Savchuk v. Mukasey

Opinion

06-3383-ag Savchuk v. Mukasey

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2007 5 6 (Argued: November 26, 2007 Decided: March 4, 2008) 7 8 Docket No. 06-3383-ag 9 10 ____________________ 11 12 VASILY SAVCHUCK, 13 14 Petitioner, 15 16 v. 17 18 MICHAEL B. MUKASEY, ATTORNEY GENERAL 19 OF THE UNITED STATES OF AMERICA,1 20 21 Respondent 22 23 _________________________ 24 25 Before: MCLAUGHLIN, B.D. PARKER, WESLEY, Circuit Judges 26 27 For Petitioner: Kai W. De Graaf, New York, NY. 28 29 For Respondent: Emily Howard, Assistant United States Attorney for Reginald I. Lloyd, 30 United States Attorney for the District of South Carolina 31 32 33 34 35 36

1

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.

1 PER CURIAM: 2 3 Vasily Savchuck petitions for review of a July 14, 2006 decision of the Board of 4 Immigration Appeals (“BIA”) affirming the March 10, 2000 decision of Immigration Judge Alan 5 Vomacka (“IJ”) upholding Savchuck’s removability under 8 U.S.C. § 1227(a)(2)(A)(ii) and 6 denying his application for asylum, withholding of removal, and relief under the Convention 7 Against Torture (“CAT”). In re Vasily Savchuck, No. A47 610 514 (B.I.A. July 14, 2006). 8 9 BACKGROUND 10 11 Savchuck, born in Ukraine on February 11, 1987, gained admission to the United States 12 in July 2000 as a Lawful Permanent Resident. In March 2005, Savchuck pled guilty to grand 13 larceny in the Fourth Degree in violation of Section 155.30 of the New York Penal Law, a Class 14 E felony arising as a consequence of a car theft. Two months later, Savchuck pled guilty to petit 15 larceny under Section 155.25, a Class B misdemeanor arising from the theft of a video game 16 from a store. Savchuck committed the grand larceny offense before his eighteenth birthday, but 17 pled guilty to both offenses after he turned eighteen. New York treated him as an adult offender. 18 Based on these convictions, the Immigration and Naturalization Service (“INS”) charged 19 Savchuck under 8 U.S.C. § 1227(a)(2)(A)(ii), which provides for the removability of an alien 20 convicted of two crimes of moral turpitude not arising out of a single scheme of criminal 21 misconduct. Savchuck moved to terminate the proceedings on the ground that his grand larceny 22 conviction did not constitute a “conviction” for immigration purposes because he committed the 23 crime before he turned eighteen. He also filed an application for asylum, withholding of removal 24 and relief under CAT as a member of a particular social group, based on his assertion that his 25 “Ukrainian nationality will not be recognized . . . . [and] the Ukrainian government will attempt 26 to ostracize me.” 27 The IJ found Savchuck subject to removal and denied him relief. (JA 75) The IJ 28 concluded that Savchuck had two convictions for crimes of moral turpitude, which supplied the 29 grounds for removal, and that Savchuck did not qualify for asylum or withholding of removal 30 because he did not, simply by virtue of having been absent from his native Ukraine for many 31 years, belong to a particular, identifiable, social group. He also found that Savchuck did not have 32 a well-founded fear of persecution in Ukraine or a probability of persecution or torture that 33 would qualify for relief under CAT. 34 Savchuck appealed to the BIA. The BIA affirmed the IJ’s conclusion that Savchuck’s 35 conviction for grand larceny constituted a “conviction” for immigration purposes and that this 36 conviction, coupled with the second, rendered him removable under 8 U.S.C. § 1227(a)(2)(A)(ii). 37 The BIA also found that the documents proffered to support the convictions — namely a copy of 38 the record of conviction and a Certification of Records stating that it was a “true and accurate 39 copy of the Sentence and Commitment court order on file in the . . . New York City Department 40 of Corrections” — were sufficient. The BIA further concluded that the category of “young, 41 certain to be homeless, deportees subject to arrest and prolonged detention” did not constitute a 42 particular social group and that Savchuck did not qualify for asylum, withholding, or protection

3

1 under CAT because his assertions of possible harm if required to return to the Ukraine were too 2 speculative. 3 4 DISCUSSION 5 6 8 U.S.C. § 1101(a)(48)(A) defines “conviction” as “a formal judgment of guilt of the 7 alien entered by a court . . . where — (i) a judge or jury has found the alien guilty or the alien has 8 entered a plea of guilty.” The BIA and the IJ both concluded that Savchuck’s adjudications 9 satisfied this criteria and rejected his argument that his grand larceny conviction should be 10 disregarded because he committed the offense before he turned eighteen. Savchuk appeals and 11 we review this question of law de novo. See Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 12 111 (2d Cir. 2007). 13 Savchuk raises several contentions. He correctly notes that the BIA has held that findings 14 of juvenile delinquency are not convictions for immigration purposes. See In re Devison- 15 Charles, 22 I. & N. Dec. 1362 (B.I.A. 2000). Next, Savchuck contends that, had the grand 16 larceny charge been adjudicated under federal law, because of his age, he would have been 17 charged under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq. (“FJDA”) because 18 the FJDA only permits the adult prosecution of a juvenile when the offense charged is a crime of 19 violence or a drug crime and there is a substantial federal interest in the case. Savchuck asserts 20 that, had he been prosecuted by federal authorities, the resulting finding of delinquency would 21 not have counted for immigration purposes. This possibility, he contends, means that in this 22 federal proceeding we should look to the FJDA, and not state law, when deciding whether the 23 larceny conviction counts for immigration purposes. 24 While Savchuck’s approach is inventive, it finds no support in the text of 8 U.S.C. § 25 1101(a)(48)(A) which defines “conviction” as: 26 27 a formal judgment of guilt of the alien entered by a court or, if adjudication 28 of guilt has been withheld, where — 29 (i) a judge or jury has found the alien guilty or the alien has entered a 30 plea of guilty or nolo contendere or has admitted sufficient facts to warrant a 31 finding of guilt, and 32 (ii) the judge has ordered some form of punishment, penalty, or 33 restraint on the alien’s liberty to be imposed. 34 35 The statute encompasses state court adjudications and does not sanction disregarding 36 them because of the theoretical possibility that criminal conduct might be treated differently by 37 federal authorities. Savchuck’s position has been rejected by the First and Ninth Circuits. See 38 Viera Garcia v. INS, 239 F.3d 409, 413 (1st Cir. 2001) (“Once adjudicated by the state court, as 39 either a juvenile or an adult, we are bound by that determination.”); Vargas-Hernandez v. 40 Gonzales, 497 F.3d 919, 923 (9th Cir. 2007) (finding state treatment of petitioner as adult 41 determinative). We join these Circuits and hold that, because Savchuk’s grand larceny

