12‐2406
Flores v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2014
(Argued: December 5, 2014 Decided: February 26, 2015)
Docket No. 12‐2406
EDSON FLORES,
Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
Before:
SACK, LYNCH, and CHIN, Circuit Judges.
Petition for review of an order of the Board of Immigration Appeals,
which affirmed an Immigration Judgeʹs denial of petitionerʹs motion to continue
and his application for asylum, withholding of removal, and relief under the
Convention Against Torture. We hold that the agency (1) abused its discretion in
denying the motion to continue because it failed to apply the correct legal
standard, (2) erred in its application of the modified categorical approach to
determine whether petitionerʹs convictions for first‐degree sexual abuse under
New York law constituted aggravated felonies relating to the sexual abuse of a
minor, and (3) did not err in concluding that petitioner had been convicted of a
particularly serious crime.
GRANTED IN PART, DENIED IN PART, AND REMANDED.
JOHN W. CERRETA, Day Pitney LLP, Hartford,
Connecticut, for Petitioner.
ERICA MILES (Stuart F. Delery, Allen W. Hausman,
Brooke M. Maurer, on the brief), Office of
Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.,
for Respondent.
CHIN, Circuit Judge:
Petitioner Edson Flores, a native and citizen of Honduras, seeks
review of a May 22, 2012 order of the Board of Immigration Appeals (ʺBIAʺ),
affirming a January 6, 2012 decision of an Immigration Judge (ʺIJʺ). The agency
denied Floresʹs motion to continue removal proceedings, which Flores had filed
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to pursue adjustment of status on the basis of two family‐based visa petitions.
The agency also found that Flores was ineligible for asylum because his
convictions for first‐degree sexual abuse, in violation of N.Y. Penal Law § 130.65,
were aggravated felonies relating to the sexual abuse of a minor, as defined in
the Immigration and Nationality Act (ʺINAʺ) § 101(a)(43)(A) (codified at 8 U.S.C.
§ 1101(a)(43)(A)), and also because they were particularly serious crimes.
For the reasons set forth below, we hold that the agency erred in
denying the continuance request and in determining that the sexual abuse
offenses were aggravated felonies, but that the agency did not err in concluding
that the offenses were particularly serious crimes.
STATEMENT OF THE CASE
Flores, a native and citizen of Honduras, entered the United States
without inspection in 1991. He married a U.S. citizen and raised a family in the
United States. In 2009, he was convicted, pursuant to a jury verdict, of two
counts of first‐degree sexual abuse in violation of N.Y. Penal Law § 130.65. He
was sentenced to forty‐two monthsʹ imprisonment and was subsequently placed
in removal proceedings and charged with removability under: (1) INA
§ 212(a)(6)(A)(i) (codified at 8 U.S.C. § 1182(a)(6)(A)(i)), for being present in the
United States without being admitted or paroled; and (2) INA § 212(a)(2)(A)(i)(I)
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(codified at 8 U.S.C. § 1182(a)(2)(A)(i)(I)), for having been convicted of crimes
involving moral turpitude.
Flores appeared, pro se, before an IJ. After several continuances,
Flores eventually conceded his removability under INA § 212(a)(6)(A)(i) for
entering the United States without inspection. He requested a further
continuance to pursue adjustment of status, in conjunction with a waiver of
inadmissibility under INA § 212(h) (codified at 8 U.S.C. § 1182(h)), based on two
visa petitions filed with U.S. Citizenship and Immigration Services (ʺCISʺ). The
first was an approved I‐130 Petition for Alien Relative filed by his U.S.‐citizen
sister in 2001; the second was an I‐130 Petition for Alien Relative filed by his U.S.‐
citizen wife in 2010. Flores also moved to terminate his proceedings and applied
for asylum, withholding of removal, and relief under the Convention Against
Torture (ʺCATʺ), based on his fear of gangs in Honduras.
The IJ declined to further continue proceedings and, at the
conclusion of a 2012 merits hearing, denied all relief in an oral decision and
ordered Flores removed. See In re Edson Flores, No. A095 051 190 (Immig. Ct.
