Flores v. Holder
| Decision Date | 26 February 2015 |
| Docket Number | Docket No. 12–2406. |
| Citation | 779 F.3d 159 |
| Parties | Edson FLORES, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
John W. Cerreta, Day Pitney LLP, Hartford, Connecticut, for Petitioner.
Erica Miles (Stuart F. Delery, Allen W. Hausman, Brooke M. Maurer, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: SACK, LYNCH, and CHIN, Circuit Judges.
Petitioner Edson Flores, a native and citizen of Honduras, seeks review of a May 22, 2012 order of the Board of Immigration Appeals (“BIA”), affirming a January 6, 2012 decision of an Immigration Judge (“IJ”). The agency denied Flores's motion to continue removal proceedings, which Flores had filed to pursue adjustment of status on the basis of two family-based visa petitions. The agency also found that Flores was ineligible for asylum because his convictions for first-degree sexual abuse, in violation of N.Y. Penal Law § 130.65, were aggravated felonies relating to the sexual abuse of a minor, as defined in the Immigration and Nationality Act (“INA”) § 101(a)(43)(A) (codified at 8 U.S.C. § 1101(a)(43)(A)), and also because they were particularly serious crimes.
For the reasons set forth below, we hold that the agency erred in denying the continuance request and in determining that the sexual abuse offenses were aggravated felonies, but that the agency did not err in concluding that the offenses were particularly serious crimes.
Flores, a native and citizen of Honduras, entered the United States without inspection in 1991. He married a U.S. citizen and raised a family in the United States. In 2009, he was convicted, pursuant to a jury verdict, of two counts of first-degree sexual abuse in violation of N.Y. Penal Law § 130.65. He was sentenced to forty-two months' imprisonment and was subsequently placed in removal proceedings and charged with removability under: (1) INA § 212(a)(6)(A)(i) (codified at 8 U.S.C. § 1182(a)(6)(A)(i)), for being present in the United States without being admitted or paroled; and (2) INA § 212(a)(2)(A)(i)(I) (codified at 8 U.S.C. § 1182(a)(2)(A)(i)(I)), for having been convicted of crimes involving moral turpitude.
Flores appeared, pro se, before an IJ. After several continuances, Flores eventually conceded his removability under INA § 212(a)(6)(A)(i) for entering the United States without inspection. He requested a further continuance to pursue adjustment of status, in conjunction with a waiver of inadmissibility under INA § 212(h) (codified at 8 U.S.C. § 1182(h)), based on two visa petitions filed with U.S. Citizenship and Immigration Services (“CIS”). The first was an approved I–130 Petition for Alien Relative filed by his U.S.-citizen sister in 2001; the second was an I–130 Petition for Alien Relative filed by his U.S.-citizen wife in 2010. Flores also moved to terminate his proceedings and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), based on his fear of gangs in Honduras.
The IJ declined to further continue proceedings and, at the conclusion of a 2012 merits hearing, denied all relief in an oral decision and ordered Flores removed. See In re Edson Flores, No. A095 051 190 (Immig.Ct.Batavia, N.Y. Jan. 6, 2012). Initially, the IJ found that Flores was removable under INA § 212(a)(6)(A)(i), for entering the United States without inspection, and under § 212(a)(2)(A)(i)(I), for having been convicted of two crimes involving moral turpitude. He therefore denied Flores's motion to terminate proceedings. In addition, the IJ determined that Flores was ineligible for adjustment of status because he did not have a current priority date for his sister's approved I–130 Petition and his wife's I–130 Petition had not been adjudicated. The IJ also concluded that Flores was statutorily barred from asylum and withholding of removal because his convictions under N.Y. Penal Law § 130.65 were aggravated felonies, relating to the sexual abuse of a minor under INA § 101(a)(43)(A), and were also particularly serious crimes. In determining that Flores's convictions were aggravated felonies, the IJ reasoned that § 130.65 is divisible and the record of conviction established that Flores placed his hand on the genital area of a victim under eleven years old. Alternatively, the IJ found that Flores failed to meet his burden of demonstrating eligibility for asylum and withholding of removal. Lastly, the IJ denied deferral of removal under CAT, concluding that Flores failed to show that he would likely be tortured in Honduras.
