Barua v. Sessions

15-1797 (L), 15-3388 (Con) BIA
Barua v. Sessions Mulligan, IJ
A096 426 155

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.

1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 11th day of August, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 EMON BARUA,
14 Petitioner,
15
16 v. 15-1797 (L)
17 15-3388 (Con)
18 NAC
19
20 JEFFERSON B. SESSIONS III,
21 UNITED STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Thomas E. Moseley, Newark, N.J.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal
28 Deputy Assistant Attorney
 1 General; Terri J. Scadron,
2 Assistant Director; Colin J.
3 Tucker, Office of Immigration
4 Litigation, United States
5 Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a

9 Board of Immigration Appeals (“BIA”) decision, it is hereby

10 ORDERED, ADJUDGED, AND DECREED that the lead petition for review

11 is DENIED IN PART and DISMISSED IN PART, and that the

12 consolidated petition for review is DENIED.

13 Petitioner Emon Barua, a native and citizen of Bangladesh,

14 seeks review of two decisions of the BIA: a May 13, 2015, BIA

15 decision affirming a November 26, 2014, decision of an

16 Immigration Judge (“IJ”) denying Barua’s application for

17 asylum, withholding of removal, and relief under the Convention

18 Against Torture (“CAT”); and a September 28, 2015, BIA decision

19 denying Barua’s motion to reopen. In re Emon Barua, No. A096

20 426 155 (B.I.A. May 13, 2015), aff’g No. A096 426 155 (Immig.

21 Ct. N.Y. City Nov. 26, 2014); In re Emon Barua, No. A096 426

22 155 (B.I.A. Sept. 28, 2015). We assume the parties’

23 familiarity with the underlying facts and procedural history

24 in this case.

25

2
1 I. Jurisdiction

2 We generally lack jurisdiction to review a final order of

3 removal against an alien, such as Barua, who is ordered removed

4 on the basis of an aggravated felony conviction; however, we

5 have jurisdiction to review “constitutional claims or questions

6 of law.” 8 U.S.C. § 1252(a)(2)(C), (D). This jurisdictional

7 limitation applies to both petitions for review. Ortiz-Franco

8 v. Holder, 782 F.3d 81, 90 (2d Cir. 2015); Durant v. INS, 393

9 F.3d 113, 115 (2d Cir. 2004).

10 II. Lead Petition (15-1797)

11 We have reviewed the IJ’s decision as modified by the BIA

12 (i.e., excluding the IJ’s credibility determination relating

13 to Barua, which the BIA declined to rely on). See Xue Hong Yang

14 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The

15 applicable standards of review are well established: “We review

16 the agency’s factual findings for substantial evidence and

17 questions of law de novo.” Cotzojay v. Holder, 725 F.3d 172,

18 177 n.5 (2d Cir. 2013) (citations omitted); 8 U.S.C.

19 § 1252(b)(4)(B).

20 A. Aggravated Felony. Barua argues that he was not

21 convicted of an aggravated felony because New York Penal Law

22 (“NYPL”) § 130.45(1) is broader than the generic aggravated

3
1 felony definition of “sexual abuse of a minor” and because New

2 York’s attempt statute is broader than federal law. Although

3 Barua’s arguments present reviewable questions of law,

4 Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 164

5 (2d Cir. 2006), they are without merit.

6 An alien convicted of an aggravated felony is removable

7 from the United States and ineligible for asylum. 8 U.S.C.

8 §§ 1227(a)(2)(A)(iii), 1158(b)(2)(A)(ii), (B)(i). The INA

9 defines “aggravated felony” to include “sexual abuse of a

10 minor,” and an attempt to commit an aggravated felony is also

11 an aggravated felony. 8 U.S.C. § 1101(a)(43)(A), (U). The

12 term “sexual abuse of a minor” is not defined; however, “the

13 BIA has invoke[d] . . . as a guide the broad definition of ‘sexual

14 abuse of a minor’ in 18 U.S.C. § 3509(a).” James v. Mukasey,

15 522 F.3d 250, 254 (2d Cir. 2008) (quoting In re

16 Rodriguez-Rodriguez, 22 I & N Dec. 991, 995-96 (B.I.A. 1999)).

17 That is reasonable, as we have held. Mugalli v. Ashcroft, 258

18 F.3d 52, 60 (2d Cir. 2001).

19 Although “we accord Chevron deference to the BIA’s

20 interpretation of section 1101(a)(43)(A) in determining the

21 meaning of ‘sexual abuse of a minor,’ we give no deference to

22 the BIA’s decision that a conviction under state law meets that

4
1 definition.” Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir.