Batavia, NY Jan. 6, 2012). Initially, the IJ found that Flores was removable under
INA § 212(a)(6)(A)(i), for entering the United States without inspection, and
under § 212(a)(2)(A)(i)(I), for having been convicted of two crimes involving
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moral turpitude. He therefore denied Floresʹs motion to terminate proceedings.
In addition, the IJ determined that Flores was ineligible for adjustment of status
because he did not have a current priority date for his sisterʹs approved I‐130
Petition and his wifeʹs I‐130 Petition had not been adjudicated. The IJ also
concluded that Flores was statutorily barred from asylum and withholding of
removal because his convictions under N.Y. Penal Law § 130.65 were aggravated
felonies, relating to the sexual abuse of a minor under INA § 101(a)(43)(A), and
were also particularly serious crimes. In determining that Floresʹs convictions
were aggravated felonies, the IJ reasoned that § 130.65 is divisible and the record
of conviction established that Flores placed his hand on the genital area of a
victim under eleven years old. Alternatively, the IJ found that Flores failed to
meet his burden of demonstrating eligibility for asylum and withholding of
removal. Lastly, the IJ denied deferral of removal under CAT, concluding that
Flores failed to show that he would likely be tortured in Honduras.
Flores appealed. In a May 22, 2012 order, the BIA dismissed the
appeal. In re Edson Flores, No. A095 051 190 (B.I.A. May 22, 2012), affʹg No. A095
051 190 (Immig. Ct. Batavia, NY Jan. 6, 2012). The BIA agreed that Floresʹs
convictions under N.Y. Penal Law § 130.65 were aggravated felonies and
particularly serious crimes. It also found that the IJ did not err in denying
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Floresʹs motion to continue because Flores did not submit any evidence showing
that his wifeʹs I‐130 Petition had been approved and he was ineligible for a
§ 212(h) waiver as a result of his aggravated felony convictions. Because Flores
conceded his removability for entering the United States without inspection, the
BIA declined to consider whether his convictions under N.Y. Penal Law § 130.65
were crimes of moral turpitude that rendered him removable under INA
§ 212(a)(2)(A)(i)(I). The BIA also declined to consider the IJʹs alternative denial
of asylum and withholding of removal on the merits. Flores did not contest the
IJʹs denial of relief under CAT on appeal.
This petition for review followed.
DISCUSSION
We review the IJʹs decision as modified by the BIA, i.e., minus the
bases for denying relief that the BIA expressly declined to consider. See Xue
Hong Yang v. U.S. Depʹt of Justice, 426 F.3d 520, 522 (2d Cir. 2005).1
1 At oral argument, the government asserted that we lack jurisdiction over the
petition due to Floresʹs aggravated felony convictions. Pursuant to 8 U.S.C. § 1252(a)(2)(C), ʺno
court shall have jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed,ʺ inter alia, an aggravated felony. Flores was not,
however, found removable for having committed an aggravated felony. See, e.g., Yousefi v. INS,
260 F.3d 318, 325 (4th Cir. 2001) (per curiam) (observing that § 1252(a)(2)(C)ʹs jurisdiction‐
stripping provision applies only where ʺthe alienʹs aggravated felony was actually the basis, or
one of the bases, of the final order of deportationʺ). Moreover, even if § 1252(a)(2)(C)ʹs
jurisdiction‐stripping provision applies, we retain jurisdiction to review ʺconstitutional claimsʺ
and ʺquestions of law.ʺ 8 U.S.C. § 1252(a)(2)(D). We therefore have jurisdiction to review
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A. Motion to Continue
We review the agencyʹs denial of a continuance for abuse of
discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (per curiam).
Pursuant to 8 C.F.R. § 1003.29, an IJ ʺmay grant a motion for continuance for
good cause shown.ʺ The agency has identified the following factors in
determining whether good cause exists to continue proceedings to await CISʹs
adjudication of a pending family‐based visa petition: ʺ(1) the [governmentʹs]
response to the motion; (2) whether the underlying visa petition is prima facie
approvable; (3) the [movant]ʹs statutory eligibility for adjustment of status;
(4) whether the . . . application for adjustment merits a favorable exercise of
discretion; and (5) the reason for the continuance and other procedural factors.ʺ
In re Hashmi, 24 I. & N. Dec. 785, 790 (B.I.A. 2009).
