Case Information
*1 15 3269 v. Barr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term
(Argued: February Decided: April 2019) No.
–––––––––––––––––––––––––––––––––––– J OSE J AVIER B ANEGAS G OMEZ , AKA J OSE B ANEGAS Petitioner, ‐
W ILLIAM P. B ARR , U NITED S TATES A TTORNEY G ENERAL
Respondent.
–––––––––––––––––––––––––––––––––––– L IVINGSTON Circuit Judge F AILLA , District Judge
Before: Judge Katherine Polk Failla, United States District Southern District New York, sitting designation.
Judge John M. Walker, Jr., originally assigned panel, recused himself from consideration this matter. two remaining members panel, who are agreement, have decided case accordance Second Circuit Internal Operating Procedure E(b). 46(d); see also United States Desimone
Petitioner Jose Javier Banegas Gomez (“Banegas Gomez”), a native and citizen of Honduras, seeks review of a September 14, 2015 decision of Board of Immigration Appeals (“BIA”) affirming an April 9, 2015 decision of an Immigration Judge (“IJ”) finding Banegas Gomez removable and denying application for asylum, withholding of removal, relief under Convention Against Torture (“CAT”). re Jose Javier Banegas , No. A 057 410 254 (B.I.A. Sept. 2015), aff’g No. A 057 410 254 (Immig. Ct. Hartford, CT Apr. 9, We conclude Gomez’s conviction for law an aggravated felony invalidation of 16(b) Sessions Dimaya , S. Ct. (2018), does necessitate remand BIA for consideration of issue. This conclusion restricts our review only constitutional errors errors of law, of we see none agency’s decision. Lastly, reject argument Pereira Sessions , S. Ct. (2018), properly read mean Immigration ordered removal lacked because Notice Appear (“NTA”) served him failed specify date hearing, even though Notice Hearing containing requisite information subsequently issued. Accordingly, petition for review DENIED.
F OR P ETITIONER : G LENN L. F ORMICA Elyssa N. Williams,
Formica Williams, P.C., New Haven, CT, Petitioner F OR R ESPONDENT : K EITH I. M C M ANUS Joseph H. Hunt, Jessica
E. Burns, United States Department Justice, Civil Division, Washington, DC, Respondent.
D EBRA A NN L IVINGSTON Circuit Judge :
Petitioner Jose Javier (“Banegas Gomez”), native citizen Honduras, seeks review September decision Board Appeals (“BIA”) affirming April decision *3 Immigration Judge (“IJ”) deeming him removable and denying his application for asylum, withholding removal, and relief under the Convention Against Torture (“CAT”). re Jose Javier No. A 057 410 254 (B.I.A. Sept. 2015), aff’g No. A 410 254 (Immig. Ct. Hartford, CT Apr. makes three challenges the BIA’s decision: (1) his conviction for Connecticut first degree assault no longer constitutes “aggravated felony” or, very least, remand the BIA necessary re evaluate issue following Supreme Court’s decision Sessions Dimaya S. Ct. (2018), invalidated 16(b) void for vagueness; (2) agency erred when it denied his claim CAT relief; (3) that, reasoning Supreme Court Pereira Sessions S. Ct. (2018), omission information regarding date hearing from initial Notice Appear (“NTA”) means never vested thus proceedings against him must terminated.
We conclude no remand necessary determine conviction constitutes “aggravated felony,” fits within definition “crime violence” 16(a). And because Banegas Gomez’s removal is predicated on commission an aggravated felony, our jurisdiction limited to constitutional claims questions law. Ortiz Franco Holder 81, We see no such colorable claims in arguments as agency’s decision deny him CAT relief. And lastly, see no basis reading Pereira —which dealt only with “stop time” rule, see S. Ct. 2110, relevant case—to divest Court whenever NTA lacks information regarding a hearing’s date. We thus join several our sister circuits in allowing proceedings these proceed.
BACKGROUND
I. Factual Background was born in in Honduras. In he entered United States lawful permanent resident petition from stepmother, United States citizen. Six years later, in November was arrested Connecticut connection with stabbing. May convicted Superior intent *5 cause serious physical injury well as conspiracy commit assault. He was sentenced twelve years prison, “suspended after years, [and] probation [for] years.” Certified Administrative Record (“CAR”)
II. Procedural History
On May was served an NTA. United States Department of Homeland Security (“DHS”) alleged he was removable due convictions, which it deemed aggravated felonies, defined U.S.C. § 1101(a)(43), which includes “crimes violence” pursuant definition felonies. U.S.C. 1001(a)(43) (“The term ‘aggravated felony’ means . . . crime violence (as defined section Title but including purely political offense) for term imprisonment [is] at least one year . . .” (internal footnote omitted)); see also id. 1127(a)(2)(A)(iii) (“Any alien who convicted an aggravated felony any after admission deportable.”).
