18-1514 (L)
Arthur v. Garland
BIA
Tsankov, IJ
A031 447 509
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
4th day of November, two thousand twenty-one.
PRESENT:
JOSEPH F. BIANCO,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
GODFREY ALEXANDER ARTHUR,
Petitioner,
v. 18-1514 (L),
20-3612 (Con)
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: STEWART R. GILSON (Joseph L. Sorkin, on
the brief), Akin Gump Strauss Hauer
& Feld LLP, New York, NY; Sharone S.
Kaufman, The Legal Aid Society, New
York, NY.
FOR RESPONDENT: SARA J. BAYRAM, Trial Attorney, Office
of Immigration Litigation (John W.
Blakeley, Assistant Director, on the
brief), for Brian M. Boynton, Acting
Assistant Attorney General, Civil
Division, United States Department
of Justice, Washington, DC.
UPON DUE CONSIDERATION of these petitions for review of Board
of Immigration Appeals (“BIA”) decisions, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petitions are DENIED.
Petitioner Godfrey Alexander Arthur, a native and citizen of
Guyana, seeks review of an April 19, 2018 decision of the BIA
affirming a November 29, 2017 decision of an Immigration Judge
(“IJ”), ordering his removal, In re Godfrey Alexander Arthur, No.
A031 447 509 (B.I.A. Apr. 19, 2018), aff’g No. A031 447 509
(Immigr. Ct. N.Y.C. Nov. 29, 2017), and a September 17, 2020
decision of the BIA, denying his motion to reopen, No. A031 447
509 (B.I.A. Sept. 17, 2020). We assume the parties’ familiarity
with the underlying facts and procedural history of the case, which
we reference only as necessary to explain our decision to deny the
petitions.
We have reviewed the IJ’s decision as modified and
supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Just.,
426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). We review questions of law de novo,
Matthews v. Barr, 927 F.3d 606, 612 (2d Cir. 2019), findings of
fact for substantial evidence, see Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009), and the BIA’s denial of a motion to reopen
2
for abuse of discretion, Ke Zhen Zhao v. U.S. Dep’t of Just., 265
F.3d 83, 93 (2d Cir. 2001).
Arthur filed two petitions for review, which we have
consolidated for purposes of briefing in this Court. In the lead
petition, Arthur challenges his removability based upon his 2009
conviction in New York state court for endangering the welfare of
a child. In the second petition, Arthur contends that the BIA
abused its discretion in denying his motion to reopen for
ineffective assistance of counsel where counsel allegedly failed
to adequately raise Arthur’s mental health problems and competency
issues. We address each petition in turn.
As a threshold matter, we deny the lead petition because (1)
Arthur does not challenge the bases for the BIA’s 2018 decision
and (2) he did not exhaust his challenge to removability in his
appeal to the BIA that culminated in that decision. See Lin Zhong
v. U.S. Dep’t of Just., 480 F.3d 104, 118–22 (2d Cir. 2007).
In any event, even if exhausted, his challenge to removability
fails on its merits and the BIA did not err by noting as much when
it denied Arthur’s motion to reopen. Arthur was ordered removed
for “a crime of child abuse, child neglect, or child abandonment”
under 8 U.S.C. § 1227(a)(2)(E)(i), based on his 2009 conviction
for endangering the welfare of a child, in violation of New York
Penal Law Section 260.10(1). In Matter of Soram, 25 I. & N. Dec.
378 (B.I.A. 2010), the BIA held that the “crime of child abuse”
3
definition under the removal statute broadly includes state child
endangerment offenses that require a sufficient risk of harm to
the child, even where no actual harm or injury occurs. Id. at
381-83. In 2019, in Matthews v. Barr, we concluded, as we
previously held in Florez v. Holder, 779 F.3d 207 (2d Cir. 2015),
that New York’s child endangerment statute, as codified in Section
260.10(1), is a categorical match with the “crime of child abuse”
under the removal statute. Matthews, 927 F.3d at 618–20.
Therefore, under this precedent, Arthur’s 2009 conviction under
Section 260.10(1) is a removable offense.
