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MANLEY v. BARR (2019)

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United States Court of Appeals, Second Circuit.

Dujon Luther MANLEY, Petitioner, v. William P. BARR, United States Attorney General, Respondent.

16-2640

Decided: July 15, 2019

PRESENT: JOSÉ A. CABRANES, GERARD E. LYNCH, DENNY CHIN, Circuit Judges. FOR PETITIONER: Ishan K. Bhabha, Jenner and Block LLP, Washington, DC. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Linda S. Wernery, Assistant Director; Gregory M. Kelch, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

SUMMARY ORDER

Petitioner Dujon Luther Manley, a native and citizen of Jamaica, seeks review of a July 18, 2016, decision of the BIA affirming the January 22, 2016, decision of an Immigration Judge (“IJ”) denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Dujon Luther Manley, No. A206 471 587 (B.I.A. July 18, 2016), aff’g No. A206 471 587 (Immig. Ct. Napanoch Jan. 22, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). Our jurisdiction is limited to constitutional claims and questions of law given that Manley is removable by reason of having been convicted of a controlled substance offense and an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C), (D); see also Ortiz-Franco v. Holder, 782 F.3d 81, 91 (2d Cir. 2015). We review such claims de novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007).

We find no error in the BIA’s determination that Manley waived on appeal any challenge to the IJ’s findings that his conviction was for a particularly serious crime barring him from withholding of removal and that he was not credible as to his CAT claim. See Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (“To preserve an issue for judicial review, the petitioner must first raise it with specificity before the BIA.”). Even liberally construing Manley’s pro se brief to the BIA, he did not challenge the IJ’s specific findings that he failed to submit any of the evidence required to rebut the presumption that his drug trafficking conviction was a particularly serious crime or that his testimony was not plausible and his evidence not consistent to credibly establish his eligibility for CAT relief. See id. at 117-18. Accordingly, we may not consider those unexhausted issues, which were dispositive of withholding of removal and CAT relief.* See id.

We decline to hold Manley’s petition in abeyance pending resolution of his appeal of the denial of his motion to vacate his conviction in state court because his conviction is final for immigration purposes, see Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991); Matter of J.M. Acosta, 27 I. & N. Dec. 420, 432 (BIA 2018), and his motion to vacate appears to be without merit given that he was warned of the immigration consequences of his guilty plea, Padilla v. Kentucky, 559 U.S. 356, 368-69, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

For the foregoing reasons, the motion to hold the petition in abeyance and the petition for review are DENIED.

FOOTNOTES

FOOTNOTE.   We note that, contrary to Manley’s contentions, he did not provide any objective evidence to rebut the presumption that his conviction was for a particularly serious crime and he was found not credible based on more than just the implausibility of his testimony.

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