         09-3818-ag
         Nderere v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A029 853 242
                                  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 for
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 20th day of March, two thousand twelve,
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                PIERRE N. LEVAL,
 9                ROSEMARY S. POOLER,
10                     Circuit Judges.
11       _______________________________________
12
13       Jeannette Lois Nderere, also known as
14       Jeanette Preston,
15                Petitioner,
16
17                           v.                                 09-3818-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                   Jon Bauer, Timothy H. Everett,
25                                         Patrick Mott, Hartford, Connecticut.
26
27       FOR RESPONDENT:                   Tony West, Assistant Attorney
28                                         General; Terri J. Scadron, Assistant
29                                         Director; Wendy Benner-León, Trial
30                                         Attorney, Office of Immigration
31                                         Litigation, Civil Division, United
32                                         States Department of Justice,
33                                         Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED in part and GRANTED in part.

 5       Petitioner Jeannette Lois Nderere, a native and citizen

 6   of Zimbabwe, seeks review of a August 14, 2009, order of the

 7   BIA, affirming the March 12, 2009, decision of Immigration

 8   Judge (“IJ”) Michael W. Straus, denying her application for

 9   asylum and withholding of removal, and granting deferral of

10   removal under the Convention Against Torture (“CAT”).    In re

11   Nderere, No. A029 853 242 (B.I.A. Aug. 14, 2009), aff’g No.

12   A029 853 242 (Immig. Ct. Hartford, Conn. Mar. 12, 2009).      We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       Under the circumstances of this case, we review the

16   decision of the IJ as supplemented by the BIA.   See Yan Chen

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

18   applicable standards of review are well-established.    See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).   Although we lack jurisdiction to

21   review a final order of removal entered against an alien,

22   like Nderere, who is removable by reason of having committed


                                   2
 1   a criminal offense covered by 8 U.S.C. § 1227(a)(2)(A)(iii)

 2   (relating to convictions for aggravated felonies), see

 3   8 U.S.C. § 1252(a)(2)(c), we retain jurisdiction to review

 4   constitutional claims and questions of law raised in

 5   petitions for review filed by such aliens, Luna v. Holder,

 6   637 F.3d 85, 102 (2d Cir. 2011); see also 8 U.S.C.

 7   § 1252(a)(2)(D).     As discussed below, Nderere’s arguments

 8   invoke our jurisdiction because they present questions of

 9   law regarding whether the agency properly construed

10   statutory language and applied the correct legal standard.

11   See Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir. 2006)

12   (finding that a statutory interpretation question raises a

13   question of law); see also Nethagani v. Mukasey, 532 F.3d

14   150, 154-55 (2d Cir. 2008) (finding that this Court has

15   jurisdiction to review the BIA’s finding that an alien

16   committed a “particularly serious crime” because such a

17   determination is not solely within the discretion of the

18   Attorney General).

19   I.   Asylum

20        The BIA was not required to make a separate

21   determination of whether Nderere constituted a danger to the

22   community.    An alien is not eligible for asylum or


                                     3
 1   withholding of removal “if the Attorney General determines

 2   that—the alien, having been convicted by a final judgment of

 3   a particularly serious crime, constitutes a danger to the

 4   community of the United States.”     See 8 U.S.C.

 5   §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).1    The asylum

 6   statute also provides that convictions for aggravated

 7   felonies will be deemed “particularly serious crimes,” and

 8   that “[t]he Attorney General may designate by regulation

 9   offenses that will be considered to be a [‘particularly

10   serious crime’].”     See 8 U.S.C. § 1158(b)(2)(B)(i), (ii),

11   (b)(2)(A)(ii).    The BIA has held that the determination of

12   whether an alien poses a danger to the community is subsumed

13   in the analysis of whether the alien has committed a

14   particularly serious crime.     See Matter of N-A-M-, 24 I. &

15   N. Dec. 336, 342 (BIA 2007); see also Matter of Carballe, 19

16   I. & N. Dec. 357, 360 (BIA 1986).    We have deferred to this

17   interpretation.     See Nethagani 532 F.3d at 154, n.1 (noting

18   that this Court has accepted the BIA’s interpretation of the

19   statute) (citing Ahmetovic v. INS, 62 F.3d 48, 52-53 (2d.


