Gay v. Sessions, 16-3120

Petitioner Patrick J. Gay, a Haitian national, was ordered removed based on an aggravated felony conviction and sought review of the BIA’s denial of asylum, withholding of removal, CAT relief, and an 8 U.S.C. § 1182(h) waiver.
Gay was found eligible for the § 1182(h) waiver but the agency denied it as a discretionary matter because of the seriousness of his conviction (sexual abuse of a minor/position of trust).
Gay’s conviction involved a 12-year-old victim; he initially received probation and later was re‑sentenced to two years following a probation violation.
The IJ determined Gay’s aggravated-felony conviction could be a "particularly serious crime" for withholding purposes after applying the Matter of N‑A‑M‑ factors (nature of offense, sentence, circumstances/underlying facts).
For CAT relief, Gay claimed he would be identified as a former paramilitary member and tortured if returned to Haiti; the IJ faulted his lack of corroboration (e.g., affidavit/testimony from his mother), noting he had been absent from Haiti since 1995.
The Second Circuit reviewed the IJ and BIA decisions for completeness but limited its review to constitutional and legal questions because Gay did not challenge removability; the court denied the petition for review.

Issue	Gay's Argument	Sessions' Argument	Held
Discretionary denial of § 1182(h) waiver	Agency undervalued equities and overemphasized conviction	Agency properly weighed factors and denied on discretion	No jurisdiction to review discretionary balancing when factors were considered; denial stands
Whether conviction is a "particularly serious crime" barring withholding	Conviction not particularly serious; probation initially	Conviction and facts (minor victim, position of trust, sentence history) support seriousness	Agency applied proper factors; court found no legal error and upheld determination
CAT relief denial for lack of corroboration	Credible testimony should suffice; mother could corroborate but did not	Lack of corroboration permits denial; petitioner lacked current knowledge of conditions in Haiti	IJ permissibly relied on absence of corroboration; denial upheld
Scope of judicial review	Challenges asserted to agency reasoning and evidentiary rulings	Respondent invokes statutory limits on review of discretionary and factual determinations	Review limited to constitutional and legal questions; no reversible legal or constitutional error found

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (court may review both IJ and BIA decisions for completeness)
Guyadin v. Gonzales, 449 F.3d 465 (2d Cir. 2006) (limited review of discretionary waiver decisions when agency considered relevant factors)
Ortiz‑Franco v. Holder, 782 F.3d 81 (2d Cir. 2015) (review limited to constitutional and legal claims where removability on aggravated-felony grounds is not challenged)
Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008) (upholding particularly serious crime determinations when agency properly applies the relevant factors)
Chuilu Liu v. Holder, 575 F.3d 193 (2d Cir. 2009) (burden on alien to provide corroboration; courts defer unless corroborating evidence is shown to be unavailable)