Nethagani v. Mukasey

• Court: Court of Appeals for the Second Circuit
• Decided: July 9, 2008
• Docket: 05-3249-ag
• Status: Published

Opinion

05-3249-ag Nethagani v. Mukasey

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2007 6 7 8 (Argued: June 16, 2008 Decided: July 9, 2008) 9 10 Docket No. 05-3249-ag 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 KHALID NETHAGANI, 15 16 Petitioner, 17 18 - v.- 19 20 MICHAEL B. MUKASEY, ATTORNEY GENERAL OF 21 THE UNITED STATES OF AMERICA,* WILLIAM 22 CLEARY, FIELD DIRECTOR, BUFFALO 23 DETENTION AND REMOVAL OFFICE, 24 DEPARTMENT OF HOMELAND SECURITY, 25 26 Respondents. 27 28 - - - - - - - - - - - - - - - - - - - -x 29

30 Before: JACOBS, Chief Judge, Straub, Circuit 31 Judge, and Jones, District Judge.** 32

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General John Ashcroft as respondent in this case. ** The Honorable Barbara S. Jones, of the United States District Court for the Southern District of New York, sitting by designation. 1 Petition for review from a final order of the Board of

2 Immigration Appeals denying petitioner asylum and

3 withholding of removal based on its determination that the

4 petitioner’s non-aggravated felony conviction constituted a

5 conviction of a “particularly serious crime.” The petition

6 is denied.

8 GERALD P. SEIPP, Clearwater, FL 9 for Petitioner. 10 11 ZOE J. HELLER, Trial Attorney, 12 Office of Immigration Litigation 13 (Gail Y. Mitchell, Assistant 14 United States Attorney, for 15 Terrance P. Flynn, United States 16 Attorney, Western District of 17 New York, Buffalo, NY, on the 18 brief) for Respondents. 19 20 DENNIS JACOBS, Chief Judge:

21 The Immigration and Nationality Act bars the grant of

22 asylum or withholding of removal to an alien whom the

23 Attorney General “determines” or “decides” has “been

24 convicted by a final judgment of a particularly serious

25 crime.” 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum);

26 1231(b)(3)(B)(ii) (withholding). Petitioner argues that

27 only aggravated felonies qualify as “particularly serious

28 crime[s]” within the meaning of those subsections. A

2 1 preliminary question is whether we retain appellate

2 jurisdiction to decide that question.

4 BACKGROUND

5 In 1993, Khalid Nethagani, a native and citizen of

6 India, was convicted in New York State Court of reckless

7 endangerment in the first degree, having shot into the air a

8 gun that he possessed illegally. He was placed in removal

9 proceedings (on unrelated grounds) in 1994. Nearly a decade

10 later, on May 30, 2003, the Board of Immigration Appeals

11 (“BIA”) dismissed Nethagani’s final appeal from an order of

12 removal entered by Immigration Judge Phillip J. Montante,

13 Jr. (Nethagani had appealed to the BIA on two previous

14 occasions, and had won remand to an Immigration Judge both

15 times.) In disposing of the appeal, the BIA determined that

16 Nethagani was ineligible for asylum, see 8 U.S.C. § 1158,

17 and for withholding of removal, see 8 U.S.C. § 1231(b)(3),

18 because he had been convicted of a “particularly serious

19 crime,” see 8 U.S.C. §§ 1158(b)(2)(A)(ii);

20 1231(b)(3)(B)(ii). In re Nethagani, No. A28 999 892 (B.I.A.

21 May 30, 2003), aff’g No. A 28 999 892 (Immig. Ct. Buffalo

22 Mar. 29, 2001) .

3 1 In April 2004, Nethagani sought a writ of habeas corpus

2 in the Western District of New York. Pursuant to section

3 106(c) of the REAL ID Act of 2005, Pub. L. No. 109-13, 119

4 Stat. 231, 310-11, which took effect on May 11, 2005, the

5 petition was transferred to this Court, where it was

6 docketed as a petition for review.

