12‐2406 Flores v. Holder

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2014

(Argued: December 5, 2014 Decided: February 26, 2015)

Docket No. 12‐2406

EDSON FLORES,

Petitioner,

v.

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

Respondent.

ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS

Before: SACK, LYNCH, and CHIN, Circuit Judges.

Petition for review of an order of the Board of Immigration Appeals,

which affirmed an Immigration Judgeʹs denial of petitionerʹs motion to continue

and his application for asylum, withholding of removal, and relief under the Convention Against Torture. We hold that the agency (1) abused its discretion in

denying the motion to continue because it failed to apply the correct legal

standard, (2) erred in its application of the modified categorical approach to

determine whether petitionerʹs convictions for first‐degree sexual abuse under

New York law constituted aggravated felonies relating to the sexual abuse of a

minor, and (3) did not err in concluding that petitioner had been convicted of a

particularly serious crime.

GRANTED IN PART, DENIED IN PART, AND REMANDED.

JOHN W. CERRETA, Day Pitney LLP, Hartford, Connecticut, for Petitioner.

ERICA MILES (Stuart F. Delery, Allen W. Hausman, Brooke M. Maurer, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

CHIN, Circuit Judge:

Petitioner Edson Flores, a native and citizen of Honduras, seeks

review of a May 22, 2012 order of the Board of Immigration Appeals (ʺBIAʺ),

affirming a January 6, 2012 decision of an Immigration Judge (ʺIJʺ). The agency

denied Floresʹs motion to continue removal proceedings, which Flores had filed

-2- to pursue adjustment of status on the basis of two family‐based visa petitions.

The agency also found that Flores was ineligible for asylum because his

convictions for first‐degree sexual abuse, in violation of

,

were aggravated felonies relating to the sexual abuse of a minor, as defined in

the Immigration and Nationality Act (ʺINAʺ) § 101(a)(43)(A) (codified at

(a)(43)(A)), and also because they were particularly serious crimes.

For the reasons set forth below, we hold that the agency erred in

denying the continuance request and in determining that the sexual abuse

offenses were aggravated felonies, but that the agency did not err in concluding

that the offenses were particularly serious crimes.

STATEMENT OF THE CASE

Flores, a native and citizen of Honduras, entered the United States

without inspection in 1991. He married a U.S. citizen and raised a family in the

United States. In 2009, he was convicted, pursuant to a jury verdict, of two

counts of first‐degree sexual abuse in violation of

. He

was sentenced to forty‐two monthsʹ imprisonment and was subsequently placed

in removal proceedings and charged with removability under: (1) INA

§ 212(a)(6)(A)(i) (codified at

(a)(6)(A)(i)), for being present in the

United States without being admitted or paroled; and (2) INA § 212(a)(2)(A)(i)(I)

-3- (codified at

(a)(2)(A)(i)(I)), for having been convicted of crimes

involving moral turpitude.

Flores appeared, pro se, before an IJ. After several continuances,

Flores eventually conceded his removability under INA § 212(a)(6)(A)(i) for

entering the United States without inspection. He requested a further

continuance to pursue adjustment of status, in conjunction with a waiver of

inadmissibility under INA § 212(h) (codified at

(h)), based on two

visa petitions filed with U.S. Citizenship and Immigration Services (ʺCISʺ). The

first was an approved I‐130 Petition for Alien Relative filed by his U.S.‐citizen

sister in 2001; the second was an I‐130 Petition for Alien Relative filed by his U.S.‐

citizen wife in 2010. Flores also moved to terminate his proceedings and applied

for asylum, withholding of removal, and relief under the Convention Against

Torture (ʺCATʺ), based on his fear of gangs in Honduras.

The IJ declined to further continue proceedings and, at the

conclusion of a 2012 merits hearing, denied all relief in an oral decision and

ordered Flores removed. See In re Edson Flores, No. A095 051 190 (Immig. Ct.

Batavia, NY Jan. 6, 2012). Initially, the IJ found that Flores was removable under

INA § 212(a)(6)(A)(i), for entering the United States without inspection, and

under § 212(a)(2)(A)(i)(I), for having been convicted of two crimes involving

-4- moral turpitude. He therefore denied Floresʹs motion to terminate proceedings.

In addition, the IJ determined that Flores was ineligible for adjustment of status

because he did not have a current priority date for his sisterʹs approved I‐130

Petition and his wifeʹs I‐130 Petition had not been adjudicated. The IJ also

concluded that Flores was statutorily barred from asylum and withholding of

removal because his convictions under

were aggravated

felonies, relating to the sexual abuse of a minor under INA § 101(a)(43)(A), and

were also particularly serious crimes. In determining that Floresʹs convictions

were aggravated felonies, the IJ reasoned that § 130.65 is divisible and the record

of conviction established that Flores placed his hand on the genital area of a

victim under eleven years old. Alternatively, the IJ found that Flores failed to

meet his burden of demonstrating eligibility for asylum and withholding of

removal. Lastly, the IJ denied deferral of removal under CAT, concluding that

Flores failed to show that he would likely be tortured in Honduras.

