Genego v. Barr
922 F.3d 499
2d Cir.2019Background
- Kwei Genego, a Ghanaian national and lawful permanent resident, pled guilty in Connecticut (2001 entry to U.S.; conviction in Oct. 2011) to third-degree burglary under Conn. Gen. Stat. § 53a-103 (unlawful entry or remaining in a building with intent to commit a crime).
- DHS charged Genego as removable as an alien convicted of an aggravated felony after admission, alleging either a burglary/theft aggravated felony (8 U.S.C. § 1101(a)(43)(G)) or a "crime of violence" aggravated felony under 18 U.S.C. § 16 and 8 U.S.C. § 1101(a)(43)(F).
- An IJ ordered removal (Mar. 2014), but the BIA reversed as to the § 1101(a)(43)(G) ground and remanded to reconsider removability under 18 U.S.C. § 16(b) (the residual "crime of violence" clause).
- On remand the IJ and then the BIA (Feb. 24, 2016) concluded Genego's conviction qualified as a § 16(b) crime of violence and affirmed removal on that basis alone.
- The Second Circuit stayed the appeal pending the Supreme Court's decision in Sessions v. Dimaya, which held § 16(b) unconstitutionally vague (138 S. Ct. 1204 (2018)); following Dimaya, the government conceded § 16(b) was the only basis for removal.
- The Second Circuit granted Genego's petition, vacated the removal order, and terminated removal proceedings rather than remanding to the BIA because no alternative basis for removability remained and remand would be futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Genego's Conn. third-degree burglary conviction is an aggravated-felony "crime of violence" under 18 U.S.C. § 16(b) | Genego: § 16(b) is void under Dimaya; conviction cannot support removal | Government: remand to BIA to apply Dimaya in first instance; conviction previously found to fit § 16(b) | Court: § 16(b) is void per Dimaya; no valid § 16(b) basis exists, so removal cannot stand |
| Whether the court should remand to the BIA or terminate proceedings | Genego: seek termination/vacatur of removal | Government: remand is appropriate per ordinary principles favoring agency decisionmaking | Court: remand unnecessary and futile because BIA found no alternative basis for removability; court vacated order and terminated proceedings |
Key Cases Cited
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding 18 U.S.C. § 16(b) unconstitutionally vague)
- INS v. Orlando Ventura, 537 U.S. 12 (2002) (generally favoring remand to agencies for matters within agency expertise)
- De La Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010) (remand unnecessary when futile or outcome inevitable)
- Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159 (2d Cir. 2006) (standards for de novo review of legal questions in immigration appeals)
- NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969) (remand unnecessary when outcome of remand would be meaningless)