Banegas Gomez v. Barr

• Decision Date: 23 April 2019
• Docket Number: August Term 2018,No. 15-3269,15-3269
• Citation: 922 F.3d 101
• Parties: Jose Javier BANEGAS GOMEZ, aka Jose Banegas, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

922 F.3d 101

Jose Javier BANEGAS GOMEZ, aka Jose Banegas, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

No. 15-3269

August Term 2018

United States Court of Appeals, Second Circuit.

Argued: February 19, 2019

Decided: April 23, 2019

For Petitioner: Glenn L. Formica, Elyssa N. Williams, Formica Williams, P.C., New Haven, CT, for Petitioner.

For Respondent: Keith I. McManus, Joseph H. Hunt, Jessica E. Burns, United States Department of Justice, Civil Division, Washington, DC, for Respondent.

Before: Livingston, Circuit Judge, and Failla, District Judge.^*

Debra Ann Livingston, Circuit Judge:

Petitioner Jose Javier Banegas Gomez ("Banegas Gomez"), a native and citizen of Honduras, seeks review of a September 14, 2015 decision of the Board of Immigration Appeals ("BIA") affirming an April 9, 2015 decision of an Immigration Judge ("IJ") deeming him removable and denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Jose Javier Banegas Gomez , No. A 057 410 254 (B.I.A. Sept. 14, 2015), aff’g No. A 057 410 254 (Immig. Ct. Hartford, CT Apr. 9, 2015). Banegas Gomez makes three challenges to the BIA’s decision: (1) that his conviction for Connecticut first-degree assault no longer constitutes an "aggravated felony" or, at the very least, a remand to the BIA is necessary to re-evaluate the issue following the Supreme Court’s decision in Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), which invalidated 18 U.S.C. § 16(b) as void for vagueness; (2) that the agency erred when it denied his claim for CAT relief; and (3) that, under the reasoning of the Supreme Court in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), the omission of information regarding the time and date of his hearing from his initial Notice to Appear ("NTA") means that jurisdiction never vested in the Immigration Court and thus that the proceedings against him must be terminated.

We conclude that no remand is necessary to determine that Banegas Gomez’s conviction for Connecticut first-degree assault constitutes an "aggravated felony," as it fits within the definition of "crime of violence" in 18 U.S.C. § 16(a). And because Banegas Gomez’s removal is predicated on commission of an aggravated felony, our jurisdiction is limited to constitutional claims and questions of law. Ortiz-Franco v. Holder , 782 F.3d 81, 86 (2d Cir. 2015). We see no such colorable claims in Banegas Gomez’s arguments as to the agency’s decision to deny him CAT relief. And lastly, we see no basis for reading Pereira —which dealt only with the "stop time" rule, see 138 S.Ct. at 2110, which is not relevant to this case—to divest an Immigration Court of jurisdiction whenever an NTA lacks information regarding a hearing’s time and date. We thus join several of our sister circuits in allowing proceedings such as these to proceed.

BACKGROUND

I. Factual Background¹

Banegas Gomez was born in 1992 in Honduras. In 2004, he entered the United States as a lawful permanent resident on a petition from his stepmother, a United States citizen. Six years later, in November 2010, Banegas Gomez was arrested in Connecticut in connection with a stabbing. In May 2011, he was convicted in Connecticut Superior Court of first-degree assault with intent to cause serious physical injury as well as conspiracy to commit first-degree assault. He was sentenced to twelve years in prison, "suspended after 6 years, [and] probation [for] 5 years." Certified Administrative Record ("CAR") 126.

II. Procedural History

On May 8, 2013, Banegas Gomez was served with an NTA. The United States Department of Homeland Security ("DHS") alleged that he was removable due to his Connecticut convictions, which it deemed aggravated felonies, as defined in 8 U.S.C. § 1101(a)(43), which includes "crimes of violence" pursuant to 18 U.S.C. § 16 in its definition of such felonies. See 8 U.S.C. § 1001(a)(43) ("The term ‘aggravated felony’ means ... a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year ...." (internal footnote omitted)); see also id. § 1127(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