Flores appealed. In a May 22, 2012 order, the BIA dismissed the

appeal. In re Edson Flores, No. A095 051 190 (B.I.A. May 22, 2012), affʹg No. A095

051 190 (Immig. Ct. Batavia, NY Jan. 6, 2012). The BIA agreed that Floresʹs

convictions under

were aggravated felonies and

particularly serious crimes. It also found that the IJ did not err in denying

-5- Floresʹs motion to continue because Flores did not submit any evidence showing

that his wifeʹs I‐130 Petition had been approved and he was ineligible for a

§ 212(h) waiver as a result of his aggravated felony convictions. Because Flores

conceded his removability for entering the United States without inspection, the

BIA declined to consider whether his convictions under

were crimes of moral turpitude that rendered him removable under INA

§ 212(a)(2)(A)(i)(I). The BIA also declined to consider the IJʹs alternative denial

of asylum and withholding of removal on the merits. Flores did not contest the

IJʹs denial of relief under CAT on appeal.

This petition for review followed.

DISCUSSION

We review the IJʹs decision as modified by the BIA, i.e., minus the

bases for denying relief that the BIA expressly declined to consider. See Xue

Hong Yang v. U.S. Depʹt of Justice,

(2d Cir. 2005).1

1 At oral argument, the government asserted that we lack jurisdiction over the petition due to Floresʹs aggravated felony convictions. Pursuant to

(a)(2)(C), ʺno court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed,ʺ inter alia, an aggravated felony. Flores was not, however, found removable for having committed an aggravated felony. See, e.g., Yousefi v. INS,

, 325 (4th Cir. 2001) (per curiam) (observing that § 1252(a)(2)(C)ʹs jurisdiction‐ stripping provision applies only where ʺthe alienʹs aggravated felony was actually the basis, or one of the bases, of the final order of deportationʺ). Moreover, even if § 1252(a)(2)(C)ʹs jurisdiction‐stripping provision applies, we retain jurisdiction to review ʺconstitutional claimsʺ and ʺquestions of law.ʺ

(a)(2)(D). We therefore have jurisdiction to review

-6- A. Motion to Continue

We review the agencyʹs denial of a continuance for abuse of

discretion. See Sanusi v. Gonzales,

(2d Cir. 2006) (per curiam).

Pursuant to

, an IJ ʺmay grant a motion for continuance for

good cause shown.ʺ The agency has identified the following factors in

determining whether good cause exists to continue proceedings to await CISʹs

adjudication of a pending family‐based visa petition: ʺ(1) the [governmentʹs]

response to the motion; (2) whether the underlying visa petition is prima facie

approvable; (3) the [movant]ʹs statutory eligibility for adjustment of status;

(4) whether the . . . application for adjustment merits a favorable exercise of

discretion; and (5) the reason for the continuance and other procedural factors.ʺ

In re Hashmi,

(B.I.A. 2009).

We conclude that the agency abused its discretion by denying

Floresʹs motion to continue without considering the factors articulated in Hashmi.

Floresʹs legal challenges that: (1) the agency failed to assess his continuance motion under the correct legal standard; (2) the agency erred in concluding that his convictions under

were aggravated felonies; and (3) the agency erred in finding that his convictions under

were particularly serious crimes. See Nethagani v. Mukasey,

, 154‐55 (2d Cir. 2008) (observing that Court has jurisdiction to review BIAʹs finding that alien committed particularly serious crime); Vargas‐Sarmiento v. U.S. Depʹt of Justice,

(2d Cir. 2006) (noting that Court has jurisdiction to consider whether underlying conviction constitutes aggravated felony); Xiao Ji Chen v. U.S. Depʹt of Justice,

(2d Cir. 2006) (observing that argument that BIA abused discretion by applying wrong legal standard raises question of law).

-7- See Rajah v. Mukasey,

(2d Cir. 2008) (observing that agency

abuses its discretion in denying motion to continue where its decision ʺrests on

an error of lawʺ (internal quotation marks omitted)). Although the

ʺ[a]djudication of a motion to continue should begin with the presumption

. . . that discretion should be favorably exercised where a prima facie approvable

visa petition and adjustment application have been submitted in the course of an

ongoing removal hearing,ʺ Hashmi,

, neither the IJ nor the

BIA assessed whether Floresʹs wifeʹs I‐130 Petition was prima facie approvable

and, instead, considered whether Floresʹs wifeʹs I‐130 Petition had actually been

approved.

