15-1797 (L), 15-3388 (Con) BIA Barua v. Sessions Mulligan, IJ A096 426 155 

### 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 **11 th**  **day of August, two thousand seventeen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **ROBERT D. SACK,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **EMON BARUA,** 13 Petitioner **,** 14 15 **v. 15-1797 (L)** 16 **15-3388 (Con)** 17 **NAC** 18 19 **JEFFERSON B. SESSIONS III,** 20 **UNITED STATES ATTORNEY GENERAL,** 21 Respondent **.** 22

**_____________________________________** 23 24 **FOR PETITIONER:** Thomas E. Moseley, Newark, N.J. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal 27 Deputy Assistant Attorney 282 General; Terri J. Scadron, 1 Assistant Director; Colin J. 2 Tucker, Office of Immigration 3 Litigation, United States 4 Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the lead petition for review 10 is DENIED IN PART and DISMISSED IN PART, and that the 11 consolidated petition for review is DENIED. 12 Petitioner Emon Barua, a native and citizen of Bangladesh, 13 seeks review of two decisions of the BIA: a May 13, 2015, BIA 14 decision affirming a November 26, 2014, decision of an 15 Immigration Judge (“IJ”) denying Barua’s application for 16 asylum, withholding of removal, and relief under the Convention 17 Against Torture (“CAT”); and a September 28, 2015, BIA decision 18 denying Barua’s motion to reopen. In re Emon Barua, No. A096 19 426 155 (B.I.A. May 13, 2015), aff’g No. A096 426 155 (Immig. 20 Ct. N.Y. City Nov. 26, 2014); In re Emon Barua, No. A096 426 21 155 (B.I.A. Sept. 28, 2015). We assume the parties’ 22 familiarity with the underlying facts and procedural history 23 in this case. 24 253 **I. Jurisdiction**  1 We generally lack jurisdiction to review a final order of 2 removal against an alien, such as Barua, who is ordered removed 3 on the basis of an aggravated felony conviction; however, we 4 have jurisdiction to review “constitutional claims or questions 5 of law.” 8 U.S.C. § 1252(a)(2)(C), (D). This jurisdictional 6 limitation applies to both peti tions for review. Ortiz-Franco 7 v. Holder , 782 F.3d 81, 90 (2d Cir. 2015); Durant v. INS , 393 8 F.3d 113, 115 (2d Cir. 2004). 9

**II. Lead Petition (15-1797)**  10 We have reviewed the IJ’s decision as modified by the BIA 11 (i.e., excluding the IJ’s credibility determination relating 12 to Barua, which the BIA declined to rely on). See Xue Hong Yang 13 v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). The 14 applicable standards of review are well established: “We review 15 the agency’s factual findings for substantial evidence and 16 questions of law de novo .” Cotzojay v. Holder , 725 F.3d 172, 17 177 n.5 (2d Cir. 2013) (citations omitted); 8 U.S.C. 18 § 1252(b)(4)(B). 19 **A. Aggravated Felony.** Barua argues that he was not 20 convicted of an aggravated felony because New York Penal Law 21 (“NYPL”) § 130.45(1) is broader than the generic aggravated 224 felony definition of “sexual abuse of a minor” and because New 1 York’s attempt statute is broader than federal law. Although 2 Barua’s arguments present reviewable questions of law, 3 Vargas-Sarmiento v. U.S. Dep’t of Justice , 448 F.3d 159, 164 4 (2d Cir. 2006), they are without merit. 5 An alien convicted of an aggravated felony is removable 6 from the United States and ineligible for asylum. 8 U.S.C. 7 §§ 1227(a)(2)(A)(iii), 1158(b)(2)(A)(ii), (B)(i). The INA 8 defines “aggravated felony” to include “sexual abuse of a 9 minor,” and an attempt to commit an aggravated felony is also 10 an aggravated felony. 8 U.S.C. § 1101(a)(43)(A), (U). The 11 term “sexual abuse of a minor” is not defined; however, “the 12

BIA has invoke[d]

