     16-863
     Latty v. Lynch
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A087 555 925

                           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 TO 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 for the
 2   Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   12th day of January, two thousand seventeen.
 5
 6   PRESENT:
 7             DENNIS JACOBS,
 8             SUSAN L. CARNEY,
 9                            Circuit Judges,
10             KATHERINE POLK FAILLA,
11                            District Judge.*
12   _____________________________________
13
14   GARY LATTY,
15
16                          Petitioner,
17
18                    v.                                       16-863
19
20
21   LORETTA E. LYNCH, UNITED STATES
22   ATTORNEY GENERAL,
23
24                  Respondent.
25   _____________________________________
26
27   FOR PETITIONER:                      EMILY A. WALSH, Spar & Bernstein P.C.,
28                                        New York, NY.
29
30   FOR RESPONDENT:                      DAVID H. WETMORE; Benjamin C. Mizer,

     * Judge Katherine Polk Failla of the United States District Court for
     the Southern District of New York, sitting by designation.
 1                                 Principal Deputy Assistant Attorney
 2                                 General; Daniel E. Goldman, Senior
 3                                 Litigation Counsel; Ashley Martin,
 4                                 Trial Attorney, Office of Immigration
 5                                 Litigation, United States Department
 6                                 of Justice, Washington, DC.
 7
 8        UPON DUE CONSIDERATION of this petition for review of a Board
 9   of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
10   ADJUDGED, AND DECREED that the petition for review is DENIED in part
11   and DISMISSED in part.
12
13        Petitioner Gary Latty, a native and citizen of Jamaica, seeks
14   review of a February 19, 2016, decision of the BIA, affirming a July
15   18, 2014, decision of an Immigration Judge (“IJ”) denying Latty’s
16   application for cancellation of removal and ordering him removed to
17   Jamaica. In re Gary Latty, No. A087 555 925 (B.I.A. Feb. 19, 2016),
18   aff’g No. A087 555 925 (Immig. Ct. Hartford July 18, 2014). We assume
19   the parties’ familiarity with the underlying facts and procedural
20   history in this case.
21
22        Under the circumstances of this case, we have reviewed the
23   decisions of both the BIA and the IJ “for the sake of completeness.”
24   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
25   The applicable standards of review are well established: we review
26   the IJ’s factual findings for substantial evidence and questions of
27   law de novo. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
28   F.3d 510, 513 (2d Cir. 2009). We decline to consider Latty’s
29   unexhausted arguments concerning bias and ineffective assistance.
30   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123-25 (2d Cir.
31   2007). We address below Latty’s challenge to the agency’s
32   determination that he failed to establish that he “has been a person
33   of good moral character” for the ten years preceding his application
34   for cancellation of removal, as required by 8 U.S.C.
35   § 1229b(b)(1)(B).
36
37        In order for an alien like Latty, who is not a lawful permanent
38   resident, to demonstrate eligibility for cancellation of removal,
39   he must establish, among other things, that he “has been a person
40   of good moral character” for the ten years preceding his application.
41   8 U.S.C. § 1229b(b)(1)(B). “No person shall be regarded as, or found
42   to be, a person of good moral character” if, as set forth in 8 U.S.C.
43   § 1182(a)(2)(C), the “Attorney General knows or has reason to believe
44   [that he] is or has been an illicit trafficker in any controlled
45   substance.” 8 U.S.C. § 1101(f)(3). Although our jurisdiction to
46   review the denial of cancellation of removal is limited, “we retain
47   jurisdiction to review certain agency determinations regarding two
48   of the four eligibility requirements for cancellation of removal,”

                                       2
 1   including the good moral character requirement. Mendez v. Holder,
 2   566 F.3d 316, 319-20 (2d Cir. 2009). Accordingly, we have
 3   jurisdiction to consider Latty’s challenge to the denial of
 4   cancellation.
 5
 6        The record supports the agency’s conclusion that Latty failed
 7   to sustain his burden to demonstrate good moral character, because
 8   there was reason to believe that Latty was a drug trafficker.
 9   Although Latty’s drug conviction was vacated, the arrest report
10   detailed that police found eight bags of marijuana in Latty’s car,
11   that Latty directed police to his “stash house,” and that in the stash
12   house police found more marijuana, “numerous cardboard boxes and
13   packaging material,” and a scale “that had a green plant like
14   substance on it next to a[n] open box of sandwich bags.” The plain
15   terms of § 1182(a)(2)(C)(i) require only a reasonable belief that
16   the applicant has been engaged in drug trafficking; a conviction is
17   not required. See Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1345
18   (11th Cir. 2010); Matter of Rico, 16 I. & N. Dec. 181, 184 (BIA 1977).
19
20        Latty argues that the arrest report is hearsay and unreliable,
21   and that his attorney duly objected to its admission at his merits
22   hearing. Latty’s argument is misplaced. “The Federal Rules of
23   Evidence do not apply in removal proceedings; rather, ‘[e]vidence
24   is admissible provided that it does not violate the alien’s right
25   to due process of law.’” Zerrei v. Gonzales, 471 F.3d 342, 346 (2d
26   Cir. 2006) (quoting Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d
27   255, 268 (2d Cir. 2006)). “The standard for due process is satisfied
28   if the evidence ‘is probative and its use is fundamentally fair,’
29   fairness in this context being ‘closely related to the reliability
30   and trustworthiness of the evidence.’” Id. (quoting Zhen Nan Lin,
31   459 F.3d at 268). Further, Latty’s claim that the report is
32   unreliable is not supported by the record: the report contained
33   detailed accounts of the officers’ personal observations and
34   evidence found during both the initial arrest and the search of
35   Latty’s stash house.
36
37        We have considered Latty’s remaining arguments and conclude
38   that they are without merit. Accordingly, Latty’s unexhausted
39   arguments concerning bias and ineffective assistance are DISMISSED
40   and the remainder of his petition for review is DENIED.
41
42                                   FOR THE COURT:
43                                   Catherine O’Hagan Wolfe, Clerk




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