         10-3962
         Persaud v. Holder
                                                                                       BIA
                                                                               A096 435 503
                              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 20th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       PATRICK PERSAUD,
14                Petitioner,
15
16                           v.                                 10-3962
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Patrick Persaud, Pro Se, Hackensack,
24                                     New Jersey.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Shelley R. Goad,
28                                     Assistant Director; Jennifer P.
29                                     Levings, Senior Litigation Counsel,
30                                     Office of Immigration Litigation,
31                                     Civil Division, United States
32                                     Department of Justice, Washington,
33                                     D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5       Petitioner Patrick Persaud, a native and citizen of

 6   Guyana, seeks review of an August 30, 2010, decision of the

 7   BIA denying his motion to reopen.     In re Patrick Persaud,

 8   No. A096 435 503 (B.I.A. Aug. 30, 2010).     We assume the

 9   parties’ familiarity with the underlying facts and

10   procedural history in this case.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion.     See Kaur v. BIA, 413 F.3d 232, 233 (2d

13   Cir. 2005) (per curiam).    It is well established that the

14   BIA may deny an alien’s motion to reopen on the basis that

15   the alien failed to produce previously unavailable, material

16   evidence.     See INS v. Abudu, 485 U.S. 94, 104-05, 107

17   (1988); see also Poradisova v. Gonzales, 420 F.3d 70, 78 (2d

18   Cir. 2005).

19       Persaud argues that he did not have the requisite

20   intent to commit the assault for which he was convicted in

21   1995, and that his assault conviction did not constitute a

22   crime involving moral turpitude (“CIMT”).     To the extent


                                     2
 1   Persaud challenges the validity of his assault conviction,

 2   we lack jurisdiction to consider this collateral attack on

 3   his criminal conviction.    See Lanferman v. BIA, 576 F.3d 84,

 4   88 (2d Cir. 2009) (finding that petitioner’s argument that

 5   the agency erred in relying on his guilty plea that was

 6   obtained in violation of his constitutional rights was

 7   without merit because a collateral attack on a conviction is

 8   not available in removal proceedings).   Moreover, contrary

 9   to Persaud’s argument, the BIA did not err in finding that

10   his conviction continued to constitute a CIMT in light of

11   its recent decision in Matter of Pedroza, 25 I. & N. Dec.

12   312, 314 (BIA 2010), because his conviction was for an

13   offense that carried a maximum sentence of one year of

14   imprisonment, see N.Y. Penal Law §§ 120.00, 70.15(1).     See

15   Pedroza, 25 I. & N. Dec. at 314 (standing for the

16   proposition that, to constitute a CIMT, an offense “must be

17   punishable by a sentence to imprisonment for a year or

18   longer” and not fall under the petty offense exception).

19       Furthermore, as the BIA found, Persaud’s pending motion

20   to vacate his conviction is not a basis for reopening

21   because it does not affect the finality of his conviction

22   for immigration purposes.    See 8 C.F.R. § 1003.2 (requiring


                                    3
 1   that a motion to reopen present new, material evidence);

 2   Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) (conviction is

 3   final upon conclusion of appellate review); Matter of Ponce

 4   de Leon, 21 I.& N. Dec. 154, 157 (A.G. 1997; BIA 1996, 1997)

 5   (noting that the pendency of a post-conviction motion or

 6   other form of collateral attack on a criminal conviction

 7   does not negate the finality of that conviction for

 8   immigration purposes).   Because Persaud did not present new,

 9   material evidence, the BIA did not abuse its discretion in

10   denying his motion to reopen.       See Kaur, 413 F.3d at 233.

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, any stay of

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.      Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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