Hamilton v. Holder

11-312-ag Hamilton v. Holder BIA Sagerman, IJ A043 454 958 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 4th day of May, two thousand twelve. 5 6 PRESENT: 7 PETER W. HALL, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 Circuit Judges. 11 ____________________________________ 12 13 MICOL JERMAINE HAMILTON, 14 Petitioner, 15 16 v. 11-312-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ____________________________________ 22 23 FOR PETITIONER: Seidia R. Bernard, Roach Bernard, 24 PLLC, Lynbrook, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Cindy S. Ferrier, Senior 28 Litigation Counsel; Surell Brady, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, 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 6 Petitioner Micol Jermaine Hamilton, a native and 7 citizen of Guyana, seeks review of a December 29, 2010, 8 decision of the BIA, affirming the August 20, 2010 decision 9 of Immigration Judge (“IJ”) Roger F. Sagerman, which denied 10 his application for asylum, withholding of removal, and 11 relief under the Convention Against Torture (“CAT”). In re 12 Micol Jermaine Hamilton, No. A043 454 958 (B.I.A. Dec. 29, 13 2010), aff’g No. A043 454 958 (Immig. Ct. Napanoch, N.Y. 14 Aug. 20, 2010). We assume the parties’ familiarity with the 15 underlying facts and procedural history in this case. 16 17 Under the circumstances of this case, we have reviewed 18 the IJ’s decision as modified by the BIA. See Xue Hong Yang 19 v. U.S. Dep’t of Justice, 417 F.3d 268, 271 (2d Cir. 2005). 20 The applicable standards of review are well established. 21 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. 22 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 23 24 As the government points out, Hamilton may not 25 collaterally attack in these proceedings his 2004 grand 26 larceny and assault convictions on the grounds of an alleged 27 ineffective assistance of counsel. See Varughese v. Holder, 28 629 F.3d 272, 275 n.3 (2d Cir. 2010) (“The soundness of 29 [petitioner’s] underlying conviction is not before us, for 30 ‘[c]ollateral attacks are not available in a . . . petition 31 challenging the BIA’s removal decision.’”) (quoting 32 Lanferman v. BIA, 576 F.3d 84, 88 (2d Cir. 2009)). While 33 Hamilton may be able to challenge his underlying convictions 34 under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this 35 Court is not the proper venue for such a challenge. 36 Lanferman, 576 F.3d at 84, 88 n.1. Moreover, the fact that 37 Hamilton may have a plausible challenge to his convictions 38 does not affect their finality for immigration purposes. 39 See Paredes v. Att’y Gen. of the U.S., 528 F.3d 196, 198-99 40 (3d Cir. 2008). Therefore, we decline to consider 41 Hamilton’s Sixth Amendment challenge to his underlying 42 convictions in this appeal from a final order of removal. 43 44 45 2 1 Notwithstanding Hamilton’s argument to the contrary, 2 the agency correctly determined that his 2004 conviction for 3 grand larceny in the fourth degree under New York Penal Law 4 (“NYPL”) § 155.30(5), for which he received a sentence of 5 one to three years imprisonment, constitutes an aggravated 6 felony under 8 U.S.C. § 1101(a)(43)(G). Although federal 7 courts are without jurisdiction to review final orders of 8 removal against an alien “who is removable by reason of 9 having committed” an aggravated felony, 8 U.S.C. 10 § 1252(a)(2)(C), we retain jurisdiction to review de novo 11 questions of law, including whether an underlying conviction 12 constitutes an aggravated felony. See 8 U.S.C. § 13 1252(a)(2)(D); Vargas-Sarmiento v. U.S. Dep’t of Justice, 14 448 F.3d 159, 164-65 (2d Cir. 2006) (whether a conviction 15 constitutes an aggravated felony is a question of law that 16 this Court reviews de novo). 17 18 Section 155.30(5), NYPL, provides that: “[a] person is 19 guilty of grand larceny in the fourth degree when he steals 20 property and when: . . . [t]he property, regardless of its 21 nature and value, is taken from the person of another.” 22 Pursuant to 8 U.S.C. § 1101(a)(43)(G), the term “aggravated 23 felony” includes “a theft offense . . . for which the term 24 of imprisonment [is] at least one year.” Given the plain 25 language of 8 U.S.C. § 1101(a)(43)(G), Hamilton’s attempt to 26 read a minimum monetary value into the statute on the basis 27 of undocumented but purportedly contrary legislative intent 28 must fail. See Pipefitters Local Union No. 562 v. United 29 States, 407 U.S. 385, 446 (1972). Because there is no 30 dispute that Hamilton’s conviction for grand larceny in the 31 fourth degree constitutes a “a theft offense . . . for which 32 the term of imprisonment [is] at least one year,” the agency 33 correctly determined that Hamilton was convicted of an 34 aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Because 35 we lack jurisdiction to review and “order of removal against 36 an alien who is removable by reason of having committed a 37 criminal offense” defined as an aggravated felony, 8 U.S.C. 38 § 1252(a)(2)(C)(emphasis added), we need not consider 39 whether petitioner’s conviction for assault in the first 40 degree also qualifies as an aggravated felony; his 41 conviction of grand larceny suffices to deprive us of 42 jurisdiction. 