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 CIRCU IT



# SUM MARY 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 RU L E 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A B R I E F OR O T HE R 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 SAMI AL-SHAHIN, 

### 12 Petitioner, 

### 13 14 15 -v.- 07-0448-ag 

### 16 17 ERIC HOLDER, JR., Attorney General of 

### 18 the United States, 

### 19 Respondent. ** 

### 20 - - - - - - - - - - - - - - - - - - - -X2

APPEARING FOR PETITIONER: WILLIAM O. RECKLER (Alexandra 

### 1 2 A.E. Shapiro, Gregory L. 

### 3 Acquaviva, and Allison M. Herron, on the brief), Latham & 

### 4 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 DECREEDthat 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 ass umeth e p art ies ’ f ami lia rit y w ithth e unde rly ing 30 fac ts, th e p roc edu ralhi sto ry, an d t he iss uespr ese nte d f or 31 rev iew

. 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 the3 

### 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:___________________________