. . . as a guide the broad definition of ‘sexual 13 abuse of a minor’ in 18 U.S.C. § 3509(a).” James v. Mukasey , 14 522 F.3d 250, 254 (2d Cir. 2008) (quoting In re 15 Rodriguez-Rodriguez , 22 I & N Dec. 991, 995-96 (B.I.A. 1999)). 16 That is reasonable, as we have held. Mugalli v. Ashcroft , 258 17 F.3d 52, 60 (2d Cir. 2001). 18 Although “we accord Chevron deference to the BIA’s 19 interpretation of section 1101(a)(43)(A) in determining the 20 meaning of ‘sexual abuse of a minor,’ we give no deference to 21 the BIA’s decision that a conviction under state law meets that 225 definition.” Santos v. Gonzales , 436 F.3d 323, 325 (2d Cir. 1 2006). “[W]e generally employ a ‘categorical approach’ to 2 determine whether the state offense is comparable to an offense 3 listed in the INA.” Moncrieffe v. Holder , 133 S. Ct. 1678, 1684 4 (2013). “Under this approach, we look ‘to whether the state 5 statute defining the crime of conviction categorically fits 6 within the generic federal definition of a corresponding 7 aggravated felony.” Flores v. Holder , 779 F.3d 159, 165 (2d 8 Cir. 2015) (quoting Moncrieffe , 133 S. Ct. at 1684). “[T]he 9 singular circumstances of an individual petitioner’s crimes 10 should not be considered, and only the minimum criminal conduct 11 necessary to sustain a conviction under a given statute is 12 relevant.” Pascual v. Holder , 707 F.3d 403, 405 (2d Cir. 2013), 13 adhered to on reh’g , 723 F.3d 156 (2d Cir. 2013) (internal 14 quotations marks omitted). 15 The issue is therefore whether the “minimum criminal 16 conduct necessary to sustain a conviction under” NYPL 17 § 130.45(1) categorically fits within the generic federal 18 definition of sexual abuse of a minor in 18 U.S.C. § 3509(a)(8). 19 See Flores , 779 F.3d at 165. Under NYPL § 130.45(1), “criminal 20 sexual act in the second degree” occurs when, “being eighteen 21 years old or more, [a person] engages in oral sexual conduct 226 or anal sexual conduct with another person less than fifteen 1 years old.” Under federal law, “sexual abuse includes the 2 employment, use, persuasion, inducement, enticement, or 3 coercion of a child to engage in, or assist another person to 4 engage in, [inter alia] sexually explicit conduct . . . .” 18 5 U.S.C. § 3509(a)(8). 6

In Oouch v. U.S. Dep’t of Homeland Sec. , 633 F.3d 119 (2d 7 Cir. 2011), we determined that “Each category of ‘sexual 8 conduct’ under New York law is subsumed in the federal 9 definition of ‘sexually explicit conduct’” in 18 U.S.C. 10 § 3509(a)(8)

. Id . at 123. And, although we have not decided 11 whether “sexual contact,” as defined by New York law, may be 12 broader than 18 U.S.C. § 3509(a), see James , 522 F.3d at 258, 13 there is no such issue here. Despite Barua’s claims otherwise, 14 his conviction does not involve the broader concept of “sexual 15 contact” under New York law. Instead, NYPL § 130.45(1) 16 criminalizes oral and anal “sexual conduct” with a minor, and 17 we have already held that these definitions of sexual conduct 18 are “subsumed in the federal definition.” Oouch , 633 F.3d at 19 123 & n.5. As the agency concluded, a conviction for attempted 20 criminal sexual act in the second degree is therefore an 21 aggravated felony. See Flores , 779 F.3d at 165; Oouch , 633 F.3d 227 at 123; see also 8 U.S.C. § 1101(a)(43)(U). 1 Barua argues that his conviction cannot qualify as an 2 attempted aggravated felony because New York’s attempt statute 3 is broader than federal law. Under NYPL § 110, “[a] person is 4 guilty of an attempt to commit a crime when, with intent to 5 commit a crime, he engages in conduct which tends to effect the 6 commission of such crime.” Under federal law, “[a] person is 7 guilty of an attempt to commit a crime if he or she (1) had the 8 intent to commit the crime, and (2) engaged in conduct amounting 9 to a ‘substantial step’ towards the commission of the crime.” 10 United States v. Martinez , 775 F.2d 31, 35 (2d Cir. 1985). 11 Because the New York provision is “more stringent than the

