21-6410 Rodriguez v. Garland BIA Mulligan, IJ A040 074 654

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of September, two thousand twenty-four.

PRESENT: WILLIAM J. NARDINI, EUNICE C. LEE, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

VICTOR NICOLAS RODRIGUEZ, Petitioner,

v. 21-6410 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Alina Das, Esq.; Olivia Abrecht, Jessica Coffrin-St. Julien, Legal Interns, Immigrant Rights Clinic, Washington Square Legal Services, New York, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Kiley Kane, Senior Litigation Counsel; Stefanie A. Svoren-Jay, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Victor Nicolas Rodriguez, a native and citizen of the Dominican

Republic, seeks review of a July 7, 2021, decision of the BIA affirming a December

11, 2018, decision of an Immigration Judge (“IJ”) denying his motion to terminate

removal proceedings and his applications for a waiver under former § 212(c) of

the Immigration and Nationality Act (“INA”) and relief under the Convention

Against Torture (“CAT”). In re Victor Nicolas Rodriguez, No. A040 074 654 (B.I.A.

July 7, 2021), aff’g No. A040 074 654 (Immigr. Ct. N.Y.C. Dec. 11, 2018). We

assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances, we have reviewed the IJ’s decision as modified

and supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Just.,

(2d Cir. 2005); Yan Chen v. Gonzales,

(2d Cir. 2005).

Where, as here, the petitioner was ordered removed for an aggravated felony, our

jurisdiction to review the final order of removal is limited to “constitutional claims

or questions of law.”

(a)(2)(C), (D). Whether a conviction is an

aggravated felony and whether a rule is impermissibly applied retroactively, as

Rodriguez argues here, are questions of law that we review de novo. See Hylton

v. Sessions,

(2d Cir. 2018); Domond v. U.S. INS,

(2d

Cir. 2001). We review the BIA’s denial of a motion to remand for abuse of

discretion. See Li Yong Cao v. U.S. Dep’t of Just.,

(2d Cir. 2005).

We review factual findings underlying the denial of CAT relief for substantial

evidence and questions of law de novo. See Quintanilla-Mejia v. Garland,

(2d Cir. 2021).

A. Removability

As an initial matter, the BIA did not affirm the IJ’s finding that Rodriguez

was bound by his former counsel’s concession of removability and thus that

finding is not before us. See Lin Zhong v. U.S. Dep’t of Just.,

(2d

Cir. 2007) (“[W]e may consider only those issues that formed the basis for [the BIA]

decision.”), abrogated on other grounds by Santos-Zacaria v. Garland,

3 (2023); Xue Hong Yang,

.

A non-citizen who has been convicted of an aggravated felony is removable.

See

(a)(2)(A)(iii). An aggravated felony includes a “crime of

violence,” which the INA defines with reference to

.

(a)(43)(F). Section 16(a) defines a crime of violence as “an offense that has

as an element the use, attempted use, or threatened use of physical force against

the person or property of another.”

(a). In Johnson v. United States,

the Supreme Court interpreted a provision of the Armed Career Criminal Act

(“ACCA”) that contains nearly identical language to § 16(a), * concluding that, in

the context of defining a “‘violent felony,’ the phrase ‘physical force’ means violent

force—that is, force capable of causing physical pain or injury to another person.”

, 140 (2010); see Stuckey v. United States,

, 68 n.9 (2d Cir. 2017)

(“[T]he identical language of the elements clauses of

(a) and

§ 924(e)(2)(B)(i) means that cases interpreting the clause in one statute are highly

persuasive in interpreting the other statute.”).

“We employ a ‘categorical approach’ to determine whether a state criminal

* The ACCA,

(e)(2)(B)(i), defines “violent felony” as any felony that “has an element the use, attempted use, or threatened use of physical force against the person of another.” 4 conviction constitutes an aggravated felony.” Flores v. Holder,

(2d Cir. 2015). Under this approach, “[a] state offense categorically matches with

a generic federal definition of a corresponding aggravated felony ‘only if a

conviction of the state offense necessarily involved facts equating to the generic

federal offense.’” Harbin v. Sessions,

(2d Cir. 2017) (quoting

Moncrieffe v. Holder,

(2013)). “Accordingly, only the minimum

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

relevant, and the factual aspects of a defendant’s situation are immaterial.” Dos

Santos v. Gonzales,

(2d Cir. 2006) (quotation marks omitted).

If a statute of conviction is divisible by “list[ing] elements in the alternative,

and . . . creat[ing] a separate crime associated with each alternative element,”

Harbin,

, we apply a “modified categorical approach,” looking to the

record of conviction to determine only the subsection that formed the basis for the

conviction, Mathis v. United States,

, 505–06 (2016). “The court can

then do what the categorical approach demands: compare the elements of the

crime of conviction . . . with the elements of the generic crime.” Descamps v.

United States,

(2013).

