15-2445
Forbes v. Lynch


                       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 14th day of March, two thousand sixteen.

PRESENT:

     Ralph K. Winter,
     Dennis Jacobs,
     Gerard E. Lynch,
               Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Rasmiean Ahijan Hassan Forbes,

              Petitioner,

                    -v.-                                      15-2445
                                                              NAC

Loretta E. Lynch, United States Attorney General,

          Respondent.*
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

FOR PETITIONER:                             Renee C. Redman, Law Office of
                                            Renee C. Redman LLC, New
                                            Haven, CT

FOR RESPONDENT:                             Benjamin C. Mizer, Principal
                                            Deputy Assistant Attorney
                                            General, Holly M. Smith,
                                            Senior Litigation Counsel,

*
    We direct the Clerk of Court to amend the caption as noted.
                                      Joseph D. Hardy, Trial
                                      Attorney, Office of
                                      Immigration Litigation, Civil
                                      Division, U.S. Department of
                                      Justice, Washington, D.C.

     Petition for review of a final decision of the Board of

Immigration Appeals.

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED and that the

motion for a stay of deportation is DENIED as moot.

     Petitioner Rasmiean Ahijan Hassan Forbes petitions for

review of a March 2015 decision of the Board of Immigration

Appeals ("BIA") denying his motion to reconsider removal

proceedings.   Petitioner also asks that we stay his removal.

Respondent moves to dismiss for lack of jurisdiction.    We assume

familiarity with the facts, the procedural history, and the scope

of the issues presented on appeal.

     "We review the BIA's denial of a motion to reconsider for

abuse of discretion."    Nolasco v. Holder, 637 F.3d 159, 162 (2d

Cir. 2011).    An abuse of discretion may be found where the BIA's

decision "provides no rational explanation, inexplicably departs

from established policies, is devoid of any reasoning, or

contains only summary or conclusory statements; that is to say,

where the Board has acted in an arbitrary or capricious manner."

Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir.2005) (per curiam)

(quoting Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.


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2001).   Even if the BIA errs, a ruling will not be overturned if

it was harmless.   See Adjin v. Bureau of Citizenship &

Immigration Servs., 437 F.3d 261, 266 (2d Cir. 2006); Lin v.

Gonzalez, 150 Fed.Appx. 60, 61 (2d Cir. 2005).

     Petitioner argues that the BIA, in denying his motion to

reconsider, departed without explanation from its decision in In

re Garcia-Madruga, 24 I. & N. 436 (BIA 2008) by not examining

whether third degree larceny under Connecticut law always has a

"without consent" element.   In Garcia-Madruga, the BIA determined

that, as a deportable aggravated felony, a "theft offense . . .

consists of the taking of, or exercise of control over, property

without consent whenever there is criminal intent to deprive the

owner of the rights and benefit of ownership, even if such

deprivation is less than total or permanent."       Id. at 440-41

(emphasis added and footnote omitted).      The BIA noted there that

a "theft offense" is generally different from an "offense that

involves fraud or deceit," in that the latter "ordinarily

involves the taking or acquisition of property with consent that

has been fraudulently obtained."       Id. at 440 (emphasis added).

     In applying Garcia-Madruga to the present matter, the BIA

would need to determine whether Connecticut's third degree

larceny statute, Conn. Gen. Stat. § 53a-124, always--for all

possible crimes--has a "without consent" element.       See Dickson v.

Ashcroft, 346 F.3d 44, 48 (2d Cir. 2003) (describing the


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"categorical approach" to criminal statutory interpretation

whereby "every set of facts violating a statute must satisfy the

criteria for removability in order for a crime to amount to a

removable offense").

     However, even if the BIA departed from Garcia-Madruga by not

analyzing whether Connecticut third degree larceny law has a

"without consent" requirement, any such oversight was harmless

because under applicable state and federal precedent Section

53a-124 has a "without consent" requirement.   See State v. Huot,

170 Conn. 463, 467-68 (1976) ("The elements of larceny, on the

other hand, are: (1) the wrongful taking or carrying away of the

personal property of another; (2) the existence of a felonious

intent in the taker to deprive the owner of it permanently; and

(3) the lack of the consent of the owner.") (internal quotation

marks omitted); State v. Calonico, 256 Conn. 135, 154 (2001)

(noting that, even though Conn. Gen. Stat. § 53a-119, which

defines larceny for purposes of § 53a-124, does not "specifically

enumerate[] lack of consent as an element of larceny,"

Connecticut law recognizes that "a conviction for larceny cannot

stand when the property is taken with the knowing consent of the

owner") (internal modifications and citation omitted).   And,

courts in Connecticut have applied the “without consent”

requirement to fraud-like claims brought under § 53a-124.     See

State v. Torres, 111 Conn.App. 575, 584 (2008), cert. denied, 290


                                4
Conn. 907 (2009) (noting the "lack of consent" requirement for

third degree larceny in a case where defendant deposited forged

cashier checks).

     Finally, in Almeida v. Holder, we held that second degree

larceny under Connecticut law “categorically qualifies as a

‘theft offense.’” 588 F.3d 778, 790 (2d Cir. 2009).      Although

that case involved second degree larceny, it rested on an

interpretation of Conn. Gen. Stat. § 53a-119, id. at 786, which

defines larceny for both second and third degree larceny.      See

Conn. Gen. Stat. § 53a-123; Conn. Gen. Stat. § 53a-124.

Moreover, that decision came after Garcia-Madruga and made no

suggestion that Garcia-Madruga had any bearing on the issue.

     In sum, any error by the BIA was harmless because "we can

state with confidence that the [the BIA] would adhere to [its]

decision if we were to remand."       See Xiao Ji Chen v. USDOJ, 434

F.3d 144, 158 (2d Cir. 2006).   A stay of removal would therefore

be inappropriate.   See Nken v. Holder, 556 U.S. 418, 433-34

(2009) ("The party requesting a stay bears the burden of showing

that the circumstances justify an exercise of that discretion.").

     Moreover, petitioner raised the Garcia-Madruga issue in his

direct appeal from the IJ’s ruling to the BIA, which rejected the

argument.   Denial of the motion to reconsider, which merely

rehashed the argument rejected in the BIA’s earlier decision, was

not an abuse of discretion.   See Liu v. Gonzalez, 439 F.3d 109,


                                  5
111 (2d Cir. 2006) (per curiam).       The petition for review of the

denial of the motion for reconsideration is, therefore,

frivolous, and we deny it.   See Fitzgerald v. First East Seventh

Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000).

     For the forgoing reasons, we order that the petition for

review is DENIED and the motion for a stay of deportation is

DENIED as moot.



                         FOR THE COURT:
                         Catherine O’Hagan Wolfe, Clerk of Court




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