. . . 12 ‘substantial step’ test,” People v. Acosta , 80 N.Y.2d 665, 670 13 (1993), and requires the defendant to “have engaged in conduct 14 that came dangerously near commission of the completed crime,” 15 People v. Denson , 26 N.Y.3d 179, 189 (2015) (internal quotation 16 marks omitted), a violation of NYPL § 110 categorically 17 constitutes an attempt for purposes of the INA. See Gousse v. 18 Ashcroft , 339 F.3d 91, 96 (2d Cir. 2003) (“Unless the offense 19 of conviction is broader, the petitioner has committed an 20 ‘aggravated felony’ irrespective of the particular 21 circumstances of his crime.”). As the agency determined, a 228 conviction for violating NYPL §§ 110, 130.45(1) categorically 1 constitutes an aggravated felony related to an attempt to commit 2 a sexual abuse of a minor aggravated felony. 3 **B. Particularly Serious Crime.** Withholding of removal 4 under both the Immigration and Nationality Act (“INA”) and CAT 5 is unavailable if an alien has been convicted of a particularly 6 serious crime. 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 7 1208.16(d)(2). If, as here, the crime is not per se 8 particularly serious, the BIA “examine[s] the nature of the 9 conviction, the type of sentence imposed, and the circumstances 10 and underlying facts of the conviction.” In re N-A-M- , 24 I. 11 & N. Dec. 336, 342 (B.I.A. 2007); see also Nethagani v. Mukasey , 12 532 F.3d 150, 154 n.1, 155 (2d Cir. 2008). We have jurisdiction 13 to review whether the agency considered these factors, but not 14 the weighing of the factors, which is discretionary. See 15 Nethagani , 532 F.3d at 154-55. 16 The IJ enumerated each of the factors and considered them. 17 Barua does not argue otherwise. His arguments concern only the 18 weighing of the discretionary factors, which we lack 19 jurisdiction to consider. See Nethagani , 532 F.3d at 154-55. 20 We therefore dismiss the petition as it relates to the denial 21 of withholding of removal. 229 **C. CAT Deferral.** Deferral of removal under CAT remains 1 available to an alien otherwise barred from relief due to 2 aggravated felonies and particularly serious crimes. See 8 3 C.F.R. § 1208.17(a). To obtain deferral of removal, an alien 4 must show that “it is more likely than not that [he] would be 5 tortured if removed to the proposed country of removal.” 8 6 C.F.R. § 1208.16(c)(2). The torture must be “inflicted by or 7 at the instigation of or with the consent or acquiescence of 8 a public official or other person acting in an official 9 capacity,” 8 C.F.R. § 1208.18(a)(1), (a)(7), and cognizable 10 acquiescence “requires only that government officials know of 11 or remain willfully blind to an act and thereafter breach their 12 legal responsibility to prevent it,” Khouzam v. Ashcroft , 361 13 F.3d 161, 171 (2d Cir. 2004). “A determination of what will 14 occur in the future and the degree of likelihood of the 15 occurrence has been regularly regarded as fact-finding.” Hui 16 Lin Huang v. Holder , 677 F.3d 130, 134 (2d Cir. 2012). 17 Barua has not challenged the adverse credibility finding 18 as to his own testimony. His argument is that the BIA ignored 19 his challenges to the adverse credibility finding against his 20 father. However, “we do not demand that the BIA expressly parse 21 or refute on the record each individual argument or piece of 2210 evidence offered by the petitioner.” Jian Hui Shao v. Mukasey , 1 546 F.3d 138, 169 (2d Cir. 2008) (internal quotation marks 2 omitted). “[W]e presume that [the agency] has taken into 3 account all of the evidence before [it], unless the record 4 compellingly suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t 5 of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006). Here, the 6 BIA stated explicitly that “[t]he Immigration Judge made 7 factual findings based on the evidence of record that are not 8 clearly erroneous,” Certified Administrative Record (“CAR”) at 9 175, which sufficiently reflects consideration of Barua’s 10 challenges to his father’s credibility determination. 11 In any event, there was no compelling need for the BIA to 12 consider in depth the credibility of Barua’s father, who 13 testified about the targeting of his family members in 14 Bangladesh in the past--the most recent event being the 15 kidnapping of his cousin in early 2009--and was devoid of any 16 first-hand knowledge of current country conditions. However, 17 the country conditions evidence did not establish “that it is 18 more likely than not that government officials would, in the 19 future , acquiesce in or turn a blind eye to harm amounting to 20 torture committed against [Barua],” CAR at 178 (emphasis 21 added). As the BIA observed, the 2013 U.S. Department of State 2211 Country Report provided that the Bangladesh government had 1 recently deregistered as a political party the group that had 2 purportedly targeted Barua’s family, banned it from 3 participating in elections, and arrested its affiliates for 4 acts of violence against religious minorities. Since the 5 father’s testimony was therefore of little value in assessing 6 whether the current government of Bangladesh would acquiescence 7 in any future torture of Barua, we find no error in the BIA’s 8 cursory treatment of Barua’s challenges to his father’s 9 credibility determination. 10

