Filed: Mar. 20, 2012
Latest Update: Feb. 22, 2020
Summary: 09-3818-ag Nderere v. Holder BIA Straus, IJ A029 853 242 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 TH
Summary: 09-3818-ag Nderere v. Holder BIA Straus, IJ A029 853 242 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..
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09-3818-ag
Nderere v. Holder
BIA
Straus, IJ
A029 853 242
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 for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 20th day of March, two thousand twelve,
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11 _______________________________________
12
13 Jeannette Lois Nderere, also known as
14 Jeanette Preston,
15 Petitioner,
16
17 v. 09-3818-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Jon Bauer, Timothy H. Everett,
25 Patrick Mott, Hartford, Connecticut.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Terri J. Scadron, Assistant
29 Director; Wendy Benner-León, Trial
30 Attorney, Office of Immigration
31 Litigation, Civil Division, United
32 States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED in part and GRANTED in part.
5 Petitioner Jeannette Lois Nderere, a native and citizen
6 of Zimbabwe, seeks review of a August 14, 2009, order of the
7 BIA, affirming the March 12, 2009, decision of Immigration
8 Judge (“IJ”) Michael W. Straus, denying her application for
9 asylum and withholding of removal, and granting deferral of
10 removal under the Convention Against Torture (“CAT”). In re
11 Nderere, No. A029 853 242 (B.I.A. Aug. 14, 2009), aff’g No.
12 A029 853 242 (Immig. Ct. Hartford, Conn. Mar. 12, 2009). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d
20 510, 513 (2d Cir. 2009). Although we lack jurisdiction to
21 review a final order of removal entered against an alien,
22 like Nderere, who is removable by reason of having committed
2
1 a criminal offense covered by 8 U.S.C. § 1227(a)(2)(A)(iii)
2 (relating to convictions for aggravated felonies), see
3 8 U.S.C. § 1252(a)(2)(c), we retain jurisdiction to review
4 constitutional claims and questions of law raised in
5 petitions for review filed by such aliens, Luna v. Holder,
6 637 F.3d 85, 102 (2d Cir. 2011); see also 8 U.S.C.
7 § 1252(a)(2)(D). As discussed below, Nderere’s arguments
8 invoke our jurisdiction because they present questions of
9 law regarding whether the agency properly construed
10 statutory language and applied the correct legal standard.
11 See Jian Hui Shao v. BIA,
465 F.3d 497, 502 (2d Cir. 2006)
12 (finding that a statutory interpretation question raises a
13 question of law); see also Nethagani v. Mukasey,
532 F.3d
14 150, 154-55 (2d Cir. 2008) (finding that this Court has
15 jurisdiction to review the BIA’s finding that an alien
16 committed a “particularly serious crime” because such a
17 determination is not solely within the discretion of the
18 Attorney General).
19 I. Asylum
20 The BIA was not required to make a separate
21 determination of whether Nderere constituted a danger to the
22 community. An alien is not eligible for asylum or
3
1 withholding of removal “if the Attorney General determines
2 that—the alien, having been convicted by a final judgment of
3 a particularly serious crime, constitutes a danger to the
4 community of the United States.” See 8 U.S.C.
5 §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).1 The asylum
6 statute also provides that convictions for aggravated
7 felonies will be deemed “particularly serious crimes,” and
8 that “[t]he Attorney General may designate by regulation
9 offenses that will be considered to be a [‘particularly
10 serious crime’].” See 8 U.S.C. § 1158(b)(2)(B)(i), (ii),
11 (b)(2)(A)(ii). The BIA has held that the determination of
12 whether an alien poses a danger to the community is subsumed
13 in the analysis of whether the alien has committed a
14 particularly serious crime. See Matter of N-A-M-, 24 I. &
15 N. Dec. 336, 342 (BIA 2007); see also Matter of Carballe, 19
16 I. & N. Dec. 357, 360 (BIA 1986). We have deferred to this
17 interpretation. See Nethagani 532 F.3d at 154, n.1 (noting
18 that this Court has accepted the BIA’s interpretation of the
19 statute) (citing Ahmetovic v. INS,
62 F.3d 48, 52-53 (2d.
1
The wording of § 1231 is slightly different: “if
the Attorney General decides that—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)(ii).