Arthur nevertheless seeks to challenge removability by
arguing that the BIA’s definition of child abuse from the Soram
decision in 2010, which was relied upon in Matthews, was a new
rule that should not be retroactively applied to his 2009 guilty
plea to endangering the welfare of a child. However, we recently
rejected this precise argument in Marquez v. Garland, 13 F.4th 108
(2d Cir. 2021). More specifically, applying the five-factor test
for assessing retroactivity set forth in Lugo v. Holder, 783 F.3d
119, 121 (2d Cir. 2015), we held that the BIA’s definition of a
crime of child abuse in Soram may be applied retroactively to a
2006 conviction under New York Penal Law Section 260.10(1).
Marquez, 13 F.4th at 111-14.
Arthur contends that his case is distinguishable from Marquez
because he entered his plea in 2009, not 2006, and, in so doing,
4
relied on the BIA’s definition of child abuse articulated in 2008
in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (B.I.A.
2008). We find this argument unpersuasive and conclude, as we did
when assessing this factor in Marquez, that Arthur has failed to
show reasonable reliance. As we noted in Marquez, Velazquez-
Herrera “left open” in 2008 whether a crime of child endangerment
in which no proof of actual harm to the child is required
constituted a crime of child abuse under 8 U.S.C. §
1227(a)(2)(E)(i), a question that the BIA answered only in 2010 in
Soram. Marquez, 13 F.4th at 113–14. Thus, at the time of Arthur’s
guilty plea in 2009, there was no existing rule on which Arthur
could have reasonably relied. Cf. Obeya v. Sessions, 884 F.3d
442, 448–49 (2d Cir. 2018) (finding a petitioner’s reliance on an
old rule reasonable where the old rule was established by “seven
decades of BIA precedent, reinforced by this Court”). Accordingly,
as we did for the petition in Marquez, we reject Arthur’s challenge
to his removability on retroactivity grounds and deny his first
petition.
We also deny the second petition because, in reviewing the
BIA’s denial of Arthur’s motion to reopen, we find no abuse of
discretion. “An abuse of discretion may be found . . . where the
Board’s decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements; that is to say,
5
where the Board has acted in an arbitrary or capricious manner.”
Ke Zhen Zhao, 265 F.3d at 93 (internal citations omitted).
Arthur argued in his motion to reopen that he was deprived of
a full and fair hearing because the IJ and his former counsel
failed to act on the purported indicia of incompetence he displayed
in his testimony and accordingly did not hold a competency hearing
pursuant to Matter of M-A-M-, 25 I. & N. Dec. 474 (B.I.A. 2011).
In particular, Arthur asserted that there were psychological
evaluations diagnosing him with schizotypal personality disorder
and noting that his “thought process obstructs his ability to
communicate and process information.” Certified Admin. Rec. at
421.
To state a due process claim, Arthur had to show both that he
was deprived of a full and fair hearing and that the “outcome of
his removal proceedings would have been . . . different” if not
for the violation. Debeatham v. Holder, 602 F.3d 481, 486 (2d
Cir. 2010). Similarly, to state a claim of ineffective assistance
of counsel, he had to “allege facts sufficient to show [(a)] that
competent counsel would have acted otherwise, and [(b)] that he
was prejudiced by his counsel’s performance.” Rabiu v. INS, 41
F.3d 879, 882 (2d Cir. 1994) (internal quotation marks and citation
omitted).
Noncitizens are presumed competent in removal proceedings
and, unless there are indicia of incompetence, no further inquiry
6
is required. Matter of M-A-M-, 25 I. & N. Dec. at 477. “[T]he
test for determining whether an alien is competent . . . is whether
he or she has a rational and factual understanding of the nature
and object of the proceedings, can consult with the attorney or
representative if there is one, and has a reasonable opportunity
to examine and present evidence.” Id. at 479. The BIA did not
abuse its discretion in finding no indicia of incompetence
sufficient to establish that the IJ or counsel erred by failing to
hold or request a competency hearing. As the BIA found, the record
reflects that, although Arthur was indirect at times, his testimony
was responsive, and he demonstrated an understanding of the nature
of the proceedings and the process of securing representation.