Although Banegas Gomez was imprisoned at the time, he appeared before an IJ via teleconference and through his attorney he denied the charges of removability. He also submitted an application for asylum, though ultimately it was determined that he was eligible only for deferral of removal under the Convention against Torture. A hearing was held on that claim in April 2015, during which both Banegas Gomez and his father testified in support of his claim. Banegas Gomez argued that he feared torture if returned to Honduras due to the murders of several of his family members, specifically two of his uncles as well as possibly an aunt. The first uncle was killed in a pool club on Christmas Eve in 2009, and while Banegas Gomez does not know the reason, he heard from others that an argument preceded the murder. Banegas Gomez’s father testified that his brother was shot with no warning and did not previously know the man who shot him. Banegas Gomez’s other uncle was killed in 2012, and both he and his father believe it was related to drug cartels. Banegas Gomez also testified that he feared both gang-related violence and police detention due to his tattoos—none of which are gang-related—but which might cause him to be seen as a gang member.

On April 9, 2015, the IJ issued a decision denying Banegas Gomez’s CAT claim and sustaining the charges of removability against him. The IJ first determined that assault in the first degree, in violation of Section 53i-59(a)(1) of the Connecticut General Statutes, is an "aggravated felony crime of violence under 18 U.S.C. 16(b)." CAR 58. This is because "[t]here is no doubt that to commit this offense ... serious physical injury must happen to the victim." Id. The IJ then denied Banegas Gomez’s CAT claim, concluding that despite the evidence that several of his family members were killed in Honduras there is "no evidence that the killings of his two uncles are somehow related" and that he would be endangered based on family affiliation. Id. at 62. As to Banegas Gomez’s fear of gangs in Honduras, the IJ determined that any fear of torture is speculative and that, regardless, "there is no evidence that any torture by gangs would be with the acquiescence or willful blindness of government officials." Id. Lastly, the IJ rejected Banegas Gomez’s claim that he might be targeted by the police for his tattoos, concluding that the police would know the difference between gang-related and non-gang-related tattoos and that there is insufficient evidence that, even if he were arrested, the treatment he would receive in a Honduran prison would amount to torture. For these reasons, the IJ ordered Banegas Gomez removed to Honduras.

Banegas Gomez appealed. On September 14, 2015, the BIA issued a decision affirming "the Immigration Judge’s conclusion that the respondent did not present sufficient evidence to establish that it is ‘more likely than not’ the respondent would be tortured upon his removal either at the hands of the government of Honduras, or with its acquiescence," either because of his tattoos or the deaths of his family members. Id. at 3–4.

The BIA dismissed Banegas Gomez’s appeal, and this petition followed. Prior to assessing his claims, we note that despite what was at the time a pending motion in this Court for a stay of removal, Immigration and Customs Enforcement ("ICE") removed Banegas Gomez to Honduras in April 2016. However, he subsequently re-entered the country illegally and is now serving a 30-month sentence ordered by a judge in the United States District Court for the Southern District of Texas for illegal re-entry in violation of 18 U.S.C. § 1326.

DISCUSSION

I

Banegas Gomez first argues that, following the Supreme Court’s decision in Sessions v. Dimaya , his Connecticut convictions for first-degree assault and conspiracy to commit first-degree assault can no longer be categorized as aggravated felonies and thus he is not removable. In the alternative, he contends that this Court should not decide the issue and should instead send his petition back to the BIA for it to determine whether either of his convictions can be categorized as such. We disagree.

Whether a conviction is an aggravated felony is a question of law that we review de novo . Pierre v. Holder , 588 F.3d 767, 772 (2d Cir. 2009). The Immigration and Nationality Act ("INA") categorizes a "crime of violence" as an aggravated felony. 8 U.S.C. § 1101(a)(43)(F). The INA defines a "crime of violence" with reference to 18 U.S.C. § 16. Id. Section 16, in turn, contains two definitions of a crime of violence: "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or "(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16.

In 2018, the Supreme Court held that the second subsection, § 16(b), is impermissibly vague in violation of the Due Process Clause of the Constitution. See Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 1223, 200 L.Ed.2d 549 (2018). Therefore, post- Dimaya , a conviction can be categorized as a crime of violence—and thus for this reason an aggravated felony—only if it falls within § 16(a) ’s ambit, i.e. , if it can be described as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." This subsection is often referred to as the "elements clause."

Banegas Gomez is correct that the agency...