Banegas Gomez v. Barr
922 F.3d 101
| 2d Cir. | 2019Background
- Petitioner Jose Javier Banegas Gomez, a Honduran national and lawful permanent resident, was convicted in Connecticut (May 2011) of first‑degree assault (intent to cause serious physical injury by means of a dangerous instrument) and conspiracy; sentenced to a 12‑year term (6 years suspended, 5 years probation).
- DHS charged him as removable as an aggravated felon under 8 U.S.C. § 1101(a)(43) (which references a “crime of violence” in 18 U.S.C. § 16). An IJ and then the BIA sustained removability and denied CAT relief.
- After the BIA decision (Sept. 14, 2015), Banegas Gomez filed this petition for review in the Second Circuit. He had already been removed to Honduras in 2016 and subsequently re‑entered and was convicted for illegal reentry.
- He raised three principal claims on review: (1) Dimaya (invalidating § 16(b)) means his Connecticut assault conviction no longer constitutes an aggravated felony or, alternatively, the case should be remanded to the BIA; (2) the agency erred in denying Convention Against Torture (CAT) relief; and (3) under Pereira, the NTA’s omission of hearing time/date deprived the Immigration Court of jurisdiction.
- The Second Circuit concluded remand was unnecessary because the Connecticut offense fits within § 16(a) (the elements clause); limited review to legal/constitutional claims on CAT (finding none); and held Pereira does not strip jurisdiction where a later Notice of Hearing supplies time/date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Banegas Gomez’s Connecticut first‑degree assault is still an "aggravated felony" after Dimaya (invalidating § 16(b)) | Dimaya eliminates reliance on § 16(b); the BIA relied on § 16(b), so conviction no longer an aggravated felony or case should be remanded to BIA to reassess | Even if BIA cited § 16(b), the conviction independently satisfies § 16(a)’s elements clause; court can decide de novo without remand | Held: Conviction qualifies under § 16(a); no remand required; aggravated felony finding stands |
| Whether the agency erred in denying CAT relief | Banegas Gomez argued he faces likelihood of torture in Honduras due to family killings, gang risk, and tattoos/police mistreatment | Government argued record lacks evidence tying killings to petitioner or showing government acquiescence to torture; detention conditions not shown to be intentional torture | Held: Denial of CAT relief was a factual determination supported by record; no legal or constitutional error identified |
| Whether Pereira requires vacatur of proceedings because NTA omitted time/date and thus Immigration Court lacked jurisdiction | NTA omitted time/date; Pereira held an NTA lacking time/place does not trigger the stop‑time rule — petitioner reads Pereira to mean such an NTA is not an NTA, so no jurisdiction vested | Regulations vest jurisdiction when a charging document is filed; regulations and BIA precedent permit later Notice of Hearing to supply time/date; Pereira addressed a different statutory question (stop‑time rule) | Held: Pereira is inapplicable; an NTA lacking time/date still vests jurisdiction if a later Notice of Hearing supplies that information; jurisdiction was valid |
| Scope of this Court’s review given aggravated‑felony removability | Petitioner argues broader review or remand needed | Government: aggravated‑felony removability limits review to constitutional and legal questions | Held: Because removal rests on aggravated felony, review is limited to constitutional questions and legal errors; none found on available issues |
Key Cases Cited
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (§ 16(b) void for vagueness under Due Process)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTAs omitting time/place do not trigger § 1229b(d)(1) stop‑time rule)
- United States v. Castleman, 572 U.S. 157 (2014) (knowing or intentional causation of bodily injury involves the use of physical force)
- Villanueva v. United States, 893 F.3d 123 (2d Cir. 2018) (Connecticut first‑degree assault satisfies ACCA elements clause; poison/substance causation still implicates physical force)
- Ortiz‑Franco v. Holder, 782 F.3d 81 (2d Cir. 2015) (aggravated‑felony removability limits judicial review to constitutional and legal claims)