2 2006). “[W]e generally employ a ‘categorical approach’ to

3 determine whether the state offense is comparable to an offense

4 listed in the INA.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1684

5 (2013). “Under this approach, we look ‘to whether the state

6 statute defining the crime of conviction categorically fits

7 within the generic federal definition of a corresponding

8 aggravated felony.” Flores v. Holder, 779 F.3d 159, 165 (2d

9 Cir. 2015) (quoting Moncrieffe, 133 S. Ct. at 1684). “[T]he

10 singular circumstances of an individual petitioner’s crimes

11 should not be considered, and only the minimum criminal conduct

12 necessary to sustain a conviction under a given statute is

13 relevant.” Pascual v. Holder, 707 F.3d 403, 405 (2d Cir. 2013),

14 adhered to on reh’g, 723 F.3d 156 (2d Cir. 2013) (internal

15 quotations marks omitted).

16 The issue is therefore whether the “minimum criminal

17 conduct necessary to sustain a conviction under” NYPL

18 § 130.45(1) categorically fits within the generic federal

19 definition of sexual abuse of a minor in 18 U.S.C. § 3509(a)(8).

20 See Flores, 779 F.3d at 165. Under NYPL § 130.45(1), “criminal

21 sexual act in the second degree” occurs when, “being eighteen

22 years old or more, [a person] engages in oral sexual conduct

5
1 or anal sexual conduct with another person less than fifteen

2 years old.” Under federal law, “sexual abuse includes the

3 employment, use, persuasion, inducement, enticement, or

4 coercion of a child to engage in, or assist another person to

5 engage in, [inter alia] sexually explicit conduct . . . .” 18

6 U.S.C. § 3509(a)(8).

7 In Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d 119 (2d

8 Cir. 2011), we determined that “Each category of ‘sexual

9 conduct’ under New York law is subsumed in the federal

10 definition of ‘sexually explicit conduct’” in 18 U.S.C.

11 § 3509(a)(8). Id. at 123. And, although we have not decided

12 whether “sexual contact,” as defined by New York law, may be

13 broader than 18 U.S.C. § 3509(a), see James, 522 F.3d at 258,

14 there is no such issue here. Despite Barua’s claims otherwise,

15 his conviction does not involve the broader concept of “sexual

16 contact” under New York law. Instead, NYPL § 130.45(1)

17 criminalizes oral and anal “sexual conduct” with a minor, and

18 we have already held that these definitions of sexual conduct

19 are “subsumed in the federal definition.” Oouch, 633 F.3d at

20 123 & n.5. As the agency concluded, a conviction for attempted

21 criminal sexual act in the second degree is therefore an

22 aggravated felony. See Flores, 779 F.3d at 165; Oouch, 633 F.3d

6
1 at 123; see also 8 U.S.C. § 1101(a)(43)(U).

2 Barua argues that his conviction cannot qualify as an

3 attempted aggravated felony because New York’s attempt statute

4 is broader than federal law. Under NYPL § 110, “[a] person is

5 guilty of an attempt to commit a crime when, with intent to

6 commit a crime, he engages in conduct which tends to effect the

7 commission of such crime.” Under federal law, “[a] person is

8 guilty of an attempt to commit a crime if he or she (1) had the

9 intent to commit the crime, and (2) engaged in conduct amounting

10 to a ‘substantial step’ towards the commission of the crime.”

11 United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985).

12 Because the New York provision is “more stringent than the . . .

13 ‘substantial step’ test,” People v. Acosta, 80 N.Y.2d 665, 670

14 (1993), and requires the defendant to “have engaged in conduct

15 that came dangerously near commission of the completed crime,”

16 People v. Denson, 26 N.Y.3d 179, 189 (2015) (internal quotation

17 marks omitted), a violation of NYPL § 110 categorically

18 constitutes an attempt for purposes of the INA. See Gousse v.

