    11-4982                                                                      BIA
    Magassouba v. Holder                                                      Page, IJ
                                                                         A078 430 196



                           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 10th day of June, two thousand thirteen.

    PRESENT:
                     Pierre N. Leval,
                     Robert A. Katzmann,
                     Peter W. Hall,
                          Circuit Judges.
    ______________________________________

    Moustapha Magassouba,
             Petitioner,

                       v.                                 11-4982

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.

    ______________________________________

    FOR PETITIONER:                 Moustapha Magassouba, pro se, New
                                    York, NY.

    FOR RESPONDENT:                 Sarah L. Vuong, Stephen M. Elliott,
                                    United States Department of Justice,
                                    Civil Division, Office of
                                    Immigration Litigation, Washington,
                                    D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision by the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Moustapha Magassouba, a native and citizen of Guinea,

seeks review of a November 3, 2011 order of the BIA.       That

order affirmed the May 27, 2011 decision of an Immigration

Judge (“IJ”), which denied Magassouba’s application for

cancellation of his removal under section 240A(b)(1) of the

Immigration and Nationality Act (“INA”) and adjustment of

status under INA § 245.    In re Magassouba, No. A078 430 196

(B.I.A. Nov. 3, 2011), aff’g No. A078 430 196 (Immig. Ct.

New York City, May 27, 2011).       Magassouba also asks the

Court to reconsider its denial of his motion to file an

addendum to his reply.    We assume the parties’ familiarity

with the underlying facts and procedural history of this

case.

I. Motion for Reconsideration

    We turn first to Magassouba’s request that we

reconsider our decision not to permit him to file an

addendum to his reply brief.    In his proposed addendum,

Magassouba provided information pertaining to his proposed


                                2
applications for asylum and for relief under the Convention

Against Torture (“CAT”).   Nonetheless, because Magassouba

has been convicted of conspiring to distribute heroin—which

is both an aggravated felony and a drug trafficking crime—he

is ineligible for both asylum and CAT relief.       See 8 U.S.C.

§§ 1158(b)(2)(A)(ii) & (B)(I) (asylum); 8 C.F.R.

§ 1208.16(d)(2) (CAT relief).       Accordingly, no additional

information can help him to obtain the relief he seeks, and

his motion for reconsideration is denied as futile.

II. Adjustment of Status Under INA § 245

    Section 245(a) of the INA provides that the Attorney

General may adjust the status of an alien, such as

Magassouba, who was inspected or paroled into the United

States, to that of a lawful permanent resident if, inter

alia, “the alien is eligible to receive an immigrant visa

and is admissible to the United States for permanent

residence.”   8 U.S.C. § 1255(a).      In other words, in order

to be eligible for adjustment of status, an alien must be

admissible to the United States at the time of adjustment.

See Varaghese v. Holder, 629 F.3d 272, 275 (2d Cir. 2010).

The agency determined that Magassouba was inadmissible under

INA § 212(a)(2)(C) because, by virtue of his federal


                                3
narcotics conviction, Magassouba was an “alien who . . . the

Attorney General knows or has reason to believe . . . is or

has been an illicit trafficker in any controlled substance.”

8 U.S.C. § 1182(a)(2)(C).

    Magassouba asserts that the agency erred in relying on

that conviction because it was not yet final when his

application for adjustment of status was denied.1

Nonetheless, we have previously noted that “the ‘reason to

believe’ language [in § 1182(a)(2)(C)] evidences a clear

Congressional intent not to limit inadmissability to those

who have been . . . convicted of a drug trafficking

offense.” Neptune v. Holder, 346 F. App’x 671, 673 (2d Cir.

2009) (summary order) (some alterations and internal

quotations marks omitted).   Because a showing that does not

include a conviction can provide the Attorney General with

“reason to believe” that Magassouba has trafficked drugs, a

not-yet-final conviction can do so as well.     Therefore, the

BIA did not err when, relying on Magassouba’s narcotics

conviction, it concluded that he was inadmissible under INA

§ 212(a)(2)(C).


       1
          Magassouba’s conviction is now final, as this Court
  affirmed the district court’s judgment, see United States v.
  Magassouba, 433 F. App’x 10 (2d Cir. 2011), and the Supreme
  Court denied his petition for a writ of certiorari, see
  Magassouba v. United States, 132 S. Ct. 386 (2011).

                               4
III. Cancellation of Removal Under INA § 240A(b)

    In order for an alien who is not a lawful permanent

resident to establish his eligibility for cancellation of

removal under INA § 240A, he must show, inter alia, that he

“has not been convicted of an offense under . . . [8 U.S.C.