At the time of Rodriguez’s conviction, as now, the Massachusetts statute he

5 was convicted under provides:

Whoever, being armed with a dangerous weapon, assaults another with intent to rob or murder shall be punished by imprisonment in the state prison for not more than twenty years. Whoever, being armed with a firearm, shotgun, rifle, machine gun or assault weapon assaults another with intent to rob or murder shall be punished by imprisonment in state prison for not less than five years and not more than 20 years.

Mass. Gen. Laws ch. 265 § 18(b). The statute is divisible because it sets out two

alternative elements of an offense—“intent to rob or intent to murder.” Id.; see

Descamps,

(A “divisible statute . . . sets out one or more elements of

the offense in the alternative—for example, stating that burglary involves entry

into a building or an automobile.”). Massachusetts case law supports this

conclusion, providing that “[t]he elements of armed assault with intent to murder

are that the defendant committed an assault, that he was armed with a dangerous

weapon, and that he had the specific intent of murdering the victim in assaulting

him.” Commonwealth v. Buttimer,

, 90–91 (Mass. 2019) (quotation

marks omitted); cf. Commonwealth v. Rivera,

, 1122 n.15 (Mass. 2005)

(“The elements of armed assault with intent to rob are that the defendant, armed

with a dangerous weapon, assaults a person with a specific or actual intent to rob

the person assaulted.”). Rodriguez’s record of conviction shows that he was

6 convicted of three counts of armed assault with intent to murder under chapter

265 section 18(b).

The First Circuit has held that a conviction for armed assault with intent to

murder under Massachusetts General Laws chapter 265 section 18(b) is

categorically a “violent felony” under the ACCA. See United States v. Edwards,

, 424–27 (1st Cir. 2017). The First Circuit explained that “[a]ccording to

Massachusetts’s highest court—the Supreme Judicial Court—armed assault with

an intent to murder requires proof of assault (while armed with a dangerous

weapon) and a specific intent to kill that equates with malice, with malice (in this

context) meaning a lack of justification, excuse, or mitigation.”

at 423 (quoting

Commonwealth v. Vick,

(Mass. 2009)). The First Circuit

continued that “[t]he bottom line is . . . that the intent-to-murder element makes it

implausible that a defendant could be convicted under this statute based on an

offensive-touching approach.”

. We agree with the First Circuit’s

reasoning.

Rodriguez argues that the element of “intent to . . . murder” does not

transform his statute of conviction into a crime of violence when none of the other

elements involve violent force. He correctly contends that the first element of

7 assault does not require violent force because, under Massachusetts law, simple

assault requires only offensive touching, which does not satisfy the violent force

requirement. See Edwards,

(noting that spitting on someone or

tickling them can constitute assault in Massachusetts (citing Commonwealth v.

Cohen,

(Mass. App. Ct. 2002) and Commonwealth v. Hartnett,

(Mass. App. Ct. 2008)); see also Johnson, 559 U.S. at 139–43

(distinguishing offensive touching generally punishable as a misdemeanor from

the physical force necessary to qualify as a violent felony). Rodriguez also notes

that the statute under which he was convicted requires “being armed” with a

dangerous weapon, but not that the weapon be used. Mass. Gen. Laws Ch. 265

§ 18(b); see also Vick,

(“[A]rmed assault with intent to murder

does not require proof that the assault was committed by use of the weapon,

whereas assault and battery by means of a dangerous weapon causing serious

bodily injury does.”).

However, Rodriguez’s statute of conviction also requires evidence of an

“intent to . . . murder,” Mass. Gen. Laws Ch. 265 § 18(b), which inherently requires

evidence of the threat of violent force. See Edwards,

(“[T]he intent-

to-murder element makes it implausible that a defendant could be convicted

8 under this statute based on an offensive-touching approach.”); see also Singh v.

Barr,

(2d Cir. 2019) (stating that “deadly weapon[s] or dangerous

instrument[s] . . . when used with intent to cause physical injury, inherently carry

the risk of causing serious physical injury”). Accordingly, we hold that

Rodriguez’s conviction for armed assault with intent to murder under

Massachusetts state law constitutes an aggravated felony crime of violence.

B. Waiver Under Former INA § 212(c) and Motion to Remand

Rodriguez is not eligible for a waiver of deportability under former INA

§ 212(c) because he was convicted of an aggravated felony in March 1997 and

placed in removal proceedings after April 24, 1996. See Matter of Abdelghany,

(B.I.A. 2014) (“If an otherwise qualifying lawful permanent

resident is removable or deportable by virtue of a plea or conviction entered

between April 24, 1996, and April 1, 1997, he or she is eligible to apply for section

212(c) relief in removal or deportation proceedings unless . . . [t]he applicant’s

proceedings commenced on or after April 24, 1996, and the conviction renders the

applicant deportable [for an aggravated felony].”); see also Centurion v. Holder,

, 121–22 (2d Cir. 2014) (“It is well-settled in this Circuit that the application

of [the statutory amendments that went into effect on April 24, 1996] to an alien

9 whose offense conduct preceded . . . [that] date is not impermissibly retroactive if

the effective date preceded the conviction.”).

