Alvarez v. Garland
| Citation | 33 F.4th 626 |
| Decision Date | 05 May 2022 |
| Docket Number | 22-6021,August Term 2021 |
| Parties | Carlos Anibal ALVAREZ, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Carlos Anibal Alvarez, pro se, Batavia, New York (Robert F. Graziano, on Petitioner's reply brief in further support of motion to proceed in forma pauperis, Niagara Falls, New York), for Petitioner.
Rodolfo D. Saenz, Trial Attorney (Zoe J. Heller, Senior Litigation Counsel, on the brief), for Brian M. Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C.
Before: Cabranes, Raggi, and Carney, Circuit Judges.
Carlos Anibal Alvarez, a Dominican national and lawful permanent resident of the United States, petitions for review of a Board of Immigration Appeals ("BIA") decision upholding an Immigration Judge's ("IJ") ruling (1) ordering Alvarez's removal from this country for violating a court protection order, see 8 U.S.C. § 1227(a)(2)(E)(ii) ; and (2) denying him discretionary relief from deportation, see id. § 1229b(a). See In re Carlos Anibal Alvarez , No. A 038 919 528 (B.I.A. Dec. 29, 2021), aff'g No. A 038 919 528 (Immig. Ct. Batavia, N.Y. Aug. 6, 2021). Now before the court are Alvarez's motions for leave to pursue his petition in forma pauperis, appointment of counsel, and a stay of removal, as well as respondent's motion to expedite the petition.
In reviewing an in forma pauperis motion, a court first considers whether the claims being pursued have an arguable basis in law or fact because, if they do not, the court must not simply deny the motion; it must dismiss the appeal or petition for review as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). Upon such review here, we conclude that Alvarez's petition has no arguable basis in law or fact. Insofar as he asserts error in the agency's failure to employ a "modified categorical"1 standard to determine his removability under § 1227(a)(2)(E)(ii), that argument is precluded by the plain language of the statute, as well as by decisions from the Supreme Court, this court, and other courts of appeals. Thus, in this published opinion, we reiterate that which we have previously thought sufficiently clear to say summarily: removability pursuant to § 1227(a)(2)(E)(ii) is not determined by a categorical, or even modified categorical, standard, but by a circumstance-specific assessment of the protection order to which the alien was subject and of a court's (usually a state court's) particular finding that the alien violated that order.2 We conclude that Alvarez's remaining challenges to removal similarly lack an arguable basis in fact or law and, accordingly, we dismiss his petition and deny the parties’ motions as moot.
On May 3, 1984, Alvarez, a then-16 year old native and citizen of the Dominican Republic, entered the United States at Puerto Rico. While in this country, he has generally lived in the New York area and most frequently been employed as an auto mechanic. He has, from time to time, abused controlled substances. Alvarez has married twice and maintained three non-marital relationships, by which he has, in total, five children.
One of Alvarez's non-marital relationships was with Angela Escolastico, who, on several occasions, accused Alvarez of assault, leading to various arrests, convictions, and the entry of New York court protection orders. Alvarez's violation of one of those orders, issued in 2001, is the basis for the removal decision that he now petitions this court to review. Accordingly, we begin by summarizing facts pertinent to the entry of that 2001 protection order and to its violation, as well as to Alvarez's ensuing criminal history. We then proceed to detail Alvarez's immigration proceedings.
The 2001 protection order here at issue was entered following Alvarez's guilty plea and conviction that year for first-degree contempt of court. See N.Y. Penal L. § 215.51.3 That contempt was evidenced by Alvarez's 2001 violation of an earlier, 1999 protection order that had required Alvarez to refrain from, inter alia , assaulting Ms. Escolastico.4 In a sworn affidavit to support Alvarez's 2001 arrest for assault, a New York City police officer stated that Ms. Escolastico had reported that, on May 19, 2001, Alvarez came to her apartment, "(i) punched [her] numerous times on the head and arm, (ii) grabbed [her] and slammed her on the floor, (iii) ... threatened to throw her out of the window, (iv) ... put a cable cord around [her] neck and choked her," and (v) threatened to kill her. Admin. R. 833–34. Ms. Escolastico further told the officer that, on May 25, 2001, Alvarez had "forced his way" into her apartment and threatened "to kill her if she called the police." Id.
