Nethagani v. Mukasey

• Decision Date: 09 July 2008
• Docket Number: Docket No. 05-3249-ag.
• Citation: 532 F.3d 150
• Parties: Khalid NETHAGANI, Petitioner, v. Michael B. MUKASEY, Attorney General of The United States of America,<SMALL><SUP>*</SUP></SMALL> William Cleary, Field Director, Buffalo Detention and Removal Office, Department of Homeland Security, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

532 F.3d 150

Khalid NETHAGANI, Petitioner, v. Michael B. MUKASEY, Attorney General of The United States of America,^* William Cleary, Field Director, Buffalo Detention and Removal Office, Department of Homeland Security, Respondents.

Docket No. 05-3249-ag.

United States Court of Appeals, Second Circuit.

Argued: June 16, 2008.

Decided: July 9, 2008.

Gerald P. Seipp, Clearwater, FL for Petitioner.

Zoe J. Heller, Trial Attorney, Office of Immigration Litigation (Gail Y. Mitchell, Assistant United States Attorney, for Terrance P. Flynn, United States Attorney, Western District of New York, Buffalo, NY, on the brief) for Respondents.

Before: JACOBS, Chief Judge, STRAUB, Circuit Judge, and JONES, District Judge.^**

DENNIS JACOBS, Chief Judge:

The Immigration and Nationality Act bars the grant of asylum or withholding of removal to an alien whom the Attorney General "determines" or "decides" has "been convicted by a final judgment of a particularly serious crime." 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum); 1231(b)(3)(B)(ii) (withholding). Petitioner argues that only aggravated felonies qualify as "particularly serious crime[s]" within the meaning of those subsections. A preliminary question is whether we retain appellate jurisdiction to decide that question.

BACKGROUND

In 1993, Khalid Nethagani, a native and citizen of India, was convicted in New York State Court of reckless endangerment in the first degree, having shot into the air a gun that he possessed illegally. He was placed in removal proceedings (on unrelated grounds) in 1994. Nearly a decade later, on May 30, 2003, the Board of Immigration Appeals ("BIA") dismissed Nethagani's final appeal from an order of removal entered by Immigration Judge Phillip J. Montante, Jr. (Nethagani had appealed to the BIA on two previous occasions, and had won remand to an Immigration Judge both times.) In disposing of the appeal, the BIA determined that Nethagani was ineligible for asylum, see 8 U.S.C. § 1158, and for withholding of removal, see 8 U.S.C. § 1231(b)(3), because he had been convicted of a "particularly serious crime," see 8 U.S.C. §§ 1158(b)(2)(A)(ii); 1231(b)(3)(B)(ii). In re Nethagani, No. A28 999 892 (B.I.A. May 30, 2003), aff'g No. A 28 999 892 (Immig. Ct. Buffalo Mar. 29, 2001).

In April 2004, Nethagani sought a writ of habeas corpus in the Western District of New York. Pursuant to section 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 310-11, which took effect on May 11, 2005, the petition was transferred to this Court, where it was docketed as a petition for review.

DISCUSSION

Nethagani argues that the BIA failed to consider the proper factors in determining whether he had been convicted of a particularly serious crime, and that only an aggravated felony may constitute a particularly serious crime for purposes of either 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum) or 1231(b)(3)(B)(ii) (withholding).

We first decide whether we have subject-matter jurisdiction.

I

Because this case was initiated before April 1, 1997, and because the BIA decision was issued after October 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") transitional jurisdictional rules apply. See IIRIRA § 309(c)(4), Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-626 to 627 (transitional jurisdictional rules); id. § 309(a) and (c)(1) (transitional jurisdictional rules apply to deportation proceedings pending on April 1, 1997); id. § 309(c)(4) (transitional rules apply to cases in which final order of deportation is entered after October 30, 1996). Those "transitional" jurisdictional rules were modified by the REAL ID Act:

A petition for review filed under former section 106(a) of the Immigration and Nationality Act (as in effect before its repeal by section 306(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 . . .) shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. § 1252), as amended by this section.