43 44 3 1 Assuming without deciding that we retain jurisdiction 2 over Hamilton’s challenge to the agency’s denial of deferral 3 of removal under the CAT, Hamilton’s attacks on the agency’s 4 burden finding are without merit. Notwithstanding 5 Hamilton’s argument to the contrary, the agency did not 6 ignore any evidence. The agency is presumed to have “taken 7 into account all of the evidence before [it], unless the 8 record compellingly suggests otherwise,” Xiao Ji Chen v. 9 U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 10 2006), and the agency is not required to “expressly parse or 11 refute on the record each individual argument or piece of 12 evidence offered by the petitioner,” Jian Hui Shao v. 13 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (quotation 14 omitted). In an attempt to support his claim, Hamilton 15 asserts that “[t]he sole reason cited for denying [his] 16 applications before the Immigration Court by the IJ was that 17 ‘there was no evidence in the record suggesting that torture 18 is commonly carried out against member [sic] of the 19 Afro-Guyanese community by the Indo-Guyanese.’” However, 20 the IJ’s decision actually states that “there is almost no 21 evidence in the record suggesting that torture is commonly 22 carried out against members of the Afro-Guyanese community 23 by the Indo-Guyanese” (emphasis added). The record, 24 therefore, does not compellingly suggest that the agency 25 ignored any evidence. Xiao Ji Chen, 471 F.3d at 337 n.17. 26 27 Hamilton’s contention that the IJ “erroneously and 28 disingenuously” mischaracterized his evidence is also 29 without merit. Although some evidence, labeled by the IJ as 30 contradictory, does contain limited statements of support 31 for Hamilton’s claims, the task of resolving conflicts in 32 the record evidence lies largely within the discretion of 33 the agency. Jian Hui Shao, 546 F.3d at 171. Moreover, we 34 have held that “support for a contrary inference – even one 35 more plausible or more natural – does not suggest error.” 36 Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007). As a 37 result, Hamilton has failed to show that the agency 38 “mischaracterized” any evidence. 39 40 Lastly, the agency did not err in finding that Hamilton 41 failed to show his entitlement to deferral of removal under 42 the CAT. See Matter of M-B-A-, 23 I. & N. Dec. 474, 479-80 43 (B.I.A. 2002) (noting that a claim “based on a chain of 44 assumptions and a fear of what might happen” is insufficient 45 to demonstrate eligibility for relief under the CAT). 46 Hamilton argues that the credible testimony presented at his 47 merits hearing, alone, established his entitlement to 48 relief. However, as the IJ noted, Hamilton testified that 4 1 two friends, who were criminal deportees, disappeared and 2 were tortured upon their return to Guyana, but he failed to 3 provide sufficient detail to establish “why those friends 4 had been subject to torture or disappearance”; Hamilton’s 5 mother testified that his deportation would be a “death 6 sentence,” but her testimony merely described “difficulties 7 for criminal deportees in obtaining employment and common 8 criminal strife in Guyana”; and Hamilton’s uncle testified 9 that Hamilton would be a target for forced recruitment by 10 criminal gangs, but his testimony merely recounted 11 “second-hand rumors of ‘murder for hire groups.’” See Xiao 12 Ji Chen, 471 F.3d at 342 (noting that the weight afforded to 13 an applicant’s evidence lies largely within the discretion 14 of the agency). Notwithstanding Hamilton’s suggestions to 15 the contrary, there is absolutely no support for his 16 contention that credible testimony, regardless of its level 17 of detail, is sufficient as a matter of law to establish his 18 entitlement to CAT relief. See Matter of M-B-A-, 23 I. & N. 19 Dec. at 479-80; see also 8 U.S.C. § 1158(b)(1)(B)(ii) 20 (“Where the trier of fact determines that the applicant 21 should provide evidence that corroborates otherwise credible 22 testimony, such evidence must be provided unless the 23 applicant does not have the evidence and cannot reasonably 24 obtain the evidence.”); Jian Hui Shao, 546 F.3d at 162 25 (while “credible testimony was sufficient to demonstrate a 26 genuine subjective fear of future persecution, more was 27 needed to demonstrate the objective reasonableness of that 28 fear”). Accordingly, Hamilton’s challenge to the agency’s 29 burden finding is without merit. 30 31 For the foregoing reasons, the petition for review is 32 DENIED. 33 34 FOR THE COURT: 35 Catherine O’Hagan Wolfe, Clerk 36 37 5