Although was imprisoned time, he appeared before IJ via teleconference through attorney he denied charges removability. He also submitted application asylum, though ultimately determined was eligible only deferral removal *6 Convention against Torture. A hearing was held on that claim in April 2015, during which both Banegas Gomez and his father testified in support of his claim. Banegas Gomez argued he feared torture if returned to Honduras due murders several his family members, specifically two his uncles well as possibly an aunt. The first uncle was killed in pool club Christmas Eve 2009, and while Banegas does know reason, he heard from others argument preceded murder. Banegas Gomez’s father testified his brother was shot no warning and did previously know man who shot him. Gomez’s other uncle was killed both he and father believe related drug cartels. also testified feared both gang related violence police detention due tattoos—none are gang related—but which might cause him seen gang member.
On April IJ issued decision denying CAT claim sustaining charges removability against him. IJ first determined degree, violation Section 53i 59(a)(1) General Statutes, “aggravated felony crime violence 16(b).” CAR This because “[t]here no doubt *7 commit offense . . serious physical injury must happen the victim.” Id. IJ then denied Banegas Gomez’s CAT claim, concluding that despite the evidence that several his family members were killed Honduras there is “no evidence that the killings his two uncles are somehow related” and that he would be endangered based family affiliation. Id. As Banegas Gomez’s fear gangs Honduras, the IJ determined that any fear torture is speculative that, regardless, “there no evidence any torture by gangs would be the acquiescence willful blindness government officials.” Lastly, IJ rejected claim he might be targeted police tattoos, concluding police would know difference between gang related non gang related tattoos there insufficient evidence that, even if were arrested, treatment he would receive Honduran prison would amount torture. For these reasons, IJ ordered removed Honduras. appealed. On September BIA issued decision affirming “the Judge’s conclusion respondent did present sufficient evidence establish ‘more likely than not’ respondent would tortured upon removal either hands *8 government Honduras, acquiescence,” either because his tattoos deaths his family members. 3–4. BIA dismissed appeal, and this petition followed. Prior assessing his claims, note despite what pending motion in this Court for stay removal, and Customs Enforcement (“ICE”) removed Honduras April However, he subsequently re ‐ entered country illegally and now serving ‐ month sentence ordered judge United States District Court for Southern District Texas for illegal re entry violation
DISCUSSION
I first argues that, following Supreme Court’s decision Sessions Dimaya his convictions first degree assault conspiracy commit can no longer be categorized aggravated felonies thus removable. alternative, he contends should decide issue should instead send petition back BIA determine whether either convictions can categorized such. We disagree.
Whether a conviction is an aggravated felony is a question of law review de novo Pierre Holder , 767, The Nationality Act (“INA”) categorizes a “crime of violence” as an aggravated felony. U.S.C. § 1101(a)(43)(F). INA defines a “crime of violence” reference U.S.C. § Section turn, contains two definitions of a crime of violence: “(a) an offense has as an element the use, attempted use, or threatened use of physical force against person or property another,” or “(b) any other offense felony that, nature, involves substantial risk physical force against person or property another may be used course committing offense.” Supreme held second subsection, 16(b), impermissibly vague violation Due Process Clause Constitution. Sessions Dimaya S. Ct. (2018). Therefore, post Dimaya conviction can be categorized as crime violence—and thus reason aggravated felony—only if falls within 16(a)’s ambit, i.e. if it can described “an offense has as element use, attempted use, threatened use physical force against person property another.” This subsection often referred “elements clause.” is correct that agency relied solely on § 16(b) when
concluding Connecticut conviction for first degree assault constitutes crime violence. CAR 58 (“[The] finds DHS has clearly met burden proof this is aggravated felony crime violence under 18 U.S.C. § 16(b).”). However, we reject Gomez’s suggestion we must remand case agency this reason. Although agency relied on 16(b), we conclude conviction Connecticut law is properly categorized crime violence under 16(a) well. Remand thus unnecessary.
