         11-312-ag
         Hamilton v. Holder
                                                                                       BIA
                                                                                Sagerman, IJ
                                                                               A043 454 958
                               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 May, two thousand twelve.
 5
 6       PRESENT:
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                     Circuit Judges.
11       ____________________________________
12
13       MICOL JERMAINE HAMILTON,
14                Petitioner,
15
16                            v.                                11-312-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ____________________________________
22
23       FOR PETITIONER:                Seidia R. Bernard, Roach Bernard,
24                                      PLLC, Lynbrook, New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Cindy S. Ferrier, Senior
28                                      Litigation Counsel; Surell Brady,
29                                      Trial Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, 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
 6        Petitioner Micol Jermaine Hamilton, a native and
 7   citizen of Guyana, seeks review of a December 29, 2010,
 8   decision of the BIA, affirming the August 20, 2010 decision
 9   of Immigration Judge (“IJ”) Roger F. Sagerman, which denied
10   his application for asylum, withholding of removal, and
11   relief under the Convention Against Torture (“CAT”). In re
12   Micol Jermaine Hamilton, No. A043 454 958 (B.I.A. Dec. 29,
13   2010), aff’g No. A043 454 958 (Immig. Ct. Napanoch, N.Y.
14   Aug. 20, 2010). We assume the parties’ familiarity with the
15   underlying facts and procedural history in this case.
16
17        Under the circumstances of this case, we have reviewed
18   the IJ’s decision as modified by the BIA. See Xue Hong Yang
19   v. U.S. Dep’t of Justice, 417 F.3d 268, 271 (2d Cir. 2005).
20   The applicable standards of review are well established.
21   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
22   Holder, 562 F.3d 510, 513 (2d Cir. 2009).
23
24        As the government points out, Hamilton may not
25   collaterally attack in these proceedings his 2004 grand
26   larceny and assault convictions on the grounds of an alleged
27   ineffective assistance of counsel. See Varughese v. Holder,
28   629 F.3d 272, 275 n.3 (2d Cir. 2010) (“The soundness of
29   [petitioner’s] underlying conviction is not before us, for
30   ‘[c]ollateral attacks are not available in a . . . petition
31   challenging the BIA’s removal decision.’”) (quoting
32   Lanferman v. BIA, 576 F.3d 84, 88 (2d Cir. 2009)). While
33   Hamilton may be able to challenge his underlying convictions
34   under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this
35   Court is not the proper venue for such a challenge.
36   Lanferman, 576 F.3d at 84, 88 n.1. Moreover, the fact that
37   Hamilton may have a plausible challenge to his convictions
38   does not affect their finality for immigration purposes.
39   See Paredes v. Att’y Gen. of the U.S., 528 F.3d 196, 198-99
40   (3d Cir. 2008). Therefore, we decline to consider
41   Hamilton’s Sixth Amendment challenge to his underlying
42   convictions in this appeal from a final order of removal.
43
44
45

                                  2
 1        Notwithstanding Hamilton’s argument to the contrary,
 2   the agency correctly determined that his 2004 conviction for
 3   grand larceny in the fourth degree under New York Penal Law
 4   (“NYPL”) § 155.30(5), for which he received a sentence of
 5   one to three years imprisonment, constitutes an aggravated
 6   felony under 8 U.S.C. § 1101(a)(43)(G). Although federal
 7   courts are without jurisdiction to review final orders of
 8   removal against an alien “who is removable by reason of
 9   having committed” an aggravated felony, 8 U.S.C.
10   § 1252(a)(2)(C), we retain jurisdiction to review de novo
11   questions of law, including whether an underlying conviction
12   constitutes an aggravated felony. See 8 U.S.C. §
13   1252(a)(2)(D); Vargas-Sarmiento v. U.S. Dep’t of Justice,
14   448 F.3d 159, 164-65 (2d Cir. 2006) (whether a conviction
15   constitutes an aggravated felony is a question of law that
16   this Court reviews de novo).
17
18        Section 155.30(5), NYPL, provides that: “[a] person is
19   guilty of grand larceny in the fourth degree when he steals
20   property and when: . . . [t]he property, regardless of its
21   nature and value, is taken from the person of another.”
22   Pursuant to 8 U.S.C. § 1101(a)(43)(G), the term “aggravated
23   felony” includes “a theft offense . . . for which the term
24   of imprisonment [is] at least one year.” Given the plain
25   language of 8 U.S.C. § 1101(a)(43)(G), Hamilton’s attempt to
26   read a minimum monetary value into the statute on the basis
27   of undocumented but purportedly contrary legislative intent
28   must fail. See Pipefitters Local Union No. 562 v. United
29   States, 407 U.S. 385, 446 (1972). Because there is no
30   dispute that Hamilton’s conviction for grand larceny in the
31   fourth degree constitutes a “a theft offense . . . for which
32   the term of imprisonment [is] at least one year,” the agency
33   correctly determined that Hamilton was convicted of an
34   aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Because
35   we lack jurisdiction to review and “order of removal against
36   an alien who is removable by reason of having committed a
37   criminal offense” defined as an aggravated felony, 8 U.S.C.
38   § 1252(a)(2)(C)(emphasis added), we need not consider
39   whether petitioner’s conviction for assault in the first
40   degree also qualifies as an aggravated felony; his
41   conviction of grand larceny suffices to deprive us of
42   jurisdiction.
43
44


