16-3120 Gay v. Sessions BIA Laforest, IJ A079 722 477 

### 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 TO 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **20 th**  **day of December, two thousand seventeen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **PETER W. HALL,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **PATRICK J. GAY, AKA JEAN PATRICK** 13 **GAY, AKA J. PATRICK GAY,** 14 Petitioner **,** 15 16 **v. 16-3120** 17 **NAC** 18 **JEFFERSON B. SESSIONS III,** 19 **UNITED STATES ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Nicholas J. Mundy, Brooklyn, NY. 24 25 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 26 Attorney General; Linda S. Wernery, 27 Assistant Director; Steven K. Uejio, 28 Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Patrick J. Gay, a native and citizen of Haiti, 5 seeks review of a September 1, 2016, decision of the BIA 6 affirming an April 21, 2016, d ecision of an Immigration Judge 7 (“IJ”) denying Gay’s applications for asylum, withholding of 8 removal, relief under the Convention Against Torture (“CAT”) 9 and a waiver of inadmissibility. In re Patrick J. Gay, No. A079 10 722 477 (B.I.A. Sep. 1, 2016), aff’g No. A079 722 477 (Immig. 11 Ct. N.Y. City Apr. 21, 2016). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Under the circumstances of this case, we have reviewed both 15 the IJ’s and BIA’s opinions “for the sake of completeness.” 16 Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 17 2006). Gay was ordered removed on account of an aggravated 18 felony conviction, and does not challenge his removability on 19 that basis. Accordingly, our review is limited to 20 constitutional claims and questions of law. 8 U.S.C. 213 §§ 1252(a)(2)(C), (D); Ortiz-Franco v. Holder , 782 F.3d 81, 90– 1 91 (2d Cir. 2015). We address Gay’s arguments in turn. 2

**I. Waiver and Adjustment of Status**  3 Gay applied to adjust to lawful permanent resident status, 4 for which he needed a waiver under 8 U.S.C. § 1182(h) on account 5 of his sexual abuse conviction. The agency found Gay eligible 6 for the waiver, but denied it as a matter of discretion given 7 the seriousness of his criminal conviction. Gay argues that 8 the agency did not give enough weight to his equities and placed 9 too much emphasis on his conviction. We lack jurisdiction to 10 review the agency’s discretionary weighing of the equities 11 where, as here, the agency considered the relevant factors. 12 See Guyadin v. Gonzales , 449 F.3d 465, 468–69 (2d Cir. 2006); 13 see also 8 U.S.C. §§ 1182(h), 1252(a)(2)(B)(i). 14

**II. Withholding of Removal**  15 Aliens convicted of “particularly serious crime[s]” are 16 statutorily ineligible for withholding of removal. 8 U.S.C. 17 § 1231(b)(3)(B)(ii). An aggravated felony, like Gay’s, with 18 a sentence of less than five years is not per se particularly 19 serious. 8 U.S.C. § 1231(b)(3)(B). Rather, in such cases the 20 agency examines “the nature of the conviction, the type of 214 sentence imposed, and the circumstances and underlying facts 1 of the conviction” to determine if the specific conviction is 2 particularly serious. Matter of N-A-M- , 24 I. & N. Dec. 336, 3 342 (B.I.A. 2007); see also Nethagani v. Mukasey , 532 F.3d 150, 4 155 (2d Cir. 2008). 5 Gay argues that his conviction was not particularly 6 serious, emphasizing that he was initially sentenced only to 7 probation (although he was re-sentenced to 2 years’ 8 imprisonment after violating probation). As Gay concedes, 9 however, “the sentence imposed is not the most accurate or 10 salient factor to consider in determining the seriousness of 11 an offense.” Matter of N-A-M- , 24 I. & N. at 342. Here, the 12 IJ considered each of the factors: the statutory definition and 13 elements of the crime of sexua l abuse by forcible compulsion; 14 the lengthy (10-year) probation sentence; and the fact that 15 Gay’s victim was a 12-year-old child over whom he was in a 16 position of authority and trust. Accordingly, Gay has not 17 identified any constitutional or legal error in the agency’s 18 analysis. 8 U.S.C. § 1252(a)(2)(C),(D); Nethagani , 532 F.3d 19 at 155 (upholding particularly serious crime determination 20 where agency properly applied factors). 215 **III. CAT Deferral**  1 Gay’s conviction does not bar CAT deferral, 8 C.F.R. 2 § 1208.17(a); however, our review remains limited to 3 constitutional claims and questions of law. Ortiz-Franco , 782 4 F.3d at 90-91. 5 Gay argued that he should receive CAT relief because he 6 would be identified as a former paramilitary member and 7 tortured, despite his absence from Haiti since 1995. Appealing 8 the agency’s rejection of that claim, Gay challenges only the 9 IJ’s determination that he should have produced an affidavit 10 or testimony from his mother to corroborate this claim, 11 emphasizing that he testified credibly. That challenge does 12 not raise a colorable question of law. The IJ may take into 13

account a lack of corroboration even if an applicant’s testimony 14 is credible. See 8 U.S.C. § 1158(b)(1)(B)(ii); 8 C.F.R. 15
§§ 1208.16(c)(2),(3). Moreover, Gay lacked personal knowledge 16 of current conditions in Haiti becuase he left in 1995. As the 17 IJ noted, Gay’s mother traveled between the United States and 18 Haiti and could have testified about whether Gay would still 19 be targeted for retaliation as a former paramilitary member. 20 Gay’s mother was on his witness list, but did not provide an 216 affidavit or testify, and Gay did not explain her absence. 1
See 8 U.S.C. § 1252(b)(4) (courts may not reverse agency’s 2 determination regarding corroborating evidence unless “a 3 reasonable trier of fact is compelled to conclude that such 4 corroborating evidence is unavailable”); Chuilu Liu v. Holder , 5 575 F.3d 193, 198 (2d Cir. 2006) (explaining that it is alien’s 6 burden to provide corroboration “without prompting from the 7 IJ”). 8 For the foregoing reasons, the petition for review is 9

DENIED. 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12