Emerald Nkomo v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 18-3109 ____________ EMERALD ZODWA NKOMO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________ On Petition for Review of a Decision of the Board of Immigration Appeals (BIA-1: A091-540-338) Immigration Judge: Daniel A. Morris ____________ Submitted April 1, 2019 Before: CHAGARES, HARDIMAN, and SILER, JR. * Circuit Judges. * The Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation. (Filed: July 12, 2019) Jerard A. Gonzalez Cheryl Lin Bastarrika Soto Gonzalez & Somohano 3 Garret Mountain Plaza Suite 302 Woodland Park, NJ 07424 Counsel for petitioner Rachel L. Browning Jessica E. Burns Rosanne M. Perry United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for respondent ____________ OPINION OF THE COURT ____________ HARDIMAN, Circuit Judge. Emerald Nkomo petitions for review of her final order of removal. Her petition requires us to decide a question of first impression in this Court: whether a notice to appear that fails to specify the time and place of an initial removal hearing deprives an immigration judge of jurisdiction over the removal proceedings. We hold that it does not. 2 Nkomo also seeks review of the denials of her application for withholding of removal and her request for protection under the Convention Against Torture (CAT). We are unpersuaded by the merits of her withholding claim and we lack jurisdiction over her CAT claim. So we will deny Nkomo’s petition in part and dismiss it in part. I A lawful permanent resident of the United States and a citizen of Zimbabwe, Nkomo was convicted in 2017 of conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1342 and 1349. This conviction is for an “aggravated felony,” which makes Nkomo removable and ineligible for most relief. About a month after she was sentenced to time served for that offense, the Government initiated these removal proceedings. Adopting much of the Immigration Judge’s analysis, the Board of Immigration Appeals found Nkomo ineligible for withholding because her wire fraud conviction was for a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii). Although that finding did not foreclose CAT protection, the Board denied that too, adopting the IJ’s finding that Nkomo had not shown a probability she would be tortured by or with the acquiescence of the government of Zimbabwe. Nkomo filed this timely petition for review. See 8 U.S.C. § 1252(b)(1). II The Board had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1003.2(c). We have jurisdiction under 8 U.S.C. § 1252(a). Because Nkomo is a criminal alien, our 3 review is limited to colorable legal and constitutional claims. 8 U.S.C. § 1252(a)(2)(C)–(D). We review the Board’s decision, but where “the BIA adopt[s] and affirm[s] the IJ’s decisions and orders as well as [conducting] an independent analysis, we review both the IJ’s and the BIA’s decisions and orders.” S.E.R.L. v. Att’y ...

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