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Nkomo v. Attorney General of The United States of America

United States Court of Appeals, Third Circuit

July 12, 2019

EMERALD ZODWA NKOMO, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

          Submitted April 1, 2019

          On Petition for Review of a Decision of the Board of Immigration Appeals (BIA-1: A091-540-338) Immigration Judge: Daniel A. Morris

          Jerard A. Gonzalez Cheryl Lin Bastarrika Soto Gonzalez & Somohano Counsel for petitioner

          Rachel L. Browning Jessica E. Burns Rosanne M. Perry Counsel for respondent

          Before: CHAGARES, HARDIMAN, and SILER, JR. [*] Circuit Judges.

          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.

         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). W e 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 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 Gen., 894 F.3d 535, 543 (3d Cir. 2018) (quoting Ordonez-Tevalan v. Att'y Gen., 837 F.3d 331, 340-41 (3d Cir. 2016)). "[W]e look to the IJ's opinion ...


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