14-53
Flores v. Holder
BIA
Mulligan, IJ
A073 667 154
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of March, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MIGUEL ANTONIO FLORES, AKA
14 MIGUEL ANGEL FLORES, AKA JOSE PEREZ,
15 AKA JOSE DANIEL PEREZ, AKA DANIEL
16 PEREZ,
17 Petitioner,
18
19 v. 14-53
20 NAC
21 ERIC H. HOLDER, JR., UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, NY.
27
28 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
29 Attorney General; M. Jocelyn Lopez
30 Wright, Senior Litigation Counsel;
1 Kristofer R. McDonald, Trial
2 Attorney, Office of Immigration
3 Litigation, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Miguel Antonio Flores, a native and citizen
11 of El Salvador, seeks review of a December 16, 2013, order
12 of the BIA affirming the February 28, 2012, decision of an
13 Immigration Judge (“IJ”), which denied special rule
14 cancellation of removal under the Nicaraguan Adjustment and
15 Central American Relief Act (“NACARA”), asylum, withholding
16 of removal, and Convention Against Torture (“CAT”) relief.
17 In re Miguel Antionio Flores, No. A073 667 154 (B.I.A. Dec.
18 16, 2013), aff’g No. A073 667 154 (Immig. Ct. New York City
19 Feb. 28, 2012). We assume the parties’ familiarity with the
20 underlying facts and procedural history in this case.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of
23 Justice, 489 F.3d 517, 523 (2d Cir. 2007). The applicable
24 standards of review are well established. See Yanqin Weng
25 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 An applicant is ineligible to apply for special rule
2 cancellation of removal under NACARA if he has been
3 convicted of an aggravated felony. 8 C.F.R. § 1240.61(b).
4 Likewise, an applicant is barred from asylum if he has “been
5 convicted by a final judgment of a particularly serious
6 crime, [and therefore] constitutes a danger to the
7 community.” 8 U.S.C. § 1158(b)(2)(A)(ii). For asylum
8 purposes, all aggravated felony convictions are per se
9 particularly serious crimes. 8 U.S.C. § 1158(b)(2)(B)(i).
10 The agency reasonably found that Flores’s conviction
11 for criminal possession of a forged instrument under New
12 York Penal Law § 170.25 was an aggravated felony. To
13 determine whether a state conviction like Flores’s is an
14 aggravated felony, we apply the “categorical approach” and
15 examine “the generic elements of the offense of conviction
16 to determine whether it is any broader than an offense
17 defined as an aggravated felony under federal law.”
18 Richards v. Ashcroft, 400 F.3d 125, 128 (2d Cir. 2005)
19 (internal quotation marks omitted). If the criminal statute
20 punishes conduct that falls outside the conduct described in
21 8 U.S.C. § 1101(a)(43), then the crime is not an aggravated
22 felony. Id. at 128.
3
1 Crimes “relating to commercial bribery, counterfeiting,
2 [and] forgery” for which the term of imprisonment is at
3 least one year are aggravated felonies. 8 U.S.C. §
4 1101(a)(43)(R). The term “relating to” has an expansive
5 definition. Morales v. Trans World Airlines, Inc., 504 U.S.
6 374, 383 (1992).
7 Possession of a forged document is categorically a
8 crime “relating to” forgery. New York Penal Law § 170.25
9 provides: “[a] person is guilty of criminal possession of a
10 forged instrument in the second degree when, with knowledge
11 that it is forged and with intent to defraud, deceive or
12 injure another, he utters or possesses any forged instrument
13 of a kind specified in section 170.10. Criminal possession
14 of a forged instrument is a class D felony.” N.Y. Penal L.
15 § 170.25. Convictions under similar possession statutes
16 have been held to be categorically aggravated felonies under
17 8 U.S.C. § 1101(a)(43)(R) as crimes “relating to” forgery.
18 See Richards, 400 F.3d at 129; Kamagate v. Ashcroft, 385
19 F.3d 144, 153-54 (2d Cir. 2004). Because possession of a
20 forged instrument under New York law is an aggravated
21 felony, that conviction alone bars Flores from special rule
22 cancellation of removal under NACARA and asylum.
4
1 An applicant is statutorily barred from withholding of
2 removal if he was convicted of a particularly serious crime.
3 8 U.S.C. § 1231(b)(3)(B)(ii). When determining whether a
4 crime was particularly serious for withholding of removal
5 purposes, an IJ should “us[e] the guideposts set out in In
6 re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982), modified,
7 In re C-, 20 I. & N. Dec. 529 (BIA 1992).” Nethagani v.
8 Mukasy, 532 F.3d 150, 155 (2d Cir. 2008). These guideposts
9 include: “(1) the nature of the conviction; (2) the
10 circumstances and underlying facts of the conviction; (3)
11 the type of sentence imposed; and (4) whether the type and
12 circumstances of the crime indicate that the alien will be a
13 danger to the community.” Id. (internal quotation marks
14 omitted). “[C]rimes against persons are more likely to be
15 particularly serious than are crimes against property.” Id.
16 The focus should be on the nature of the crime, not the
17 length of the sentence or likelihood of future misconduct.
18 Matter of N-A-M, 24 I. & N. Dec. 336, 342 (BIA 2007).
19 The agency reasonably found that Flores’s aggravated
20 assault conviction was a particularly serious crime because
21 aggravated assault is a crime against another person.
22 Flores pled nolo contendre to aggravated assault in the
23 third degree as it was charged in the re-indictment. The
5
1 re-indictment states that he “knowingly and intentionally
2 use[d] a deadly weapon, to-wit: a firearm, to threaten [an
3 individual] with imminent bodily injury by use of the said
4 deadly weapon,” CAR at 403, which demonstrates that the
5 nature of the crime was inherently dangerous and reasonably
6 suggests that Flores is a danger to the community. See
7 Matter of G-G-S, 26 I. & N. Dec. 339, 347 (BIA 2014).
8 Flores’s challenge of the denial of CAT deferral fails
9 because the IJ reasonably found that inconsistencies in
10 Flores’s testimony went to the heart of his claim that he
11 fears returning to El Salvador. See Secaida-Rosales v. INS,
12 331 F.3d 297, 309 (2d Cir. 2003). Specifically, Flores
13 claimed that he feared revenge from a “military man” who
14 killed his sister. But he could provide no details about
15 the “military man,” nor could he recall whether his sister
16 was killed in 1985 or 1995, when he had stated in his asylum
17 application that she was killed in 1983. Flores also
18 provided conflicting testimony as to when he first entered
19 the United States.
20 Accordingly, the petition for review is DENIED.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
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