10-3962

Persaud v. Holder

BIA

A096 435 503

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 20th 4 day of September, two thousand twelve.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 PETER W. HALL,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _____________________________________

12

13 PATRICK PERSAUD,

14 Petitioner, 15

16 v. 10-3962

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Patrick Persaud, Pro Se, Hackensack,

24 New Jersey.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Shelley R. Goad,

28 Assistant Director; Jennifer P.

29 Levings, Senior Litigation Counsel,

30 Office of Immigration Litigation,

31 Civil Division, United States

32 Department of Justice, Washington,

33 D.C.
2

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

4 is DENIED.

5 Petitioner Patrick Persaud, a native and citizen of

6 Guyana, seeks review of an August 30, 2010, decision of the

7 BIA denying his motion to reopen. In re Patrick Persaud,

8 No. A096 435 503 (B.I.A. Aug. 30, 2010). We assume the

9 parties’ familiarity with the underlying facts and

10 procedural history in this case.

11 We review the BIA’s denial of a motion to reopen for

12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d

13 Cir. 2005) (per curiam). It is well established that the

14 BIA may deny an alien’s motion to reopen on the basis that

15 the alien failed to produce previously unavailable, material

16 evidence. See INS v. Abudu, 485 U.S. 94, 104-05, 107

17 (1988); see also Poradisova v. Gonzales, 420 F.3d 70, 78 (2d

18 Cir. 2005). 

19 Persaud argues that he did not have the requisite

20 intent to commit the assault for which he was convicted in

21 1995, and that his assault conviction did not constitute a

22 crime involving moral turpitude (“CIMT”). To the extent
3

1 Persaud challenges the validity of his assault conviction,

2 we lack jurisdiction to consider this collateral attack on

3 his criminal conviction. See Lanferman v. BIA, 576 F.3d 84,

4 88 (2d Cir. 2009) (finding that petitioner’s argument that

5 the agency erred in relying on his guilty plea that was

6 obtained in violation of his constitutional rights was

7 without merit because a collateral attack on a conviction is

8 not available in removal proceedings). Moreover, contrary

9 to Persaud’s argument, the BIA did not err in finding that

10 his conviction continued to constitute a CIMT in light of

11 its recent decision in Matter of Pedroza, 25 I. & N. Dec.

12 312, 314 (BIA 2010), because his conviction was for an

13 offense that carried a maximum sentence of one year of

14 imprisonment, see N.Y. Penal Law §§ 120.00, 70.15(1). See

15 Pedroza, 25 I. & N. Dec. at 314 (standing for the

16 proposition that, to constitute a CIMT, an offense “must be

17 punishable by a sentence to imprisonment for a year or

18 longer” and not fall under the petty offense exception). 

19 Furthermore, as the BIA found, Persaud’s pending motion

20 to vacate his conviction is not a basis for reopening

21 because it does not affect the finality of his conviction

22 for immigration purposes. See 8 C.F.R. § 1003.2 (requiring
4

1 that a motion to reopen present new, material evidence);

2 Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) (conviction is

3 final upon conclusion of appellate review); Matter of Ponce

4 de Leon, 21 I.& N. Dec. 154, 157 (A.G. 1997; BIA 1996, 1997)

5 (noting that the pendency of a post-conviction motion or

6 other form of collateral attack on a criminal conviction

7 does not negate the finality of that conviction for

8 immigration purposes). Because Persaud did not present new,

9 material evidence, the BIA did not abuse its discretion in

10 denying his motion to reopen. See Kaur, 413 F.3d at 233. 

11 For the foregoing reasons, the petition for review is

12 DENIED. As we have completed our review, any stay of

13 removal that the Court previously granted in this petition

14 is VACATED, and any pending motion for a stay of removal in

15 this petition is DISMISSED as moot. Any pending request for

16 oral argument in this petition is DENIED in accordance with

17 Federal Rule of Appellate Procedure 34(a)(2), and Second

18 Circuit Local Rule 34.1(b).

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk

21

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