526 F. App'x 66
2d Cir.2013Background
- Magassouba, a Guinea native, seeks review of BIA denial of cancellation of removal and adjustment of status.
- BIA affirmed IJ’s May 27, 2011 decision; final BIA order issued November 3, 2011.
- Agency found Magassouba inadmissible under 212(a)(2)(C) based on a narcotics conviction.
- Magassouba was convicted of conspiracy to distribute heroin; his prior conviction is not yet final at denial.
- BIA rejected asylum and CAT relief due to ineligibility from the narcotics conviction.
- Magassouba’s 1996 forgery (N.Y. Penal Law § 170.05) is a crime involving moral turpitude and a one-year maximum sentence, affecting cancellation eligibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether not-yet-final conviction supports inadmissibility under 212(a)(2)(C). | Magassouba argues conviction not final; cannot rely on it. | Agency may rely on reason to believe from narcotics conviction. | Yes; not-yet-final conviction can support inadmissibility. |
| Whether forgery conviction qualifies as a CIMT for § 1227(a)(2). | Forgery in third degree is not CIMT and not ≥1 year. | Forgery with intent to defraud involves moral turpitude and up to one year. | Conviction constitutes a CIMT and falls within § 1227(a)(2). |
| Whether Magassouba is eligible for asylum/CAT given the narcotics conviction. | Seeks asylum/CAT relief despite conviction. | Conviction bars asylum and CAT relief. | Ineligible for both asylum and CAT relief. |
| Whether the BIA properly denied remand to apply for asylum/CAT. | Remand could permit new relief evidence. | No material evidence could change outcome due to ineligibility. | Remand denied as futile. |
| Whether constitutional claims lack merit. | Claims of due process and ineffective assistance. | No prejudice shown; no denial of fair process. | Claims without merit. |
Key Cases Cited
- Neptune v. Holder, 346 F. App’x 671 (2d Cir. 2009) (reason to believe can indicate inadmissibility even without a conviction)
- Jordan v. De George, 341 U.S. 223 (1951) (fraud-related crimes involve moral turpitude)
- Balogun v. Ashcroft, 270 F.3d 274 (5th Cir. 2001) (forgery often involves moral turpitude)
- Matter of Cortez, 25 I. & N. Dec. 301 (BIA 2010) (moral turpitude prerequisite for CIMT in removal context)