4

1 conviction qualifies as a conviction under 8 U.S.C. § 1101(a)(48)(A), the BIA correctly found 2 him removable. 3 Savchuck also claims that the evidence submitted by the government to prove his 4 conviction was inadequate. As proof, the government submitted a computer print-out by the 5 New York State Division of Criminal Justice Services of Savchuck’s Criminal History (his “rap 6 sheet”), a copy of the Certificate of Disposition for his petit larceny conviction, and a copy of the 7 Sentence and Order of Commitment for his grand larceny conviction accompanied by a 8 “Certification of Records” by a Department of Homeland Security Officer. These documents, 9 coupled with the fact that Savchuck admitted to the convictions in his testimony, sufficed to 10 prove removability. 11 Because Savchuck is removable by reason of having committed two or more crimes 12 involving moral turpitude, we only have jurisdiction to review constitutional claims and 13 questions of law raised by Savchuck. See 8 U.S.C. § 1252(a)(2)(C) (“[N]o court shall have 14 jurisdiction to review any final order of removal against an alien who is removable by reason of 15 having committed a criminal offense.”); id. § 1252(a)(2)(D) (“Nothing in subparagraph (B) or 16 (C), or in any other provision of this Chapter . . . which limits or eliminates judicial review, shall 17 be construed as precluding review of constitutional claims or questions of law raised upon a 18 petition for review filed with an appropriate court of appeals. . . .”). 19 Savchuck raises no constitutional claims and we find no errors of law. In seeking asylum 20 and withholding of removal, Savchuck claimed membership in a “social group” said to be 21 composed of people in Ukraine who are “young, certain to be homeless, deportees subject to 22 arrest and prolonged detention.” Appellant’s Br. at 50. In In re Acosta, the BIA explained that a 23 particular social group is one unified by some characteristic that is either (1) “beyond the power 24 of an individual to change” or (2) “so fundamental to individual identity or conscience that it 25 ought not be required to be changed.” 19 I. & N. Dec. 211, 233 (B.I.A. 1985). The BIA 26 reaffirmed the Acosta test in 2006 and also held that “a group’s ‘visibility’ — meaning the extent 27 to which members of society perceive those with the relevant characteristic as members of a 28 social group — is a factor in determining whether it constitutes a particular social group.” 29 Koudriachova v. Gonzales, 490 F.3d 255, 261 (2d Cir. 2007); see also In re C-A-, 23 I. & N. 30 Dec. 951 (B.I.A. 2006). We have previously determined that the BIA’s interpretation of the 31 ambiguous phrase “particular social group” is reasonable. Koudriachova, 490 F.3d at 262. 32 Accordingly, we hold that the BIA correctly concluded that the putative group proposed by 33 Savchuck does not possess the characteristics required by Acosta. 34 An alien is entitled to protection under CAT when he or she is “more likely than not [to] 35 . . . be tortured . . . [in] the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). “The burden 36 of proof is on the applicant . . . to establish that it is more likely than not that he or she would be 37 tortured if removed to the proposed country of removal.” Id. In In re J-F-F-, the Attorney 38 General pointed out that logically 39 40 [a]n alien will never be able to show that he faces a more likely than not chance of torture 41 if one link in the chain cannot be shown to be more likely than not to occur. It is the

5

1 likelihood of all necessary events coming together that must more likely than not lead to 2 torture, and a chain of events cannot be more likely than its least likely link. 3 In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (AG 2006). 4 5 In his application for asylum and withholding of removal, Savchuck wrote in response to 6 the question “are you afraid of being subject to torture in your home country” that he feared that 7 he would “be subjected to severe economic hardship,” which would result in him “living on the 8 street,” “fall[ing] prey to the criminals and corrupt local government officials,” and make it 9 “impossible . . . to buy food or other basic life essentials,” thus resulting in his death at “a very 10 early age.” Relying on In re J-F-F-, the BIA determined that Savchuck’s “claim is too 11 speculative in that it involves a chain of assumptions regarding the respondent’s potential 12 economic situation in Ukraine.” This conclusion was correct. 13 14 CONCLUSION 15 16 For the foregoing reasons, the petition is DENIED. Having completed our review, any 17 stay of removal that the Court previously granted in this petition is VACATED, and any pending 18 motion for a stay of removal in this petition is DISMISSED as moot.