19 Ashcroft, 339 F.3d 91, 96 (2d Cir. 2003) (“Unless the offense

20 of conviction is broader, the petitioner has committed an

21 ‘aggravated felony’ irrespective of the particular

22 circumstances of his crime.”). As the agency determined, a

7
1 conviction for violating NYPL §§ 110, 130.45(1) categorically

2 constitutes an aggravated felony related to an attempt to commit

3 a sexual abuse of a minor aggravated felony.

4 B. Particularly Serious Crime. Withholding of removal

5 under both the Immigration and Nationality Act (“INA”) and CAT

6 is unavailable if an alien has been convicted of a particularly

7 serious crime. 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. §

8 1208.16(d)(2). If, as here, the crime is not per se

9 particularly serious, the BIA “examine[s] the nature of the

10 conviction, the type of sentence imposed, and the circumstances

11 and underlying facts of the conviction.” In re N-A-M-, 24 I.

12 & N. Dec. 336, 342 (B.I.A. 2007); see also Nethagani v. Mukasey,

13 532 F.3d 150, 154 n.1, 155 (2d Cir. 2008). We have jurisdiction

14 to review whether the agency considered these factors, but not

15 the weighing of the factors, which is discretionary. See

16 Nethagani, 532 F.3d at 154-55.

17 The IJ enumerated each of the factors and considered them.

18 Barua does not argue otherwise. His arguments concern only the

19 weighing of the discretionary factors, which we lack

20 jurisdiction to consider. See Nethagani, 532 F.3d at 154-55.

21 We therefore dismiss the petition as it relates to the denial

22 of withholding of removal.

8
1 C. CAT Deferral. Deferral of removal under CAT remains

2 available to an alien otherwise barred from relief due to

3 aggravated felonies and particularly serious crimes. See 8

4 C.F.R. § 1208.17(a). To obtain deferral of removal, an alien

5 must show that “it is more likely than not that [he] would be

6 tortured if removed to the proposed country of removal.” 8

7 C.F.R. § 1208.16(c)(2). The torture must be “inflicted by or

8 at the instigation of or with the consent or acquiescence of

9 a public official or other person acting in an official

10 capacity,” 8 C.F.R. § 1208.18(a)(1), (a)(7), and cognizable

11 acquiescence “requires only that government officials know of

12 or remain willfully blind to an act and thereafter breach their

13 legal responsibility to prevent it,” Khouzam v. Ashcroft, 361

14 F.3d 161, 171 (2d Cir. 2004). “A determination of what will

15 occur in the future and the degree of likelihood of the

16 occurrence has been regularly regarded as fact-finding.” Hui

17 Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012).

18 Barua has not challenged the adverse credibility finding

19 as to his own testimony. His argument is that the BIA ignored

20 his challenges to the adverse credibility finding against his

21 father. However, “we do not demand that the BIA expressly parse

22 or refute on the record each individual argument or piece of

9
1 evidence offered by the petitioner.” Jian Hui Shao v. Mukasey,

2 546 F.3d 138, 169 (2d Cir. 2008) (internal quotation marks

3 omitted). “[W]e presume that [the agency] has taken into

4 account all of the evidence before [it], unless the record

5 compellingly suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t

6 of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006). Here, the

7 BIA stated explicitly that “[t]he Immigration Judge made

8 factual findings based on the evidence of record that are not

9 clearly erroneous,” Certified Administrative Record (“CAR”) at

10 175, which sufficiently reflects consideration of Barua’s

11 challenges to his father’s credibility determination.

12 In any event, there was no compelling need for the BIA to

13 consider in depth the credibility of Barua’s father, who

14 testified about the targeting of his family members in

15 Bangladesh in the past--the most recent event being the

16 kidnapping of his cousin in early 2009--and was devoid of any

17 first-hand knowledge of current country conditions. However,

18 the country conditions evidence did not establish “that it is

19 more likely than not that government officials would, in the

20 future, acquiesce in or turn a blind eye to harm amounting to

21 torture committed against [Barua],” CAR at 178 (emphasis

22 added). As the BIA observed, the 2013 U.S. Department of State

10
1 Country Report provided that the Bangladesh government had

2 recently deregistered as a political party the group that had

3 purportedly targeted Barua’s family, banned it from

4 participating in elections, and arrested its affiliates for

5 acts of violence against religious minorities. Since the

6 father’s testimony was therefore of little value in assessing

7 whether the current government of Bangladesh would acquiescence

8 in any future torture of Barua, we find no error in the BIA’s

9 cursory treatment of Barua’s challenges to his father’s

10 credibility determination.