           1
             The wording of § 1231 is slightly different: “if
       the Attorney General decides that—the alien, having been
       convicted by a final judgment of a particularly serious
       crime is a danger to the community of the United States.”
       8 U.S.C. § 1231(b)(3)(B)(ii).
                                     4
 1   Cir. 1995) (acknowledging that the statutory clause

 2   regarding “danger to the community” seemed superfluous

 3   unless a separate inquiry is made into an alien’s

 4   “dangerousness,” but that the BIA’s interpretation of the

 5   statute was not unreasonable)).

 6       Although Nderere correctly points out that this Court

 7   has not reviewed the “particularly serious crime” provision

 8   as it relates to the current asylum statute, we have found

 9   reasonable the BIA’s interpretation of that clause as it

10   relates to identical provisions contained in the withholding

11   of removal statute and a previous administrative regulation.

12   See Ahmetovic, 62 F.3d at 52-53; see also 8 C.F.R.

13   § 208.14(c)(1) (1995); 8 U.S.C. § 1231(b)(3)(B)(ii).

14   Because the “particularly serious crime” bar at issue in

15   this case is identical to those previously addressed, we

16   find that the BIA reasonably interpreted the current asylum

17   statute and that the agency was not required to make a

18   separate finding that Nderere constituted “a danger to the

19   community.”   Accordingly, because Nderere was convicted of

20   an aggravated felony, her conviction was automatically

21   classified as a “particularly serious crime” under the

22   asylum statute, and the BIA did not err in denying her

23   application for asylum.   See 8 U.S.C. § 1158(b)(2)(B)(i).

                                   5
 1   II. Withholding of Removal

 2       The BIA erred, however, when it failed to consider

 3   whether coercion and duress were relevant factors in

 4   determining whether Nderere’s conviction was a “particularly

 5   serious crime” for purposes of determining her eligibility

 6   for withholding of removal.      The withholding statute

 7   explicitly provides that, “notwithstanding the length of a

 8   sentence imposed,” the Attorney General may find that an

 9   alien has been convicted of a “particularly serious crime.”

10   8 U.S.C. § 1231(b)(3)(B); see also Ahmetovic, 62 F.3d at 51.

11   The agency relied on Matter of Y-L-, A-G-, and R-S-R-,

12   23 I. & N. Dec. 270 (A.G. 2002), to find that Nderere’s

13   conviction was a “particularly serious crime.”       However,

14   none of the cases before the Attorney General in Matter of

15   Y-L-, A-G-, and R-S-R- involved circumstances of coercion or

16   duress; rather, they involved voluntary acts by the

17   petitioners.   See id. at 271.       Furthermore, Courts have long

18   recognized that the presence of coercion and duress vastly

19   reduces the culpability of a person’s conduct, and have

20   therefore applied a presumption that legislators must have

21   contemplated making allowance for conduct motivated by

22   coercion and duress, even if such exceptions are not

23   explicitly stated in the statutes.        See, e.g., United States

                                      6
 1   v. Bailey, 444 U.S. 394, 415 n.11 (1980) (criminal

 2   statutes).    In the context of immigration laws, the Supreme

 3   Court held in Negusie v. Holder, that the circumstance of

 4   duress was significant in determining the applicability of a

 5   withholding bar under 8 U.S.C. § 1231(b)(3)(B)(i), and

 6   remanded the case to the BIA to determine the issue in the

 7   first instance.    129 S. Ct. 1159, 1164-66 (2009) (addressing

 8   the relevance of duress in the application of the persecutor

 9   bar).   Because it is unclear whether Matter of Y-L-, A-G-,

10   and R-S-R- applies to Nderere’s case, and because the BIA

11   has not yet determined whether it is reasonable to exclude

12   factors of coercion and duress in determining whether a

13   crime is “particularly serious,” we remand to the BIA for it

14   to address the matter in the first instance.    See I.N.S. v.

15   Orlando Ventura, 537 U.S. 12, 16 (2002) (holding that “the

16   proper course, except in rare circumstances, is to remand to

17   the agency for additional investigation or explanation”).

18       For the foregoing reasons, the petition for review is

19   DENIED in part and GRANTED in part, the BIA’s order is

20   VACATED to the extent it denied withholding of removal, and

21   the case is REMANDED for further proceedings consistent with

22   this Order.

23                                FOR THE COURT:
24                                Catherine O’Hagan Wolfe, Clerk
25
26




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