15-3331
Hechavarria v. Barr
BIA
Reid, IJ
A028 333 385
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of October, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
JOSEPH EMANUEL HECHAVARRIA, AKA
DAVID RILEY,
Petitioner,
v. No. 15-3331
WILLIAM BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: SPENCER L. DURLAND, Timothy W.
Hoover, Hodgson Russ LLP, Buffalo, NY.
FOR RESPONDENT: JESI J. CARLSON, Office of Immigration
Litigation (Joseph H. Hunt, Assistant
Attorney General; John W. Blakeley, Office
of Immigration Litigation, on the brief),
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for review of the Board of Immigration Appeals (“BIA”) decision is
DENIED.
Petitioner Joseph Hechavarria seeks review of a Board of Immigration Appeals (“BIA”)
decision dismissing his appeal of an Immigration Judge’s (“IJ”) ruling that he is removable as an
aggravated felon due to his New York conviction of second-degree assault with a deadly weapon
or dangerous instrument. We assume the parties’ familiarity with the underlying facts and
procedural history of the case.
Hechavarria was born in Jamaica and lawfully entered the United States as a
nonimmigrant visitor in 1984. After marrying a United States citizen, he became a lawful
permanent resident on a conditional basis, but his conditional status was terminated pursuant to 8
U.S.C. § 1186a(c)(2). In 2011, Hechavarria was convicted in New York state court of second-
degree assault in violation of New York Penal Law (“NYPL”) § 120.05(2). “A person is guilty of
assault in the second degree” under § 120.05(2) when, “[w]ith intent to cause serious physical
injury to another person, he causes such injury to such person or to a third person by means of a
deadly weapon or a dangerous instrument.” NYPL § 120.05(2).
Based on this conviction, Hechavarria was charged with removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii), as an alien convicted of an “aggravated felony.” The definition of
“aggravated felony,” 8 U.S.C. § 1101(a)(43)(F), includes any “crime of violence” as defined by
18 U.S.C. § 16, which in turn contains the now-invalidated “residual clause,” see Sessions v.
Dimaya, 138 S. Ct. 1204, 1210 (2018), and the still-applicable “force clause.” In 2013, an IJ
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found that Hechavarria was removable both because his conditional residency terminated and
because he was convicted of an aggravated felony. Hechavarria failed to timely appeal. Neither
the charge of removability nor the IJ clarified whether New York second-degree assault qualified
as a crime of violence under § 16’s force or residual clause.
Hechavarria later applied for, among other things, asylum. The IJ rejected that
application, holding that Hechavarria was statutorily ineligible because he had been convicted of
an aggravated felony. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). Hechavarria appealed to the BIA,
which held that the IJ’s original determination in 2013 was the law of the case, so Hechavarria
was precluded from relitigating whether his second-degree assault conviction was for an
aggravated felony. The BIA then affirmed the IJ and dismissed the appeal.
Hechavarria timely filed a petition for review, arguing that the BIA erroneously applied
the law-of-the-case doctrine in the face of controlling, intervening case law and asking us to
remand to the agency for consideration in the first instance of whether his conviction is an
aggravated felony. However, after briefing in this case was finished, we held that New York
second-degree assault under NYPL § 120.05(2) is a crime of violence under § 16’s force clause
and thus an aggravated felony. See Singh v. Barr, 939 F.3d 457, 463–64 (2d Cir. 2019). Even if
the BIA erred in its application of the law-of-the-case-doctrine, the outcome would not change
and remand would be futile. See Banegas Gomez v. Barr, 922 F.3d 101, 107 (2d Cir. 2019).
The petition for review is therefore DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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