Laing v. Sessions , 706 F. App'x 704 ( 2017 )

16-114
Laing v. Sessions
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.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
1st day of September, two thousand seventeen.
Present: ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
PAUL A. ENGELMAYER,1
District Judge.
_____________________________________________________
DARIEN LAING,
Petitioner,
v. 16-114
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________________________
Appearing for Petitioner: Michael J. Stachowski, Buffalo, NY.
Appearing for Respondent: Benjamin C. Mizer, Principal Deputy Assistant Attorney General;
Paul Fiorino, Senior Litigation Counsel; Andrew B. Insenga, Trial
1
Judge Paul A. Engelmayer, United States District Court for the Southern District of New York,
sitting by designation.
1
Attorney, Office of Immigration Litigation, United States
Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is DENIED in part and DISMISSED in part.
Petitioner Darien Laing, a native and citizen of Jamaica, seeks review of a December 11,
2015, decision of the BIA affirming the April 20, 2015, decision of an Immigration Judge (“IJ”)
ordering Laing removed from the United States. In re Darien Laing, No. A073 535 540 (B.I.A.
Dec. 11, 2015), aff’g No. A073 535 540 (Immig. Ct. Batavia, N.Y., Apr. 20, 2015). We assume
the parties’ familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the decision of the IJ as
supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Given
that Laing is removable by reason of having been convicted of a firearm offense, and given that
the agency denied him adjustment of status as a matter of discretion, our jurisdiction is limited to
constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B)-(D). We review such
claims de novo. See Harbin v. Sessions, 860 F.3d 58, 63 (2d Cir. 2017).
I. Cancellation of Removal
Laing argues that the agency erred in concluding that, under 8 U.S.C. § 1229b(c)(6), he
was statutorily barred from cancellation of removal based on a previous grant of suspension of
deportation because he had obtained that grant as a derivative beneficiary of his parents. Laing’s
argument that the agency erred in interpreting and applying the Immigration and Nationality Act
(“INA”) raises a question of law over which this Court has jurisdiction. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 331 (2d Cir. 2006). The agency, however, did not err in
concluding that he was ineligible for cancellation or removal.
Under 8 U.S.C. § 1229b(a), the agency may cancel removal for a lawful permanent
resident (“LPR”) who is inadmissible or deportable if he has been an LPR “for not less than 5
years,” has resided continuously in the country for 7 years, and has not been convicted of an
aggravated felony. However, section § 1229b(c)(6) provides that a grant of cancellation under
§ 1229b(a) is not available to “[a]n alien whose removal has previously been cancelled under
th[e] section or whose deportation was suspended under section 1254(a) of this title or who has
been granted relief under section 1182(c) of this title, as such sections were in effect before
September 30, 1996.”
“[T]he well-established rules of statutory construction . . . instruct that our inquiry begins
with the plain language of the statute and ‘where the statutory language provides a clear answer,
it ends there as well.’” Peralta-Taveras v. Attorney Gen., 488 F.3d 580, 584 (2d Cir. 2007)
(quoting Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)). In Peralta-Taveras, we
held that “[t]he plain language of § [1229b](c)(6) . . . bars an alien who previously received
§ [1182](c) relief from receiving cancellation of removal.” 488 F.3d at 586. The plain language
of § 1229b(c)(6) is equally clear that an alien “whose deportation was suspended” is barred from
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cancellation of removal. See 8 U.S.C. § 1229b(c)(6); Peralta-Taveras, 488 F.3d at 584; see also
Velasco v. Holder, 736 F.3d 944, 946 (10th Cir. 2013) (“‘Congress stated unequivocally’ that
once an alien has obtained relief under one of the three provisions referenced in § 1229b(c)(6),
the alien has had his bite at the apple and can no longer seek cancellation of removal.” (quoting
Maldonado-Galindo v. Gonzales, 456 F.3d 1064, 1067 (9th Cir. 2006))).