REAL ID Act § 106(d), 119 Stat. 311. Since IIRIRA instructed that petitions for review in "transitional rules" cases be filed under § 106 of the pre-IIRIRA version of the Immigration and Nationality Act, 8 U.S.C. § 1105a (1994), see IIRIRA § 309(c)(1), the REAL ID Act applies our current (i.e., REAL ID-era) jurisdictional rules to "transitional rules" cases. See Iouri v. Ashcroft, 487 F.3d 76, 83-84 (2d Cir.2007) (applying the REAL ID Act's jurisdictional rules to a "transitional rules" IIRIRA case when the REAL ID Act was enacted during the pendency of appeal). Our jurisdiction to decide this petition for review is therefore governed by 8 U.S.C. § 1252, which contains jurisdiction stripping provisions.

Does § 1252 relieve us of jurisdiction to review the agency's determination that Nethagani committed a "particularly serious crime" for purposes of 8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii)?

The government reminds us that we lack jurisdiction to review any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title [authority to apply for asylum]." 8 U.S.C. § 1252(a)(2)(B)(ii) (emphases added). Both statutory provisions at issue here fall within "this subchapter" for purposes of § 1252. See Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir.2006) (explaining that the subchapter referred to in § 1252 encompasses 8 U.S.C. §§ 1151-1381).

As to asylum, the provision limiting an alien's eligibility reads, in relevant part:

Paragraph (1)[which establishes eligibility for asylum] shall not apply to an alien if the Attorney General determines that—

. . .

(ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States[.]

8 U.S.C. § 1158(b)(2)(A) (emphasis added). And the provision limiting the grant of withholding reads, in relevant part:

Subparagraph (A) [which establishes an alien's entitlement to withholding of removal] does not apply to an alien . . . if the Attorney General decides that—

. . .

(ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States[.]

8 U.S.C. § 1231(b)(3)(B) (emphasis added).

Thus the two provisions authorize the Attorney General (respectively) to "determine[ ]" or "decide[ ]" that the alien was convicted of a particularly serious crime.¹ The question is not whether these inquiries require an exercise of discretion. They probably do. We must also determine whether the text of the subchapter in which they appear "specifie[s]" that the "decision" is "in the discretion of the Attorney General." See 8 U.S.C. § 1252(a)(2)(B)(ii). We hold that it does not.

This Court has concluded that § 1252(a)(2)(B)(ii) strips us of jurisdiction to review certain discretionary decisions.² In each such instance, the relevant provision authorizing the Attorney General to act explicitly characterized the act as discretionary. Cf. Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.2006) (per curiam) (holding that § 1252(a)(2)(B)(ii) does not strip our jurisdiction to review decisions to grant or deny continuance motions because "continuances are not even mentioned in the subchapter"). So the government is now asking us to do something we have not done before.

Given the "strong presumption in favor of judicial review of administrative action," see INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), we hold that, when a statute authorizes the Attorney General to make a determination, but lacks additional language specifically rendering that determination to be within his discretion (e.g., "in the discretion of the Attorney General," "to the satisfaction of the Attorney General," etc.), the decision is not one that is "specified . . . to be in the discretion of the Attorney General" for purposes of § 1252(a)(2)(B)(ii).

Because neither § 1158(b)(2)(A) nor § 1231(b)(3)(B) expressly places the determination within the discretion of the Attorney General, we conclude that neither provision "specifie[s]" that the decision is within his "discretion." We therefore determine that § 1252(a)(2)(B)(ii) does not abate our power to review the decision that Nethagani was convicted of a particularly serious crime. Accord Alaka v. Att'y Gen., 456 F.3d 88, 98, 101-02 (3d Cir.2006).

II

Nethagani argues that the BIA failed to follow its own precedents in determining that his first degree reckless endangerment conviction was a particularly serious crime. We disagree.

The Immigration and Nationality Act does not define a "particularly serious crime," though it does state parameters, set out in the margin,³ for crimes that are particularly serious per se. Nethagani's offense—first degree reckless endangerment—is not per se particularly serious. In such a case as this, the BIA exercises the Attorney General's discretion to determine whether the crime was particularly serious using the guideposts set out in In re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A.1982), modified, In re C-, 20 I. & N. Dec. 529 (B.I.A.1992):(1) "the nature of the conviction," (2) "the circumstances and underlying facts of the conviction," (3) "the type of sentence imposed" and (4) "whether the type and circumstances of the crime indicate that the alien will be a danger to the community[,]" id. at 247. And crimes against persons are more likely to be particularly serious than are crimes against property. Id.

Here, the BIA addressed each Frentescu factor. The Board properly took into consideration: (1) that reckless endangerment "involves behavior which could end a human life"; (2) Nethagani's version of the events underlying his reckless...