21- 6638 (L) Negriel v. Garland BIA Driscoll , IJ A 20 6 940 848 

### 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 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 the Second 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 27 th da y of August, two thousand 3 twenty- four
. 4 5 PRESENT: 6 DEBRA ANN LIVINGSTON, 7 C hief Judge, 8 DENNIS JACOBS, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11

_____________________________________ 12 13 ISRAEL NEGRIEL , 14 Petitioner , 15 16 v. 21-6638 (L), 17 22-6312 (Con) 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent
. 22

_____________________________________ 232 FOR PETITIONER : Aaron J. Aisen, Brenda A. Cisneros- Vilchis, 1 Erie County Bar Association Volunteer 2 Lawyers Project , Inc., Batavia, NY. 3 4 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 5 Attorney General ; Matthew B. George, Senior 6 Litigation Counsel; Timothy Bo Stanton, 7 Senior Trial Attorney, Office of Immigration 8 Litigation, United States Department of 9 Justice, Washington, D C. 10 FOR AMICUS CURIAE 11 AMERICAN IMMIGRATION 12 LAWYERS ASSOCIATION : David J. Zimmer, Goodwin Procter LLP, 13 Boston, MA. 14 15 UPON DUE CONSIDERATION of th ese petition s for review of decisions of 16
the Board of Immigration Appeals (“BIA”) , it is hereby ORDERED, ADJUDGED, 17
AND DECREED that the petitio ns for review are DENIED. 18
Petitioner Israel Negriel , a native and citizen of Haiti , seeks review of 19
December 8 , 2021, and June 10, 2022, decision s of the BIA affirming a July 7 , 2021, 20 decision of an Immigration Judge (“IJ”) ordering removal and denying his 21 application for asylum, withholding of removal, and relief under the Convention 22 Against Torture (“CAT”) and denying reconsideration

. In re Israel Negr iel, No. 23 A206 940 848 (B.I.A. Dec . 8, 2021 & June 10, 2022), aff’g No. A206 940 848 (Immig r . 24
Ct. Batavia Jul. 7 , 20 21). We assume the parties’ familiarity with the underlying 253 facts and procedural history. 1
W e have considered the IJ’s decision as supplemented by the BIA. See Yan 2
Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005 ). Negriel was ordered removed 3 in 2021 on two independent bases: (1) he had been convicted of a “crime of child 4 abuse,” which rendered him removable under 8 U.S.C. § 1227(a)(2)(E)(i), and (2) 5 his conditional permanent resident status had been terminated on July 8, 2018 , 6 rendering his removable under 8 U.S.C. § 1227(a)(1)(D)(i). 7 In his brief before this Court, Neg ri el challenges only the first basis for his 8
removal— namely, that his conviction for third

- degree rape under New York Penal 9 Law § 130.25(2) wa s not for a “ crime of child abuse ” and thus not a removable 10
offense under 8 U.S.C. § 1227(a)(2)(E)(i)

. W e do not reach this issue because 11 Negriel conceded removability on the alternate ground that his conditional 12 permanent resident status had been terminated. Certified Administrative Record 13 (“CAR”) at 119

- 20, 122. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general 14 rule courts and agencies are not required to make findings on issues the decision 15 of which is unnecessary to the results they reach.”). 16 In a footnote of his brief before this Court, Negriel argues that this alternate 17 ground of removability is “moot,” seemingly meaning that he is no longer 184 removable on the ground that his conditional status had been terminated . On 1 this point, he states that on August 12, 2021, he filed an I

- 130 Petition for Alien 2 Relative; that on August 16, 2021, U.S. Citizenship and Immigration Services 3 (“USCIS”) “granted him an extension of conditional residency for 18 months while 4
his I

- 130 was pending”; and that USCIS subsequently approved his I-130. Pet’r 5
Br. at 5 n.3. 6 There are three distinct flaws in Negriel’s argument. First, Negriel did not 7 challenge this ground of removability before the BIA; thus, any challenge to it is 8 unexhausted and not properly before us