8 DISCUSSION

9 Nethagani argues that the BIA failed to consider the

10 proper factors in determining whether he had been convicted

11 of a particularly serious crime, and that only an aggravated

12 felony may constitute a particularly serious crime for

13 purposes of either 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum) or

14 1231(b)(3)(B)(ii) (withholding).

15 We first decide whether we have subject-matter

16 jurisdiction.

18 I

19 Because this case was initiated before April 1, 1997,

20 and because the BIA decision was issued after October 30,

21 1996, the Illegal Immigration Reform and Immigrant

22 Responsibility Act of 1996 (“IIRIRA”) transitional

4 1 jurisdictional rules apply. See IIRIRA § 309(c)(4), Pub. L.

2 No. 104-208, 110 Stat. 3009-546, 3009-626 to 627

3 (transitional jurisdictional rules); id. § 309(a) and (c)(1)

4 (transitional jurisdictional rules apply to deportation

5 proceedings pending on April 1, 1997); id. § 309(c)(4)

6 (transitional rules apply to cases in which final order of

7 deportation is entered after October 30, 1996). Those

8 “transitional” jurisdictional rules were modified by the

9 REAL ID Act:

10 A petition for review filed under former 11 section 106(a) of the Immigration and 12 Nationality Act (as in effect before its 13 repeal by section 306(b) of the Illegal 14 Immigration Reform and Immigrant 15 Responsibility Act of 1996 . . .) shall 16 be treated as if it had been filed as a 17 petition for review under section 242 of 18 the Immigration and Nationality Act (8 19 U.S.C. § 1252), as amended by this 20 section. 21

22 REAL ID Act § 106(d), 119 Stat. 311. Since IIRIRA

23 instructed that petitions for review in “transitional rules”

24 cases be filed under § 106 of the pre-IIRIRA version of the

25 Immigration and Nationality Act, 8 U.S.C. § 1105a (1994),

26 see IIRIRA § 309(c)(1), the REAL ID Act applies our current

27 (i.e., REAL ID-era) jurisdictional rules to “transitional

28 rules” cases. See Iouri v. Ashcroft, 487 F.3d 76, 83-84 (2d

5 1 Cir. 2007) (applying the REAL ID Act’s jurisdictional rules

2 to a “transitional rules” IIRIRA case when the REAL ID Act

3 was enacted during the pendency of appeal). Our

4 jurisdiction to decide this petition for review is therefore

5 governed by 8 U.S.C. § 1252, which contains jurisdiction

6 stripping provisions.

7 Does § 1252 relieve us of jurisdiction to review the

8 agency’s determination that Nethagani committed a

9 “particularly serious crime” for purposes of 8 U.S.C. §§

10 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii)?

11 The government reminds us that we lack jurisdiction to

12 review any “decision or action of the Attorney General or

13 the Secretary of Homeland Security the authority for which

14 is specified under this subchapter to be in the discretion

15 of the Attorney General or the Secretary of Homeland

16 Security, other than the granting of relief under section

17 1158(a) of this title [authority to apply for asylum].” 8

18 U.S.C. § 1252(a)(2)(B)(ii) (emphases added). Both statutory

19 provisions at issue here fall within “this subchapter” for

20 purposes of § 1252. See Guyadin v. Gonzales, 449 F.3d 465,

21 468 (2d Cir. 2006) (explaining that the subchapter referred

22 to in § 1252 encompasses 8 U.S.C. §§ 1151-1381).

