Arthur v. Garland, 18-1514 (L)

Petitioner Godfrey Alexander Arthur, a Guyanese national, pleaded guilty in 2009 in New York to endangering the welfare of a child (N.Y. Penal Law § 260.10(1)).
An IJ ordered Arthur removed as inadmissible/removable for a "crime of child abuse, child neglect, or child abandonment" under 8 U.S.C. § 1227(a)(2)(E)(i); the BIA affirmed in 2018.
Arthur filed two consolidated petitions to this Court: (1) challenging removability based on retroactive application of the BIA’s child‑abuse definition; (2) challenging the BIA’s denial of his 2020 motion to reopen for ineffective assistance of counsel and alleged competency issues.
The IJ found Arthur repeatedly disavowed responsibility for the underlying conduct despite the guilty plea and relied on that in denying cancellation of removal; the BIA agreed and denied reopening for lack of prejudice and insufficient indicia of incompetence.
The Second Circuit denied the petitions: (a) dismissed the removability challenge for lack of exhaustion and on the merits under controlling precedent; (b) upheld the BIA’s discretionary denial of the motion to reopen, finding no abuse of discretion as to competency or prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Removability under §1227(a)(2)(E)(i) based on N.Y. Penal Law §260.10(1)	Arthur: BIA’s broad Soram definition of "child abuse" was a new rule and should not be applied retroactively to his 2009 plea.	Govt: Soram/Matthews precedent controls; §260.10(1) categorically matches the federal "child abuse" ground and applies.	Court: Petition denied — exhaustion failure and on merits §260.10(1) is removable; retroactivity argument rejected under Marquez/Lugo framework.
Failure to exhaust administrative remedies	Arthur: Not argued to BIA in 2018 (procedural)	Govt: Arthur failed to present the removability challenge to the BIA in the proceeding that produced the 2018 decision.	Court: Denied lead petition in part for failure to exhaust.
Motion to reopen for ineffective assistance / competency hearing (due process)	Arthur: Counsel and IJ ignored indicia of incompetence (psych evaluations diagnosing schizotypal disorder); reopening warranted because a competency hearing or counsel’s different conduct would have changed outcome.	Govt: Record showed responsive testimony and understanding; no clear indicia requiring a competency hearing; any extra exploration would not have changed outcome.	Court: Denied — BIA did not abuse discretion: no sufficient indicia of incompetence and no showing of prejudice or that reopening would have altered result.

Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520 (2d Cir. 2005) (reviewing BIA modifications to IJ decisions)
Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (standards for reviewing IJ/BIA decisions)
Matthews v. Barr, 927 F.3d 606 (2d Cir. 2019) (held N.Y. §260.10(1) categorically matches federal "crime of child abuse")
Marquez v. Garland, 13 F.4th 108 (2d Cir. 2021) (applied Lugo retroactivity factors to BIA’s Soram rule and allowed retroactive application)
Lugo v. Holder, 783 F.3d 119 (2d Cir. 2015) (five‑factor test for retroactivity of agency rule changes)
Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104 (2d Cir. 2007) (exhaustion requirement for immigration appeals)
Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83 (2d Cir. 2001) (standard for finding BIA abuse of discretion)
Debeatham v. Holder, 602 F.3d 481 (2d Cir. 2010) (due process requires showing hearings would have produced different outcome)
Rabiu v. INS, 41 F.3d 879 (2d Cir. 1994) (standards for ineffective assistance of counsel claim)
Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018) (reasonable reliance on longstanding BIA precedent may support retroactivity arguments)