17-422
Lozano v. Sessions
BIA
Sagerman, IJ
A013 877 563
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
11th day of December, two thousand seventeen.
PRESENT:
DENNIS JACOBS,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
JAIME DANIEL LOZANO, AKA JAMES
KOTCH, AKA JAMES LOZANO, AKA JAMIE
LAZANO,
Petitioner,
v. 17-422
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jaime Daniel Lozano, pro se, Cape
Vincent, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Linda S. Wernery,
Assistant Director; Lindsay B.
Glauner, Senior Litigation Counsel,
Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.
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
DENIED.
Petitioner Jaime Daniel Lozano, a native and citizen of
Colombia, seeks review of a January 11, 2017, decision of the
BIA affirming an August 22, 2016, decision of an Immigration
Judge (“IJ”) ordering Lozano removed to Colombia. In re Jaime
Daniel Lozano, No. A 013 877 563 (B.I.A. Jan. 11, 2017), aff’g
No. A 013 877 563 (Immig. Ct. Napanoch Aug. 22, 2016). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We deny the petition on the ground that an alien is
removable if he has been “convicted of two or more crimes
involving moral turpitude” (“CIMT”). 8 U.S.C.
§ 1227(a)(2)(A)(ii). Lozano has been convicted of three such
crimes: (1) third-degree robbery under New York Penal Law
(“NYPL”) § 160.05 in 1978; (2) attempted third-degree robbery
under NYPL §§ 110, 160.05 in 2008; and (3) promoting the sexual
performance of a child under NYPL § 263.15 in 2015. He does
not dispute that all three of these crimes are CIMTs.
Lozano argues that, as a matter of res judicata, neither
of his robbery convictions may be used to charge him as removable
for two CIMTs because, in a prior removal proceeding in 2011,
he was charged as removable on the ground that those convictions
were CIMTs, but was then granted cancellation of removal under
8 U.S.C. § 1229b(a).
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The BIA has specifically rejected that argument: “[W]e hold
that a conviction which has once been relied upon in a charge
of deportability may be alleged as one of the two ‘crimes
involving moral turpitude’ in a second proceeding, even though
the first proceeding was terminated by a grant of relief
. . . where [as here] the second crime alleged is a subsequent
conviction or a conviction that was not disclosed in the prior
proceeding.” Matter of Balderas, 20 I. & N. Dec. 389, 393
(B.I.A. 1991). And we approved, in Chan v. Gantner, 464 F.3d
289 (2d Cir. 2006), expressly deeming “the reasoning of the BIA
[in Balderas] . . . persuasive,” id. at 295, and concluding that
an alien’s prior grant of relief from removal “does not remove
his conviction from consideration in subsequent immigration
proceedings,” id. at 290. The rule is settled in other circuits
as well. See, e.g., Esquivel v. Mukasey, 543 F.3d 919, 922 (7th
Cir. 2008); Molina-Amezcua v. INS, 6 F.3d 646, 647-48 (9th Cir.
1993); Molenda v. INS, 998 F.2d 291, 294 (5th Cir. 1993).
Accordingly, the agency did not err in concluding that Lozano
was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) based on two
CIMTs.
Because Lozano was removable on that basis, we do not reach
his challenge to the agency’s alternative basis for deeming him
removable--that his conviction for promoting sexual
performance of a child under NYPL § 263.15 is an aggravated
felony or crime of child abuse. See INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (“As a general rule courts and agencies are not
required to make findings on issues the decision of which is
unnecessary to the results they reach.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the stay of removal
that the Court previously granted in this petition is VACATED,
and the Government’s pending motion to remand is DISMISSED as
moot. Any pending request for oral argument in this petition
is DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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