We conclude that the agency abused its discretion by denying
Floresʹs motion to continue without considering the factors articulated in Hashmi.
Floresʹs legal challenges that: (1) the agency failed to assess his continuance motion under the
correct legal standard; (2) the agency erred in concluding that his convictions under N.Y. Penal
Law § 130.65 were aggravated felonies; and (3) the agency erred in finding that his convictions
under N.Y. Penal Law § 130.65 were particularly serious crimes. See Nethagani v. Mukasey, 532
F.3d 150, 154‐55 (2d Cir. 2008) (observing that Court has jurisdiction to review BIAʹs finding that
alien committed particularly serious crime); Vargas‐Sarmiento v. U.S. Depʹt of Justice, 448 F.3d
159, 164 (2d Cir. 2006) (noting that Court has jurisdiction to consider whether underlying
conviction constitutes aggravated felony); Xiao Ji Chen v. U.S. Depʹt of Justice, 471 F.3d 315, 329
(2d Cir. 2006) (observing that argument that BIA abused discretion by applying wrong legal
standard raises question of law).
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See Rajah v. Mukasey, 544 F.3d 449, 453 (2d Cir. 2008) (observing that agency
abuses its discretion in denying motion to continue where its decision ʺrests on
an error of lawʺ (internal quotation marks omitted)). Although the
ʺ[a]djudication of a motion to continue should begin with the presumption
. . . that discretion should be favorably exercised where a prima facie approvable
visa petition and adjustment application have been submitted in the course of an
ongoing removal hearing,ʺ Hashmi, 24 I. & N. Dec. at 790, neither the IJ nor the
BIA assessed whether Floresʹs wifeʹs I‐130 Petition was prima facie approvable
and, instead, considered whether Floresʹs wifeʹs I‐130 Petition had actually been
approved.
The BIA further abused its discretion by finding that an aggravated
felony conviction would bar Flores from § 212(h) relief. Because Flores was not
previously admitted to the United States as a lawful permanent resident, an
aggravated felony conviction does not render him statutorily ineligible for relief
under § 212(h). See Matter of Michel, 21 I. & N. Dec. 1101, 1104 (B.I.A. 1998)
(ʺSection 212(h) of the Act, while specifically precluding waiver eligibility for a
lawful permanent resident who has been convicted of an aggravated felony,
imposes no such restriction on one who has not been admitted previously as a
lawful permanent resident.ʺ). The BIAʹs error is particularly troubling because
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the availability of a § 212(h) waiver was relevant to Floresʹs eligibility for
adjustment of status and, ʺ[w]hile all these factors may be relevant in a given
case, the focus of the inquiry is the apparent ultimate likelihood of success on the
adjustment application.ʺ Hashmi, 24 I. & N. Dec. at 790. Accordingly, we vacate
the agencyʹs denial of Floresʹs motion for a continuance and remand for
consideration of Floresʹs motion under the correct legal standard.
B. Aggravated Felony Determination
An alien convicted of an ʺaggravated felony,ʺ which is defined to
include the ʺsexual abuse of a minor,ʺ 8 U.S.C. § 1101(a)(43)(A), is ineligible for
asylum. Id. § 1158(b)(2)(A)(ii), (B)(i). We employ a ʺcategorical approachʺ to
determine whether a state criminal conviction constitutes an aggravated felony
under the INA. Pascual v. Holder, 707 F.3d 403, 405 (2d Cir. 2013) (per curiam).
Under this approach, we look ʺto whether the state statute defining the crime of
conviction categorically fits within the generic federal definition of a
corresponding aggravated felony,ʺ Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
(2013), here, ʺsexual abuse of a minorʺ as defined in 18 U.S.C. § 3509(a)(8), James
v. Mukasey, 522 F.3d 250, 254 (2d Cir. 2008) (citing In re Rodriguez–Rodriguez, 22 I.
