Hilario-Hilario v. Sessions
711 F. App'x 47
| 2d Cir. | 2017Background
- Petitioner Bilma Altagracia Hilario‑Hilario, a Dominican national, sought asylum, withholding of removal, and CAT relief after an aggravated‑felony drug conviction and was ordered removed.
- The BIA affirmed an IJ decision denying all relief; Hilario‑Hilario appealed to the Second Circuit limited to constitutional and legal claims because 8 U.S.C. § 1252 bars review of discretionary decisions based on aggravated‑felony convictions.
- Her aggravated‑felony drug conviction disqualified her from asylum and created a presumption that the crime was “particularly serious” for withholding of removal.
- Hilario‑Hilario did not present documentary evidence to the agency rebutting the presumption that her trafficking conviction was particularly serious, relying principally on her testimony.
- She argued CAT deferral should have been granted because Dominican authorities would ignore threats from drug dealers who would target her due to her light sentence, but the IJ found the record did not establish torture more likely than not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the aggravated‑felony drug conviction is a particularly serious crime barring withholding of removal | Hilario‑Hilario argued her light sentence (probation) meant the conviction should not be treated as particularly serious | Government argued drug‑trafficking convictions are presumptively particularly serious absent evidence to the contrary | Court held conviction presumptively particularly serious; petitioner failed to rebut presumption before the agency |
| Whether Matter of Y‑L‑ framework excludes misdemeanor or light‑sentence offenses from the presumption | Hilario‑Hilario contended Y‑L‑ did not intend to cover misdemeanor/light‑sentence convictions | Government relied on Y‑L‑’s factors applicable to trafficking offenses irrespective of sentence length | Court held Y‑L‑ does not distinguish by misdemeanor/felony; petitioner did not present the required evidence under Y‑L‑ factors |
| Whether the agency overlooked or mischaracterized evidence relevant to CAT deferral (legal error) | Hilario‑Hilario claimed the IJ ignored evidence that Dominican authorities would allow drug‑related threats, making torture likely | Government maintained the IJ considered testimony and country‑condition evidence and reasonably found CAT standard unmet | Court found no legal error; record does not compel conclusion the agency overlooked important facts |
| Whether the factual finding that petitioner failed to show torture more likely than not is reviewable | Hilario‑Hilario sought review of the IJ’s adverse factual finding on likelihood of torture | Government argued such factual determinations are beyond this court’s jurisdiction given statutory limits | Court held the factual finding is not reviewable here and affirmed denial of CAT deferral |
Key Cases Cited
- Pierre v. Holder, 588 F.3d 767 (2d Cir.) (standard of review for constitutional/legal claims)
- Nethagani v. Mukasey, 532 F.3d 150 (2d Cir.) (agency may determine particular seriousness of conviction)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir.) (BIA decisions and limits on certain challenges)
- Matter of Y‑L‑, A‑G‑, and R‑S‑R‑, 23 I. & N. Dec. 270 (B.I.A.) (presumption that trafficking offenses are particularly serious; factors to rebut)
- Mendez v. Holder, 566 F.3d 316 (2d Cir.) (agency commits legal error only if it totally overlooks or seriously mischaracterizes important facts)
- Ortiz‑Franco v. Holder, 782 F.3d 81 (2d Cir.) (limits on judicial review of factual determinations when statutory review is restricted)