Atkinson v. Garland

Opinion

21-6181 Atkinson v. Garland BIA

Ling, IJ

A216 557 765

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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 13th day of June, two thousand twenty-two. 5 6 PRESENT: 7 REENA RAGGI, 8 JOSEPH F. BIANCO, 9 EUNICE C. LEE, 10 Circuit Judges. 11 _____________________________________ 12 13 FABIAN STEVE ATKINSON, 14 Petitioner, 15 16 v. 21-6181 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 24 FOR PETITIONER: Craig Relles, Esq., White Plains, 25 NY.

1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Holly M. Smith, 3 Assistant Director; Jesse D. 4 Lorenz, Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.

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 petition for review 11 is DENIED. 12 Petitioner Fabian Steve Atkinson, a native and citizen 13 of Jamaica, seeks review of a decision of the BIA summarily 14 dismissing his appeal of a decision of an Immigration Judge 15 (“IJ”) denying his applications for adjustment of status, 16 asylum, withholding of removal, and protection under the 17 Convention Against Torture. See In re Fabian Steve Atkinson, 18 No. A 216 557 765 (B.I.A. Mar. 4, 2021), dismissing appeal 19 from No. A 216 557 765 (Immig. Ct. N.Y. City Sept. 11, 2020). 20 We assume the parties’ familiarity with the underlying facts 21 and procedural history. 22 Because the BIA summarily dismissed the appeal without 23 reaching the merits of the IJ’s decision, we review only the 24 basis for the BIA’s dismissal. See Yan Chen v. Gonzales, 417 25 F.3d 268, 271 (2d Cir. 2005). Although we have not

3

1 established a standard of review for summary dismissals, we 2 need not do so here because the BIA’s decision withstands 3 scrutiny regardless of the standard applied. See, e.g., 4 Persaud v. Holder, 492 F. App’x 203, 204 (2d Cir. 2012) 5 (summary order). 6 The BIA summarily dismissed Atkinson’s appeal for failure 7 to identify the issues for appeal or timely to file a brief. 8 In his brief before this Court, Atkinson erroneously 9 describes the BIA as summarily affirming the IJ’s decision, 10 rather than as summarily dismissing his appeal for failure to 11 specify the assigned error. See Pet.’s Br. at 12-13. In so 12 doing, Atkinson has waived review of the BIA’s decision by 13 failing to challenge the actual reason for the dismissal. 14 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 15 (2d Cir. 2005) (deeming abandoned claims not raised in the 16 brief). Summary affirmance and summary dismissal are 17 distinct agency actions with distinct regulatory 18 authorization. Compare 8 C.F.R. § 1003.1(d)(2) (summary 19 dismissal) with 8 C.F.R. § 1003.1(e)(4) (summary affirmance). 20 Moreover, even if we were to reach the grounds for the 21 BIA’s dismissal, we would not find error. The regulations

4

1 authorize the BIA to dismiss an appeal where there is a 2 failure to articulate specific reasons for the appeal or to 3 file a brief within the prescribed time. 8 C.F.R. 4 § 1003.1(d)(2)(i)(A), (E). Atkinson’s notice of appeal 5 stated that the IJ erred, but it gave no reasons either in 6 supporting fact or law for identifying any error. Nor did 7 Atkinson file a brief within the time set by the BIA. To the 8 extent that Atkinson seeks to challenge the merits of the 9 IJ’s decision, his claims are not properly before us because 10 our review is limited to the BIA’s decision, see Yan Chen, 11 417 F.3d at 271, and Atkinson failed to raise his merits 12 challenges before the BIA, see 8 U.S.C. § 1252(d) (requiring 13 exhaustion of administrative remedies). See also Lin Zhong 14 v. U.S. Dep’t of Justice, 480 F.3d 104, 122–23 (2d Cir. 2007) 15 (”[W]hen an applicant . . . has failed to exhaust an issue 16 before the BIA, and that issue is, therefore, not addressed 17 in a reasoned BIA decision, we are . . . usually unable to 18 review the argument.”).

1 For the foregoing reasons, the petition for review is 2 DENIED. All pending motions and applications are DENIED and 3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court