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