     16-3120
     Gay v. Sessions
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A079 722 477
                            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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   20th day of December, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   PATRICK J. GAY, AKA JEAN PATRICK
14   GAY, AKA J. PATRICK GAY,
15            Petitioner,
16
17                     v.                                            16-3120
18                                                                   NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Nicholas J. Mundy, Brooklyn, NY.
25
26   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
27                                       Attorney General; Linda S. Wernery,
28                                       Assistant Director; Steven K. Uejio,
29                                       Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, DC.
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 is

4    DENIED.

5        Petitioner Patrick J. Gay, a native and citizen of Haiti,

6    seeks review of a September 1, 2016, decision of the BIA

7    affirming an April 21, 2016, decision of an Immigration Judge

8    (“IJ”) denying Gay’s applications for asylum, withholding of

9    removal, relief under the Convention Against Torture (“CAT”)

10   and a waiver of inadmissibility.     In re Patrick J. Gay, No. A079

11   722 477 (B.I.A. Sep. 1, 2016), aff’g No. A079 722 477 (Immig.

12   Ct. N.Y. City Apr. 21, 2016).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed both

16   the IJ’s and BIA’s opinions “for the sake of completeness.”

17   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

18   2006). Gay was ordered removed on account of an aggravated

19   felony conviction, and does not challenge his removability on

20   that basis.   Accordingly, our review is limited to

21   constitutional claims and questions of law.       8 U.S.C.
                                     2
1    §§ 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 90–

2    91 (2d Cir. 2015).   We address Gay’s arguments in turn.

3         I.    Waiver and Adjustment of Status

4        Gay applied to adjust to lawful permanent resident status,

5    for which he needed a waiver under 8 U.S.C. § 1182(h) on account

6    of his sexual abuse conviction.     The agency found Gay eligible

7    for the waiver, but denied it as a matter of discretion given

8    the seriousness of his criminal conviction.      Gay argues that

9    the agency did not give enough weight to his equities and placed

10   too much emphasis on his conviction.     We lack jurisdiction to

11   review the agency’s discretionary weighing of the equities

12   where, as here, the agency considered the relevant factors.

13   See Guyadin v. Gonzales, 449 F.3d 465, 468–69 (2d Cir. 2006);

14   see also 8 U.S.C. §§ 1182(h), 1252(a)(2)(B)(i).

15       II.    Withholding of Removal

16       Aliens convicted of “particularly serious crime[s]” are

17   statutorily ineligible for withholding of removal.      8 U.S.C.

18   § 1231(b)(3)(B)(ii).   An aggravated felony, like Gay’s, with

19   a sentence of less than five years is not per se particularly

20   serious.   8 U.S.C. § 1231(b)(3)(B).    Rather, in such cases the

21   agency examines “the nature of the conviction, the type of
                                    3
1    sentence imposed, and the circumstances and underlying facts

2    of the conviction” to determine if the specific conviction is

3    particularly serious.   Matter of N-A-M-, 24 I. & N. Dec. 336,

4    342 (B.I.A. 2007); see also Nethagani v. Mukasey, 532 F.3d 150,

5    155 (2d Cir. 2008).

6        Gay argues that his conviction was not particularly

7    serious, emphasizing that he was initially sentenced only to

8    probation (although he was re-sentenced to 2 years’

9    imprisonment after violating probation).    As Gay concedes,

10   however, “the sentence imposed is not the most accurate or

11   salient factor to consider in determining the seriousness of

12   an offense.”   Matter of N-A-M-, 24 I. & N. at 342.   Here, the

13   IJ considered each of the factors: the statutory definition and

14   elements of the crime of sexual abuse by forcible compulsion;

15   the lengthy (10-year) probation sentence; and the fact that

16   Gay’s victim was a 12-year-old child over whom he was in a

17   position of authority and trust.   Accordingly, Gay has not

18   identified any constitutional or legal error in the agency’s

19   analysis.   8 U.S.C. § 1252(a)(2)(C),(D); Nethagani, 532 F.3d

20   at 155 (upholding particularly serious crime determination

21   where agency properly applied factors).
                                   4
1       III.   CAT Deferral

2        Gay’s conviction does not bar CAT deferral, 8 C.F.R.

3    § 1208.17(a);    however, our review remains limited to

4    constitutional claims and questions of law.   Ortiz-Franco, 782

5    F.3d at 90-91.

6        Gay argued that he should receive CAT relief because he

7    would be identified as a former paramilitary member and

8    tortured, despite his absence from Haiti since 1995. Appealing

9    the agency’s rejection of that claim, Gay challenges only the

10   IJ’s determination that he should have produced an affidavit

11   or testimony from his mother to corroborate this claim,

12   emphasizing that he testified credibly.    That challenge does

13   not raise a colorable question of law. The IJ may take into

14   account a lack of corroboration even if an applicant’s testimony

15   is credible. See 8 U.S.C. § 1158(b)(1)(B)(ii); 8 C.F.R.

16   §§ 1208.16(c)(2),(3). Moreover, Gay lacked personal knowledge

17   of current conditions in Haiti becuase he left in 1995.   As the

18   IJ noted, Gay’s mother traveled between the United States and

19   Haiti and could have testified about whether Gay would still

20   be targeted for retaliation as a former paramilitary member.

21   Gay’s mother was on his witness list, but did not provide an
                                    5
1    affidavit or testify, and Gay did not explain her absence.

2    See 8 U.S.C. § 1252(b)(4) (courts may not reverse agency’s

3    determination regarding corroborating evidence unless “a

4    reasonable trier of fact is compelled to conclude that such

5    corroborating evidence is unavailable”); Chuilu Liu v. Holder,

6    575 F.3d 193, 198 (2d Cir. 2006) (explaining that it is alien’s

7    burden to provide corroboration “without prompting from the

8    IJ”).

9        For the foregoing reasons, the petition for review is

10   DENIED.

11                                FOR THE COURT:
12                                Catherine O’Hagan Wolfe, Clerk




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