The Honorable Sonia Sotomayor, originally a member of *

the panel, was elevated to the Supreme Court on August 8,

2009. The two remaining members of the panel, who are in

agreement, have determined the matter. See 28 U.S.C. §

46(d); Local Rule 0.14(2); United States v. Desimone, 140

F.3d 457 (2d Cir. 1998).

 Pursuant to Federal Rule of Appellate Procedure **

43(c)(2), Attorney General Holder is automatically

substituted for former Attorney General Michael Mukasey.

1

07-0448-ag

Al-Shahin v. Holder

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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

4 New York, on the 2 day of December, two thousand nine. nd

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 JOSÉ CABRANES,

9 Circuit Judge.*

10

11 - - - - - - - - - - - - - - - - - - - -X

12 SAMI AL-SHAHIN, 

13 Petitioner,

14

15 -v.- 07-0448-ag

16

17 ERIC HOLDER, JR., Attorney General of

18 the United States,

19 Respondent.**

20 - - - - - - - - - - - - - - - - - - - -X
2

1 APPEARING FOR PETITIONER: WILLIAM O. RECKLER (Alexandra

2 A.E. Shapiro, Gregory L.

3 Acquaviva, and Allison M.

4 Herron, on the brief), Latham &

5 Watkins LLP, New York, New York.

6

7 APPEARING FOR RESPONDENT: KRISTIN K. EDISON (Michael F.

8 Hertz and John W. Blakeley, on

9 the brief), United States

10 Department of Justice, Civil

11 Division, Office of Immigration

12 Litigation, Washington, D.C. 

13

14 Petition for review of a final order of removal from

15 the Board of Immigration Appeals (“BIA”).

16

17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

18 AND DECREED that the petition be DENIED. 

19

20 Petitioner Sami Al-Shahin seeks review of a decision of

21 the BIA which affirmed an order the Immigration Judge (“IJ”)

22 denying his applications for waiver of inadmissibility,

23 adjustment of status, cancellation of removal, asylum, and

24 withholding of removal. Because the BIA adopted and

25 supplemented the decision of the IJ, we review the decision

26 of the IJ as supplemented by the BIA. Chen v. Gonzales, 417

27 F.3d 268, 271 (2d Cir. 2005). 

28

29 We assume the parties’ familiarity with the underlying

30 facts, the procedural history, and the issues presented for

31 review.

32

33 [1] Al-Shahin first contends that the IJ committed legal 

34 error in failing to consider evidence of rehabilitation and

35 in denying his application for § 212(h) relief. See 8

36 U.S.C. § 1182(h). Our review of an IJ’s § 212(h) decision

37 is limited to “constitutional claims or questions of law.” 

38 See 8 U.S.C. § 1252(a)(2)(D). Al-Shahin’s argument fails

39 because it raises a factual challenge, not a legal one; we

40 presume, as we must, that the IJ did consider the evidence

41 of Al-Shahin’s rehabilitation. See Xiao Ji Chen v. U.S.

42 Dep’t of Justice, 434 F.3d 144, 159 n.13 (2d Cir. 2006)

43 (“[W]e presume that an IJ has taken into account all of the
3

1 evidence before him, unless the record compellingly suggests

2 otherwise.”). We therefore treat the IJ’s finding of an

3 “absen[c]e of rehabilitation” as a conclusion based on the

4 evidence, and not as a failure to consider the evidence. 

5 Accordingly, we have no jurisdiction to consider his

6 argument.

7

8 [2] Al-Shahin also argues that the IJ erred in denying his 

9 applications for asylum and withholding of removal because

10 the IJ applied an erroneous legal standard to determine that

11 Al-Shahin had been convicted of a “particularly serious

12 crime.” See Matter of Frentescu, 18 I. & N. Dec. 244, 245

13 (BIA 1982), superseded in part by statute as recognized in

14 In re L-S-, 22 I. & N. Dec. 645, 650 (BIA 1999). This is a

15 question of law that we have jurisdiction to review. See 8

16 U.S.C. § 1252(a)(2)(D). Under governing BIA precedent, four

17 factors bear on whether a crime is “particularly serious” so

18 as to render an alien ineligible for asylum and withholding

19 of removal: “the nature of the conviction, the circumstances

20 and underlying facts of the conviction, the type of sentence

21 imposed, and, most importantly, whether the type and

22 circumstances of the crime indicate that the alien will be a

23 danger to the community.” Id. at 247. There is no error in

24 the IJ’s application of these principles.

25

26 [3] Al-Shahin challenges the IJ’s conclusion that he failed 

27 to accrue the seven years of continuous residency required

28 for a grant of cancellation of removal. See 8 U.S.C. 

29 § 1229b(a)(2). We have jurisdiction to review this legal

30 question, but there is no merit in Al-Shahin’s argument. 

31 Under the relevant statute, any period of continuous

32 residence is deemed to end upon the commission of an offense

33 that renders the alien inadmissible to the United States. 

34 See 8 U.S.C. § 1229b(d)(1)(B). The IJ properly applied the

35 statute to the facts and determined that Al-Shahin was

36 ineligible for cancellation of removal. 

37

38 [4] Finally, Al-Shahin contends that the IJ committed legal 

39 error in administratively closing his case in November 2002.

40 But on appeal Al-Shahin concedes that any error caused him

41 no prejudice. Accordingly, and without addressing the

42 merits, we will not remand on this ground. See Xiao Ji Chen

43 v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006).
4

1 Finding no merit in Al-Shahin’s remaining arguments, we

2 hereby DENY the petition.

3

4

5 FOR THE COURT:

6 CATHERINE O’HAGAN WOLFE, CLERK

7

8 By:___________________________