See id. at 477–79; cf. Matter of J-R-R-A-, 26 I. & N. Dec. 609,
610 (B.I.A. 2015) (requiring a competency hearing where the
applicant “was confused and frequently provided nonresponsive
testimony before the [IJ],” testified he arrived in the United
States in 2006 rather than 2012, said 2006 was “last year” at the
time of the 2013 hearing, and “laughed inappropriately during the
hearing”).
Moreover, the BIA did not abuse its discretion in finding
that Arthur failed to show that additional safeguards would have
changed the outcome. See Debeatham, 602 F.3d at 486. Arthur’s
argument rests on his position that, had his counsel raised
Arthur’s mental health issues with the IJ and had he been provided
7
with a hearing, it would have resulted in the agency weighing his
responses to questions regarding his criminal history differently.
More specifically, Arthur persistently stated at the hearing that
he did not participate in the crimes of which he was accused,
despite having pled guilty to endangering the welfare of a child
in lieu of rape, criminal sexual act, and sexual abuse charges.
The IJ did not give this testimony “full weight” because it was
self-serving and unsupported by any documentation in the record.
2020 Special App’x at 17. Moreover, in denying cancellation, the
IJ noted that “[t]he respondent disavowed any criminal conduct in
connection with that plea of guilty, despite the fact that he in
fact does have a criminal conviction, and based on the charging
document, appears to have engaged in conduct that he now disavows
with a child under the age of 11 years old.” 2020 Special App’x
at 19. The IJ further concluded that “[Arthur] has failed to
accept any responsibility for this criminal conduct, and this is
a negative indication of any genuine rehabilitation.” 2020 Special
App’x at 19-20. The BIA also noted this testimony. See 2020
Special App’x at 11 (“Before the Immigration Judge, the respondent
was provided with a reasonable opportunity to explain the criminal
misconduct which served as the basis of his conviction. However,
in lieu of admitting guilt, he unpersuasively denied any
culpability. Discretionary relief is not appropriate where, as
here, an alien declines to articulate a credible basis for the
8
criminal conviction which subjects him to removal from the United
States.”). Thus, the BIA concluded that, “[c]onsidering these
circumstances, [it] agree[d] with the Immigration Judge’s ultimate
decision to deny the respondent’s application for cancellation of
removal as a matter of discretion.” 2020 Special App’x at 11.
We find Arthur’s assertion that exploration of his mental
illness would have led the IJ and BIA to a different determination
to be highly speculative. Even assuming, arguendo, that his mental
illness hindered his ability “to respond to questions and to convey
information in a goal directed and linear manner,” Certified Admin.
Rec. at 421, Arthur has failed to explain how that mental illness
caused him to persistently disavow the criminal conduct to which
he pled guilty and fail to express any remorse at that most basic
level. On this record, there is no reason to believe that with
more information about his mental illness the IJ or the BIA would
have viewed any differently his complete failure to acknowledge
guilt to the crime to which he pled guilty, and his corresponding
lack of remorse for the crime.
To the extent that Arthur also argues that the agency might
have found him eligible for asylum, withholding of removal, and
relief under the Convention Against Torture based on his mental
illness, we find that contention similarly unpersuasive. In
support of his asylum claim, Arthur alleged only that there is
stigma in Guyana against individuals suffering from mental
9
illness. Without more, Arthur cannot demonstrate that a hearing
would have changed the outcome of his removal proceeding.
In short, Arthur has failed to show that if there had been
additional exploration of his alleged mental illness by his counsel
and the IJ, then the result of his hearing and removal proceeding
would have been different. Accordingly, Arthur has not shown that
the BIA’s denial of his motion to reopen on this ground was
“arbitrary or capricious.” Ke Zhen Zhao, 265 F.3d at 93.
For the foregoing reasons, the petitions for review are
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
10
Arthur v. Garland
Combined Opinion