15-3996-ag
Mohamed 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, 40 Foley Square, in the City of New York on the
20th day of June, two thousand eighteen.

Present:       ROSEMARY S. POOLER,
               RAYMOND J. LOHIER, JR.,
                           Circuit Judges.
               RICHARD J. SULLIVAN,1
                           District Judge.

_____________________________________________________

NASEER MOHAMED,

                              Petitioner,

                      v.                                                   15-3996-ag

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,

                        Respondent.
_____________________________________________________

Appearing for Petitioner:            Paul B. Grotas, New York, N.Y.

Appearing for Respondent:            Stefanie A. Svoren-Jay, Trial Attorney, Office of
                                     Immigration Litigation (John S. Hogan, Assistant Director,
                                     Office of Immigration Litigation, on the brief), for

1
  Judge Richard J. Sullivan, United States District Court for the Southern District of New York,
sitting by designation.
                                      Benjamin C. Mizer, Principal Deputy Assistant Attorney
                                      General, Washington, D.C.

Appearing for Amicus Curiae:          Andrew Wachtenheim, Immigrant Defense Project (Tai-
                                      Heng Cheng, Julia J. Peck, Quinn Emanuel Urquhart &
                                      Sullivan, LLP, New York, N.Y., on the brief), New York,
                                      N.Y., on behalf of Petitioner.

Petition for review of a final order of the Board of Immigration Appeals (“BIA”).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED in part and GRANTED in part, the
BIA’s order is VACATED insofar as it denied Mohamed’s motion to remand, and the case is
REMANDED to the BIA for further proceedings.

        Petitioner Naseer Mohamed appeals from the October 21, 2015 order of the BIA
(reissued on December 3, 2015), dismissing his appeals of the denial of his applications for
withholding of removal and relief under the Convention Against Torture (“CAT”), and denying
his motion to remand his case to the Immigration Judge (“IJ”). We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        Mohamed is a citizen of Guyana and a lawful permanent resident of the United States. On
October 21, 2013, Mohamed was served with a Notice to Appear, charging him with
removability under 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1227(a)(2)(B)(i), the sections of
the Immigration and Nationality Act (“INA”) providing for the removal of foreign nationals
convicted of an aggravated felony and a controlled substance violation, respectively. On June 2,
2014, the Immigration Judge denied Mohamed’s applications for withholding of removal and
relief under CAT. Mohamed appealed the denial of his applications to the BIA. On July 3, 2014,
Mohamed filed a motion to remand on the basis of an approved extension of time to file his state
criminal appeal, proof of which was attached to the motion and which rendered his late-filed
appeal timely as of the date of the state order. On the same day, the government filed a non-
opposition to Mohamed’s motion to remand “in light of these circumstances.” Certified
Administrative Record (“CAR”) at 138. On October 21, 2015, the BIA denied Mohamed’s
appeal of the withholding and CAT claims, as well as his motion to remand to the IJ.

       We review denials of motions to remand for abuse of discretion. See Cao v. United States
Department of Justice, 421 F.3d 149, 157 (2d Cir. 2005). The BIA abuses its discretion when it
“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.” Id. (quoting Zhao v. United States
Department of Justice, 265 F.3d 83, 93 (2d Cir. 2001)).

        We find that the BIA abused its discretion when it denied Mohamed’s motion to remand
on the basis of an erroneous understanding of our Circuit law. In denying the motion to remand,
the BIA explained:




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       [E]ven if his appeal of [Mohamed’s] conviction remained on direct appeal, it would not
       affect the finality of the conviction for immigration purposes. The definition of
       “conviction” in section 101(a)(48)(A) of the [INA] requires only that the trial court enter
       a formal judgment of guilt and does not include any requirement that all direct appeals be
       exhausted or waived. See Puello v. Bureau of Citizenship and Immigration Servs., 511
       F.3d 324, 332 (2d Cir. 2007).

CAR at 6.

