Nethagani v. Mukasey, No. 05-3249 (2d Cir. 2008)

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05-3249-ag Nethagani v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: June 16, 2008 Decided: July 9, 2008) Docket No. 05-3249-ag - - - - - - - - - - - - - - - - - - - -x KHALID NETHAGANI, Petitioner, - v.MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,* WILLIAM CLEARY, FIELD DIRECTOR, BUFFALO DETENTION AND REMOVAL OFFICE, DEPARTMENT OF HOMELAND SECURITY, Respondents. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, Straub, Circuit Judge, and Jones, District Judge.** * 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. 6 is denied. The petition 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 GERALD P. SEIPP, Clearwater, FL for Petitioner. ZOE J. HELLER, Trial Attorney, Office of Immigration Litigation (Gail Y. Mitchell, Assistant United States Attorney, for Terrance P. Flynn, United States Attorney, Western District of New York, Buffalo, NY, on the brief) for Respondents. DENNIS JACOBS, Chief Judge: 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. 26 1231(b)(3)(B)(ii) (withholding). 27 only aggravated felonies qualify as particularly serious 28 crime[s] within the meaning of those subsections. 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum); 2 Petitioner argues that A 1 preliminary question is whether we retain appellate 2 jurisdiction to decide that question. 3 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. 9 proceedings (on unrelated grounds) in 1994. He was placed in removal 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. 14 occasions, and had won remand to an Immigration Judge both 15 times.) 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). 21 May 30, 2003), aff g No. A 28 999 892 (Immig. Ct. Buffalo 22 Mar. 29, 2001) . (Nethagani had appealed to the BIA on two previous In disposing of the appeal, the BIA determined that In re Nethagani, No. A28 999 892 (B.I.A. 3 1 In April 2004, Nethagani sought a writ of habeas corpus 2 in the Western District of New York. 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. Pursuant to section 7 DISCUSSION 8 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 16 We first decide whether we have subject-matter jurisdiction. 17 18 19 I 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. 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). 8 transitional jurisdictional rules were modified by the 9 REAL ID Act: 10 11 12 13 14 15 16 17 18 19 20 21 See IIRIRA § 309(c)(4), Pub. L. Those A petition for review filed under former section 106(a) of the Immigration and Nationality Act (as in effect before its repeal by section 306(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 . . .) shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. § 1252), as amended by this section. 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). 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 Our 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 11 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii)? 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]. 18 U.S.C. § 1252(a)(2)(B)(ii) (emphases added). 19 provisions at issue here fall within this subchapter for 20 purposes of § 1252. 21 468 (2d Cir. 2006) (explaining that the subchapter referred 22 to in § 1252 encompasses 8 U.S.C. §§ 1151-1381). 8 Both statutory See Guyadin v. Gonzales, 449 F.3d 465, 6 1 2 As to asylum, the provision limiting an alien s eligibility reads, in relevant part: Paragraph (1) [which establishes eligibility for asylum] shall not apply to an alien if the Attorney General determines that-. . . (ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States[.] 3 4 5 6 7 8 9 10 11 12 13 14 8 U.S.C. § 1158(b)(2)(A) (emphasis added). 15 provision limiting the grant of withholding reads, in 16 relevant part: 17 18 19 20 21 22 23 24 25 26 27 28 29 And the Subparagraph (A) [which establishes an alien s entitlement to withholding of removal] does not apply to an alien . . . if the Attorney General decides that-. . . (ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States[.] 8 U.S.C. § 1231(b)(3)(B) (emphasis added). 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 1 The 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. 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. 6 We hold that it does not. They probably do. We must also determine See 8 U.S.C. § 1252(a)(2)(B)(ii). This Court has concluded that § 1252(a)(2)(B)(ii) 7 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. 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 ). 8 asking us to do something we have not done before. 9 Cf. Sanusi v. So the government is now 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. 5 Att y Gen., 456 F.3d 88, 98, 101-02 (3d Cir. 2006). Accord Alaka v. 6 II 7 Nethagani argues that the BIA failed to follow its own 8 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. 16 degree reckless endangerment--is not per se particularly Nethagani s offense--first 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. 11 persons are more likely to be particularly serious than are 12 crimes against property. 13 And crimes against Id. 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). 6 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. 12 provisions that respectively create per se categories for 13 purposes of the asylum provision and for purposes of the 14 withholding provision. Nethagani relies on two statutory 15 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. 20 felony is therefore a per se particularly serious crime for 21 purposes of asylum. 22 particularly serious crime must be an aggravated felony for 8 U.S.C. § 1158(b)(2)(B)(i). Every aggravated Nethagani asks us to infer that every 12 1 2 purposes of asylum. 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. 15 (7th Cir. 2006). 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. See also Ali v. Achim, 468 F.3d 462, 468-69 The Attorney General (or his agents) may 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 2 Withholding of Removal. Under the provisions governing withholding of removal, an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence 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. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 8 U.S.C. § 1231(b)(3)(B). 17 provision to mean that only aggravated felonies can qualify 18 as particularly serious crimes, as the Third Circuit has 19 done. 20 2006). 21 Nethagani urges us to read this See Alaka v. Att y Gen., 456 F.3d 88, 105 (3d Cir. However, the BIA has recently rejected Nethagani s--and 22 the Third Circuit s--interpretation in a precedential 23 opinion. 24 (B.I.A. 2007) appeal docketed. Nos. 08-9527, 07-9580 (10th 25 Cir. Nov. 11, 2007). 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 See In re N-A-M-, 24 I. & N. Dec. 336, 337-41 Relying on the text, history, and 14 1 particularly serious crimes, not that only aggravated 2 felonies may be found to be such crimes. 3 Id. at 341. We will defer to the BIA s construction of ambiguous 4 statutory language so long as its interpretation is 5 reasonable. 6 Council, Inc., 467 U.S. 837, 842-44 (1984); Khouzam v. 7 Ashcroft, 361 F.3d 161, 164 (2d Cir. 2004). 8 Circuit, in deciding Alaka, had no occasion to consider 9 whether the statute was ambiguous because there was not yet See Chevron U.S.A. Inc. v. Natural Res. Def. (The Third 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. 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 We accept the BIA s CONCLUSION 1 2 We have considered Nethagani s remaining arguments and 3 find them meritless. 4 For the foregoing reasons, we deny the petition for review. 16

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