Brad Toby v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 17-2488 ___________ BRAD TOBY, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A205-015-729) Immigration Judge: Honorable Mirlande Tadal ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) April 18, 2018 Before: VANASKIE, COWEN, and NYGAARD, Circuit Judges (Opinion filed: April 19, 2018) ___________ OPINION* ___________ PER CURIAM Brad Toby (“Toby”), a native and citizen of Trinidad and Tobago who is proceeding pro se, petitions for review of his final order of removal of the Board of * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Immigration Appeals (“BIA”). For the following reasons, we will dismiss the petition in part and deny the petition in part. Toby arrived in the United States in 1994. He was admitted as a temporary visitor and remained in the United States past the date until which he was authorized to stay. In 2006, he was convicted in New Jersey of possession with intent to distribute a controlled substance, marijuana, in violation of N.J. Stat. Ann. § 2C:35-5(a)(1) & (b)(12). In 2011, the Department of Homeland Security (“DHS”) charged him as removable as a person present in the United States without a valid visa under 8 U.S.C. § 1227(a)(1)(B), and, in light of his 2006 conviction, as an alien convicted of a controlled substance violation under § 1227(a)(2)(B)(i). In 2013, Toby was convicted in New Jersey of possession with intent to distribute a controlled substance, cocaine, in violation of N.J. Stat. Ann. § 2C:35-5(a)(1) & (b)(1). DHS subsequently filed an additional charge of removability under § 1227(a)(2)(A)(iii), charging him as removable as a person convicted of an illicit- trafficking aggravated felony. Toby conceded removability pursuant to § 1227(a)(1)(B) and § 1227(a)(2)(B)(i), but denied removability pursuant to § 1227(a)(2)(A)(iii). Toby sought relief from removal in the form of asylum, cancellation of removal, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the ground that he faces mistreatment in Trinidad and Tobago because he is gay. The Immigration Judge (“IJ”) concluded that Toby’s 2013 conviction for possession with intent to distribute cocaine constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) and sustained all three charges of removability. The IJ further 2 concluded that Toby was ineligible for cancellation of removal in light of his aggravated felony conviction, and because the conviction also constituted a “particularly serious crime,” the IJ concluded that Toby was ineligible for asylum and withholding of removal. The IJ denied Toby’s application for deferral of removal under CAT on the merits, concluding that the record did not indicate that it was more likely than not that Toby, as a gay man, would face torture by, or with the acquiescence of, a public official if he were to return to Trinidad and Tobago. Toby submitted a pro se notice of appeal ...

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