When interviewed about these events in 2001 for a pre-sentence report, Alvarez claimed that his actions had been "misrepresented" and that he had only tried "to speak" with Ms. Escolastico "in order to reconcile." Id. at 1471–72.5 The state probation department nevertheless reported "a severe case of domestic violence," in which Alvarez failed to "take full responsibility for his actions," and recommended some term of incarceration. Id. at 1476.
On September 20, 2001, a New York State court sentenced Alvarez to six months’ imprisonment and five years’ probation for his contempt of the 1999 protection order. Two weeks later, on October 5, 2001, the court issued another protection order, to remain in effect for five years, i.e. , until October 4, 2006. See N.Y. Crim. Proc. § 530.12. That 2001 order, which is here at issue, prohibited Alvarez, directly or through any third party, from having "contact of any kind whatsoever" with Ms. Escolastico. Admin. R. 134. Specifically, Alvarez was ordered (1) to "[s]tay away" from Ms. Escolastico's person, as well as from her home, school, business, or place of employment; (2) to "[r]efrain from communication" with Ms. Escolastico, whether "by mail or by telephone, e-mail, voice-mail or other electronic means"; and (3) to "[r]efrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any criminal offense against" Ms. Escolastico. Id.
On November 1, 2002, the court sentenced Alvarez to a term of 18-months-to-3-years’ incarceration for this contempt.
In the years after Alvarez's release from prison on his second contempt conviction, he was arrested several times. Because these arrests were considered by the immigration court in denying Alvarez discretionary relief from removal, we briefly summarize the charges and their resolutions. Except as noted, the underlying facts are not part of the record before us.
In June 2005, Alvarez was arrested for and pleaded guilty to disorderly conduct, see N.Y. Penal L. § 240.20, and sentenced to time served.
In November 2007, Alvarez was arrested for second-degree menacing, id. § 120.14; second-degree reckless endangerment, id. § 120.20; and fourth-degree criminal possession of a weapon, id. § 265.01, based on conduct toward his then-sister-in-law. In satisfaction of these charges, Alvarez pleaded guilty to and was convicted of second-degree harassment, id. § 240.26; was sentenced to 15 days’ imprisonment; and consented to the entry of a two-year protection order for the victim.
Finally, in May 2010, Alvarez, together with others, was arrested for first-degree robbery, id. § 160.15, and related charges. At a 2015 retrial following a mistrial, Alvarez was found guilty and sentenced to 12 years’ imprisonment.8 Alvarez served this term in New York State custody until November 13, 2020, when he was transferred to Immigration and Customs Enforcement ("ICE") custody. On October 19, 2021, while Alvarez was in ICE custody, the New York Appellate Division, First Department, reversed his robbery conviction upon finding that he had not requested or consented to a mistrial without prejudice. See People v. Lantigua, 198 A.D.3d 514, 514, 152 N.Y.S.3d 801 (1st Dep't 2021) ().
In part because of the time required to resolve the referenced robbery charge, it took immigration authorities more than fifteen years to render the removal decision that Alvarez now petitions this court to review. We summarize these immigration proceedings only as necessary to explain our decision to dismiss Alvarez's petition and to deny his various motions as moot.
To continue reading
Request your trial
- Coughlin v. Lac Du Flambeau Band Indians (In re Coughlin)
-
Jones v. All States
... ... fanciful ones, as only the latter warrant dismissal” as ... frivolous. Alvarez v. Garland, 33 F.4th 626, 637 (2d ... Cir. 2022) (internal quotation marks omitted) (alteration in ... original). The Court therefore may ... ...
-
Peoples v. Margulis
... ... cases with inarguable or fanciful ones, as only the latter ... warrant dismissal” as frivolous. Alvarez v ... Garland, 33 F.4th 626, 637 (2d Cir. 2022). The Court ... therefore may not dismiss a complaint filed by a plaintiff ... ...
-
Hogan v. Mahabir
... ... with inarguable or fanciful ones, as only the latter warrant ... dismissal” as frivolous. Alvarez v. Garland, ... 33 F.4th 626, 637 (2d Cir. 2022). The Court therefore may not ... dismiss a complaint filed by a plaintiff proceeding in ... ...
-
Immigration Law's Missing Presumption
...that immigration officials may consider “the facts that led to [a] conviction” that was vacated for legal reasons); Alvarez v. Garland, 33 F.4th 626, 649 (2d Cir. 2022) (“Nor is there an arguable basis in law or fact for Alvarez to fault the [immigration judge’s] consideration of his 2015 ......