Because we review agency’s interpretations federal and state criminal laws—including 18 16 and criminal law— de novo , Jobson v. Ashcroft , F.3d 367, (2d Cir. 2003), situation where we would benefit from agency’s reasoning remand. Cf. Negusie v. Holder U.S. (2009); Rotimi Gonzales circumstances, nothing “‘require[s] convert judicial review agency action into ping pong game’ . . remand required when ‘would idle useless formality.’” Cao He Lin U.S. Dep’t Justice 2005) (quoting NLRB Wyman ‐ Gordon Co. U.S. n.6 (1969)). first ‐ degree assault statute has a number of subsections,
but pled guilty to conduct under first, which provides “[a] person is guilty of when: (1) With intent to cause serious physical injury to another person, causes injury to such person or to third person means of deadly weapon or dangerous instrument.” Conn. Gen. Stat. § 53a 59(a)(1). “Serious physical injury” is defined “physical injury which creates substantial risk of death, or which causes serious disfigurement, serious impairment health or serious loss or impairment function any bodily organ.” Id. 53a 3(4). “Dangerous instrument” defined, relevant part, “any instrument, article or substance which, circumstances used attempted or threatened to used, capable causing death serious physical injury.” 53a 3(7).
“In determining whether [Banegas Gomez’s] conviction falls within ambit statute directs our focus ‘offense’ conviction. . . This language requires us look elements nature offense conviction, rather than particular facts relating petitioner ʹ s crime.” *12 Leocal v. Ashcroft , 543 U.S. 1, 7 (2004). This method called the “categorical approach.” See Santana v. Holder , F.3d 143 (2d Cir. 2013). When a state statute, like Connecticut’s first degree assault, contains subdivisions, we use what called the “modified categorical approach,” by we may “ascertain the elements of the offense from such materials the indictment, a plea agreement, or a plea colloquy”—though, again, we are not look facts of underlying conviction. Villanueva United States , F.3d (2d Cir. “Under plain language 16(a), one elements crime of violence must be ‘the use, attempted use, threatened use physical force against person property another.’” Blake Gonzales 2007) (quoting 16(a)).
Although has addressed Connecticut’s statute context 16(a), we have concluded “violent felony” purposes Armed Career Criminal Act (“ACCA”) identically worded “elements clause.” Villanueva Villanueva rejected argument because requisite serious physical injury Connecticut’s statute can achieved use “substance” poison, statute does require force necessary constitute “violent felony.” *13 at We concluded attempts these, exclude from the concept of physical force actual threatened harm inflicted by poison or other “substances,” reflect outdated conception of force. As the Supreme stated United States v. Castleman , “the knowing intentional causation of bodily injury necessarily involves the use of physical force.” 572 U.S. (2014). Serious physical injury caused by dangerous substance thus falls squarely within definition force “because relevant force impact substance victim, impact user on substance.” Villanueva , (emphasis added); cf. Stokeling United States S. Ct. (2019) (“[F]orce ‘capable causing physical injury’ within meaning Johnson when sufficient overcome victim’s resistance.”).
Although Castleman interpreting different statute’s use “force,” we have incorporated reasoning into our analysis various criminal statutes when employing categorical approach. See, e.g., United States Hill 58–59 2018) (interpreting 924(c)(3)(B)). Therefore, concluded Villanueva even if defendant can commit means poison, nonetheless encompasses requisite *14 force. See 893 F.3d at 129–30. And extent hopes rest argument on our opinion in United States v. Chrzanoski , 327 F.3d 188 (2d Cir. 2003), relied “an understanding use force has been abrogated by Supreme Court’s decision in Castleman .” Villanueva , 893 F.3d at 130; see also Hill 890 F.3d
Furthermore, use ACCA case law interpret § 16(a), vice versa, is widely accepted our Court others. See, e.g., Johnson United States U.S. (2010) (observing how § “very similar” elements clause under § 924(e)(2)(B)(i)). Villanueva itself, this “accept[ed] Villanueva’s premise ‘crime violence’ subsection 16(a) equivalent ‘violent felony’ subsection 924(e).” We thus conclude Villanueva ’s determination under law has element use force ACCA persuasive determine whether provision fits within 16(a). Stuckey United States n.9 2017) (“[T]he identical language elements clauses 16(a) 924(e)(2)(B)(i) means cases interpreting clause one statute are highly persuasive interpreting other statute.”)