**III. Consolidated Petition (15-3388)**  11 We review the denial of a motion to reopen for abuse of 12 discretion, mindful that such motions are “‘disfavored.’” Ali 13 v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v. 14 Doherty , 502 U.S. 314, 322-23 (1992)). 15 Barua moved to reopen to seek adjustment of status based 16 on his pending immigrant visa petition, a discretionary form 17 of relief, based on a pending visa petition filed by his 18 U.S.-citizen wife. See 8 U.S.C. § 1255(a). 19 First, Barua argued that he was eligible to adjust status 20 without an INA § 212(h) waiver of inadmissibility because his 21 conviction was not a crime involving moral turpitude (“CIMT”). 2212 The BIA determined that reopening was not warranted because 1 Barua could have applied to adjust status before the IJ. A 2 motion to reopen “for the purpose of affording the alien an 3 opportunity to apply for any form of discretionary relief” will 4 not be granted if the alien had an opportunity to apply for that 5 relief at a former hearing. 8 C.F.R. § 1003.2(c)(1). Assuming 6 that Barua’s conviction is not a CIMT, he was eligible to 7 petition for an immigrant visa and apply to adjustment of status 8 when he married his wife in December 2009--four years before 9 his initial hearing with the IJ in December 2013. Barua argues 10 that he was not eligible to adjust status until our decision 11 in Husic v. Holder , 776 F.3d 59, 64 (2d Cir. 2015), which held 12 that an alien like Barua, with an aggravated felony conviction, 13 is eligible for § 212(h) relief, but this argument is relevant 14 only if Barua’s conviction constitutes a CIMT. Stated another 15 way, the impediment to § 212(h) relief removed by Husic has no 16 bearing on Barua’s claim that he is eligible to adjust status 17 without a § 212(h) waiver. 18 Second, Barua argued that he was eligible to adjust status 19 even if his conviction was a CIMT because he was eligible for 20 a § 212(h) waiver. The BIA reasonably denied Barua’s motion 21 because he did not show prima facie eligible for relief. See 2213 INS v. Abudu , 485 U.S. 94, 104 (1988). To adjust to lawful 1 permanent resident status, an alien must, among other things, 2 be admissible to the United States or be granted a waiver of 3 inadmissibility. 8 U.S.C. § 1255(a). Therefore, if Barua’s 4 conviction is a CIMT, he required a § 212(h)(2) waiver to be 5 eligible to adjust status. See 8 U.S.C. 6 § 1182(a)(2)(A)(i)(I), (h)(2). The BIA did not err in ruling 7 that Barua did not merit a § 212(h) waiver as a matter of 8 discretion, given his “aggravated felony conviction for 9 attempting to commit a sexual act with a minor.” Barua therefore 10 failed to demonstrate his prima facie eligibility for 11 adjustment. Barua argues that this ruling is in tension with 12 Husic . However, the BIA determined that Barua did not merit 13 a waiver as a matter of discretion; it did not find that he was 14 statutorily barred by his conviction for an aggravated felony. 15 That was an appropriate basis for the BIA to deny reopening. 16 See Abudu , 485 U.S. 94, 105 (“[I]n cases in which the ultimate 17 grant of relief is discretionary[,] . . . the BIA 18 may . . . simply determine that . . . the movant would not be 19 entitled to the discretionary grant of relief.”). 20 Accordingly, Barua has failed to demonstrate any legal or 21 constitutional error in the BIA’s denial of his motion to 2214 reopen. 1 For the foregoing reasons, the lead petition for review is 2 DENIED IN PART (as to removal, asylum, and CAT relief) and 3 DISMISSED IN PART (as to withholding of removal), and the 4 consolidated petition for review is DENIED. It is further 5 ORDERED that Petitioner’s motion for oral argument and/or to 6 hold the petitions for review in abeyance is DENIED. As we have 7 completed our review, any stay of removal that the Court 8 previously granted in this petition is VACATED, and any pending 9 motion for a stay of removal in this petition is DISMISSED as 10

moot. 11
FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13