4
1 Cir. 1995) (acknowledging that the statutory clause
2 regarding “danger to the community” seemed superfluous
3 unless a separate inquiry is made into an alien’s
4 “dangerousness,” but that the BIA’s interpretation of the
5 statute was not unreasonable)).
6 Although Nderere correctly points out that this Court
7 has not reviewed the “particularly serious crime” provision
8 as it relates to the current asylum statute, we have found
9 reasonable the BIA’s interpretation of that clause as it
10 relates to identical provisions contained in the withholding
11 of removal statute and a previous administrative regulation.
12 See Ahmetovic, 62 F.3d at 52-53; see also 8 C.F.R.
13 § 208.14(c)(1) (1995); 8 U.S.C. § 1231(b)(3)(B)(ii).
14 Because the “particularly serious crime” bar at issue in
15 this case is identical to those previously addressed, we
16 find that the BIA reasonably interpreted the current asylum
17 statute and that the agency was not required to make a
18 separate finding that Nderere constituted “a danger to the
19 community.” Accordingly, because Nderere was convicted of
20 an aggravated felony, her conviction was automatically
21 classified as a “particularly serious crime” under the
22 asylum statute, and the BIA did not err in denying her
23 application for asylum. See 8 U.S.C. § 1158(b)(2)(B)(i).
5
1 II. Withholding of Removal
2 The BIA erred, however, when it failed to consider
3 whether coercion and duress were relevant factors in
4 determining whether Nderere’s conviction was a “particularly
5 serious crime” for purposes of determining her eligibility
6 for withholding of removal. The withholding statute
7 explicitly provides that, “notwithstanding the length of a
8 sentence imposed,” the Attorney General may find that an
9 alien has been convicted of a “particularly serious crime.”
10 8 U.S.C. § 1231(b)(3)(B); see also Ahmetovic, 62 F.3d at 51.
11 The agency relied on Matter of Y-L-, A-G-, and R-S-R-,
12 23 I. & N. Dec. 270 (A.G. 2002), to find that Nderere’s
13 conviction was a “particularly serious crime.” However,
14 none of the cases before the Attorney General in Matter of
15 Y-L-, A-G-, and R-S-R- involved circumstances of coercion or
16 duress; rather, they involved voluntary acts by the
17 petitioners. See
id. at 271. Furthermore, Courts have long
18 recognized that the presence of coercion and duress vastly
19 reduces the culpability of a person’s conduct, and have
20 therefore applied a presumption that legislators must have
21 contemplated making allowance for conduct motivated by
22 coercion and duress, even if such exceptions are not
23 explicitly stated in the statutes. See, e.g., United States
6
1 v. Bailey, 444 U.S. 394, 415 n.11 (1980) (criminal
2 statutes). In the context of immigration laws, the Supreme
3 Court held in Negusie v. Holder, that the circumstance of
4 duress was significant in determining the applicability of a
5 withholding bar under 8 U.S.C. § 1231(b)(3)(B)(i), and
6 remanded the case to the BIA to determine the issue in the
7 first instance.
129 S. Ct. 1159, 1164-66 (2009) (addressing
8 the relevance of duress in the application of the persecutor
9 bar). Because it is unclear whether Matter of Y-L-, A-G-,
10 and R-S-R- applies to Nderere’s case, and because the BIA
11 has not yet determined whether it is reasonable to exclude
12 factors of coercion and duress in determining whether a
13 crime is “particularly serious,” we remand to the BIA for it
14 to address the matter in the first instance. See I.N.S. v.
15 Orlando Ventura,
537 U.S. 12, 16 (2002) (holding that “the
16 proper course, except in rare circumstances, is to remand to
17 the agency for additional investigation or explanation”).
18 For the foregoing reasons, the petition for review is
19 DENIED in part and GRANTED in part, the BIA’s order is
20 VACATED to the extent it denied withholding of removal, and
21 the case is REMANDED for further proceedings consistent with
22 this Order.
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26
7
