10-470-ag
       Guy v. Holder
                                                                                      BIA
                                                                                Abrams, IJ
                                                                              A031 227 524




                        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 4th day of March, two thousand eleven.
 5
 6     PRESENT:
 7              GUIDO CALABRESI,
 8              ROSEMARY S. POOLER,
 9              RICHARD C. WESLEY,
10                            Circuit Judges.
11     _______________________________________
12
13     LARRY ANTHONY GUY, ALSO KNOWN AS LARRY
14     GREY, ALSO KNOWN AS LARRY CUY,
15              Petitioner,
16
17                     v.                                     10-470-ag
18                                                            NAC
19     ERIC H. HOLDER, JR., UNITED STATES
20     ATTORNEY GENERAL,
21              Respondent.
22     _______________________________________
23
24     FOR PETITIONER:               Linda Kenepaske, New York, New York.
 1   FOR RESPONDENT:        Tony West, Assistant Attorney
 2                          General, Civil Division; Greg D.
 3                          Mack, Senior Litigation Attorney;
 4                          Manuel A. Palau, Trial Attorney,
 5                          Office of Immigration Litigation,
 6                          United States Department of Justice,
 7                          Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

10   decision of the Board of Immigration Appeals (“BIA”), it is

11   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

12   review is DISMISSED.

13       Petitioner Larry Anthony Guy, a native and citizen of

14   Trinidad and Tobago, seeks review of a January 13, 2010,

15   order of the BIA affirming the August 19, 2009, decision of

16   Immigration Judge (“IJ”) Steven R. Abrams, denying his

17   application for withholding of removal, and relief under the

18   Convention Against Torture (“CAT”).   In re Larry Anthony Guy

19   No. A031 227 524 (B.I.A. Jan. 13, 2010), aff’g No. A031 227

20   524 (Immig. Ct. N.Y. City Aug. 19, 2009).   We assume the

21   parties’ familiarity with the underlying facts and
22   procedural history in this case.

23       Guy argues that his five convictions in New York for

24   selling marijuana are not per se particularly serious crimes
25   because they meet the exceptions set forth Matter of Y-L-,

26   23 I.&.N. Dec. 270, 276-77 (A.G. 2002), and that we have



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 1   jurisdiction to entertain his argument. *   See Nethagani v.

 2   Mukasey, 

, 155 (2d Cir. 2008) (holding that 8

 3   U.S.C. § 1252(a)(2)(B)(ii) did not preclude review of the

 4   agency’s particularly serious crime determination because

 5   the statute does not explicitly place the finding within the

 6   Attorney General’s discretion).    Our Circuit has not, to
 7   date, considered whether the convictions at issue constitute

 8   particularly serious crimes.   Nor do we need to do so now.

 9       The IJ and the BIA premised the denial of Guy’s
10   application and dismissal of his appeal on an alternate
11   ground – that Guy had failed to meet his burden of proof

12   with regard to his withholding of removal or CAT claims.
13   Because Guy has been convicted of an aggravated felony, our

14   jurisdiction is limited to constitutional claims or

15   questions of law with regard to the agency’s alternate
16   findings.   See 8 U.S.C. § 1252(a)(2)(C), (D).   Guy does not
17   raise any such claims.   Thus even if Guy were correct that
18   we have jurisdiction to determine that his criminal record

19   does not reflect convictions for particularly serious
20   crimes, he remains ineligible for relief.    Accordingly, we


         *
          Between 1995 and 2007, Guy was convicted, on three
     separate occasions, of Criminal Sale of Marijuana in the
     Fourth Degree in violation of New York Penal Law § 221.40
     and, on two separate occasions, of Criminal Possession of
     Marijuana in the Fifth Degree in violation of New York Penal
     Law § 221.10.
                                    3
1   DISMISS his petition for review.
2       For the foregoing reasons, the petition for review is
3   DISMISSED.   As we have completed our review, the pending

4   motion for a stay of removal in this petition is DISMISSED
5   as moot.

6                               FOR THE COURT:
7                               Catherine O’Hagan Wolfe, Clerk
8
9




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