The BIA further abused its discretion by finding that an aggravated

felony conviction would bar Flores from § 212(h) relief. Because Flores was not

previously admitted to the United States as a lawful permanent resident, an

aggravated felony conviction does not render him statutorily ineligible for relief

under § 212(h). See Matter of Michel,

(B.I.A. 1998)

(ʺSection 212(h) of the Act, while specifically precluding waiver eligibility for a

lawful permanent resident who has been convicted of an aggravated felony,

imposes no such restriction on one who has not been admitted previously as a

lawful permanent resident.ʺ). The BIAʹs error is particularly troubling because

-8- the availability of a § 212(h) waiver was relevant to Floresʹs eligibility for

adjustment of status and, ʺ[w]hile all these factors may be relevant in a given

case, the focus of the inquiry is the apparent ultimate likelihood of success on the

adjustment application.ʺ Hashmi,

. Accordingly, we vacate

the agencyʹs denial of Floresʹs motion for a continuance and remand for

consideration of Floresʹs motion under the correct legal standard.

B. Aggravated Felony Determination

An alien convicted of an ʺaggravated felony,ʺ which is defined to

include the ʺsexual abuse of a minor,ʺ

(a)(43)(A), is ineligible for

asylum.

§ 1158(b)(2)(A)(ii), (B)(i). We employ a ʺcategorical approachʺ to

determine whether a state criminal conviction constitutes an aggravated felony

under the INA. Pascual v. Holder,

(2d Cir. 2013) (per curiam).

Under this approach, we look ʺto whether the state statute defining the crime of

conviction categorically fits within the generic federal definition of a

corresponding aggravated felony,ʺ Moncrieffe v. Holder,

(2013), here, ʺsexual abuse of a minorʺ as defined in

(a)(8), James

v. Mukasey,

(2d Cir. 2008) (citing In re Rodriguez–Rodriguez,

, 995‐96 (B.I.A. 1999)). ʺ[T]he singular circumstances of an

individual petitionerʹs crimes should not be considered, and only the minimum

-9- criminal conduct necessary to sustain a conviction under a given statute is

relevant.ʺ Pascual,

(internal quotations marks omitted).

If, however, the state criminal statute is ʺdivisible,ʺ we apply a

ʺmodified categorical approachʺ to determine whether a given conviction

constitutes an aggravated felony. See Descamps v. United States,

(2013). The modified categorical approach permits review of the record of

conviction for the ʺlimited purpose of determining whether the alienʹs conviction

was under the branch of the statuteʺ constituting an aggravated felony. Hoodho

v. Holder,

(2d Cir. 2009) (internal quotation marks omitted);

accord Descamps,

.2 In Descamps, the Supreme Court clarified that

a statute is ʺdivisible,ʺ and thus subject to the modified categorical approach,

when it ʺlists multiple, alternative elements, and so effectively creates several

different . . . crimes.ʺ 133 S. Ct. at 2285 (internal quotation marks omitted)

(alteration in original). ʺ[T]he modified approach merely helps implement the

categorical approachʺ; it is not ʺan exception, but instead . . . a tool . . . [that

functions] to identify, from among several alternatives, the crime of conviction so

that the court can compare it to the generic offense.ʺ Id. Once the correct

2 ʺThe record of conviction includes, inter alia, the charging document, a plea agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy transcript.ʺ Wala v. Mukasey,

(2d Cir. 2008) (internal quotation marks omitted).

-10- alternative is identified, the ʺfocusʺ must return to the ʺelements, rather than the

facts, of [the] crime.ʺ

The government argues that the agency is not bound to follow

Descamps because that case concerned application of the modified categorical

approach in the criminal sentencing context. Instead, the government contends

that, in the immigration context, application of the modified categorical approach

is governed by In re Lanferman,

, 728‐29 (B.I.A. 2012), in which

the BIA adopted a more expansive approach to ʺdivisibility.ʺ We note that the

BIA has since acknowledged that Descamps, rather than Lanferman, governs

application of the modified categorical approach in the immigration context and

that the BIA is ʺbound to apply divisibility consistently with the individual

circuitsʹ interpretation of divisibility under Descamps.ʺ In re Chairez‐Castrejon,

(B.I.A. 2014). In any event, we reject the governmentʹs

contrary assertion in this case and join the First, Third, Ninth, and Eleventh

Circuits in holding that application of the modified categorical approach in the

immigration context is controlled by Descamps. See, e.g., Kaufmann v. Holder,

, 8‐9 (1st Cir. 2014); Aguilar‐Turcios v. Holder,

, 1301‐02 (9th

Cir. 2014); Donawa v. U.S. Attorney Gen.,

, 1280 n.3 (11th Cir. 2013);

Rojas v. Attorney Gen. of U.S.,

, 216 n.12 (3d Cir. 2013) (en banc).