Rodriguez argues that the aggravated felony bar to § 212(c) relief should not

apply to cases, like his, where a lawful permanent resident rejected a plea offer

that would have preserved eligibility for § 212(c) before a later guilty plea

rendered him not eligible. He advanced this argument and submitted evidence

of a rejected 1995 plea offer for the first time in his motion to remand filed while

his appeal was pending with the BIA.

“A motion to remand that relies on newly available evidence is held to the

substantive requirements of a motion to reopen,” and may be denied if the movant

does not provide “material, previously unavailable evidence.” Li Yong Cao,

. The BIA did not abuse its discretion in denying Rodriguez’s motion

to remand because his evidence of a 1995 plea offer was neither material, nor

previously unavailable. See

The evidence of the 1995 plea offer was not material because, regardless of

that offer, he nonetheless pled guilty and was convicted of an aggravated felony

after the April 24, 1996, amendments that rendered him ineligible for § 212(c) relief.

See Centurion,

(“[T]he critical inquiry is whether the new law

10 attaches new legal consequences to an alien’s conviction.”); see Domond,

(“It would border on the absurd to argue that these aliens might have decided

not to commit drug crimes, or might have resisted conviction more vigorously,

had they known that if they were not only imprisoned but also, when their prison

term ended, ordered deported, they could not ask for a discretionary waiver of

deportation.” (quotation marks omitted)). Second, the 1995 plea offer was for 15

to 20 years in prison, which if he served more than 5 years of that sentence would

have rendered him ineligible for § 212(c) under the law in place in 1995. See

Matter of Abdelghany,

(providing that an applicant is not

eligible for § 212(c) relief if he serves “an aggregate term of imprisonment of at

least 5 years as a result of one or more aggravated felony convictions entered

between November 29, 1990, and April 24, 1996.”).

Alternatively, the BIA reasonably found evidence of the 1995 plea offer to

be previously available. Rodriguez argued that the evidence should be treated as

previously unavailable because his former counsel was ineffective for failing to

obtain it but, as the BIA found, counsel was not ineffective for failing to obtain

immaterial evidence and Rodriguez had not satisfied the procedural requirements

for raising an ineffective assistance of counsel claim by filing a disciplinary

11 complaint against counsel. See Rabiu v. INS,

(2d Cir. 1994) (“To

prevail on a claim of ineffective assistance, [a movant] must show that . . .

competent counsel would have acted otherwise . . . .” (quotation marks and

citations omitted)); Jian Yun Zheng v. U.S. Dep’t of Just.,

(2d Cir. 2005)

(“[A]n alien who has failed to comply substantially with the [procedural]

requirements in her motion to reopen before the BIA forfeits her ineffective

assistance of counsel claim in this Court.”).

Accordingly, because Rodriguez failed to show that the evidence of a 1995

plea offer was material and previously unavailable, the BIA did not abuse its

discretion in denying the motion to remand. See Li Yong Cao,

.

C. CAT Relief

“Analysis of a CAT claim boils down to a two-step inquiry.” Garcia-Aranda

v. Garland,

(2d Cir. 2022). The applicant must first show a

likelihood that he will be tortured, see

which means “greater than a fifty percent

chance . . . that he will be tortured,” Mu-Xing Wang v. Ashcroft,

, 144

n.20 (2d Cir. 2003). The applicant must next show that the torture will be by or

with the acquiescence of a government official. See Garcia-Aranda,

;

12 Khouzam v. Ashcroft,

(2d Cir. 2004).

In assessing whether Rodriguez established a likelihood of torture, the IJ

reasonably found that his fear of torture in the Dominican Republic was

speculative because he had not seen the individuals that he fears in more than two

decades and he did not know their current whereabouts. See Jian Xing Huang v.

U.S. INS,

(2d Cir. 2005) (“In the absence of solid support in the

record . . . , [an applicant’s] fear is speculative at best.”); Mu-Xing Wang,

n.20. Contrary to his contention, the agency did not ignore his expert’s

report. “We presume that an IJ has taken into account all of the evidence before

him, unless the record compellingly suggests otherwise.” Xiao Ji Chen v. U.S.

Dep’t of Just.,

(2d Cir. 2006). The expert’s conclusion that

Rodriguez would be at great risk for violent retribution in the Dominican Republic

was based entirely on Rodriguez’s representation that the individuals he fears are

very dangerous and vengeful and a statement from a Dominican official that

contract killings in the country are often a result of conflicts over drugs or money

that began in the United States. But the expert did not acknowledge or address

the time that had passed since the conflict or the fact that Rodriguez lacked

evidence of the whereabouts of the people he feared. Therefore, the report was

13 not material, and the record does not compel the conclusion that this evidence was

ignored. See

Because the agency’s likelihood finding was dispositive of CAT relief, we

do not reach the agency’s alternative finding that he failed to establish the requisite

government acquiescence. See Garcia-Aranda, 53 F.4th at 758–59; INS v.

Bagamasbad,

(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. All pending

motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

14