09-3023-ag

Mignano v. Holder

BIA

A037 655 034

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 25th day of October, two thousand ten.

PRESENT:

PIERRE N. LEVAL,

BARRINGTON D. PARKER,

PETER W. HALL,

 Circuit Judges.

_________________________________________

SALVATORE GIROLAMO MIGNANO,

Petitioner, 

 v. 09-3023-ag

 NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_________________________________________

FOR PETITIONER: Millicent Y. Clarke, 

Freeport, New York. 

FOR RESPONDENT: Tony West, Assistant Attorney

General; William C. Peachey,

Assistant Director; Yamileth G.

HandUber, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is GRANTED in part and DENIED in part.

Petitioner Salvatore Girolamo Mignano, a native and

citizen of Italy, seeks review of a June 26, 2009, order of

the BIA denying his motion to reopen. In re Salvatore

Girolamo Mignano, No. A037 655 034 (B.I.A. June 26, 2009). 

We review the BIA’s denial of a motion to reopen for abuse

of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006). We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

A motion to reopen generally must be filed no later

than 90 days after the date on which the final

administrative decision was rendered in the proceedings

sought to be reopened. 8 C.F.R. § 1003.2(c)(2). There is

no dispute that Mignano’s motion to reopen, filed in June

2007, was untimely. See id. Although the BIA found

Mignano’s motion to reopen time-barred, the BIA considered

and rejected the argument that our intervening decision in

Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), warranted

reopening, finding that Blake was not relevant to Mignano’s

case. In our January 2009 order, to determine whether we

had jurisdiction over the BIA’s decision, we directed the

BIA to clarify whether its analysis of Blake was relevant:

(1) only to the BIA’s authority to reopen Mignano’s case sua

sponte; or (2) because a material change in the law would

excuse the untimely filing of a motion to reopen. See

Mignano v. Filip, 307 F. App’x 567, 568-69 (2d Cir. 2009)

(unpublished). Following that remand, it remains unclear

whether the BIA’s discussion of Blake’s relevance to

Mignano’s case pertained exclusively to its authority to

reopen his case sua sponte. In light of intervening

caselaw, however, we assert jurisdiction over Mignano’s

petition insofar as he argues that the BIA determined that

he was not eligible for relief under Immigration and

Naturalization Act (“INA”) § 212(c) based on a misperception

of the law. See Mahmood v. Holder, 570 F.3d 466, 469 (2d

Cir. 2009). 

I. Blake - Comparable Ground of Inadmissibility

In Blake, we clarified that, to determine whether an

aggravated felony that is a ground for deportability also

constitutes a comparable ground for denying admissibility,

the BIA must look to the substance of the particular
3

criminal conviction, not merely the language of the

statutes. 489 F.3d at 103. That is, an aggravated felony

can be a comparable basis for excludability as a crime

involving moral turpitude if the substance of the aggravated

felony offense would constitute a crime of moral turpitude

under INA § 212(a)(2)(A)(i)(I), thus making an alien

inadmissable on the basis of the conviction. Blake, 489

F.3d at 102-04. Under Blake, the BIA was required to

consider whether Mignano’s conviction for firearms

trafficking could constitute a crime involving moral

turpitude. See id. at 103. 

In finding that Mignano’s ground of deportability based

on his firearms conviction would not constitute a crime

involving moral turpitude, the BIA failed to analyze whether

the particular crime for which Mignano was convicted –

firearms trafficking – could constitute a ground of

inadmissibility. Instead, the BIA stated generically that

“firearms offenses” could not constitute a ground of

inadmissibility, and cited as support: (1) Blake, 489 F.3d

at 95-96; (2) In re Montenegro, 20 I. & N. Dec. 603, 605

(BIA 1992); and (3) In re Azurin, 23 I.& N. Dec. 695, 699

n.2 (BIA 2005). None of the cited cases, however, addresses

whether firearms trafficking constitutes a crime involving

moral turpitude, which would thus be a ground for

inadmissibility. Because the BIA erred in failing to

consider whether Mignano’s particular conviction for

firearms trafficking might constitute a ground of

inadmissibility, remand is appropriate for the BIA to

consider this issue in the first instance. See Blake, 489

F.3d at 103; INS v. Ventura, 537 U.S. 12, 16 (2002). On

remand, the BIA is directed to address whether Mignano’s

conviction for firearms trafficking is a crime involving

moral turpitude and, for that reason, would constitute a

ground of inadmissibility, see INA § 212(a)(2)(A)(i)(I), and

consequently, whether Mignano is eligible for relief under

§ 212(c)).

II. Whether Mignano was Improperly Charged as Deportable

Mignano also argues that because he was charged with

being deportable at the time he was re-entering the country

on his return from a visit to Italy, he should have been

charged with being inadmissible rather than deportable. As

the Government argues, however, this issue is not before us

for review because Mignano failed to raise the issue in his

2007 motion to reopen. Accordingly, we decline to address

this issue. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
4

F.3d 83, 89-90 (2d Cir. 2001) (holding that where the alien

files a timely petition from the denial of a motion, but not

from the underlying affirmance of the removal order, the

Court may review only the denial of the motion); see also

Stone v. INS, 514 U.S. 386, 405-06 (1995). 

For the foregoing reasons, the petition for review is

GRANTED in part and DENIED in part. As we have completed

our review, any stay of removal that the Court previously

granted in this petition is VACATED, and any pending motion

for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk