12-4337

Brempong v. Holder

BIA

Straus, IJ

A041 586 151

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 13th day of November, two thousand thirteen.

PRESENT:

JON O. NEWMAN,

JOSÉ A. CABRANES,

PETER W. HALL,

Circuit Judges. 

_____________________________________

ALBERT ADU BREMPONG,

Petitioner, 

 v. 12-4337

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Justin Conlon, North Haven,

Connecticut.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Terri J. Scadron,

Assistant Director; Manuel A. Palau,

Trial Attorney, Office of

Immigration Litigation, United
States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Albert Adu Brempong, a native and citizen of Ghana,

seeks review of a September 27, 2012, decision of the BIA

affirming the May 10, 2011, decision of Immigration Judge

(“IJ”) Michael W. Straus, which denied his application for

deferral of removal under the Convention Against Torture

(“CAT”), and denying remand for consideration of a request

for relief under former section 212(c) of the Immigration

and Nationality Act (“INA”). In re Albert Adu Brempong, No.

A041 586 151 (B.I.A. Sept. 27, 2012), aff’g No. A041 586 151

(Immig. Ct. N.Y. City May 10, 2011). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Brempong challenges only the denial of his motion to

remand to apply for relief under former INA § 212(c). 

Although our jurisdiction to review the agency’s order is

limited to constitutional claims and questions of law by

reason of the fact that Brempong was found deportable based

on a conviction for an aggravated felony and controlled

substance offense, see 8 U.S.C. §§ 1227(a)(2)(A)(iii), (B);

1252(a)(2)(C), (D), Brempong raises a question of law as to

his eligibility for § 212(c) relief, see Sepulveda v.

Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005). However, the

BIA did not abuse its discretion by denying remand as

Brempong failed to establish his prima facie eligibility for

§ 212(c) relief. See INS v. Abudu, 485 U.S. 94, 104-05, 110

(1988); Abu Hasirah v. Dep’t of Homeland Sec., 478 F.3d 474,

476-77 (2d Cir. 2007) (per curiam) (noting that an abuse of

discretion may be found if the BIA “has misunderstood or

misapplied the governing law.”). 

To establish eligibility for a waiver under former

§ 212(c), a lawful permanent resident (“LPR”) must

demonstrate that he has maintained a “lawful unrelinquished

domicile of seven consecutive years.” 8 U.S.C. § 1182(c)

(1994). The length of time of the domicile may accrue under

any lawful status so long as the alien eventually obtains

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LPR status and maintains that status when applying for

§ 212(c) relief. See Lok v. INS, 548 F.2d 37, 40 (2d Cir.

1977) (“Lok I”). Accrual terminates, at the latest, when

the BIA finalizes a removal order. Lok v. INS, 681 F.2d

107, 110 (2d Cir. 1982) (“Lok II”); see also Vargas v. INS,

938 F.2d 358, 361 (2d Cir. 1991) (highlighting Lok II’s

holding). 

It is undisputed that Brempong was ineligible for a

§ 212(c) waiver at the time of his initial hearing as he had

accrued only six years of unrelinquished domicile when his

accrual terminated upon entry of his deportation order. See

Lok II, 681 F.2d at 110. Brempong advances several

arguments asserting he has become eligible for a § 212(c)

waiver based on accrual of time after the BIA reopened his

proceedings in 2010, all of which lack merit. 

Primarily, he argues that the BIA’s reopening of

proceedings to allow him to apply for deferral of removal

under the CAT effectively vacated his deportation order,

reinstated his LPR status, and recommenced his accrual of

time to meet the § 212(c) domicile requirement. The plain

language of the statute, however, contradicts this assertion

as it requires the seven years of domicile to be consecutive

and domicile to be unrelinquished. See 8 U.S.C. § 1182(c)

(1994). Here, the years of domicile are not consecutive but

separated by a gulf of sixteen years between Brempong’s 1994

deportation order and the 2010 reopening of proceedings. 

Additionally, Brempong relinquished his domicile when he was

found deportable, and he does not challenge, and did not

challenge below, the agency’s finding that he was deportable

based on his conviction. See Dobrova v. Holder, 607 F.3d

297, 302 (2d Cir. 2010) (noting that LPR status terminates

when, on appeal, the BIA makes final an order of

deportation); Lok I, 548 F.2d at 40 (holding that domicile

for purposes of § 212(c) relief can only be established

while under lawful status).

Further, in interpreting legislative intent regarding

the domicile requirements, we have previously held that an

alien may not tack additional time onto a prior period of

domicile after he is ordered deported. See Lok II, 681 F.2d

at 110. The only exception to this rule is when the finding

of deportability that vitiated the alien’s lawful status is

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reversed by a court or by the agency through reopening or

reconsideration. Matter of Lok, 18 I. & N. Dec. 101, 105-06

(BIA 1981). That exception is not applicable here and

Brempong does not challenge the finding that he is

deportable. The BIA did not err, therefore, in finding that

Brempong did not fulfill the domicile requirement under

§ 212(c) and did not abuse its discretion in denying remand.

Brempong also argues that despite his failure to

challenge directly the finding that he was deportable,

reopening always undermines such a finding. While the BIA

did not explicitly preclude consideration on remand of any

relief other than deferral under the CAT, see Arias Chupina

v. Holder, 570 F.3d 99, 103-05 (2d Cir. 2009), the IJ did

not have the authority to re-adjudicate whether Brempong was

deportable absent new evidence calling into question the

conviction underlying that finding, see Matter of Patel, 16

I. & N. Dec. 600, 601 (BIA 1978) (permitting review of new

evidence on remand). Moreover, the potential that Brempong

would be granted relief from removal under the CAT did not

affect his deportability or his ability to accrue further

time towards the domicile requirement, because deferral of

removal does not confer any lawful immigration status. See

8 U.S.C. § 1182(c) (1994); 8 C.F.R. § 1208.17(b). Thus,

because the 1994 deportation order was unaffected by the

reopening and proceedings examining CAT relief, Brempong

remained without a lawful status to establish lawful

domicile in the United States and lacked LPR status to apply

for § 212(c) relief. 

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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