         The BIA misstated our Circuit law when it suggested that Puello decided the finality
question in our Circuit. We have repeatedly acknowledged that Puello’s statement regarding
finality was merely dicta and that the question remains open. See, e.g., Ramirez v. Holder, 447 F.
App’x 249, 251 n.1 (2d Cir. 2011) (summary order) (“This court has suggested that the definition
of the word ‘conviction,’ added to the immigration laws in 1996, ‘eliminate[d] the requirement
that all direct appeals be exhausted or waived before a conviction is considered final under the
statute.’ . . . [W]e need not here decide whether Puello’s construction should be followed.”)
(quoting Puello, 511 F.3d at 332) (internal citation omitted) (emphasis added)); Abreu v. Holder,
378 F. App’x 59, 62 (2d Cir. 2010) (summary order) (remanding to the BIA “to address, in the
first instance, whether the IIRIRA’s definition of conviction is ambiguous with respect to the
finality requirement”). But see Alejo v. Mukasey, 292 F. App’x 128, 129 (2d Cir. 2008)
(summary order) (“As we have explained, in 1996, Congress ‘eliminate[d] the requirement that
all direct appeals be exhausted or waived before a conviction is considered final.” (quoting
Puello, 511 F.3d at 332)). The finality question was not even presented in the briefing in Puello,
and its dicta on the question was arguably wrong. Indeed, some precedential cases in the Circuit
have continued to assume that the INA retained the finality requirement, without reference to
Puello at all. See, e.g., Adams v. Holder, 692 F.3d 91, 94 (2d Cir. 2012) (“Upon realizing the
drug conviction was not final for purposes of the INA in light of a pending appeal, DHS
amended the Notice to Appear . . . .”) (citing Walcott v. Chertoff, 517 F.3d 149 (2d Cir. 2008),
and Marino v. INS, 537 F.2d 686, 691-92 (2d Cir. 1976)); Walcott, 517 F.3d at 154 (“Petitioner’s
March 1996 conviction was not deemed final for immigration purposes until July 1, 1998, when
direct appellate review of it was exhausted.”).

         Given this conflicting history of the issue within our Circuit, and contrary to the
assumption of the BIA, it is clear to us that the question remains quite unsettled. We need not
settle the question today, because we find that the BIA erred in its understanding of our Circuit
law and should be given an opportunity to render a decision on the merits of the motion to
remand within the context of the correct legal framework. On remand, the BIA may also wish to
consider whether this case should be remanded to the Immigration Judge for a continuance
pursuant to 8 C.F.R. § 1003.29.

        We agree with the BIA, however, on the underlying substance of Mohamed’s appeals
regarding his withholding and CAT claims. Mohamed argues on appeal that his conviction was
not for a particularly serious crime and that he established his eligibility for protection under
CAT. Both of these arguments are without merit. There was no legal error in the determinations
of the IJ or the BIA that Mohamed’s conviction was for a particularly serious crime. Nor did the
BIA err in affirming the IJ’s determination that Mohamed was not eligible for CAT protection.



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        We have considered the remainder of the parties’ arguments and find them to be without
merit. Accordingly, the petition for review is DENIED in part and GRANTED in part, the
BIA’s order is VACATED insofar as it denied Mohamed’s motion to remand, and the case is
REMANDED to the BIA for further proceedings.

SULLIVAN, District Judge, dissenting:
        I respectfully dissent from the majority’s decision to remand this case to the
Board of Immigration Appeals (“BIA”). First, I see nothing in the decision of the BIA to
suggest that the BIA misconstrued the Second Circuit’s opinion in Puello v. Bureau of
Citizenship & Immigration Services, 511 F.3d 324 (2d Cir. 2007) to be controlling, as
opposed to persuasive, authority as to the meaning of 8 U.S.C. § 1101(a)(48)(A).
Second, for the reasons articulated by Judge Katzmann in Puello, the Ninth Circuit in
Planes v. Holder, 652 F.3d 991 (9th Cir. 2011), and Judge Smith in Orabi v. Attorney
General, 738 F.3d 535, 543 (3d Cir. 2014) (Smith, J., dissenting), I believe that 8 U.S.C.
§ 1101(a)(48)(A), which defines the term “conviction” to mean “a formal judgment of
guilt of the alien entered by a court,” is unambiguous on its face and includes no finality
requirement. Indeed, the majority here expresses no view to the contrary. And if the
statute is clear, then the BIA’s interpretation of it was not only correct, but the only one it
could have reached. See New York Pub. Interest Research Grp. v. Whitman, 321 F.3d
316, 324 (2d Cir. 2003) (“We will not defer to an agency’s interpretation that contravenes
Congress’ unambiguously expressed intent.”) Accordingly, I would uphold the decision
of the BIA in its entirety.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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