6 1 As to asylum, the provision limiting an alien’s

2 eligibility reads, in relevant part:

3 Paragraph (1) [which establishes 4 eligibility for asylum] shall not apply 5 to an alien if the Attorney General 6 determines that-- 7 . . . 8 (ii) the alien, having been 9 convicted by a final judgment of a 10 particularly serious crime, constitutes a 11 danger to the community of the United 12 States[.] 13 14 8 U.S.C. § 1158(b)(2)(A) (emphasis added). And the

15 provision limiting the grant of withholding reads, in

16 relevant part:

17 Subparagraph (A) [which establishes an 18 alien’s entitlement to withholding of 19 removal] does not apply to an alien . . . 20 if the Attorney General decides that-- 21 . . . 22 (ii) the alien, having been 23 convicted by a final judgment of a 24 particularly serious crime is a danger to 25 the community of the United States[.] 26 27 8 U.S.C. § 1231(b)(3)(B) (emphasis added). 28 29 Thus the two provisions authorize the Attorney General

30 (respectively) to “determine[]” or “decide[]” that the alien

31 was convicted of a particularly serious crime.1 The

1 If so, the BIA has held that the alien necessarily constitutes “a danger to the community of the United States.” We have accepted the BIA’s interpretation of the statute. See Ahmetovic v. INS, 62 F.3d 48, 52-53 (2d Cir. 7 1 question is not whether these inquiries require an exercise

2 of discretion. They probably do. We must also determine

3 whether the text of the subchapter in which they appear

4 “specifie[s]” that the “decision” is “in the discretion of

5 the Attorney General.” See 8 U.S.C. § 1252(a)(2)(B)(ii).

6 We hold that it does not.

7 This Court has concluded that § 1252(a)(2)(B)(ii)

8 strips us of jurisdiction to review certain discretionary

9 decisions.2 In each such instance, the relevant provision

1995). 2 We have concluded that § 1252(a)(2)(B)(ii) strips our jurisdiction to review grants or denials of the following:

• Relief under former section 212(c) of the Immigration and Nationality Act, see 8 U.S.C. § 1182(c) (repealed 1996) (“. . . may be admitted in the discretion of the Attorney General”). See Blake v. Carbone, 489 F.3d 88, 98 n.7 (2d Cir. 2007); Avendano-Espejo v. DHS, 448 F.3d 503 (2d Cir. 2006);

• Hardship waivers under 8 U.S.C. § 1186a(c)(4) (“The Attorney General, in the Attorney General’s discretion, may . . . .”). See Atsilov v. Gonzales, 468 F.3d 112, 116-17 (2d Cir. 2006);

• Hardship waivers under 8 U.S.C. § 1182(i) (“The Attorney General may, in the discretion of the Attorney General . . . .”). See Jun Min Zhang v. Gonzales, 457 F.3d 172, 175-76 (2d Cir. 2006);

• Waivers of inadmissibility under 8 U.S.C. § 1182(d)(11) (“The Attorney General may, in his discretion . . . .”). See Saloum v. U.S. Citizenship & Immig. Servs., 8 1 authorizing the Attorney General to act explicitly

2 characterized the act as discretionary. Cf. Sanusi v.

3 Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (per curiam)

4 (holding that § 1252(a)(2)(B)(ii) does not strip our

5 jurisdiction to review decisions to grant or deny

6 continuance motions because “continuances are not even

7 mentioned in the subchapter”). So the government is now

8 asking us to do something we have not done before.

9 Given the “strong presumption in favor of judicial

10 review of administrative action,” see INS v. St. Cyr, 533

11 U.S. 289, 298 (2001), we hold that, when a statute

12 authorizes the Attorney General to make a determination, but

13 lacks additional language specificly rendering that

14 determination to be within his discretion (e.g., “in the

15 discretion of the Attorney General,” “to the satisfaction of

16 the Attorney General,” etc.), the decision is not one that

17 is “specified . . . to be in the discretion of the Attorney

18 General” for purposes of § 1252(a)(2)(B)(ii).

19 Because neither § 1158(b)(2)(A) nor § 1231(b)(3)(B)

20 expressly places the determination within the discretion of

21 the Attorney General, we conclude that neither provision

437 F.3d 238, 242-44 (2d Cir. 2006). 9 1 “specifie[s]” that the decision is within his “discretion.”

2 We therefore determine that § 1252(a)(2)(B)(ii) does not

3 abate our power to review the decision that Nethagani was

4 convicted of a particularly serious crime. Accord Alaka v.

