13

‐ 42

‐ ag

Trunov v. Holder

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.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 4 th day of June, two thousand fourteen.

PRESENT: D ENNIS J ACOBS

,

C HESTER J. S TRAUB

,

S USAN L. C ARNEY

,

Circuit Judges.

___________________ __________________

A NDREY N IKOLAEVICH T RUNOV

,

Petitioner

,

v. 13

‐ 42

‐ ag

E RIC H. H OLDER

, J R

., U NITED S TATES A TTORNEY G ENERAL

, Respondent.

___________________ __________________2 FOR PETITIONER: M ICHAEL D E L ORETO

, L.A.R. 46.1(e) and

R OBERT L ORFINK

, L.A.R. 46.1(e) (Rachel

Godsil and Jon Romberg, on the brief ),

Seton Hall University School of Law

Center for Social Justice, Newark, NJ.

FOR RESPONDENT: S ABATINO F. L EO

, Trial Attorney (Stuart

F. Delery, Assistant Attorney General

and Ernesto H. Molina, Jr., Assistant

Director on the brief ), United States

Department of Justice, Washington,

DC.

Petition for review of a decision of the Board of Immigration Appeals

(“BIA”).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petition for review is GRANTED

, the decision of the BIA

is VACATED

, and the case is REMANDED for proceedings consistent with this

order.

This is an immigration case about the phrase “confined, as a result of

conviction.” Under 8 U.S.C. § 1101(f)(7), a person who is “confined, as a result of

conviction” for 180 days or more within a certain timeframe is precluded from

establishing his good moral character.

Petitioner Andrey Trunov was arrested and spent 167 days in jail before

pleading guilty to Third Degree Menacing, N.Y. P ENAL L AW § 120.15. He was

sentenced to “time served”

– effectively the mandatory maximum sentence of 90

days under New York law. See People v. Cortese

, 79 A.D.3d 1281, 1284 (3d Dep’t3 2010); People v. Conley

, 70 A.D.3d 961, 962 (2d Dep’t 2010); People v. Marinaccio

, 297

A.D.2d 754, 755 (2d Dep’t 2002). 1

Because of prior time in confinement, the sentence for Menacing put Trunov

above the 180 day mark. The catch is that the sentence was later reduced. The new

sentence, if counted for purposes of § 1101(f)(7), would put Trunov under the 180

day threshold.

The BIA concluded that the sentencing modification did not affect § 1101(f)(7)

and that Trunov was therefore precluded from establishing his good moral

character. We GRANT the petition for review, VACATE the BIA’s decision, and

REMAND the cause to the BIA for proceedings consistent with this order. We

assume the parties’ familiarity with the underlying facts, the procedural history,

and the issues presented for review.

“While the BIA’s interpretation of immigration statutes is generally entitled

to Chevron deference, interpretations in non

‐ precedential unpublished BIA

decisions, as in the instant case, are not so entitled.” Varughese v. Holder

, 629 F.3d

272, 274 (2d Cir. 2010) (per curiam).

The BIA has previously encountered the issue of how to handle modified or

vacated legal rulings. Sometimes immigration consequences turn on the existence

of a conviction. See, e.g.

, 8 U.S.C. § 1227(a)(2)(A). When a conviction is vacated

“solely to aid [an alien] in avoiding immigration consequences” and not because of

“any procedural or substantive defect in the original conviction,” the original

conviction is still considered valid for immigration purposes. Saleh v. Gonzales

, 495

1 We need not address whether or to what extent the original sentence was improper.4 F.3d 17, 19 (2d Cir. 2007); see also In re Pickering

, 23 I. & N. Dec. 621, 624

‐ 25 (B.I.A.

2003).

Other times, immigration consequences turn on the sentence that was

ordered. See 8 U.S.C. §§ 1101(f)(8), 1101(a)(43)(G). When a sentence is modified,

the BIA has credited the newer sentence regardless of the motivations behind the

change. In re Cota

‐ Vargas

, 23 I. & N. Dec. 849, 850

‐ 53 (B.I.A. 2005).

The Government argues that “it is the length of confinement and not

sentence length that matters” for purposes of § 1101(f)(7). Resp’t’s Br. 21. The

validity of that argument may turn on how the BIA construes the five words in the

statute after “confinement”: “confine[ment], as a result of conviction.” There is a

substantial question as to whether someone can be “confined, as a result of

conviction” other than pursuant to a sentence. In other words, how is a sentence

not a necessary component of § 1101(f)(7)?

The BIA stated that it would not credit the modification because Trunov

served 90 days “pursuant to a then existing lawful sentence.” It is unclear how or

whether this reasoning can be reconciled with Cota

‐ Vargas

, supra

, in which there

was a “then existing lawful sentence,” but the BIA credited only the newer sentence

nonetheless.

When dealing with a non

‐ precedential BIA decision, we have often

remanded so “the BIA [can] by published opinion interpret a statute it is charged

with enforcing.” Dobrova v. Holder

, 607 F.3d 297, 300 (2d Cir. 2010); see also Jian Hui

Shao v. BIA

, 465 F.3d 497, 502

‐ 03 (2d Cir. 2006). We will do so here. One of the

many reasons for this procedure is that “any effort expended by us interpreting the

statute would be for nought should the BIA subsequently reach a different, yet5 reasonable, interpretation.” Jian Hui Shao

, 465 F.3d at 502; see also Yuanliang Liu v.

U.S. Dep ʹ t of Justice

, 455 F.3d 106, 116

‐ 17 (2d Cir. 2006) (setting forth numerous

factors).

For the foregoing reasons, we GRANT the petition for review, VACATE the

BIA’s decision, and REMAND the cause to the BIA for proceedings consistent with

this order. On remand, the BIA may also consider the Immigration Judge’s

alternative bases for denying relief.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court