Doe v. Lynch

630 F. App'x 116
Court of Appeals for the Second Circuit·Decided December 10, 2015·No. No. 12-711-ag·Published

Opinion

SUMMARY ORDER

John Doe,1 a native and citizen of the Dominican Republic, seeks review of a February 8, 2012 order of the BIA affirming the December 2, 2009, decision of an Immigration Judge (“U”), which denied his motion to reopen. In re John Doe, No. A078 391 324 (B.I.A. Feb. 8, 2012), aff'g No. A078 391 324 (Immig. Ct. Hartford Dec. 2, 2009). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review the BIA’s denial of a motion to reopen for abuse of discretion, including its finding that a movant failed to establish prima fade eligibility for the underlying relief sought. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or eonclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur, 413 F.3d at 233-34 (quoting Zhao v. DOJ, 265 F.3d 83, 93 (2d Cir.2001)). We find no abuse of discretion in this case.

Initially, because Doe is removable based on a conviction for an aggravated felony and controlled substance offense, our jurisdiction to review the BIA’s denial of his motion to reopen is limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D); Durant v. INS, 393 F.3d 113, 115 (2d Cir.2005); see also Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir.2015). Accordingly, we may review Doe’s arguments that he established, or will establish in reopened proceedings, his statutory eligibility for withholding of removal and relief under the Convention Against Torture (“CAT”). See [118] 8 U.S.C. § 1252(a)(2)(D); Richmond v. Holder, 714 F.3d 725, 728 (2d Cir.2013) (“We have jurisdiction to examine, as a question of law, a petitioner’s statutory-eligibility for relief from removal.”).

On appeal, Doe argues that the agency erred by (1) failing to consider his cooperation with prosecutors as a circumstance mitigating the presumption that his drug trafficking conviction was a particularly serious crime, (2) applying a heightened legal standard as opposed to a prima facie eligibility standard to his motion to reopen and misstating the willful blindness standard, and (3) failing to explain how its CAT jurisprudence is consistent with its obligations under the United Nations Convention Against Transnational Organized Crime (“CATOC”) and a “state-created danger” theory. We address each argument in turn.

A. Particularly Serious Crime Determination

As the agency found, Doe failed to establish his prima facie eligibility for withholding of removal because he was convicted of trafficking large quantities of controlled substances. Matter of Y-L-, A-G-, & R-S-R-, 23 I. & N. Dec. 270 (A.G.2002) (hereinafter “Matter of Y-L-”), overruled on other grounds by Khouzam v. Ashcroft, 361 F.3d 161, 170-71 (2d Cir.2004). Doe does not contend that the agency misapplied the standard set forth in Matter of Y-L-, but asserts that the standard is not entitled to deference because the Attorney General unreasonably declined to consider cooperation with prosecutors as a circumstance mitigating the strong presumption that drug trafficking aggravated felonies are particularly serious crimes. When reviewing the Attorney General’s interpretation of the Immigration and Nationality Act, we defer to the agency’s interpretation so long as it is reasonable in light of the two-step analysis set forth in Chevron, U.SA., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Here, the withholding of removal statute does not define “particularly serious crime,” and the phrase’s meaning is ambiguous. See, e.g., Mei Fun Wong v. Holder, 633 F.3d 64, 74 (2d Cir.2011). The Attorney General’s creation of strong presumptions involving drug trafficking convictions was a reasonable interpretation of the statute because the text itself provides the Attorney General with discretion to make the determination. See 8 U.S.C. § 1231(b)(3)(B)(ii) (“Subparagraph (A) does not apply ... if the Attorney General decides that ... the alien, having been convicted of ... a particularly serious crime is a danger to the community of the United States” and “[the per se category of particularly serious crimes] shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.” (emphases added)); Miguel-Miguel v. Gonzales, 500 F.3d 941, 948 (9th Cir.2007).

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Doe v. Lynch, 630 F. App'x 116 (2d Cir. 2015).

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