen on June 17, 1999. See Langhorne v. Ashcroft, 377 F.3d 175, 178-79 (2d Cir. 2004). 3 1 action to expedite the application in light of his age at 2 the time. See Drozd v. INS, 155 F.3d 81, 90 (2d Cir. 1998) 3 (holding that the doctrine of equitable estoppel is not 4 available against the government “except in the most serious 5 of circumstances”); Rojas-Reyes v. INS, 235 F.3d 115, 126 6 (2d Cir. 2000) (holding that “estoppel will only be applied 7 upon a showing of ‘affirmative misconduct’ by the 8 government”); INS v. Miranda, 459 U.S. 14, 19 (1982) 9 (holding that delays by the government in processing an 10 immigration application did not qualify as affirmative 11 misconduct). 2 12 With respect to Anderson’s challenge to the agency’s 13 denial of CAT relief, he essentially disputes the 14 correctness of the IJ’s fact-finding by asserting that the 15 IJ incorrectly concluded that he would not be subjected to 16 torture as retaliation for his uncle’s political activities. 17 We are without jurisdiction to consider this factual 18 challenge. 19 8 U.S.C. § 1252(a)(2)(C). Even if we had jurisdiction to 2 To the extent Anderson relies on Poole v. Mukasey, 522 F.3d 259, 266 (2d Cir. 2007), we recently upheld the BIA’s denial of nunc pro tunc relief in that case, which presented a similar factual background. See Poole v. Holder, 2010 WL 323575 at *1 (2d Cir. January 29, 2010) (unpublished order). 4 1 reach his arguments, Anderson does not dispute the IJ’s 2 findings that: (1) he could safely relocate within Jamaica; 3 and (2) the background evidence, including the 2007 State 4 Department Report on Jamaica, indicated that members of the 5 People’s National Party are not systematically targeted for 6 torture. See 8 C.F.R. § 1208.16(c)(3)(ii) (discussing 7 internal relocation); see also Tu Lin v. Gonzales, 446 F.3d 8 395, 400 (2d Cir. 2006) (holding that State Department 9 reports are “probative” and reliable evidence of background 10 conditions). 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 21 5