Laing argues that, under Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012), he should
not be barred from cancellation of removal pursuant to § 1229b(c)(6) because he derived
suspension of deportation through his parents rather than independently obtaining that form of
relief.1 In Martinez Gutierrez, the Supreme Court deferred to the BIA’s determination that an
applicant for cancellation of removal must individually satisfy the duration requirements to
obtain relief—5 years of LPR status and 7 years continuous residency—and may not rely on his
parent’s years of status or residency when he cannot meet those requirements. 132 S. Ct. at
2017-21. The Supreme Court reasoned that the plain language of the statute required “‘the
alien’—not, say, ‘the alien or one of his parents’ to meet the three prerequisites for cancellation
of removal,” and thus did not require the BIA to impute a parent’s LPR status or residency to a
child alien. Id. at 2017.
Laing argues that, under the reasoning of Martinez Gutierrez, the suspension of his
parents’ deportation should not be imputed to him so as to bar him from cancellation of removal
under § 1229b(c)(6). The reasoning of Martinez Gutierrez, however, does not apply here. Once
Laing was granted derivative suspension of deportation, whether derivatively from his parents or
not, his deportation was suspended and he was granted LPR status. See 8 U.S.C. § 1254(a), (c);
8 C.F.R. § 1240.61(a)(4); cf. 8 U.S.C. § 1158(b)(3)(A) (“A spouse or child . . . of an alien who is
granted asylum under this subsection may, if not otherwise eligible for asylum under this section,
be granted the same status as the alien . . . .” (emphasis added)). Therefore, under the plain
language of § 1229b(c)(6), the agency’s previous suspension of Laing’s deportation bars him
from cancellation of removal, and we deny the petition for review to that extent. See Peralta-
Taveras, 488 F.3d at 584, 586; see also Velasco, 736 F.3d at 946; Maldonado-Galindo, 465 F.3d
at 1067.
II. Adjustment of Status
Laing also challenges the agency’s denial of adjustment of status as a matter of
discretion. Specifically, Laing argues that, in finding that the negative factors in his case
outweighed the positive equities, the IJ erred in relying on his failure to submit a letter of support
from his son’s mother, his admission that he sold marijuana even though he was not convicted of
or removable for that activity, and his admission that he fired a gun into the air in an alley when
he was drunk. He further lists positive factors in his case.
1
We assume, as the agency did, that Laing was granted suspension of deportation as a derivative
of his parents. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (“[W]e
may consider only those issues that formed the basis for the [BIA’s] decision.”). However, we
note that the record is not clear in this regard, Laing was a respondent in the earlier removal
proceedings, and the relevant statute and regulations do not clearly provide that a child
automatically derives suspension of deportation from a parent. See 8 U.S.C. § 1254 (1996); see
also 8 C.F.R. § 1240.61(a)(4).
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In order to ascertain whether a petitioner raises a constitutional challenge or question of
law over which we retain jurisdiction, see 8 U.S.C. § 1252(a)(2)(B), (D), we “study the
argument[] asserted [and] . . . determine, regardless of the rhetoric employed in the petition,
whether it merely quarrels over the correctness of the factual findings or justification for the
discretionary choices, in which case [we] would lack jurisdiction,” Xiao Ji Chen, 471 F.3d at
329. Laing’s challenge to the agency’s denial of adjustment does not raise a legal question over
which we have jurisdiction, but rather quarrels with the agency’s discretionary balancing of the
equities. See Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir. 2006) (“An assertion that an IJ or
the BIA misread, misunderstood, or misapplied the law in weighing factors relevant to the grant
or denial of discretionary relief does not convert what is essentially an argument that the IJ and
BIA abused their discretion into a legal question.”).
Regardless, even if we had jurisdiction, Laing’s assertions of error are without merit.
