Aviles-Tavera v. Garland
22f4th478
| 5th Cir. | 2022Background
- Renferi Aviles-Tavera, a Mexican national with prior removals and a 2004 Texas conviction for Felony Assault—Family Violence (victim: his sister), was deported and later reentered the U.S.
- In 2015 an IJ denied asylum/withholding/CAT but found Aviles’s felony assault conviction was not a "particularly serious crime." He was removed.
- Aviles returned, applied again for asylum/withholding/CAT, and in 2019 alleged past attacks in Mexico and risk of torture or institutionalization due to cognitive/mental-health disabilities; supporting testimony was imprecise.
- The 2019 IJ concluded Aviles’s felony assault conviction could be found a particularly serious crime and denied CAT relief for failure to show likelihood of torture or government acquiescence; the IJ relied on changed law about "crime of violence" analysis.
- The BIA affirmed, holding Aviles statutorily ineligible for withholding of removal (given the particularly serious crime finding) and denying CAT protection for lack of evidence of likely torture and requisite state action.
- Aviles petitioned for review in the Fifth Circuit challenging (1) issue preclusion from the 2015 IJ’s prior finding, (2) the merits finding that his conviction is a particularly serious crime, and (3) the denial of CAT relief.
Issues
| Issue | Aviles's Argument | Garland's Argument | Held |
|---|---|---|---|
| Whether issue preclusion bars reexamination of whether Aviles’s conviction is a particularly serious crime | 2015 IJ already decided it was not; that decision should preclude relitigation | Legal standard changed after 2015 (Gracia‑Cantu), so preclusion doesn't apply | Issue preclusion inapplicable because Gracia‑Cantu altered the legal analysis used in 2019 |
| Whether Aviles’s felony assault conviction is a "particularly serious crime" making him ineligible for withholding | Facts and relative leniency of sentence do not compel finding it particularly serious | Nature of offense (now a §16(a) crime of violence post‑Gracia‑Cantu) and circumstances support particular seriousness | BIA’s determination affirmed; conviction is a particularly serious crime under the case‑by‑case test |
| Whether the court has jurisdiction to review the BIA’s statutory determination | Aviles: court has jurisdiction to review the BIA’s legal determination | Government: withholding provision language does not bar review here; parties agree review is available | Court has jurisdiction under Kucana to review the BIA’s determination |
| Whether Aviles is entitled to CAT protection (likelihood + state acquiescence) | Mental‑health disabilities make him likely to be tortured or institutionalized on return and police/military threats imply state acquiescence | Record insufficient to show more‑likely‑than‑not torture or governmental acquiescence | CAT relief denied; record does not compel conclusion of likely torture or sufficient state action |
Key Cases Cited
- United States v. Gracia-Cantu, 920 F.3d 252 (5th Cir. 2019) (interpreting Assault–Family Violence as a crime of violence under §16(a))
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding the §16(b) definition unconstitutionally vague in immigration context)
- Borden v. United States, 141 S. Ct. 1817 (2021) (mens rea of recklessness insufficient for a violent‑felony classification)
- Kucana v. Holder, 558 U.S. 233 (2010) (limits on when Congress can preclude judicial review of agency decisions)
- Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) (CAT: definition of torture and state‑action/acquiescence requirement)
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (substantial‑evidence standard for reviewing immigration court factual findings)
- Singh v. Sessions, 880 F.3d 220 (5th Cir. 2018) (review scope — consider IJ decision only if it influenced the BIA)