Flores v. Holder
2015 U.S. App. LEXIS 2838
| 2d Cir. | 2015Background
- Petitioner Edson Flores, a Honduran national who entered the U.S. without inspection in 1991, was convicted in 2009 of two counts of first-degree sexual abuse under N.Y. Penal Law § 130.65 and later placed in removal proceedings.
- Flores conceded removability for unlawful entry and sought a continuance to pursue adjustment of status based on two family I-130 petitions (one approved by his sister in 2001; one filed by his wife in 2010) and a § 212(h) waiver of inadmissibility.
- The IJ denied a continuance, found Flores ineligible for adjustment (no current priority date / wife’s petition not adjudicated), and concluded Flores’s § 130.65 convictions were aggravated felonies (sexual abuse of a minor) and also constituted particularly serious crimes, barring asylum and withholding.
- The BIA affirmed the IJ’s rulings, agreeing the convictions were aggravated felonies and particularly serious crimes and upholding the denial of the continuance on the ground Flores was ineligible for § 212(h) relief due to aggravated felony convictions.
- Flores petitioned for review. The Second Circuit reviewed legal questions and procedural errors and addressed (1) the denial of the continuance, (2) whether the convictions are aggravated felonies under the INA using the (modified) categorical approach, and (3) whether the convictions are particularly serious crimes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of motion to continue to await adjudication of wife’s I-130 and pursue § 212(h) waiver | Flores argued the IJ/BIA abused discretion by not applying Hashmi factors and by treating an aggravated felony as automatically barring § 212(h) for non-LPRs | Government relied on absence of an approved I-130 and asserted aggravated felony status would bar § 212(h) | Court: Agency abused discretion by failing to apply Hashmi factors and misapplying law on § 212(h); vacated denial and remanded for proper analysis |
| Whether N.Y. Penal Law § 130.65 conviction is an aggravated felony (sexual abuse of a minor) under INA § 101(a)(43)(A) | Flores argued the agency erred by consulting underlying facts rather than applying Descamps-modified categorical approach properly | Government/agency treated § 130.65 as divisible and relied on record of conviction facts to find categorical match to federal definition | Court: Agency erred by relying on underlying conduct instead of the minimum conduct under the statute; vacated aggravated-felony finding and remanded for correct application of the modified categorical approach |
| Application of Descamps to immigration modified categorical approach | Flores contended Descamps governs and limits divisibility inquiry | Government argued Lanferman allowed broader divisibility in immigration context | Court: Descamps applies in immigration context; agency must follow Descamps for divisibility analysis |
| Particularly serious crime determination barring asylum/withholding | Flores argued BIA needed independent danger-to-community analysis beyond labeling the offense particularly serious | Government relied on BIA precedent that a particularly serious crime determination need not include separate danger-to-community analysis | Court: No error—BIA’s interpretation is entitled to Chevron deference; convictions properly found particularly serious crimes for asylum/withholding bars |
Key Cases Cited
- Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005) (scope of review: IJ decision as modified by BIA)
- Sanusi v. Gonzales, 445 F.3d 193 (2d Cir. 2006) (standard: abuse of discretion for continuance denials)
- Pascual v. Holder, 707 F.3d 403 (2d Cir. 2013) (categorical approach for aggravated-felony analysis)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (presume conviction rests on minimum conduct; categorical approach principle)
- Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (defines divisibility and limits modified categorical approach)
- James v. Mukasey, 522 F.3d 250 (2d Cir. 2008) (on whether New York ‘sexual contact’ matches federal sexual abuse of a minor)
- Ming Lam Sui v. INS, 250 F.3d 105 (2d Cir. 2001) (limits on consulting underlying facts beyond record of conviction)
- Gonzales v. Thomas, 547 U.S. 183 (U.S. 2006) (remand to agency for legal determinations within agency’s expertise)
- Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008) (particularly serious crime standard and Chevron deference to BIA interpretation)