The IJ was permitted to note the absence of a support letter from a family member because
family ties are a factor the agency considers in deciding whether to grant adjustment as a matter
of discretion. See Matter of Arai, 13 I. & N. Dec. 494, 496 (BIA 1970). The IJ also was
permitted to consider Laing’s admissions that he sold marijuana and that he fired a gun into the
air in an alley as negative factors, even though Laing was never convicted for the former conduct
but was convicted for the latter. See Wallace v. Gonzales, 463 F.3d 135, 139 (2d Cir. 2006)
(permitting an IJ to consider “an applicant’s anti-social conduct—whether leading to a
conviction . . . or no legal judgment whatsoever—as an adverse factor in evaluating an
application for discretionary relief”). And, contrary to Laing’s contention, sale of marijuana can
be a removable offense. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1692 (2013). Finally, the IJ
considered the positive factors Laing lists, i.e., his mother’s health issues and family ties, but
ultimately found them outweighed by negative factors.
Therefore, because Laing has not identified a constitutional claim or question of law with
respect to the agency’s denial of adjustment of status as a matter of discretion, we are without
jurisdiction and we dismiss the petition for review to that extent. See Xiao Ji Chen, 471 F.3d at
329.
III. Ineffective Assistance of Counsel
Laing argues that his attorney before the IJ, Ms. Annick Koloko, was ineffective for the
following reasons: (1) she did not accept the IJ’s offer of a continuance pending adjudication of
Laing’s wife’s visa petition; (2) she failed to present evidence that his removal would cause
extreme hardship to qualifying family members; (3) she failed to anticipate the Government’s
suspension of deportation argument; and (4) she failed to obtain Laing’s criminal records,
prepare him to testify about those records, or present mitigating evidence. Although Laing’s
ineffective assistance claim raises a constitutional claim, see Omar v. Mukasey, 517 F.3d 647,
650 (2d Cir. 2008), it is without merit.
In order to prevail on a claim of ineffective assistance of counsel, Laing must show “that
competent counsel would have acted otherwise,” and “that he was prejudiced by his counsel’s
performance. Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (internal quotation marks omitted).
4
As the BIA concluded, Laing failed to demonstrate that Ms. Koloko’s representation was
deficient or that it resulted in the requisite prejudice for the following reasons.
Although Ms. Koloko declined the IJ’s initial offer to continue proceedings pending
adjudication of Laing’s wife’s visa petition, she later requested and was granted a continuance
until the visa petition was adjudicated. See Debeatham v. Holder, 602 F.3d 481, 486 (2d Cir.
2010) (concluding that petitioner failed to demonstrate prejudice when he had “not shown that
the outcome of his removal proceedings would have been any different” absent the alleged
deficient performance of counsel).
Because Laing was an LPR, he was not required to demonstrate hardship to a qualifying
relative to establish his statutory eligibility for cancellation of removal, so Ms. Koloko was not
required to present evidence of hardship. See 8 U.S.C. § 1229b(a) (requiring LPR status for 5
years, continuous residence for 7 years, and no aggravated felony conviction for cancellation of
removal for LPRs). Regardless, Ms. Koloko elicited testimony regarding hardship from Laing’s
father, mother, and wife.
Even if Ms. Koloko failed to anticipate the Government’s argument that Laing was
statutorily ineligible for cancellation of removal based on his previous grant of suspension of
deportation, once that issue was raised, she filed a brief raising the same argument he raises here.
Moreover, Laing has not shown that the argument raised in that brief failed as a result of Ms.
Koloko’s failure to anticipate the Government’s argument. See Debeatham, 602 F.3d at 486.
The record belies Laing’s claim that Ms. Koloko was ineffective for failing to obtain his
criminal records, prepare him to testify about his criminal history, or present mitigating evidence.
Instead, the record includes evidence of Laing’s criminal history; he testified extensively about
that history, and he does not identify what aspects of his history he was unprepared to discuss.
Furthermore, Ms. Koloko elicited testimony and presented evidence regarding mitigating factors.
Accordingly, the BIA did not err in finding that Laing failed to establish that Ms. Koloko
was deficient or that he was prejudiced as a result of her representation, and the petition is denied
to this extent. See Rabiu, 41 F.3d at 882.
For the foregoing reasons, Laing’s petition for review is DENIED in part and
DISMISSED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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