16‐775
Richards v. Sessions
BIA
Mulligan, IJ
A038 738 677
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 16th day of October, two thousand
seventeen.
PRESENT:
AMALYA L. KEARSE,
DENNIS JACOBS,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
ANDERSON NEIL RICHARDS, AKA
ANDERSON RICHARDS,
Petitioner,
v. 16‐775
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: William M. Jay, Goodwin Procter LLP,
Washington, DC; David J. Zimmer, Goodwin
Procter LLP, San Francisco, CA.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant Attorney
General; Douglas E. Ginsburg, Assistant
Director; Karen L. Melnik, Trial Attorney, Office
of Immigration Litigation, United States
Department of Justice, Washington, DC.
FOR AMICI CURIAE: Andrew Wachtenheim, Immigrant Defense
Project, New York, NY.
UPON DUE CONSIDERATION of this petition for review of decisions of
the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is GRANTED.
Petitioner Anderson Neil Richards, a native and citizen of Trinidad and
Tobago, seeks review of a June 20, 2014 decision of the BIA remanding to permit
the Government to submit the plea transcript from Richards’ underlying
conviction, and a February 22, 2016 decision of the BIA affirming an order of
removal entered by the Immigration Judge (“IJ”). In re Anderson Neil Richards,
No. A038 738 677 (B.I.A. June 20, 2014, Feb. 22, 2016), aff’g No. A038 738 677
(Immig. Ct. N.Y. City Oct. 22, 2014, Dec. 2, 2014). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have considered both the IJ’s and
the BIA’s decisions “for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
review are well established. Maghradze v. Gonzales, 462 F.3d 150, 152‐53 (2d
Cir. 2006).
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I. Background
The Department of Homeland Security (“DHS”) charged Richards as
removable under 8 U.S.C. § 1227(a)(2)(E)(i) for having been convicted of a crime
of child abuse based on his conviction for endangering the welfare of a child in
violation of New York Penal Law (“NYPL”) § 260.10. DHS alleged that
Richards’ conviction was under subsection 1 of NYPL § 260.10, and as evidence of
that conviction, it initially submitted a misdemeanor complaint and a certificate of
disposition. Despite the IJ’s repeated requests for additional evidence to clarify
whether Richards was convicted under subsection 1 or 2 of NYPL § 260.10, DHS
refused, arguing that the misdemeanor complaint and certificate of disposition
were sufficient to establish that Richards was convicted under subsection 1, and
alternatively, that both subsections were child abuse offenses for immigration
purposes.
In an intervening appeal, the BIA initially concluded that DHS’ evidence
was sufficient to establish the subsection under which Richards was convicted.
Later, the BIA concluded that [a], DHS’ evidence was insufficient to establish the
relevant subsection of conviction, and [b], given the BIA’s assumption that
subsection 2 was not a removable offense, DHS failed to sustain its burden of
proving that Richards was removable as charged. However, rather than
terminate Richards’ removal proceedings, the BIA remanded to permit DHS to
submit additional evidence in support of removability, or for the IJ to terminate
proceedings. On remand, DHS submitted the transcript of Richards’ plea. The
IJ and then the BIA concluded that the plea transcript established that Richards
had been convicted under subsection 1 of NYPL § 260.10, which, the BIA further
held, was categorically a crime of child abuse under Matter of Mendoza Osorio,
26 I. & N. Dec. 703, 712 (B.I.A. 2016).
II. BIA Remand
Richards challenges the BIA’s second remand of his case, arguing that the
BIA lacks authority to remand for the Government to submit additional evidence
of removability that was previously available and which it had ample
opportunity to submit in connection with the initial proceedings.* The
* Contrary to the Government’s contention, Richards’ failure to cite a specific regulatory
provision on appeal to the BIA did not amount to a failure to exhaust given that
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Immigration and Nationality Act (“INA”) and the agency’s regulations prohibit
the BIA from granting a noncitizen’s motion to remand proceedings for
consideration of evidence that was previously available. 8 U.S.C.
§ 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Similarly, both this Court and the BIA
have held that the BIA is not permitted to grant a Government motion to remand
to present previously available evidence of removability. See Johnson v.
Ashcroft, 378 F.3d 164, 171‐72 (2d Cir. 2004); see also Matter of Guevara, 20 I. & N.
