09-3023-ag
    Mignano v. Holder
                                                                                    BIA
                                                                            A037 655 034
                         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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 25th day of October, two thousand ten.

    PRESENT:
             PIERRE N. LEVAL,
             BARRINGTON D. PARKER,
             PETER W. HALL,
                      Circuit Judges.
    _________________________________________

    SALVATORE GIROLAMO MIGNANO,
             Petitioner,

                        v.                                    09-3023-ag
                                                              NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:                Millicent Y. Clarke,
                                   Freeport, New York.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; William C. Peachey,
                                   Assistant Director; Yamileth G.
                                   HandUber, Trial Attorney, Office of
                                   Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, D.C.
     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 GRANTED in part and DENIED in part.

     Petitioner Salvatore Girolamo Mignano, a native and
citizen of Italy, seeks review of a June 26, 2009, order of
the BIA denying his motion to reopen. In re Salvatore
Girolamo Mignano, No. A037 655 034 (B.I.A. June 26, 2009).
We review the BIA’s denial of a motion to reopen for abuse
of discretion. See Ali v. Gonzales, 

, 517 (2d
Cir. 2006). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.

     A motion to reopen generally must be filed no later
than 90 days after the date on which the final
administrative decision was rendered in the proceedings
sought to be reopened. 8 C.F.R. § 1003.2(c)(2). There is
no dispute that Mignano’s motion to reopen, filed in June
2007, was untimely. See 

BIA found
Mignano’s motion to reopen time-barred, the BIA considered
and rejected the argument that our intervening decision in
Blake v. Carbone, 

(2d Cir. 2007), warranted
reopening, finding that Blake was not relevant to Mignano’s
case. In our January 2009 order, to determine whether we
had jurisdiction over the BIA’s decision, we directed the
BIA to clarify whether its analysis of Blake was relevant:
(1) only to the BIA’s authority to reopen Mignano’s case sua
sponte; or (2) because a material change in the law would
excuse the untimely filing of a motion to reopen. See
Mignano v. Filip, 307 F. App’x 567, 568-69 (2d Cir. 2009)
(unpublished). Following that remand, it remains unclear
whether the BIA’s discussion of Blake’s relevance to
Mignano’s case pertained exclusively to its authority to
reopen his case sua sponte. In light of intervening
caselaw, however, we assert jurisdiction over Mignano’s
petition insofar as he argues that the BIA determined that
he was not eligible for relief under Immigration and
Naturalization Act (“INA”) § 212(c) based on a misperception
of the law. See Mahmood v. Holder, 

, 469 (2d
Cir. 2009).
I.   Blake - Comparable Ground of Inadmissibility
     In Blake, we clarified that, to determine whether an
aggravated felony that is a ground for deportability also
constitutes a comparable ground for denying admissibility,
the BIA must look to the substance of the particular

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criminal conviction, not merely the language of the

. That is, an aggravated felony
can be a comparable basis for excludability as a crime
involving moral turpitude if the substance of the aggravated
felony offense would constitute a crime of moral turpitude
under INA § 212(a)(2)(A)(i)(I), thus making an alien
inadmissable on the basis of the conviction. 

. Under Blake, the BIA was required to
consider whether Mignano’s conviction for firearms
trafficking could constitute a crime involving moral
turpitude. See 

     In finding that Mignano’s ground of deportability based
on his firearms conviction would not constitute a crime
involving moral turpitude, the BIA failed to analyze whether
the particular crime for which Mignano was convicted –
firearms trafficking – could constitute a ground of
inadmissibility. Instead, the BIA stated generically that
“firearms offenses” could not constitute a ground of
inadmissibility, and cited as support: (1) 

; (2) In re Montenegro, 20 I. & N. Dec. 603, 605
(BIA 1992); and (3) In re Azurin, 23 I.& N. Dec. 695, 699
n.2 (BIA 2005). None of the cited cases, however, addresses
whether firearms trafficking constitutes a crime involving
moral turpitude, which would thus be a ground for
inadmissibility. Because the BIA erred in failing to
consider whether Mignano’s particular conviction for
firearms trafficking might constitute a ground of
inadmissibility, remand is appropriate for the BIA to
consider this issue in the first instance. See 

; INS v. Ventura, 

, 16 (2002). On
remand, the BIA is directed to address whether Mignano’s
conviction for firearms trafficking is a crime involving
moral turpitude and, for that reason, would constitute a
ground of inadmissibility, see INA § 212(a)(2)(A)(i)(I), and
consequently, whether Mignano is eligible for relief under
§ 212(c)).

II. Whether Mignano was Improperly Charged as Deportable
     Mignano also argues that because he was charged with
being deportable at the time he was re-entering the country
on his return from a visit to Italy, he should have been
charged with being inadmissible rather than deportable. As
the Government argues, however, this issue is not before us
for review because Mignano failed to raise the issue in his
2007 motion to reopen. Accordingly, we decline to address
this issue. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

                             

, 89-90 (2d Cir. 2001) (holding that where the alien
files a timely petition from the denial of a motion, but not
from the underlying affirmance of the removal order, the
Court may review only the denial of the motion); see also
Stone v. INS, 

, 405-06 (1995).

     For the foregoing reasons, the petition for review is
GRANTED in part and DENIED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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