-11- There is simply no basis for distinguishing Descamps on the ground that it arose

in the sentencing context, ʺgiven that Descamps itself makes no distinction

between the criminal and immigration contexts.ʺ In re Chairez‐Castrejon,

; see also Donawa,

n.3.

Turning to the case at bar, Flores was convicted of first‐degree

sexual abuse under

, which provides that:

A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:

1. By forcible compulsion; or

2. When the other person is incapable of consent by reason of being physically helpless; or

3. When the other person is less than eleven years old; or

4. When the other person is less than thirteen years old and the actor is twenty‐one years old or older.

Because the statute ʺlists multiple, alternative elements,ʺ the agency properly

concluded that it was divisible and consulted the record of conviction to

determine that Flores was convicted under subsection three, for subjecting a

person under eleven years old to sexual contact. See Descamps,

;

see also Hoodho,

. The agency subsequently erred, however, by

consulting the record of conviction to determine that Floresʹs underlying conduct

-12- ‐‐ the touching of his ʺhand to the genital area of th[e] victimʺ ‐‐ satisfied the

generic definition of sexual abuse of a minor under

(a). See Ming

Lam Sui v. INS,

, 117‐18 (2d Cir. 2001) (noting that reviewing court

ʺcannot go behind the offense as it was charged to reach [its] own determination

as to whether the underlying facts amount to one of the enumerated crimesʺ

(internal quotation marks omitted)). The agency was instead required to

consider whether the minimum conduct necessary to violate

(3) was encompassed within

(a)ʹs definition of ʺsexual

abuse.ʺ See Descamps,

; Moncrieffe,

(ʺ[W]e must

presume that the conviction rested upon [nothing] more than the least of th[e]

acts criminalized, and then determine whether even those acts are encompassed

by the generic federal offense.ʺ (alterations in original)).

This error was not harmless because

criminalizes ʺsexual contact,ʺ and we have observed that ʺit is by no means clear

that admitting to ʹsexual contact with a minorʹ under New York law would be

enough to establish ʹsexual abuse of a minorʹ under the INA.ʺ James,

(emphasis in original). Accordingly, we vacate the agencyʹs aggravated

felony determination and remand for proper application of the modified

categorical approach. See Gonzales v. Thomas,

, 186‐87 (2006) (per

-13- curiam) (observing that agency should be given opportunity, in first instance, to

make legal determinations entrusted to it by Congress).

Although, as discussed below, we find no error in the agencyʹs

alternative determination that Flores was ineligible for asylum because his

convictions under

were particularly serious crimes, the

agencyʹs erroneous application of the modified categorical approach was also not

harmless in light of the potential impact of an aggravated felony determination

on the availability of future relief and the exercise of discretion. See, e.g.,

(i) (listing eligibility requirements for adjustment of status); see also

§

1229b(a)(3) (providing that an alien convicted of an aggravated felony is

ineligible for cancellation of removal).

C. Particularly Serious Crime Determination

ʺThe Immigration and Nationality Act bars the grant of asylum or

withholding of removal to an alien whom the Attorney General ʹdeterminesʹ or

ʹdecidesʹ has ʹbeen convicted by a final judgment of a particularly serious crime.ʹʺ

Nethagani v. Mukasey,

(2d Cir. 2008) (quoting

(b)(2)(A)(ii) (asylum), 1231(b)(3)(B)(ii) (withholding of removal)). ʺThe

Attorney General (or his agents) may determine that a crime is particularly

-14- serious . . . even though it is not an aggravated felony.ʺ

(asylum); see

also Ahmetovic v. INS,

(2d Cir. 1995) (withholding of removal).

Flores contends that the agency erred in finding that his convictions

under

were particularly serious crimes without

independently analyzing whether he posed a danger to the community. We

have accorded Chevron deference, however, to the BIAʹs interpretation that no

separate danger to the community analysis is required when determining

whether a crime is particularly serious. See Nethagani,

n.1 (ʺ[T]he

BIA has held that [an] alien [convicted of a particularly serious crime] necessarily

constitutes ʹa danger to the community of the United States.ʹ We have accepted

the BIAʹs interpretation of the statute.ʺ (citing Ahmetovic, 62 F.3d at 52‐53)).

Flores has therefore failed to demonstrate error in the agencyʹs determination

that he is ineligible for asylum and withholding of removal because his

convictions under

were particularly serious crimes.

CONCLUSION

Based on the foregoing, the petition is GRANTED in part and

DENIED in part. Accordingly, we VACATE the decision of the BIA, and we

REMAND for further proceedings consistent with this opinion.

-15-