Dec. 238, 245‐48 (B.I.A. 1991). If, on appeal, the BIA determines that the
Government has not produced sufficient evidence to establish a noncitizen’s
removability, the proper course is for the BIA to terminate removal proceedings
rather than remand to provide the Government a second chance to present
evidence that it could have previously presented before the IJ. See Johnson, 378
F.3d at 171; see also Matter of Guevara, 20 I. & N. Dec. at 245‐48.
Since the regulations do not permit the BIA to grant a motion to remand for
the submission of previously available evidence of removability (and since, in any
case, no such motion was filed here), the BIA presumably remanded pursuant to
the sua sponte reopening authority it retains in 8 C.F.R. § 1003.2(a). However,
the BIA did not so state, nor did it explain why a sua sponte remand was
appropriate under the circumstances. “[T]he general [sua sponte] authority
conferred upon the BIA by the Attorney General in § 1003.2(a), which may be
exercised at any time, is not absolute.” Xue Yong Zhang v. Holder, 617 F.3d 650,
661 (2d Cir. 2010) (internal quotation marks and brackets omitted). The BIA has
explained that its sua sponte authority is:
not . . . a general remedy for any hardships created by enforcement of
the . . . limits in the motions regulations, but as an extraordinary
remedy reserved for truly exceptional situations . . . It would be
inappropriate to expansively employ this authority in a manner that
contravened the intentions of Congress or failed to give effect to the
comprehensive regulatory structure in which it exists.
In re G‐D‐, 22 I. & N. Dec. 1132, 1133‐34 (B.I.A. 1999); see also In re J‐J‐, 21 I. & N.
Dec. 976, 984 (B.I.A. 1997) (“The power to reopen on our own motion is not meant
to be used as a general cure for filing defects or to otherwise circumvent the
Richards’ brief clearly argued that remand for consideration of previously available
evidence was inappropriate. See Gill v. INS, 420 F.3d 82, 86‐87 (2d Cir. 2005).
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regulations, where enforcing them might result in hardship.”). Thus sua sponte
action has been deemed appropriate when a profound change in law renders a
noncitizen eligible for relief from removal, and the BIA routinely grants such
relief when a noncitizen is no longer removable given vacatur of a predicate
conviction; but sua sponte action is not appropriate to accommodate incremental
changes in law that may enhance a claim for relief, or to overcome mine‐run
regulatory restrictions. See In re G‐D‐, 22 I. & N. Dec. at 1135; In re J‐J‐, 21 I. & N.
Dec. at 984.
In Richards’ case, the BIA erred by failing to identify its authority to
remand for consideration of previously available evidence. See Poradisova v.
Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (noting that “we require a certain
minimum level of analysis from the IJ and BIA opinions . . . and indeed must
require such if judicial review is to be meaningful.”). Moreover, if the BIA did
intend to rely on its sua sponte authority, it did not either identify the exceptional
circumstances warranting the exercise of such authority or explain why those
circumstances were, in light of BIA precedent, deemed exceptional.
Accordingly, we remand for the BIA either to explain its authority to remand
under the circumstances, or to terminate removal proceedings against Richards.
We do not reach the remaining issues regarding removability: whether the
plea transcript submitted on remand established that Richards pleaded guilty to
subsection 1 of NYPL § 260.10, and if so, whether the BIA erred in concluding, in
accordance with its precedential decision in Mendoza Osorio, 26 I. & N. Dec. 703,
that a conviction under that subsection is categorically “a crime of child abuse”
under 8 U.S.C. § 1227(a)(2)(E)(i). Since we vacate the decision of the BIA in this
case, the BIA may, in its discretion, wish to consider on remand whether the
Supreme Court’s recent decision in Esquivel‐Quintana v. Sessions, 137 S. Ct. 1562
(2017) impacts the scope or framing of the BIA’s decision in Matter of Soram, 25 I.
& N. Dec. 378 (B.I.A. 2010), and if so, how. Finally, since Richards has now been
in immigration detention for nearly six years‐‐almost eight times as long as he
spent in prison for the conviction underlying the proceedings in this case‐‐we
trust that the BIA will act with due dispatch to resolve Richards’ case on remand.
Accordingly, we ORDER that our own mandate shall issue forthwith.
For the foregoing reasons, the petition for review is GRANTED, the BIA’s
decision is VACATED, and the case is REMANDED for proceedings consistent
with this order. As we have completed our review, the stay of removal that the
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Court previously granted in this petition is VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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