Dennis v. Sessions

Opinion

15-2973 Dennis v. Sessions BIA

Straus, IJ

A040 087 088

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 26th day of February, two thousand 5 eighteen. 6 7 PRESENT: 8 DENNIS JACOBS, 9 PETER W. HALL, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges. 12 _____________________________________ 13 14 BALTIMORE BARNETT DENNIS, 15 Petitioner, 16 17 v. 15-2973 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Elyssa N. Williams, Formica 25 Williams, P.C., New Haven, CT. 26 27 FOR RESPONDENT: Benjamin C. Mizer, Principal 28 Deputy Assistant Attorney General; 29 Terri J. Scadron, Assistant 30 Director; Margot L. Carter, Trial 31 Attorney, Office of Immigration 32 Litigation, United States

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1 Department of Justice, Washington, 2 DC. 3 4 5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Baltimore Barnett Dennis, a native and citizen 10 of Jamaica, seeks review of a September 8, 2015, decision of 11 the BIA, affirming a May 27, 2015, decision of an Immigration 12 Judge (“IJ”) denying Dennis’s application for withholding of 13 removal under the Immigration and Nationality Act (“INA”) and 14 the Convention Against Torture (“CAT”). In re Baltimore 15 Barnett Dennis, No. A040 087 088 (B.I.A. Sept. 8, 2015), aff’g 16 No. A040 087 088 (Immig. Ct. Hartford May 27, 2015). We 17 assume the parties’ familiarity with the underlying facts and 18 procedural history in this case. 19 Under the circumstances of this case, we have reviewed 20 both the IJ’s and the BIA’s decisions “for the sake of 21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 22 F.3d 524, 528 (2d Cir. 2006). Dennis’s underlying 23 controlled substance offense conviction limits our

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1 jurisdiction to constitutional claims and questions of law. 2 See 8 U.S.C. §§ 1252(a)(2)(C), (D), 1227(a)(2)(B)(i). 3 Whether an alien has been convicted of a particularly 4 serious crime is a question of law over which we have 5 jurisdiction. See Nethagani v. Mukasey, 532 F.3d 150, 154- 6 55 (2d Cir. 2008). 7 An alien is barred from withholding of removal (under 8 both the INA and the CAT) if he has been convicted of a 9 particularly serious crime. 8 U.S.C. § 1231(b)(3) (INA); 8 10 C.F.R. § 1208.16(d)(2) (CAT). If, as here, the crime is 11 not per se particularly serious, the agency “examine[s] the 12 nature of the conviction, the type of sentence imposed, and 13 the circumstances and underlying facts of the conviction.” 14 Matter of N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007); 15 see also Nethagani, 532 F.3d at 154 n.1, 155. 16 The IJ stated that Dennis’s “conviction in 2012 [for] 17 possession with intent to sell narcotics” “is clearly a 18 particularly serious crime” “based on the length of the 19 sentence and the seriousness of the offense,” Certified 20 Administrative Record (“CAR”) at 43. Dennis has two 21 convictions for possession with intent to sell/dispense

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1 (marijuana) on the same day in 2012, which resulted from 2 different arrests nearly two months apart, and was sentenced 3 to six years in prison. 4 Dennis argues chiefly: that the bar applies only if the 5 crime was particularly serious and if the alien is a danger 6 to the community; that the marijuana convictions for 7 possession with intent are not all that serious because (as 8 he contends) the drug was for personal use to self-medicate 9 his stutter with a tea infusion; and that he is not a danger 10 to the community. The argument that the marijuana was for 11 personal use is incompatible with conviction for possession 12 with intent to distribute. Moreover, the IJ concluded that 13 possession with intent is a particularly serious offense and 14 that the seriousness is in part reflected by the length of 15 the sentence. While the length of sentence is not alone 16 enough, Matter of N-A--, 24 I. & N. Dec. at 324, and the IJ 17 should not consider that they were two convictions, the length 18 of sentence is a fact properly considered and there is no 19 sign that the IJ excessively relied upon the sentence or 20 relied at all on the fact that there were two convictions. 21 As to Dennis’s argument that the agency was required to

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1 engage in a separate analysis of whether he is a danger to 2 the community, his argument is explicitly foreclosed by 3 Flores v. Holder, 779 F.3d 159, 167 (2d Cir. 2015) (“We have 4 accorded Chevron deference . . . to the BIA’s interpretation 5 that no separate danger to the community analysis is required 6 when determining whether a crime is particularly serious.”). 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, any stay of removal 9 that the Court previously granted in this petition is VACATED, 10 and any pending motion for a stay of removal in this petition 11 is DISMISSED as moot. Any pending request for oral argument 12 in this petition is DENIED in accordance with Federal Rule of 13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 14 34.1(b).

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk