Lozano v. Sessions

SUMMARY ORDER Petitioner Jaime Daniel Lozano, a native and citizen of Colombia, seeks review of a January 11, 2017, decision of the BIA affirming an August 22, 2016, decision of an Immigration Judge (“U”) ordering Lozano removed to Colombia. In re Jaime Daniel Lozano, No. A 013 877 563 (B.I.A. Jan. 11, 2017), aff'g No. A 013 877 563 (Immig. Ct. Napanoch Aug. 22, 2016). We assume the parties’ familiarity with the .underlying facts and procedural history in this case. Under the circumstances of this ease, we have reviewed both the IJ’s and BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We deny the petition on the ground that an alien is removable if he has been “convicted of two or more crimes involving moral turpitude” (“CIMT”). 8 U.S.C. § 1227(a)(2)(A)(ii). Lo-zano has been convicted of three such crimes: (1) third-degree robbery under New York Penal Law (“NYPL”) § 160.05 in 1978; (2) attempted third-degree robbery under NYPL §§ 110, 160.05 in 2008; and (3) promoting the sexual performance of a child under NYPL § 263.15 in 2015. He does not dispute that all three of these crimes are CIMTs. Lozano argues that, as a matter of res judicata, neither of his robbery convictions may be used to charge him as removable for two CIMTs because, in a prior removal proceeding in 2011, he was charged as removable on the ground that those convictions were CIMTs, but was then granted cancellation of removal under 8 U.S.C. § 1229b(a). The BIA has specifically rejected that argument: “[W]e hold that a conviction which has once been relied upon in a charge of deportability may be alleged as one of the two- ‘crimes involving moral turpitude’ in a second proceeding, even though the first proceeding was terminated by a grant of relief.. where [as here] the second crime alleged is a subsequent conviction or a conviction that was not disclosed in the prior proceeding.” Matter of Balderas, 20 I. & N. Dec. 389, 393 (B.I.A. 1991). And we approved, in Chan v. Gartner, 464 F.3d 289 (2d Cir. 2006), expressly deeming “the reasoning of the BIA [in Balderas] ... persuasive,” id. at 296, and concluding that an alien’s prior grant of relief from removal “does not remove his conviction from consideration in subsequent immigration proceedings,” id. at 290. The rule is settled in other circuits as well. See, e.g., Esquivel v. Mukasey, 543 F.3d 919, 922 (7th Cir. 2008); Molina-Amezcua v. INS, 6 F.3d 646, 647-48 (9th Cir. 1993); Molenda v. INS, 998 F.2d 291, 294 (6th Cir. 1993). Accordingly, the agency did not err in concluding that Lozano was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) based on two CIMTs. Because Lozano was removable on that basis, we do not reach his challenge to the agency’s alternative basis for deeming him removable—that his conviction for promoting sexual performance of a child under NYPL § 263.15 is an aggravated felony or crime of child abuse. See INS v. Bagamasbad, 429 U.S. 24, 26, 97 S.Ct. 200, 60 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the stay of removal that the Court previously granted in this petition is VACATED, and the Government’s pending motion to remand 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).