11 III. Consolidated Petition (15-3388)

12 We review the denial of a motion to reopen for abuse of

13 discretion, mindful that such motions are “‘disfavored.’” Ali

14 v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.

15 Doherty, 502 U.S. 314, 322-23 (1992)).

16 Barua moved to reopen to seek adjustment of status based

17 on his pending immigrant visa petition, a discretionary form

18 of relief, based on a pending visa petition filed by his

19 U.S.-citizen wife. See 8 U.S.C. § 1255(a).

20 First, Barua argued that he was eligible to adjust status

21 without an INA § 212(h) waiver of inadmissibility because his

22 conviction was not a crime involving moral turpitude (“CIMT”).

11
1 The BIA determined that reopening was not warranted because

2 Barua could have applied to adjust status before the IJ. A

3 motion to reopen “for the purpose of affording the alien an

4 opportunity to apply for any form of discretionary relief” will

5 not be granted if the alien had an opportunity to apply for that

6 relief at a former hearing. 8 C.F.R. § 1003.2(c)(1). Assuming

7 that Barua’s conviction is not a CIMT, he was eligible to

8 petition for an immigrant visa and apply to adjustment of status

9 when he married his wife in December 2009--four years before

10 his initial hearing with the IJ in December 2013. Barua argues

11 that he was not eligible to adjust status until our decision

12 in Husic v. Holder, 776 F.3d 59, 64 (2d Cir. 2015), which held

13 that an alien like Barua, with an aggravated felony conviction,

14 is eligible for § 212(h) relief, but this argument is relevant

15 only if Barua’s conviction constitutes a CIMT. Stated another

16 way, the impediment to § 212(h) relief removed by Husic has no

17 bearing on Barua’s claim that he is eligible to adjust status

18 without a § 212(h) waiver.

19 Second, Barua argued that he was eligible to adjust status

20 even if his conviction was a CIMT because he was eligible for

21 a § 212(h) waiver. The BIA reasonably denied Barua’s motion

22 because he did not show prima facie eligible for relief. See

12
1 INS v. Abudu, 485 U.S. 94, 104 (1988). To adjust to lawful

2 permanent resident status, an alien must, among other things,

3 be admissible to the United States or be granted a waiver of

4 inadmissibility. 8 U.S.C. § 1255(a). Therefore, if Barua’s

5 conviction is a CIMT, he required a § 212(h)(2) waiver to be

6 eligible to adjust status. See 8 U.S.C.

7 § 1182(a)(2)(A)(i)(I), (h)(2). The BIA did not err in ruling

8 that Barua did not merit a § 212(h) waiver as a matter of

9 discretion, given his “aggravated felony conviction for

10 attempting to commit a sexual act with a minor.” Barua therefore

11 failed to demonstrate his prima facie eligibility for

12 adjustment. Barua argues that this ruling is in tension with

13 Husic. However, the BIA determined that Barua did not merit

14 a waiver as a matter of discretion; it did not find that he was

15 statutorily barred by his conviction for an aggravated felony.

16 That was an appropriate basis for the BIA to deny reopening.

17 See Abudu, 485 U.S. 94, 105 (“[I]n cases in which the ultimate

18 grant of relief is discretionary[,] . . . the BIA

19 may . . . simply determine that . . . the movant would not be

20 entitled to the discretionary grant of relief.”).

21 Accordingly, Barua has failed to demonstrate any legal or

22 constitutional error in the BIA’s denial of his motion to

13
1 reopen.

2 For the foregoing reasons, the lead petition for review is

3 DENIED IN PART (as to removal, asylum, and CAT relief) and

4 DISMISSED IN PART (as to withholding of removal), and the

5 consolidated petition for review is DENIED. It is further

6 ORDERED that Petitioner’s motion for oral argument and/or to

7 hold the petitions for review in abeyance is DENIED. As we have

8 completed our review, any stay of removal that the Court

9 previously granted in this petition is VACATED, and any pending

10 motion for a stay of removal in this petition is DISMISSED as

11 moot.

12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk

14