Connecticut General Statute 53a ‐ 59(a)(1) requires a defendant cause “serious physical injury” to victim by means of a deadly weapon dangerous instrument. Such a crime appears on face to involve use of “violent” physical force, as required by Johnson 559 U.S. at 140. Furthermore, Villanueva clarifies just because physical injury under law may be caused means of a dangerous instrument a substance, poison, does mean crime does not require use of “physical force.” F.3d at 29. Accordingly, we see no reason apply reasoning Villanueva we conclude conviction falls squarely within definition a crime violence 16(a).
II
Because ordered removed account aggravated felony, our jurisdiction review agency’s denial CAT relief limited constitutional claims questions law. 1252(a)(2)(C), (D); Ortiz Franco F.3d likelihood future event (such individual will subject harm) finding fact, Hui Lin Huang Holder 2012), generally lack review petition from criminal alien, Ortiz Franco
To qualify for CAT relief, Banegas Gomez was required show likelihood torture his particular circumstances. C.F.R. §§ 1208.16(c)(2), 1208.17(a); Mu ‐ Xing Wang v. Ashcroft F.3d 143–44 (2d Cir. Given lack evidence that individuals non gang ‐ related tattoos, like Banegas Gomez, were targeted for intentional harm gangs Honduran authorities, that petitioner’s family was targeted for any reason, agency did commit legal error concluding his fear torture was too speculative warrant relief. Savchuck Mukasey (2d Cir. 2008) (upholding agency’s conclusion CAT claim resting chain unsupported assumptions too speculative warrant relief); Jian Xing Huang U.S. INS 2005) (“In absence solid support record . . [an asylum applicant’s] fear speculative best.”). testified two friends, who also have non gang related tattoos, were temporarily detained after being deported Honduras. But reason their detention unclear, did testify they were tortured. same holds true testimony about killings uncles. Given evidence presented demonstrated no connection between two killings, agency committed no legal error concluding killings were *17 not shown to be based family affiliation and instead were “emblematic high level murder in Honduras.” SPA
Moreover, agency did not commit legal error concluding even if were to be detained by Honduran authorities, harsh detention conditions alone would not constitute torture. See Pierre Gonzales F.3d (2d Cir. 2007) (noting constitute torture, substandard detention conditions must extreme must be “inflicted government actors (or by others government acquiescence) intentionally rather than as result poverty, neglect, incompetence”). argument prison conditions Honduras amount torture fails Court’s decision Pierre : he points evidence overcrowding harsh conditions, Pet.’s Br. 15–16, agency acknowledged, but does point any evidence these harsh conditions are intentionally imposed, rather than attributable lack resources. Pierre
Finally, while legal error may occur where agency “totally overlook[s]” “seriously mischaracterize[s]” evidence, case here. Mendez Holder agency acknowledged generally violent conditions Honduras, well evidence police corruption *18 harsh prison conditions, but concluded that Gomez did not establish that would more likely than be tortured by government or government acquiescence. This factual determination beyond scope our review. Ortiz Franco at
III raises new argument his supplemental briefing, removal proceedings must be terminated because his NTA did include time date initial hearing. He argues defect means NTA inadequate vest Court. relies Pereira Sessions S. Ct. (2018), which considered
whether service an NTA omitting reference time place initial hearing triggers INA’s “stop time” rule cancellation removal. at 2113–14; see also 1229b(d)(1). Supreme held Pereira because 1229b(d)(1)’s stop time rule explicitly provides triggered service an NTA “under section 1229(a),” S. Ct. which itself specifies an NTA state time place proceedings will held, INA unambiguously requires NTA include information trigger stop rule cut off alien’s accrual physical presence residence *19 for the purposes of qualifying for cancellation. Id Like several of our sister circuits, for reasons set out below, we conclude Pereira ’s self described disposition of “narrow question,” id. 2110, properly read to void jurisdiction cases which an NTA omits hearing time or place. Karingithi Whitaker (9th Cir. 2019); Hernandez Perez Whitaker 314–15 (6th Accordingly, reject arguments contrary.
