Flores v. Holder , 603 F. App'x 30 ( 2015 )


Menu:
  •          14-53
    Flores v. Holder
    BIA
    Mulligan, IJ
    A073 667 154
    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 A SUMMARY
    ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Thurgood Marshall United
    3       States Courthouse, 40 Foley Square, in the City of New York,
    4       on the 16th day of March, two thousand fifteen.
    5
    6       PRESENT:
    7                JOSÉ A. CABRANES,
    8                ROBERT D. SACK,
    9                GERARD E. LYNCH,
    10                     Circuit Judges.
    11       _____________________________________
    12
    13       MIGUEL ANTONIO FLORES, AKA
    14       MIGUEL ANGEL FLORES, AKA JOSE PEREZ,
    15       AKA JOSE DANIEL PEREZ, AKA DANIEL
    16       PEREZ,
    17                Petitioner,
    18
    19                          v.                                  14-53
    20                                                              NAC
    21       ERIC H. HOLDER, JR., UNITED STATES
    22       ATTORNEY GENERAL,
    23                Respondent.
    24       _____________________________________
    25
    26       FOR PETITIONER:               Bruno Joseph Bembi, Hempstead, NY.
    27
    28       FOR RESPONDENT:               Joyce R. Branda, Acting Assistant
    29                                     Attorney General; M. Jocelyn Lopez
    30                                     Wright, Senior Litigation Counsel;
    1                           Kristofer R. McDonald, Trial
    2                           Attorney, Office of Immigration
    3                           Litigation, United States Department
    4                           of Justice, Washington, D.C.
    5
    6       UPON DUE CONSIDERATION of this petition for review of a
    7   Board of Immigration Appeals (“BIA”) decision, it is hereby
    8   ORDERED, ADJUDGED, AND DECREED that the petition for review
    9   is DENIED.
    10       Petitioner Miguel Antonio Flores, a native and citizen
    11   of El Salvador, seeks review of a December 16, 2013, order
    12   of the BIA affirming the February 28, 2012, decision of an
    13   Immigration Judge (“IJ”), which denied special rule
    14   cancellation of removal under the Nicaraguan Adjustment and
    15   Central American Relief Act (“NACARA”), asylum, withholding
    16   of removal, and Convention Against Torture (“CAT”) relief.
    17   In re Miguel Antionio Flores, No. A073 667 154 (B.I.A. Dec.
    18   16, 2013), aff’g No. A073 667 154 (Immig. Ct. New York City
    19   Feb. 28, 2012).   We assume the parties’ familiarity with the
    20   underlying facts and procedural history in this case.
    21       Under the circumstances of this case, we have reviewed
    22   the IJ’s decision.   See Mei Chai Ye v. U.S. Dep’t of
    23   Justice, 
    489 F.3d 517
    , 523 (2d Cir. 2007).   The applicable
    24   standards of review are well established.    See Yanqin Weng
    25   v. Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009).
    2
    1       An applicant is ineligible to apply for special rule
    2   cancellation of removal under NACARA if he has been
    3   convicted of an aggravated felony.    8 C.F.R. § 1240.61(b).
    4   Likewise, an applicant is barred from asylum if he has “been
    5   convicted by a final judgment of a particularly serious
    6   crime, [and therefore] constitutes a danger to the
    7   community.”   8 U.S.C. § 1158(b)(2)(A)(ii).   For asylum
    8   purposes, all aggravated felony convictions are per se
    9   particularly serious crimes.   8 U.S.C. § 1158(b)(2)(B)(i).
    10       The agency reasonably found that Flores’s conviction
    11   for criminal possession of a forged instrument under New
    12   York Penal Law § 170.25 was an aggravated felony.     To
    13   determine whether a state conviction like Flores’s is an
    14   aggravated felony, we apply the “categorical approach” and
    15   examine “the generic elements of the offense of conviction
    16   to determine whether it is any broader than an offense
    17   defined as an aggravated felony under federal law.”
    18   Richards v. Ashcroft, 
    400 F.3d 125
    , 128 (2d Cir. 2005)
    19   (internal quotation marks omitted).    If the criminal statute
    20   punishes conduct that falls outside the conduct described in
    21   8 U.S.C. § 1101(a)(43), then the crime is not an aggravated
    22   felony.   
    Id. at 128.
    3
    1       Crimes “relating to commercial bribery, counterfeiting,
    2   [and] forgery” for which the term of imprisonment is at
    3   least one year are aggravated felonies.     8 U.S.C. §
    4   1101(a)(43)(R).     The term “relating to” has an expansive
    5   definition.     Morales v. Trans World Airlines, Inc., 
    504 U.S. 6
      374, 383 (1992).
    7        Possession of a forged document is categorically a
    8   crime “relating to” forgery.     New York Penal Law § 170.25
    9   provides: “[a] person is guilty of criminal possession of a
    10   forged instrument in the second degree when, with knowledge
    11   that it is forged and with intent to defraud, deceive or
    12   injure another, he utters or possesses any forged instrument
    13   of a kind specified in section 170.10.     Criminal possession
    14   of a forged instrument is a class D felony.”     N.Y. Penal L.
    15   § 170.25.     Convictions under similar possession statutes
    16   have been held to be categorically aggravated felonies under
    17   8 U.S.C. § 1101(a)(43)(R) as crimes “relating to” forgery.
    18   See 
    Richards, 400 F.3d at 129
    ; Kamagate v. Ashcroft, 385
    