. See Ud Din v. Garland , 72 F.4 th 411, 419– 9 20 & n.2 (2d Cir. 2023) ( explaining that issue exhaustion is “mandatory” when the 10 Government raises it). Second, even if Negriel had preserved this mootness 11 argument before the BIA, he has forfeited review by making only passing mention 12
of it in a footnote of his brief to this Court. United States v. Restrepo , 986 F.2d 1462, 13 1463 (2d Cir. 1993) (“ We do not consider an argument mentioned only in a footnote 14 to be adequately raised or preserved for appellate review. ”) ; see also Wong v. 15
Garland , 95 F.4th 82, 95 (2d Cir. 2024). Third, Negriel is wrong on the merits, 16 because his argument is based on an incomplete description of USCIS ’ s actions

. 17 In the August 2021 notice stating that Negriel’s conditional status was extended 185 for 18 months, USCIS specified that the extension was ineffective if such status had 1 already been terminated

. CAR at 54 (“This extension and authorization for 2 employment and travel does not apply to you if your conditi o nal resident status 3
has been terminated. ”). As noted above, Negriel admitted before the IJ that his 4 status had indeed been terminated on July 8, 2018. CAR at 119- 20, 122, 633. 5 Accordingly, by its own terms , the August 2021 USCIS notice did not extend 6 Negriel’s conditional permanent resident status, and it accordingly did not 7 eliminate that basis for the IJ’s removal order. 8 Negriel also argues that the IJ deprived him of due process by denying a 9 continuance for him to present more thorough expert testimony in support of his 10 application for asylum, withholding of removal, and CAT relief. We review a 11 due process claim de novo. Gjerjaj v. Holder, 691 F.3d 288, 292 (2d Cir. 2012). To 12 prevail on a due process claim in removal proceedings a petitioner must show that 13 he was deprived a “full and fair opportunity” to present his case , Burger v. 14
Gonzales , 498 F.3d 131, 134 (2d Cir. 2007) (quotation marks omitted), and 15 demonstrate resulting prejudice , Garcia- Villeda v. Mukasey , 531 F.3d 141, 149 (2d 16 Cir. 2008). Negriel has not made this showing. 17 Negriel alleged that he would be targeted in Haiti for being apolitical , his 186 rape victim’s family would harm him, he would be subject to gang violence, and 1 the Haitian government would detain and torture him because of his conviction

. 2 His expert witness, Michelle Karshan, testified for half an hour on issues directly 3
related to these claims for relief

. She further provided a detailed written 4
declaration about conditions in Haiti and what she believed would happen to 5 Negriel if returned. The IJ found Karshan credible, but concluded that Negriel 6
failed to establish a well

- founded fear of future harm based on a protected ground 7

or that he could not relocate within Haiti

. Negriel argues that further testimony 8

m ight have “yielded important information relevant to the judge’s deliberations.” 9 But this is mere speculation on his part. Negriel does not identify any subjects 10
relevant to his claims for relief as to which Karshan did not testify . Because 11 Negriel has not identified, before either the BIA or this Court, what specific 12 additional information Karshan could have provided or how further testimony 13
would have altered the IJ’s analysis, he has failed to establish the prejudice 14 required to state a due process claim

. See Garcia-Villeda , 531 F.3d at 149. 15 Finally, as discussed above, because Negriel conceded removability based 16
on the termination of his conditional status and has not stated a due process claim, 17 we find no grounds for finding that the BIA abused its discretion in denying 187 reconsideration

. See Jin Ming Liu v. Gonzales , 439 F.3d 109, 111 (2d Cir. 2006) (“An 1 abuse of discretion may be found where the BIA’s decision provides no rational 2 explanation, inexplicably departs from established policies, is devoid of any 3 reasoning, or contains only summary or conclusory statements; that is to say, 4 where the Board has acted in an arbitrary or capricious manner.” (quotation marks 5 omitted) ). 6 For the foregoing reasons, the petition s for review are DENIED. All 7 pending motions and applications are DENIED and stays VACATED. 8
FOR THE COURT: 9 Catherine O ’ Hagan Wolfe , 10 Clerk of Court 11