Section 1229a Title provides “[a]n immigration judge shall conduct proceedings deciding inadmissibility deportability alien.” And entitled “[i]nitiation removal proceedings,” describes written notice be given alien—a “notice appear”—as containing variety pieces information, such “nature proceedings,” “conduct alleged be violation law,” “alien may be represented counsel.” Id. 1229(a)(1). It also requires NTAs provide “[t]he place which proceedings will held.” “The statutory text does not, however, explain when how vests immigration judge—or, more specifically, denote several requirements NTAs listed 1229(a)(1) are jurisdictional.” *20 Hernandez Perez , at Section fact “says nothing about the Immigration Court’s jurisdiction.” Karingithi at
The Attorney General has promulgated regulations governing removal proceedings do address when vests the Immigration Court. These regulations provide “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document filed Immigration Court Service.” C.F.R. 1003.14(a). The regulations define “charging document” “the written instrument initiates proceeding before an Immigration Judge.” Id. 1003.13. NTA included among enumerated examples charging documents. Notably, regulations require NTA contain time, date, and place hearing only “ where practicable .” 1003.18(b) (emphasis added). They direct schedule hearing provide notice when NTA does not contain instance. See id.
Relying Pereira argues because NTA received did provide date specified §1229(a)(1), NTA “deprive[d] . . essential character” thus was NTA, charging document, all. Pereira S. Ct. 2116–17 (internal *21 citation omitted). However, Gomez’s reliance on Pereira is misplaced. At outset, note the care taken by the Pereira Court to emphasize the narrow scope holding. See, e.g., id. at The result Pereira was based intersection two statutory provisions, one which, addressing stop time rule, is relevant to Gomez’s proceeding at all. Thus, latter stop time provision—§ 1229b(d)(1)—explicitly provides alien’s period continuous physical presence purposes eligibility for cancellation “deemed to end . . when alien is served notice to appear section 1229(a) .” (emphasis added) (quoting § 1229b(d)(1)(A)). The Pereira concluded 1229b(d)(1)’s reference “under” “the glue bonds stop rule [§ 1229(a)’s] substantive time place requirements.” S. Ct. But contrary claim, no statutory glue bonds Immigration Court’s jurisdiction 1229(a)’s requirements.
This conclusion regarding statutory text consistent regulations promulgated Attorney General. agency regulations do refer 1229(a)(1)’s requirements when defining what NTA purposes vesting Court. C.F.R. 1003.13; see also id. 1003.15. Nor do they require that an NTA contain time, date, place hearing, except “ where practicable .” See id. 1003.18(b) (emphasis added). argument from Pereira jurisdiction does not vest in Immigration unless NTA includes time place hearing “would render meaningless [these regulations’] command information need only be included ‘where practicable.’” Karingithi , at 1160. Notably, moreover, Pereira itself did not question whether jurisdiction had attached connection with proceedings at issue there, even though had holding applied contends, “there also would not have been jurisdiction Pereira . . .” Hernandez Perez at
Our conclusion Pereira inapposite reinforced BIA’s precedential opinion addressing decision. In re Bermudez Cota I. & N. Dec. (B.I.A. Bermudez Cota BIA determined “[t]he regulation [vesting jurisdiction] does specify what information must be contained ‘charging document’ time it filed Court, nor does mandate document specify date initial hearing before will vest.” Furthermore, regulation listing what “must contained notice appear[] does *23 mandate that the time and date the initial hearing must included that document.” Id. Instead, the BIA concluded “a notice appear that does not specify the time and place alien’s initial removal hearing vests Judge with over the removal proceedings . . so long as notice hearing specifying this information later sent the alien .” at 447 (emphasis added). The BIA’s interpretation does not conflict with the INA consistent regulations. We agree with the BIA, moreover, Pereira not reasonably read pronounce broad jurisdictional rule Banegas contends. case, Gomez’s May NTA did specify time
date initial hearing. However, received hearing notice June providing initial hearing would take place on August at 8:30 a.m. He appeared at hearing, well three subsequent *24 hearings We conclude NTA omits information regarding date initial removal hearing is nevertheless adequate to vest jurisdiction Immigration Court, least so long notice hearing specifying this information later sent alien. Court thus had when ordered removed April
* * *
Because we see no reason vacate agency’s order removal, we decline address Gomez’s arguments about whether, upon vacatur removal order, should able re enter country lawful permanent resident (given earlier removal Honduras).
CONCLUSION
For foregoing reasons, petition review DENIED. As have completed our review, stay removal previously granted petition VACATED.
[1] factual background presented here derived from materials contained Certified Administrative Record (“CAR”).
[2] As Sixth Circuit recognized Hernandez Perez “importing Pereira ’s holding stop time rule into jurisdictional context would have unusually broad implications.” Supreme Court itself noted during three years preceding its decision Pereira “almost percent [NTAs] omit[ted] date proceeding.” S. Ct. We do believe Supreme would have deemed holding “narrow” if Pereira had far reaching jurisdictional consequences reading decision would portend.