& N. Dec. 991, 995‐96 (B.I.A. 1999)). ʺ[T]he singular circumstances of an
individual petitionerʹs crimes should not be considered, and only the minimum
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criminal conduct necessary to sustain a conviction under a given statute is
relevant.ʺ Pascual, 707 F.3d at 405 (internal quotations marks omitted).
If, however, the state criminal statute is ʺdivisible,ʺ we apply a
ʺmodified categorical approachʺ to determine whether a given conviction
constitutes an aggravated felony. See Descamps v. United States, 133 S. Ct. 2276,
2281 (2013). The modified categorical approach permits review of the record of
conviction for the ʺlimited purpose of determining whether the alienʹs conviction
was under the branch of the statuteʺ constituting an aggravated felony. Hoodho
v. Holder, 558 F.3d 184, 189 (2d Cir. 2009) (internal quotation marks omitted);
accord Descamps, 133 S. Ct. at 2281.2 In Descamps, the Supreme Court clarified that
a statute is ʺdivisible,ʺ and thus subject to the modified categorical approach,
when it ʺlists multiple, alternative elements, and so effectively creates several
different . . . crimes.ʺ 133 S. Ct. at 2285 (internal quotation marks omitted)
(alteration in original). ʺ[T]he modified approach merely helps implement the
categorical approachʺ; it is not ʺan exception, but instead . . . a tool . . . [that
functions] to identify, from among several alternatives, the crime of conviction so
that the court can compare it to the generic offense.ʺ Id. Once the correct
2 ʺThe record of conviction includes, inter alia, the charging document, a plea
agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy
transcript.ʺ Wala v. Mukasey, 511 F.3d 102, 108 (2d Cir. 2008) (internal quotation marks omitted).
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alternative is identified, the ʺfocusʺ must return to the ʺelements, rather than the
facts, of [the] crime.ʺ Id.
The government argues that the agency is not bound to follow
Descamps because that case concerned application of the modified categorical
approach in the criminal sentencing context. Instead, the government contends
that, in the immigration context, application of the modified categorical approach
is governed by In re Lanferman, 25 I. & N. Dec. 721, 728‐29 (B.I.A. 2012), in which
the BIA adopted a more expansive approach to ʺdivisibility.ʺ We note that the
BIA has since acknowledged that Descamps, rather than Lanferman, governs
application of the modified categorical approach in the immigration context and
that the BIA is ʺbound to apply divisibility consistently with the individual
circuitsʹ interpretation of divisibility under Descamps.ʺ In re Chairez‐Castrejon, 26
I. & N. Dec. 349, 354 (B.I.A. 2014). In any event, we reject the governmentʹs
contrary assertion in this case and join the First, Third, Ninth, and Eleventh
Circuits in holding that application of the modified categorical approach in the
immigration context is controlled by Descamps. See, e.g., Kaufmann v. Holder, 759
F.3d 6, 8‐9 (1st Cir. 2014); Aguilar‐Turcios v. Holder, 740 F.3d 1294, 1301‐02 (9th
Cir. 2014); Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1280 n.3 (11th Cir. 2013);
Rojas v. Attorney Gen. of U.S., 728 F.3d 203, 216 n.12 (3d Cir. 2013) (en banc).
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There is simply no basis for distinguishing Descamps on the ground that it arose
in the sentencing context, ʺgiven that Descamps itself makes no distinction
between the criminal and immigration contexts.ʺ In re Chairez‐Castrejon, 26 I. &
N. Dec. at 354; see also Donawa, 735 F.3d at 1280 n.3.
Turning to the case at bar, Flores was convicted of first‐degree
sexual abuse under N.Y. Penal Law § 130.65, which provides that:
A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason
of being physically helpless; or
3. When the other person is less than eleven years old; or
4. When the other person is less than thirteen years old
and the actor is twenty‐one years old or older.
