17-917-ag
Baez v. Sessions


                         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, at 40 Foley Square, in the City of New
York, on the 17th day of May, two thousand eighteen.

PRESENT: PIERRE N. LEVAL,
         GERARD E. LYNCH,
         CHRISTOPHER F. DRONEY,
                    Circuit Judges.
________________________________________________

ROBERTO BAEZ, AKA ROBERTO BAEZ RIJO,

                        Petitioner,

                   v.                                         No. 17-917-ag

JEFFERSON B. SESSIONS III, UNITED STATES
ATTORNEY GENERAL,
                   Respondent.
________________________________________________


   FOR PETITIONER:                              JOSHUA BARDAVID, Bardavid Law,
                                                New York, NY.
  FOR RESPONDENT:                                  JONATHAN ROBBINS, Senior Litigation
                                                   Counsel, Office of Immigration
                                                   Litigation, United States Department of
                                                   Justice (Chad A. Readler, Acting
                                                   Assistant Attorney General, Patricia E.
                                                   Bruckner, Trial Attorney, Office of
                                                   Immigration Litigation, United States
                                                   Department of Justice and Erica B.
                                                   Miles, Senior Litigation Counsel,
                                                   Office of Immigration Litigation, on the
                                                   brief), Washington, DC.

       Appeal from a March 2, 2017, decision of the Board of Immigration Appeals.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petition for review is DENIED.

        The Petitioner, Roberto Baez ("Baez"), is a citizen of the Dominican Republic, and
a lawful permanent resident ("LPR") of the United States. He petitions this Court for review
of the denial of his application for cancellation of removal before the Board of Immigration
Appeals ("BIA").

       Baez was convicted of three crimes that are relevant to this appeal. On January 29,
1986, Baez was convicted of criminal sale of a controlled substance in the fifth degree, in
violation of § 220.31 of the New York Penal Law ("NYPL"). On June 27, 1997, Baez
pleaded guilty to criminal possession of a forged instrument in the third degree, in violation
of NYPL § 170.20. Finally, on July 14, 1999, Baez pleaded guilty to unlawful possession
of marijuana in violation of NYPL § 221.05.

       On August 3, 2008, Baez applied for admission to this country as an LPR after
returning from a trip to the Dominican Republic. Because of his conviction under NYPL §
220.31, the Department of Homeland Security ("DHS") alleged in a Notice to Appear
("NTA") dated February 9, 2009 that Baez was an arriving alien and charged him with
removability pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime
involving moral turpitude ("CIMT") and 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien
convicted of a controlled substance offense.

       Baez conceded removability under both charges. In 2013, DHS filed additional
charges of inadmissibility, adding an allegation that Baez's 1997 forged instrument
conviction also supported the CIMT charge. Baez denied the additional allegations and
withdrew his prior concession to the controlled substance charge of removability. He
applied for cancellation of removal under 8 U.S.C. § 1229b(a), which gives the agency


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discretion to cancel removal for LPRs who meet residency requirements and have not been
convicted of an aggravated felony.

       In an off-the-record conversation that was later summarized on the record, the
parties discussed whether Baez's 1986 drug sale conviction made him ineligible for
cancellation of removal. DHS stated that it would not identify Baez's fifth-degree drug sale
conviction as a statutory bar to cancellation of removal "at this time." Appellate Record
222. In an oral agreement (described by the parties and agency as a "stipulation"), the
parties agreed that Baez would seek cancellation of removal without also seeking relief as
to Baez's 1986 drug conviction under former section 212(c) of the Immigration and
Nationality Act ("INA"). They also agreed that if the IJ granted the cancellation
application, DHS would refer Baez's case to U.S. Customs and Border Protection, which
would decide whether to reissue an NTA.

       In May 2015, DHS submitted a "position statement" arguing that its prior stance as
to Baez's eligibility for cancellation "constitutes legal error" because his fifth-degree drug
sale conviction under NYPL § 220.31 is an aggravated felony pursuant to 8 U.S.C. §
1101(a)(43)(B). DHS therefore asked the IJ to pretermit the application. Baez responded
that DHS should be barred from raising this argument pursuant to laches and the law of the
case doctrine.

        In April 2016, the IJ ordered Baez removed and denied cancellation of removal. The
IJ concluded that Baez was inadmissible as an arriving alien based on his 1997 forged
instrument conviction, a CIMT, and his 1999 marijuana possession conviction, a controlled
substance offense. Regarding cancellation of removal, the IJ found that Baez met two
eligibility requirements: (1) lawful admission for permanent residence for not less than five
years; and (2) continuous residence in the United States for seven years. But the IJ also
found that Baez's fifth-degree drug sale conviction was an aggravated felony that barred
cancellation. Moreover, the IJ found Baez's arguments on laches and law of the case
unavailing.

      Baez appealed to the BIA, raising the same arguments that he presented to the IJ.
The BIA affirmed. Baez timely petitioned this Court for review.

        "Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements
the IJ's decision, we review the decision of the IJ as supplemented by the BIA." Jalloh v.
Gonzales, 498 F.3d 148, 150–51 (2d Cir. 2007) (per curiam) (quoting Islam v.
Gonzales, 469 F.3d 53, 55 (2d Cir. 2006)). When we review a final order of removal against
an alien who is removable for having a criminal conviction under 8 U.S.C. § 1182(a)(2),
our jurisdiction is limited to reviewing constitutional claims or questions of law. 8 U.S.C.
§§ 1252(a)(2)(C), (2)(D); Harbin v. Sessions, 860 F.3d 58, 63 (2d Cir. 2017). We consider
questions of law and the application of law to undisputed facts de novo. Vasconcelos v.
Lynch, 841 F.3d 114, 117 (2d Cir. 2016).


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       Baez contends that laches and the law of the case doctrine required the IJ to rely on
the prior, oral stipulation by the DHS that Baez was eligible for cancellation of removal.
But law of the case had no application as this stipulation was not a ruling by the
immigration court. See United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002).
Nor was the agency barred by the doctrine of laches, because the government was enforcing
a public right. See Costello v. United States, 365 U.S. 265, 281–82 (1961); United States
v. Angell, 292 F.3d 333, 338 (2d Cir. 2002).1

        Accordingly, we DENY the petition for review.



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




1
  At oral argument, counsel for Baez withdrew his arguments that the 1986 conviction was not an aggravated felony
and that he was not an alien seeking admission to the United States. Accordingly, we do not address these claims in
this summary order.

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