§] 1227(a)(2).”     8 U.S.C. § 1229b(b)(1)(C).   In order to be

convicted of an offense described under § 1227(a)(2), the

offense must qualify as a crime involving moral turpitude

and must be punishable by a sentence of imprisonment of one

year or longer.     See Matter of Cortez, 25 I. & N. Dec. 301,

307 (BIA 2010); see also 8 U.S.C. § 1227(a)(2).      Magassouba

argues that the agency erred because his 1996 conviction for

forgery in the third degree in violation of N.Y. Penal Law

§ 170.05 is neither a crime involving moral turpitude, nor

one punishable by a sentence of at least one year of

imprisonment.

    Magassouba was convicted under N.Y Penal Law § 170.05,

which provides that, “A person is guilty of forgery in the

third degree when, with intent to defraud, deceive or injure

another, he falsely makes, completes or alters a written

instrument. Forgery in the third degree is a class A

misdemeanor.”     “[C]rimes in which fraud was an ingredient

have always been regarded as involving moral turpitude.”
                                5
Jordan v. De George, 341 U.S. 223, 232 (1951); see also

Balogun v. Ashcroft, 270 F.3d 274, 278-79 (5th Cir. 2001)

(noting that forgery is a crime of moral turpitude).       Thus,

the BIA did not err when it concluded that Magassouba has

been convicted of a crime of moral turpitude.

    Moreover, contrary to Magassouba’s argument that his

conviction was not punishable by at least one year of

imprisonment, New York law provides that a class A

misdemeanor, such as third degree forgery, is punishable by

a term of imprisonment of up to one year.    See N.Y. Penal

Law § 70.15(1).   Although Magassouba argues that the maximum

sentence for a class A misdemeanor is only one year, rather

than “one year or longer,” 8 U.S.C. § 1227(a)(2)(A)(i)(II),

we have previously rejected this exact argument.     See

Persaud v. Holder, No. 10–3962, 2012 WL 4122930, at *1 (2d

Cir. Sept. 20, 2012) (summary order) (“[T]he BIA did not err

in finding that his conviction . . . constitute[d] a [crime

described in § 1227(a)(2)] . . . because his conviction was

for an offense that carried a maximum sentence of one year

of imprisonment.”).2 Accordingly, Magassouba’s conviction

      2
          Magassouba cannot avail himself of the so-called
  “petty offense exception,” see generally 8 U.S.C.
  § 1182(a)(2)(A)(ii)(II), because § 1229b(b)(1)(C) excludes
  aliens who were convicted of an offense described by either
  § 1182(a)(2) or § 1227(a)(2). See Matter of Pedroza, 25 I. &
                              6
falls within the description of § 1227(a)(2).

IV. Remaining Arguments

    Next, Magassouba argues that the BIA erred in declining

to remand his case to the IJ so that he could apply for

asylum and CAT relief.    Motions to remand are subject to the

same substantive requirements as motions to reopen

immigration proceedings, including the requirement that the

“evidence sought to be offered is material.”     8 C.F.R.

§ 1003.2(c); Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA

1992). For the reasons described above, Magassouba’s drug

conviction renders him ineligible for asylum and CAT relief,

and thus he can present no evidence that is material to an

application for such relief.

    Finally, Magassouba’s constitutional claims present no

basis for granting him relief.     He fails (1) to point to any

specific instance in the record where he was denied a full

and fair opportunity to present his claims, (2) to explain

how he was otherwise deprived of a fundamentally fair

hearing, or (3) to establish that he was prejudiced by the


  N. Dec. 312, 314 (BIA 2010) (“[E]ven though the ‘petty
  offense’ exception prevents the respondent from having a
  conviction ‘described under’ section [1182](a)(2) of the Act,
  he must also demonstrate that his . . . conviction is not for
  an offense ‘described under’ section [1227](a)(2) of the
  Act.”). As described above, Magassouba’s offense is described
  under § 1227(a)(2).
                               7
alleged lack of due process.     See Garcia-Villeda v. Mukasey,

531 F.3d 141, 149 (2d Cir. 2008); Burger v. Gonzales, 498

F.3d 131, 134 (2d Cir. 2007).       Moreover, although Magassouba

alleges that he received ineffective assistance of counsel

during the early stages of his immigration proceedings, he

fails to demonstrate that he was prejudiced by any of his

counsel’s purported errors.     See Debeatham v. Holder, 602

F.3d 481, 485 (2d Cir. 2010) (“[A]n alien claiming

ineffective assistance of counsel must also show prejudice

resulting from counsel’s alleged deficiencies.”).

    We have considered all of Magassouba’s remaining

arguments and find them to be without merit. For the

foregoing reasons, the petition for review and motion for

reconsideration are DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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