Because the statute ʺlists multiple, alternative elements,ʺ the agency properly
concluded that it was divisible and consulted the record of conviction to
determine that Flores was convicted under subsection three, for subjecting a
person under eleven years old to sexual contact. See Descamps, 133 S. Ct. at 2285;
see also Hoodho, 558 F.3d at 189. The agency subsequently erred, however, by
consulting the record of conviction to determine that Floresʹs underlying conduct
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‐‐ the touching of his ʺhand to the genital area of th[e] victimʺ ‐‐ satisfied the
generic definition of sexual abuse of a minor under 18 U.S.C. § 3509(a). See Ming
Lam Sui v. INS, 250 F.3d 105, 117‐18 (2d Cir. 2001) (noting that reviewing court
ʺcannot go behind the offense as it was charged to reach [its] own determination
as to whether the underlying facts amount to one of the enumerated crimesʺ
(internal quotation marks omitted)). The agency was instead required to
consider whether the minimum conduct necessary to violate N.Y. Penal Law
§ 130.65(3) was encompassed within 18 U.S.C. § 3509(a)ʹs definition of ʺsexual
abuse.ʺ See Descamps, 133 S. Ct. at 2285; Moncrieffe, 133 S. Ct. at 1684 (ʺ[W]e must
presume that the conviction rested upon [nothing] more than the least of th[e]
acts criminalized, and then determine whether even those acts are encompassed
by the generic federal offense.ʺ (alterations in original)).
This error was not harmless because N.Y. Penal Law § 130.65
criminalizes ʺsexual contact,ʺ and we have observed that ʺit is by no means clear
that admitting to ʹsexual contact with a minorʹ under New York law would be
enough to establish ʹsexual abuse of a minorʹ under the INA.ʺ James, 522 F.3d at
258 (emphasis in original). Accordingly, we vacate the agencyʹs aggravated
felony determination and remand for proper application of the modified
categorical approach. See Gonzales v. Thomas, 547 U.S. 183, 186‐87 (2006) (per
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curiam) (observing that agency should be given opportunity, in first instance, to
make legal determinations entrusted to it by Congress).
Although, as discussed below, we find no error in the agencyʹs
alternative determination that Flores was ineligible for asylum because his
convictions under N.Y. Penal Law § 130.65 were particularly serious crimes, the
agencyʹs erroneous application of the modified categorical approach was also not
harmless in light of the potential impact of an aggravated felony determination
on the availability of future relief and the exercise of discretion. See, e.g., 8 U.S.C.
§ 1255(i) (listing eligibility requirements for adjustment of status); see also id. §
1229b(a)(3) (providing that an alien convicted of an aggravated felony is
ineligible for cancellation of removal).
C. Particularly Serious Crime Determination
ʺThe Immigration and Nationality Act bars the grant of asylum or
withholding of removal to an alien whom the Attorney General ʹdeterminesʹ or
ʹdecidesʹ has ʹbeen convicted by a final judgment of a particularly serious crime.ʹʺ
Nethagani v. Mukasey, 532 F.3d 150, 152 (2d Cir. 2008) (quoting 8 U.S.C.
§§ 1158(b)(2)(A)(ii) (asylum), 1231(b)(3)(B)(ii) (withholding of removal)). ʺThe
Attorney General (or his agents) may determine that a crime is particularly
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serious . . . even though it is not an aggravated felony.ʺ Id. at 156 (asylum); see
also Ahmetovic v. INS, 62 F.3d 48, 52 (2d Cir. 1995) (withholding of removal).
Flores contends that the agency erred in finding that his convictions
under N.Y. Penal Law § 130.65 were particularly serious crimes without
independently analyzing whether he posed a danger to the community. We
have accorded Chevron deference, however, to the BIAʹs interpretation that no
separate danger to the community analysis is required when determining
whether a crime is particularly serious. See Nethagani, 532 F.3d at 154 n.1 (ʺ[T]he
BIA has held that [an] alien [convicted of a particularly serious crime] necessarily
constitutes ʹa danger to the community of the United States.ʹ We have accepted
the BIAʹs interpretation of the statute.ʺ (citing Ahmetovic, 62 F.3d at 52‐53)).
Flores has therefore failed to demonstrate error in the agencyʹs determination
that he is ineligible for asylum and withholding of removal because his
convictions under N.Y. Penal Law § 130.65 were particularly serious crimes.
CONCLUSION
Based on the foregoing, the petition is GRANTED in part and
DENIED in part. Accordingly, we VACATE the decision of the BIA, and we
REMAND for further proceedings consistent with this opinion.
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