10-2804-ag Wassily v. Holder BIA Schoppert, I.J. A026 102 429 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED 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 Circuit, held at the Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of May, two thousand thirteen.

PRESENT: ROSEMARY S. POOLER, CHRISTOPHER F. DRONEY, Circuit Judges. CATHY SEIBEL,* District Judge. _____________________________________

TAMER S. WASSILY, Petitioner,

v. 10-2804-ag NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. _______________________________________

FOR PETITIONER: Brian N. Wolf, Amanda E. Gray, (Kerry W. Bretz, Jules E. Coven, on the brief), Bretz & Coven, New York, New York.

* The Honorable Cathy Seibel, United States District Court for the Southern District of New York, sitting by designation. FOR RESPONDENTS: Tony West, Assistant Attorney General; Mary Jane Candaux, Assistant Director; David H. Wetmore, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

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.

Tamer S. Wassily, a native and citizen of Egypt, seeks

review of a June 14, 2010, order of the BIA, denying his

motion to remand based on the ineffective assistance of his

former counsel, and affirming the September 3, 2008,

decision of the Immigration Judge (“IJ”), which terminated

his asylum status and denied his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Wassily, No. A026 102 429

(B.I.A. June 14, 2010), aff’g No. A026 102 429 (Immig. Ct.

N.Y.C. Sept. 3, 2008). We assume the parties’ familiarity

with the underlying facts and procedural history in this

case.

I. Asylum, Withholding of Removal, and CAT

Under the circumstances of this case, we have

considered both the IJ’s and the BIA’s opinions “for the

2 sake of completeness.” Zaman v. Mukasey,

(2d Cir. 2008). The applicable standards of review are

well-established. See

(b)(4)(B); Yanquin

Weng v. Holder,

(2d Cir. 2009).

The Government now concedes that in light of our

holding in Nethgani v. Mukasey,

(2d Cir.

2008),

(a)(2)(B)(ii) does not deprive us of

jurisdiction to review the agency’s decision in this case.

Nor does

(a)(2)(C) deprive us of jurisdiction

over this petition, because the agency did not originally

find Wassily removable due to his criminal convictions, but

rather for having overstayed the terms of his visa. See

Alvarez-Santos v. INS,

(9th Cir. 2003).

The agency found that Wassily’s conviction for stalking

in the third degree in violation of New York Penal Law

§ 120.50(3) constituted a particularly serious crime barring

him from asylum, withholding of removal under the

Immigration and Nationality Act (“INA”), and withholding of

removal under the CAT. See

(b)(2)(A)(ii),

1231(b)(3)(B)(ii);

(c). In finding that

Wassily was convicted of a particularly serious crime, the

agency relied on the factual narrative contained in a pre-

3 sentence report (“PSR”). The BIA has held that “all

reliable information may be considered in making a

particularly serious crime determination, including the

conviction records and sentencing information, as well as

other information outside the confines of a record of

conviction.” In re N-A-M-,

(B.I.A.

2007) (emphasis added). However, we have held that the

factual narrative contained in a PSR is “inherently

unreliable.” Dickson v. Ashcroft,

(2d Cir.

2003). Although the IJ also relied in some measure on

Wassily’s plea colloquy, which we have noted “do[es] not

pose the potential reliability problems of a factual

narrative in a PSR,”

remand is required for the BIA to

reconsider whether the IJ was entitled to rely on the PSR,

and, if not, whether Wassily’s crime is particularly serious

based only on the plea colloquy or other reliable evidence,

see

. If the agency determines that no reliable

evidence supports a particularly serious crime

determination, the termination of Wassily’s asylee status

was in error, and that status should be reinstated.

We do not find error in the agency’s denial of deferral

of removal under the CAT based on Wassily’s failure to show

4 that he is more likely than not to face torture in Egypt.

See Lecaj v. Holder,

(2d Cir. 2010).

Contrary to Wassily’s contention, we find no indication that

the IJ’s adverse credibility findings impacted the denial of

CAT relief. Likewise, Wassily’s argument based on the “past

persecution” he suffered in Egypt is without merit, as the

IJ did not find that Wassily had established past

persecution, even in his 2000 decision granting asylum.