                                  3
 1        Assuming without deciding that we retain jurisdiction
 2   over Hamilton’s challenge to the agency’s denial of deferral
 3   of removal under the CAT, Hamilton’s attacks on the agency’s
 4   burden finding are without merit. Notwithstanding
 5   Hamilton’s argument to the contrary, the agency did not
 6   ignore any evidence. The agency is presumed to have “taken
 7   into account all of the evidence before [it], unless the
 8   record compellingly suggests otherwise,” Xiao Ji Chen v.
 9   U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.
10   2006), and the agency is not required to “expressly parse or
11   refute on the record each individual argument or piece of
12   evidence offered by the petitioner,” Jian Hui Shao v.
13   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (quotation
14   omitted). In an attempt to support his claim, Hamilton
15   asserts that “[t]he sole reason cited for denying [his]
16   applications before the Immigration Court by the IJ was that
17   ‘there was no evidence in the record suggesting that torture
18   is commonly carried out against member [sic] of the
19   Afro-Guyanese community by the Indo-Guyanese.’” However,
20   the IJ’s decision actually states that “there is almost no
21   evidence in the record suggesting that torture is commonly
22   carried out against members of the Afro-Guyanese community
23   by the Indo-Guyanese” (emphasis added). The record,
24   therefore, does not compellingly suggest that the agency
25   ignored any evidence. Xiao Ji Chen, 471 F.3d at 337 n.17.
26
27        Hamilton’s contention that the IJ “erroneously and
28   disingenuously” mischaracterized his evidence is also
29   without merit. Although some evidence, labeled by the IJ as
30   contradictory, does contain limited statements of support
31   for Hamilton’s claims, the task of resolving conflicts in
32   the record evidence lies largely within the discretion of
33   the agency. Jian Hui Shao, 546 F.3d at 171. Moreover, we
34   have held that “support for a contrary inference – even one
35   more plausible or more natural – does not suggest error.”
36   Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007). As a
37   result, Hamilton has failed to show that the agency
38   “mischaracterized” any evidence.
39
40        Lastly, the agency did not err in finding that Hamilton
41   failed to show his entitlement to deferral of removal under
42   the CAT. See Matter of M-B-A-, 23 I. & N. Dec. 474, 479-80
43   (B.I.A. 2002) (noting that a claim “based on a chain of
44   assumptions and a fear of what might happen” is insufficient
45   to demonstrate eligibility for relief under the CAT).
46   Hamilton argues that the credible testimony presented at his
47   merits hearing, alone, established his entitlement to
48   relief. However, as the IJ noted, Hamilton testified that

                                  4
 1   two friends, who were criminal deportees, disappeared and
 2   were tortured upon their return to Guyana, but he failed to
 3   provide sufficient detail to establish “why those friends
 4   had been subject to torture or disappearance”; Hamilton’s
 5   mother testified that his deportation would be a “death
 6   sentence,” but her testimony merely described “difficulties
 7   for criminal deportees in obtaining employment and common
 8   criminal strife in Guyana”; and Hamilton’s uncle testified
 9   that Hamilton would be a target for forced recruitment by
10   criminal gangs, but his testimony merely recounted
11   “second-hand rumors of ‘murder for hire groups.’” See Xiao
12   Ji Chen, 471 F.3d at 342 (noting that the weight afforded to
13   an applicant’s evidence lies largely within the discretion
14   of the agency). Notwithstanding Hamilton’s suggestions to
15   the contrary, there is absolutely no support for his
16   contention that credible testimony, regardless of its level
17   of detail, is sufficient as a matter of law to establish his
18   entitlement to CAT relief. See Matter of M-B-A-, 23 I. & N.
19   Dec. at 479-80; see also 8 U.S.C. § 1158(b)(1)(B)(ii)
20   (“Where the trier of fact determines that the applicant
21   should provide evidence that corroborates otherwise credible
22   testimony, such evidence must be provided unless the
23   applicant does not have the evidence and cannot reasonably
24   obtain the evidence.”); Jian Hui Shao, 546 F.3d at 162
25   (while “credible testimony was sufficient to demonstrate a
26   genuine subjective fear of future persecution, more was
27   needed to demonstrate the objective reasonableness of that
28   fear”). Accordingly, Hamilton’s challenge to the agency’s
29   burden finding is without merit.
30
31        For the foregoing reasons, the petition for review is
32   DENIED.
33
34                              FOR THE COURT:
35                              Catherine O’Hagan Wolfe, Clerk
36
37




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