5 Att’y Gen., 456 F.3d 88, 98, 101-02 (3d Cir. 2006).

7 II

8 Nethagani argues that the BIA failed to follow its own

9 precedents in determining that his first degree reckless

10 endangerment conviction was a particularly serious crime.

11 We disagree.

12 The Immigration and Nationality Act does not define a

13 “particularly serious crime,” though it does state

14 parameters, set out in the margin,3 for crimes that are

15 particularly serious per se. Nethagani’s offense--first

16 degree reckless endangerment--is not per se particularly

3 For purposes of the withholding of removal provision: if an alien has been convicted of one or more aggravated felonies that results in an aggregate prison sentence of at least five years, then he has per se been convicted of a particularly serious crime. See 8 U.S.C. § 1231(b)(3)(B). For purposes of the asylum provision: all aggravated felonies are per se particularly serious crimes, see 8 U.S.C. § 1158(b)(2)(B)(i), as are all crimes the Attorney General so designates by regulation, see id. § 1158(b)(2)(B)(ii). 10 1 serious. In such a case as this, the BIA exercises the

2 Attorney General’s discretion to determine whether the crime

3 was particularly serious using the guideposts set out in In

4 re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982),

5 modified, In re C-, 20 I. & N. Dec. 529 (B.I.A. 1992): (1)

6 “the nature of the conviction,” (2) “the circumstances and

7 underlying facts of the conviction,” (3) “the type of

8 sentence imposed” and (4) “whether the type and

9 circumstances of the crime indicate that the alien will be a

10 danger to the community[,]” id. at 247. And crimes against

11 persons are more likely to be particularly serious than are

12 crimes against property. Id.

13 Here, the BIA addressed each Frentescu factor. The

14 Board properly took into consideration: (1) that reckless

15 endangerment “involves behavior which could end a human

16 life”; (2) Nethagani’s version of the events underlying his

17 reckless endangerment conviction; (3) the sentence

18 (“[A]lthough the respondent could have received a much

19 longer sentence, he was sentenced to several months of

20 incarceration, which was followed by 5 years of probation.

21 This is not insignificant.”); and (4) that firing a pistol

22 into the air presents “a high potential for serious or fatal

11 1 harm to the victim or an innocent bystander.” The BIA

2 properly applied its own precedent in determining that

3 Nethagani had been convicted of a particularly serious crime

4 for purposes of 8 U.S.C. §§ 1158(b)(2)(A)(ii) and

5 1231(b)(3)(B)(ii).

7 III

8 Nethagani next contends that particularly serious

9 crimes constitute a subset of aggravated felonies, i.e.,

10 that only aggravated felonies may qualify as particularly

11 serious crimes. Nethagani relies on two statutory

12 provisions that respectively create per se categories for

13 purposes of the asylum provision and for purposes of the

14 withholding provision.

16 Asylum. The asylum provision states that “an alien who

17 has been convicted of an aggravated felony shall be

18 considered to have been convicted of a particularly serious

19 crime.” 8 U.S.C. § 1158(b)(2)(B)(i). Every aggravated

20 felony is therefore a per se particularly serious crime for

21 purposes of asylum. Nethagani asks us to infer that every

22 particularly serious crime must be an aggravated felony for

12 1 purposes of asylum.

2 The wording of § 1158(b)(2)(B)(i),4 which is in issue

3 here, is nearly identical to the wording of the former

4 withholding statute, 8 U.S.C. § 1253(h)(2) (1995),5 which we

5 construed to permit the Attorney General (or immigration

6 officials exercising their delegated authority on the

7 Attorney General’s behalf) to determine that a non-

8 aggravated felony crime is a particularly serious crime.