Flores appealed. In a May 22, 2012 order, the BIA dismissed the appeal. In re Edson Flores, No. A095 051 190 (BIA May 22, 2012), aff'g No. A095 051 190 (Immig.Ct.Batavia, N.Y. Jan. 6, 2012). The BIA agreed that Flores's convictions under N.Y. Penal Law § 130.65 were aggravated felonies and particularly serious crimes. It also found that the IJ did not err in denying Flores's motion to continue because Flores did not submit any evidence showing that his wife's I–130 Petition had been approved and he was ineligible for a § 212(h) waiver as a result of his aggravated felony convictions. Because Flores conceded his removability for entering the United States without inspection, the BIA declined to consider whether his convictions under N.Y. Penal Law § 130.65 were crimes of moral turpitude that rendered him removable under INA § 212(a)(2)(A)(i)(I). The BIA also declined to consider the IJ's alternative denial of asylum and withholding of removal on the merits. Flores did not contest the IJ's denial of relief under CAT on appeal.
This petition for review followed.
We review the IJ's decision as modified by the BIA, i.e., minus the bases for denying relief that the BIA expressly declined to consider. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir.2005). 1
We review the agency's denial of a continuance for abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.2006) (per curiam). Pursuant to 8 C.F.R. § 1003.29, an IJ “may grant a motion for continuance for good cause shown.” The agency has identified the following factors in determining whether good cause exists to continue proceedings to await CIS's adjudication of a pending family-based visa petition: “(1) the [government's] response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the [movant]'s statutory eligibility for adjustment of status; (4) whether the ... application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.” In re Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009).
We conclude that the agency abused its discretion by denying Flores's motion to continue without considering the factors articulated in Hashmi. See Rajah v. Mukasey, 544 F.3d 449, 453 (2d Cir.2008) (). Although the “[a]djudication of a motion to continue should begin with the presumption ... that discretion should be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing,” Hashmi, 24 I. & N. Dec. at 790, neither the IJ nor the BIA assessed whether Flores's wife's I–130 Petition was prima facie approvable and, instead, considered whether Flores's wife's I–130 Petition had actually been approved.
The BIA further abused its discretion by finding that an aggravated felony conviction would bar Flores from § 212(h) relief. Because Flores was not previously admitted to the United States as a lawful permanent resident, an aggravated felony conviction does not render him statutorily ineligible for relief under § 212(h). See Matter of Michel, 21 I. & N. Dec. 1101, 1104 (BIA 1998) (). The BIA's error is particularly troubling because the availability of a § 212(h) waiver was relevant to Flores's eligibility for adjustment of status and, “[w]hile all these factors may be relevant in a given case, the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.” Hashmi, 24 I. & N. Dec. at 790. Accordingly, we vacate the agency's denial of Flores's motion for a continuance and remand for consideration of Flores's motion under the correct legal standard.
An alien convicted of an “aggravated felony,” which is defined to include the “sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A), is ineligible for asylum. Id. § 1158(b)(2)(A)(ii), (B)(i). We employ a “categorical approach” to determine whether a state criminal conviction constitutes an aggravated felony under the INA. Pascual v. Holder, 707 F.3d 403, 405 (2d Cir.2013) (per curiam). Under this approach, we look “to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony,” Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013), here, “sexual abuse of a minor” as defined in 18 U.S.C. § 3509(a)(8), James v. Mukasey, 522 F.3d 250, 254 (2d Cir.2008) (citing In re Rodriguez–Rodriguez, 22 I. & N. Dec. 991, 995–96 (B.I.A.1999)). “[T]he singular circumstances of an individual petitioner's crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute...
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