Convery v. Holder (2nd Cir 8-30-12) GMC for cancellation of removal
11-2270-agConvery v. Holder UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDERRULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO ASUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BYFEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHENCITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITEEITHER 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 ANYPARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, heldat the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City ofNew York, on the 30th day of August, two thousand twelve.PRESENT: RALPH K. WINTER, Non-Precedents might have the "power to REENA RAGGI, persuade" and may be cited for that purpose. See this article on topic. GERARD E. LYNCH, Circuit Judges.-----------------------------------------------------------------------FAHMIDA MOLLA CONVERY, a.k.a. FahmidaMolla, Petitioner, v. No. 11-2270-agERIC H. HOLDER, JR., United States Attorney General, Respondent.-----------------------------------------------------------------------APPEARING FOR PETITIONER: ALAN MICHAEL STRAUSS, Esq., New York, New York.APPEARING FOR RESPONDENT: IMRAN R. ZAIDI, Trial Attorney (Tony West, Assistant Attorney General, Thomas B. Fatouros, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a decision of the Boardof Immigration Appeals (“BIA”), IT IS HEREBY ORDERED, ADJUDGED, ANDDECREED that the petition for review is DENIED. Fahmida Molla Convery (“Molla”), a native of Belgium and citizen of Bangladesh,seeks review of a May 6, 2011 order of the BIA affirming the March 1, 2010 decision ofImmigration Judge (“IJ”) Alan A. Vomacka finding her removable and ineligible forcancellation of removal because she failed to demonstrate the good moral character requiredfor that relief. See In re Fahmida Molla Convery, No. A076 184 244 (B.I.A. May 6, 2011),aff’g No. A076 184 244 (Immig. Ct. N.Y.C., Mar. 1, 2010); 8 U.S.C. § 1229b(b)(1)(B).Although the IJ cited several reasons for finding Molla not to have satisfied the good moralcharacter requirement, the BIA affirmed the IJ’s conclusion based only on: (1) Molla’sentrance into a second marriage prior to termination of her first, (2) her failure to disclose herfirst marriage and a prior arrest on the adjustment of status application she filed in 2006, and(3) her lack of a credible explanation for either of those actions. Accordingly, in reviewingthe challenged good moral character determination, we review the IJ’s findings as modifiedby the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).1 1 To the extent that it remains an open question whether a good moral characterdetermination under the catch-all provision of 8 U.S.C. § 1101(f) is a fully reviewablenon-discretionary determination or a discretionary determination for which review is limitedto constitutional claims and questions of law, see Sumbundu v. Holder, 602 F.3d 47, 53–55(2d Cir. 2010), we need not decide the issue here because Molla asserts only legal challengesto the agency’s adverse character determination. 2
We assume the parties’ familiarity with the facts and record of prior proceedings, which wereference only as necessary to explain our decision to deny the petition.1. Scienter Molla argues that the agency’s character determination is deficient because the IJnever found that she acted with the scienter necessary to demonstrate conduct involvingmoral turpitude. This court has yet to recognize such a scienter requirement. See Sumbunduv. Holder, 602 F.3d 47, 55–56 (2d Cir. 2010) (declining to decide whether agency findingthat alien lacks requisite good moral character under catch-all provision must be based onintentional or knowing conduct because IJ found intentional conduct in any event). We neednot here decide that legal question because, even assuming a scienter requirement under the8 U.S.C. § 1101(f) catch-all provision, the agency found that Molla intentionally entered intoa second marriage knowing that she had not terminated her first and intentionally omitted herarrest and first marriage from her 2006 adjustment application. Although Molla offeredvarious explanations to demonstrate that she had not acted with scienter, the agency foundthat her explanations were not credible. Assuming, arguendo, that we have jurisdiction toreview a credibility finding underlying a moral character determination, see Abimbola v.Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004), we defer to the agency’s credibilitydetermination because it is supported by substantial evidence, see 8 U.S.C. § 1252(b)(4)(B);Mei Fun Wong v. Holder, 633 F.3d 64, 68 (2d Cir. 2011). 3
2. Mischaracterizations of the Record Molla argues that the IJ mischaracterized the record. See Mendez v. Holder, 566 F.3d316, 322–23 (2d Cir. 2009) (recognizing jurisdiction under 8 U.S.C. § 1252(a)(2)(B) toreview factfinding flawed by error of law such as serious mischaracterization of recordevidence). The argument fails because in affirming the adverse character determination, theBIA did not rely on those IJ findings purportedly infected by a mischaracterization of therecord, i.e., the reason for the denial of her 1996 adjustment application or the purpose forwhich the Net Worth Statement was prepared. The BIA relied only on the IJ’s findingsregarding Molla’s omission of her arrest and first marriage from the 2006 adjustmentapplication, and her failure to dissolve her first marriage before entering into a secondmarriage.2 Molla does not argue that those findings mischaracterized the record.Accordingly, we identify no error of law infecting the agency’s factfinding.3. Authentication Molla argues that the IJ erred in admitting into evidence documents that did notcomply with the authentication requirements of 8 C.F.R. § 1287.6(a), specifically the 2006adjustment application and the Net Worth Statement. Because the BIA did not rely on theNet Worth statement in affirming the IJ’s moral character finding, we need not address her 2 Because the BIA’s moral character determination relied only on the IJ’s finding thatMolla had intentionally omitted her arrest and first marriage from the 2006 adjustmentapplication, and had failed to end her first marriage before entering her second, we rejectMolla’s argument that the agency considered conduct occurring before the ten-year statutorylookback period. 4
authentication challenge to that document. Molla failed to raise an authentication challenge to the 2006 adjustment application in her appeal to the BIA, thus we deem the argument unexhausted and decline to address it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 120–22 (2d Cir. 2006) (holding that issue exhaustion is mandatory). Even if we were to reach the issue and conclude that the agency erred in considering the document, however, such error would not have precluded the agency from considering Molla’s failure to disclose her prior arrest or first marriage in the 2006 adjustment application because Molla testified that she had failed to disclose those facts in the 2006 application. Thus, regardless of the application document’s proper authentication, Molla’s testimony alone supported the agency’s finding that she had omitted that information from the application. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, Molla’s pending motion for a stay of removal is DENIED as moot. FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk of CourtINA 101 or 8 USC 1101 Definitions. (f) For the purposes of this chapter—No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to beestablished is, or was—(1) a habitual drunkard;(2) Repealed. Pub. L. 97–116, §2(c)(1), Dec. 29, 1981, 95 Stat. 1611.(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (10)(A) of section 1182(a) ofthis title; or subparagraphs (A) and (B) of section 1182(a)(2) of this title and subparagraph (C) thereof of such section 8 (except as such paragraph relates to asingle offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which headmits the commission, was committed during such period;(4) one whose income is derived principally from illegal gambling activities;(5) one who has been convicted of two or more gambling offenses committed during such period;(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days ormore, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section); or(9) one who at any time has engaged in conduct described in section 1182(a)(3)(E) of this title (relating to assistance in Nazi persecution, participation ingenocide, or commission of acts of torture or extrahudicial killings or 1182(a)(2)(G) of this title (relating to severe violations of religious freedom).The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral 5character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election(including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, inthe case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in theUnited States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen,no finding that the alien is, or was, not of good moral character may be made based on it.