18

- 2272 Brudy v. Barr

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 DA TABASE (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 the Second Circuit, held at the Thurgood Marshall Un ited States Courthouse, 40 Foley Square, in the City of New York, on the

3 rd day of September , two thousand twenty

.

PRESENT: ROSEMARY S. POOLER,

PETER W. HALL

, DENNY CHIN

, Circuit Judges.

_____________________________________

YANICK BRUDY

,

Petitioner

,

v. 18

- 2272

WILLIAM P. BARR

, UNITED STATES

ATTORNEY GEN ERAL,

Respondent

.

_____________________________________

Appearing for Petitioner : Andres Ortiz

, Long Beach, CA.

Appearing for Respondent : Laura Halliday Hickein , Trial Attorney, Office of Immigration Litigation ( Shelley R. Goad , Assistant Director

, on the brief )

, for Ethan P. Davis, Acting Assistant Attorney General, United States Department of Justic e, Washington, D

. C.

Petition for r eview of an order of the B oard of Immigration Appeals.2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that th is petition for review of a decision of the Board of Immigration Appeals

be and it hereby is GRANTED

, the order of removal is VACATED

, and the case is

REMANDED

.

Petitioner Yanick Brudy seeks review of a Board of Immigration Appeals (“BIA”) decision affirming the decision of an Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture

. In re Yanick Brudy , No. A20 4 174 914 (B.I.A. July 12 , 201 8 ), aff’g No. A20 4 174 914 (Immig ration

Ct. N.Y.C

. Nov. 20 , 2017). We assume the parties’ familiarity with the underlying facts , issues, and procedural history.

Under the circumstances of this case, we have reviewed the IJ’s decision as modified by

the BIA. See Chen v. Bd. of Immigr

. Appeals , 435 F.3d 141, 144 (2d Cir. 2006). In relevant part, the BIA concluded that Brudy was removable under 8 U.S.C. § 1182(a)(6)(A)(i) because even presuming that Brudy had received “wave through” entry, during which an immigration officer waved a car in which Brudy was a passenger through a port of entry while he presented another person’s driver’s license, such an entry was not “a lawful admission for purposes of removability.” C er tified A dmin. R ecord at 3

- 4

. The IJ, however, found that Brudy had not been waved through.

As the Government concedes, the BIA’s conclusion was erroneous because a procedurally regular wave through entry is a lawful admission. See Matter of Quilantan , 25 I. & N. Dec. 285, 290

- 91 (B.I.A. 2010). Thus, when an immigration officer waves a car through a port of entry, a passenger in the car who made himself available for questioning and made no false claim to U.S. citizenship is admitted, even if no questions are asked. Id. at 286, 293.

However, because the BIA neither affirmed nor rejected the IJ’s factual finding that Brudy had not been waved through, we remand for the BIA to determine in the first instance whether the IJ’s factual finding is supported

. See Hui Lin Huang v. Holder , 677 F.3d 130, 137 (2d Cir. 201 2 ). Given the “foundational principle” that “a denial of immigration relief stands or falls on the reasons given by the [IJ or BIA],” we cannot make this determination ourselves in the first instance; doing so “would usurp the role of the agency.” Lin Zhong v. U.S. Dep’t of

Justice , 480 F.3d 104, 117 (2d Cir. 2007) (internal quotation marks and citation omitted).

Given this outstanding issue of removability, we need not reach the agency’s denial of

cancellation of removal. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“A s a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.” ).3 For the foregoing reasons, the petition for review is GRANTED, the order of removal is
VACATED, and the case is REMANDED

. The previously granted stay of removal is

VACATED

.

FOR THE COURT: Catherine O’Hagan Wolfe,

Clerk of Court