Moreover, because Wassily’s past persecution claim was based

largely on unfulfilled threats of harm, the IJ’s finding

that his past experiences did not amount to persecution or

torture was not in error. See Ivanishvili v. U.S. Dep’t of

Justice,

(2d Cir. 2006); Guan Shan Liao

v. U.S. Dep’t of Justice,

, 70 (2d Cir. 2002).

Wassily further argues that the IJ erred in denying his

CAT claim based on his fear that he will face torture as a

criminal deportee and former asylee. However, the agency

reasonably found that Wassily failed to show that the

Egyptian authorities were likely to become aware of his

former asylee status and criminal history. See Xiao Ji Chen

v. U.S. Dep’t of Justice,

(2d Cir. 2006)

(recognizing that “the applicant seeking CAT relief . . . is

required to establish that it is more likely than not that 5 she would be tortured”); In re J.F.F.,

(B.I.A. 2006) (holding that the IJ erred in granting CAT

relief where the IJ “strung together a series of

suppositions”). Indeed, although Wassily’s expert testified

that if he were detained there was a strong likelihood he

would be tortured, he also conceded that he did not know how

the Egyptian government would become aware of Wassily’s

conviction, stating only that there “is a good chance” that

Egyptian authorities would question a returnee. Similarly,

the IJ reasonably distinguished this case from Khouzam v.

Ashcroft,

(2d Cir. 2004), in which we

found that an Egyptian citizen wanted for murder in Egypt

was eligible for CAT relief, because Wassily did not allege

that the Egyptian police had any interest in him

individually. See Mu Xiang Lin v. U.S. Dep’t of Justice,

(2d Cir. 2005) (denying CAT relief because

petitioner offered “no additional particularized evidence”

to support her claim). Accordingly, the agency did not err

in finding that Wassily failed to demonstrate that he was

more likely than not to face torture if returned to Egypt.

II. Motion to Remand

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

abuse of discretion. See Liyong Cao v. U.S. Dep’t of 6 Justice,

(2d Cir. 2005). We review de

novo whether the assistance of petitioner’s prior counsel

was effective. See Esposito v. INS,

(2d

Cir. 1993) (per curium).

The BIA denied Wassily’s motion to remand based on the

ineffective assistance of his prior counsel, finding that he

failed to demonstrate that: (1) competent counsel would have

acted otherwise; and (2) he was prejudiced by his former

counsel’s performance. Because the BIA did not adequately

explain how it arrived at these conclusions, it abused its

discretion in denying Wassily’s motion to remand. See Ke

Zhen Zhao v. U.S. Dep’t of Justice,

, 93 (2d Cir.

2001). The explanation of Wassily’s former counsel, that he

declined to apply for adjustment of status on Wassily’s

behalf in order to avoid bringing to the attention of the IJ

the negative equitable factors arising from details of

Wassily’s conviction for stalking, is unsatisfactory. See

Esposito,

. CAT relief, unlike asylum, is

not dependant on the alien’s equities. See Lin Zhong v.

U.S. Dep’t of Justice,

(2d Cir. 2007).

Moreover, if the IJ had determined that Wassily was not

convicted of a particularly serious crime, any equitable

factors would have been irrelevant, because Wassily had 7 already been granted asylum in 2000, and negative equitable

factors are not a ground to terminate asylum. See

(b)(2), (c)(2);

. Accordingly, the

BIA abused its discretion in finding that Wassily failed to

demonstrate that competent counsel would have applied for

adjustment of status under

. See Zhao, 265

F.3d at 93.

The BIA also abused its discretion in concluding

without explanation that Wassily was not prejudiced by his

former counsel’s failure to apply for adjustment of status

on his behalf because “it does not appear that [he] would

be prima facie eligible for adjustment of status.” In so

stating, the BIA presumably meant that Wassily’s crime was

a crime involving moral turpitude, thus rendering him

inadmissible for adjustment of status. See

(b)(5), 1182(a)(2)(A)(i)(I). However, even if

Wassily’s conviction does render him inadmissible, the IJ

would have had the discretionary authority to waive that

ground of inadmissibility under

(c), had his

attorney applied for adjustment. The BIA thus abused its

discretion in finding that Wassily was not prejudiced by

his former counsel’s failure to apply for adjustment of

status on his behalf based on its unexplained conclusion 8 that he was not prima facie eligible for adjustment of

status. See Zhao, 265 F.3d at 93.

For the foregoing reasons, the petition for review is

GRANTED. 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.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

9