    19 F.3d 144
    , 153-54 (2d Cir. 2004).     Because possession of a
    20   forged instrument under New York law is an aggravated
    21   felony, that conviction alone bars Flores from special rule
    22   cancellation of removal under NACARA and asylum.
    4
    1       An applicant is statutorily barred from withholding of
    2   removal if he was convicted of a particularly serious crime.
    3    8 U.S.C. § 1231(b)(3)(B)(ii).    When determining whether a
    4   crime was particularly serious for withholding of removal
    5   purposes, an IJ should “us[e] the guideposts set out in In
    6   re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982), modified,
    7   In re C-, 20 I. & N. Dec. 529 (BIA 1992).”    Nethagani v.
    8   Mukasy, 
    532 F.3d 150
    , 155 (2d Cir. 2008).    These guideposts
    9   include: “(1) the nature of the conviction; (2) the
    10   circumstances and underlying facts of the conviction; (3)
    11   the type of sentence imposed; and (4) whether the type and
    12   circumstances of the crime indicate that the alien will be a
    13   danger to the community.”   
    Id. (internal quotation
    marks
    14   omitted). “[C]rimes against persons are more likely to be
    15   particularly serious than are crimes against property.”       
    Id. 16 The
    focus should be on the nature of the crime, not the
    17   length of the sentence or likelihood of future misconduct.
    18   Matter of N-A-M, 24 I. & N. Dec. 336, 342 (BIA 2007).
    19       The agency reasonably found that Flores’s aggravated
    20   assault conviction was a particularly serious crime because
    21   aggravated assault is a crime against another person.
    22   Flores pled nolo contendre to aggravated assault in the
    23   third degree as it was charged in the re-indictment.    The
    5
    1   re-indictment states that he “knowingly and intentionally
    2   use[d] a deadly weapon, to-wit: a firearm, to threaten [an
    3   individual] with imminent bodily injury by use of the said
    4   deadly weapon,” CAR at 403, which demonstrates that the
    5   nature of the crime was inherently dangerous and reasonably
    6   suggests that Flores is a danger to the community.     See
    7   Matter of G-G-S, 26 I. & N. Dec. 339, 347 (BIA 2014).
    8       Flores’s challenge of the denial of CAT deferral fails
    9   because the IJ reasonably found that inconsistencies in
    10   Flores’s testimony went to the heart of his claim that he
    11   fears returning to El Salvador.     See Secaida-Rosales v. INS,
    12   
    331 F.3d 297
    , 309 (2d Cir. 2003).    Specifically, Flores
    13   claimed that he feared revenge from a “military man” who
    14   killed his sister.   But he could provide no details about
    15   the “military man,” nor could he recall whether his sister
    16   was killed in 1985 or 1995, when he had stated in his asylum
    17   application that she was killed in 1983.    Flores also
    18   provided conflicting testimony as to when he first entered
    19   the United States.
    20       Accordingly, the petition for review is DENIED.
    21                               FOR THE COURT:
    22                               Catherine O’Hagan Wolfe, Clerk
    23
    24
    6
    

Document Info

Docket Number: 14-53 NAC

Citation Numbers: 603 F. App'x 30

Judges: Cabranes, Sack, Lynch

Filed Date: 3/16/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024