Anderson v. Holder , 382 F. App'x 16 ( 2010 )

09-1550-ag
Anderson v. Holder
BIA
Sagerman, IJ
A 042 467 617
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22 nd day of June, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 FLOYD MCAURTHER ANDERSON,
14 Petitioner,
15
16 v. 09-1550-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Jennifer Oltarsh, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Linda S. Wernery, Assistant
28 Director; James E. Grimes, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, Washington
31 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Floyd McAurther Anderson, a native and
6 citizen of Jamaica, seeks review of the March 17, 2009,
7 order of the BIA affirming the November 5, 2008, decision of
8 Immigration Judge (“IJ”) Roger Sagerman denying his
9 application for withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Floyd McAurther
11 Anderson, No. A 042 467 617 (B.I.A. Mar. 17, 2009), aff’g
12 No. A 042 467 617 (Immig. Ct. N.Y. City Nov. 5, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA. See Yan Chen v.
17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Under
18 8 U.S.C. § 1252(a)(2)(C), “no court shall have jurisdiction
19 to review any final order of removal against an alien who is
20 removable by reason of having committed a criminal offense
21 covered” by INA § 237(a)(2)(A)(iii) or (B). The agency
22 found Anderson removable under INA § 237(a)(2)(A)(iii) and
2
1 (a)(2)(B)(i) based on his convictions for the attempted sale
2 and possession of cocaine. Therefore, we are without
3 jurisdiction to review the agency’s final order of removal,
4 except to the extent that Anderson’s petition raises
5 “constitutional claims or questions of law.” See 8 U.S.C.
6 § 1252(a)(2)(D).
7 Anderson argues that the BIA committed legal error by
8 failing to consider his eligibility for equitable relief.
9 This is a question of law sufficient to invoke our
10 jurisdiction under 8 U.S.C. § 1252(a)(2)(D). See Ilyas Khan
11 v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007). Nevertheless,
12 his claim is without merit. Anderson did not derive U.S.
13 citizenship through his mother’s naturalization because he
14 was not “under the age of eighteen years” at the time she
15 was naturalized. See 8 U.S.C. § 1432(a) (repealed 2000). 1
16 Furthermore, contrary to Anderson’s argument, the BIA did
17 not err in declining to grant him nunc pro tunc relief due
18 to the government’s delay in processing his mother’s
19 naturalization application. Anderson presented no evidence
20 that the delay was untoward or that his mother took any
1
The law that applies to Anderson is the law in
effect at the time he turned eighteen on June 17, 1999.
See Langhorne v. Ashcroft, 377 F.3d 175, 178-79 (2d Cir.
2004).
3
1 action to expedite the application in light of his age at
2 the time. See Drozd v. INS, 155 F.3d 81, 90 (2d Cir. 1998)
3 (holding that the doctrine of equitable estoppel is not
4 available against the government “except in the most serious
5 of circumstances”); Rojas-Reyes v. INS, 235 F.3d 115, 126
6 (2d Cir. 2000) (holding that “estoppel will only be applied
7 upon a showing of ‘affirmative misconduct’ by the
8 government”); INS v. Miranda, 459 U.S. 14, 19 (1982)
9 (holding that delays by the government in processing an
10 immigration application did not qualify as affirmative
11 misconduct). 2
12 With respect to Anderson’s challenge to the agency’s
13 denial of CAT relief, he essentially disputes the
14 correctness of the IJ’s fact-finding by asserting that the
15 IJ incorrectly concluded that he would not be subjected to
16 torture as retaliation for his uncle’s political activities.
17 We are without jurisdiction to consider this factual
18 challenge.
19 8 U.S.C. § 1252(a)(2)(C). Even if we had jurisdiction to
2
To the extent Anderson relies on Poole v. Mukasey,
522 F.3d 259, 266 (2d Cir. 2007), we recently upheld the
BIA’s denial of nunc pro tunc relief in that case, which
presented a similar factual background. See Poole v.
Holder, 2010 WL 323575 at *1 (2d Cir. January 29, 2010)
(unpublished order).
4
1 reach his arguments, Anderson does not dispute the IJ’s
2 findings that: (1) he could safely relocate within Jamaica;
3 and (2) the background evidence, including the 2007 State
4 Department Report on Jamaica, indicated that members of the
5 People’s National Party are not systematically targeted for
6 torture. See 8 C.F.R. § 1208.16(c)(3)(ii) (discussing
7 internal relocation); see also Tu Lin v. Gonzales, 446 F.3d
8 395, 400 (2d Cir. 2006) (holding that State Department
9 reports are “probative” and reliable evidence of background
10 conditions).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
5