         09-1550-ag
         Anderson v. Holder
                                                                                        BIA
                                                                                Sagerman, IJ
                                                                               A 042 467 617
                               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 22 nd day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       FLOYD MCAURTHER ANDERSON,
14                Petitioner,
15
16                            v.                                09-1550-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                Jennifer Oltarsh, New York, New
24                                      York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Linda S. Wernery, Assistant
28                                      Director; James E. Grimes, Senior
29                                      Litigation Counsel, Office of
30                                      Immigration Litigation, Washington
31                                      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 Floyd McAurther Anderson, a native and

6    citizen of Jamaica, seeks review of the March 17, 2009,

7    order of the BIA affirming the November 5, 2008, decision of

8    Immigration Judge (“IJ”) Roger Sagerman denying his

9    application for withholding of removal and relief under the

10   Convention Against Torture (“CAT”).    In re Floyd McAurther

11   Anderson, No. A 042 467 617 (B.I.A. Mar. 17, 2009), aff’g

12   No. A 042 467 617 (Immig. Ct. N.Y. City Nov. 5, 2008).       We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review the

16   IJ’s decision as supplemented by the BIA.     See Yan Chen v.

17   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).      Under

18   8 U.S.C. § 1252(a)(2)(C), “no court shall have jurisdiction

19   to review any final order of removal against an alien who is

20   removable by reason of having committed a criminal offense

21   covered” by INA § 237(a)(2)(A)(iii) or (B).     The agency

22   found Anderson removable under INA § 237(a)(2)(A)(iii) and


                                  2
1    (a)(2)(B)(i) based on his convictions for the attempted sale

2    and possession of cocaine.    Therefore, we are without

3    jurisdiction to review the agency’s final order of removal,

4    except to the extent that Anderson’s petition raises

5    “constitutional claims or questions of law.”    See 8 U.S.C.

6    § 1252(a)(2)(D).

7        Anderson argues that the BIA committed legal error by

8    failing to consider his eligibility for equitable relief.

9    This is a question of law sufficient to invoke our

10   jurisdiction under 8 U.S.C. § 1252(a)(2)(D).    See Ilyas Khan

11   v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007).    Nevertheless,

12   his claim is without merit.    Anderson did not derive U.S.

13   citizenship through his mother’s naturalization because he

14   was not “under the age of eighteen years” at the time she

15   was naturalized.   See 8 U.S.C. § 1432(a) (repealed 2000). 1

16   Furthermore, contrary to Anderson’s argument, the BIA did

17   not err in declining to grant him nunc pro tunc relief due

18   to the government’s delay in processing his mother’s

19   naturalization application.    Anderson presented no evidence

20   that the delay was untoward or that his mother took any



           1
              The law that applies to Anderson is the law in
       effect at the time he turned eighteen on June 17, 1999.
       See Langhorne v. Ashcroft, 377 F.3d 175, 178-79 (2d Cir.
       2004).

                                    3
1    action to expedite the application in light of his age at

2    the time.    See Drozd v. INS, 155 F.3d 81, 90 (2d Cir. 1998)

3    (holding that the doctrine of equitable estoppel is not

4    available against the government “except in the most serious

5    of circumstances”); Rojas-Reyes v. INS, 235 F.3d 115, 126

6    (2d Cir. 2000) (holding that “estoppel will only be applied

7    upon a showing of ‘affirmative misconduct’ by the

8    government”); INS v. Miranda, 459 U.S. 14, 19 (1982)

9    (holding that delays by the government in processing an

10   immigration application did not qualify as affirmative

11   misconduct). 2

12        With respect to Anderson’s challenge to the agency’s

13   denial of CAT relief, he essentially disputes the

14   correctness of the IJ’s fact-finding by asserting that the

15   IJ incorrectly concluded that he would not be subjected to

16   torture as retaliation for his uncle’s political activities.

17   We are without jurisdiction to consider this factual

18   challenge.

19   8 U.S.C. § 1252(a)(2)(C).    Even if we had jurisdiction to



            2
             To the extent Anderson relies on Poole v. Mukasey,
       522 F.3d 259, 266 (2d Cir. 2007), we recently upheld the
       BIA’s denial of nunc pro tunc relief in that case, which
       presented a similar factual background. See Poole v.
       Holder, 2010 WL 323575 at *1 (2d Cir. January 29, 2010)
       (unpublished order).

                                    4
1    reach his arguments, Anderson does not dispute the IJ’s

2    findings that: (1) he could safely relocate within Jamaica;

3    and (2) the background evidence, including the 2007 State

4    Department Report on Jamaica, indicated that members of the

5    People’s National Party are not systematically targeted for

6    torture.    See 8 C.F.R. § 1208.16(c)(3)(ii) (discussing

7    internal relocation); see also Tu Lin v. Gonzales, 446 F.3d

8    395, 400 (2d Cir. 2006) (holding that State Department

9    reports are “probative” and reliable evidence of background

10   conditions).

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




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