9 See Ahmetovic v. INS, 62 F.3d 48, 52 (2d Cir. 1995). Our

10 reasoning in Ahmetovic with respect to the old version of

11 the withholding statute remains persuasive for the purpose

12 of interpreting the current version of the asylum statute.

13 We therefore reject Nethagani’s proposed statutory

14 construction. See also Ali v. Achim, 468 F.3d 462, 468-69

15 (7th Cir. 2006). The Attorney General (or his agents) may

16 determine that a crime is particularly serious for purposes

17 of the asylum statute, 8 U.S.C. § 1158(b)(2)(B)(i), even

18 though it is not an aggravated felony.

4 “[A]n alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” 8 U.S.C. § 1158(b)(2)(B)(i). 5 “[A]n alien who has been convicted of an aggravated felony shall be considered to have committed a particularly serious crime.” 8 U.S.C. § 1253(h)(2) (1995). 13 1 Withholding of Removal. Under the provisions governing

2 withholding of removal,

3 an alien who has been convicted of an 4 aggravated felony (or felonies) for which 5 the alien has been sentenced to an 6 aggregate term of imprisonment of at 7 least 5 years shall be considered to have 8 committed a particularly serious crime. 9 The previous sentence shall not preclude 10 the Attorney General from determining 11 that, notwithstanding the length of 12 sentence imposed, an alien has been 13 convicted of a particularly serious 14 crime. 15 16 8 U.S.C. § 1231(b)(3)(B). Nethagani urges us to read this

17 provision to mean that only aggravated felonies can qualify

18 as particularly serious crimes, as the Third Circuit has

19 done. See Alaka v. Att’y Gen., 456 F.3d 88, 105 (3d Cir.

20 2006).

21 However, the BIA has recently rejected Nethagani’s--and

22 the Third Circuit’s--interpretation in a precedential

23 opinion. See In re N-A-M-, 24 I. & N. Dec. 336, 337-41

24 (B.I.A. 2007) appeal docketed. Nos. 08-9527, 07-9580 (10th

25 Cir. Nov. 11, 2007). Relying on the text, history, and

26 background of § 1231(b)(3)(B), the BIA concluded that the

27 second sentence of § 1231(b)(3)(B) “means only that

28 aggravated felonies for which sentences of less than 5

29 years’ imprisonment were imposed may be found to be

14 1 ‘particularly serious crimes,’ not that only aggravated

2 felonies may be found to be such crimes.” Id. at 341.

3 We will defer to the BIA’s construction of ambiguous

4 statutory language so long as its interpretation is

5 reasonable. See Chevron U.S.A. Inc. v. Natural Res. Def.

6 Council, Inc., 467 U.S. 837, 842-44 (1984); Khouzam v.

7 Ashcroft, 361 F.3d 161, 164 (2d Cir. 2004). (The Third

8 Circuit, in deciding Alaka, had no occasion to consider

9 whether the statute was ambiguous because there was not yet

10 a BIA opinion on point.) We cannot find that the portion of

11 § 1231(b)(3)(B) laid out in the block quotation, supra,

12 speaks clearly to the question raised in this petition

13 because its second sentence admits of at least two readings:

14 either (1) it contributes to the first sentence’s definition

15 of “particularly serious crime,” see Alaka, 456 F.3d at 104-

16 05, or (2) it clarifies that an aggravated felony may be a

17 particularly serious crime regardless of sentence length,

18 see N-A-M-, 24 I. & N. Dec. 336. We accept the BIA’s

19 interpretation as permissible because it naturally and

20 reasonably reads the second sentence of § 1231(b)(3)(B) as a

21 caution against drawing an available inference from the

22 prior sentence.

15 1 CONCLUSION

2 We have considered Nethagani’s remaining arguments and

3 find them meritless. For the foregoing reasons, we deny the

4 petition for review.