10-470-ag 

Guy v. Holder

BIA

Abrams, IJ

A031 227 524

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 4th 4 day of March, two thousand eleven.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 ROSEMARY S. POOLER, 

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _______________________________________

12

13 LARRY ANTHONY GUY, ALSO KNOWN AS LARRY

14 GREY, ALSO KNOWN AS LARRY CUY,

15 Petitioner, 

16

17 v. 10-470-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Linda Kenepaske, New York, New York.
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General, Civil Division; Greg D.

3 Mack, Senior Litigation Attorney;

4 Manuel A. Palau, Trial Attorney,

5 Office of Immigration Litigation,

6 United States Department of Justice,

7 Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 review is DISMISSED.

13 Petitioner Larry Anthony Guy, a native and citizen of

14 Trinidad and Tobago, seeks review of a January 13, 2010,

15 order of the BIA affirming the August 19, 2009, decision of

16 Immigration Judge (“IJ”) Steven R. Abrams, denying his

17 application for withholding of removal, and relief under the

18 Convention Against Torture (“CAT”). In re Larry Anthony Guy

19 No. A031 227 524 (B.I.A. Jan. 13, 2010), aff’g No. A031 227

20 524 (Immig. Ct. N.Y. City Aug. 19, 2009). We assume the

21 parties’ familiarity with the underlying facts and

22 procedural history in this case.

23 Guy argues that his five convictions in New York for

24 selling marijuana are not per se particularly serious crimes

25 because they meet the exceptions set forth Matter of Y-L-,

26 23 I.&.N. Dec. 270, 276-77 (A.G. 2002), and that we have
*Between 1995 and 2007, Guy was convicted, on three

separate occasions, of Criminal Sale of Marijuana in the

Fourth Degree in violation of New York Penal Law § 221.40

and, on two separate occasions, of Criminal Possession of

Marijuana in the Fifth Degree in violation of New York Penal

Law § 221.10. 

3

jurisdiction to entertain his argument.* 1 See Nethagani v.

2 Mukasey, 532 F.3d 150, 155 (2d Cir. 2008) (holding that 8

3 U.S.C. § 1252(a)(2)(B)(ii) did not preclude review of the

4 agency’s particularly serious crime determination because

5 the statute does not explicitly place the finding within the

6 Attorney General’s discretion). Our Circuit has not, to

7 date, considered whether the convictions at issue constitute

8 particularly serious crimes. Nor do we need to do so now.

9 The IJ and the BIA premised the denial of Guy’s

10 application and dismissal of his appeal on an alternate

11 ground – that Guy had failed to meet his burden of proof

12 with regard to his withholding of removal or CAT claims. 

13 Because Guy has been convicted of an aggravated felony, our

14 jurisdiction is limited to constitutional claims or

15 questions of law with regard to the agency’s alternate

16 findings. See 8 U.S.C. § 1252(a)(2)(C), (D). Guy does not

17 raise any such claims. Thus even if Guy were correct that

18 we have jurisdiction to determine that his criminal record

19 does not reflect convictions for particularly serious

20 crimes, he remains ineligible for relief. Accordingly, we
4

1 DISMISS his petition for review.

2 For the foregoing reasons, the petition for review is

3 DISMISSED. As we have completed our review, the pending

4 motion for a stay of removal in this petition is DISMISSED

5 as moot.

6 FOR THE COURT:

7 Catherine O’Hagan Wolfe, Clerk

8

9