Remy v. Gonzales ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-60442
Summary Calendar August 20, 2007
Charles R. Fulbruge III
Clerk
JEAN VOLGLY CARSON REMY
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A43 849 270
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jean Volgly Carson Remy, a native and citizen of Haiti, petitions for
review of the orders of the Board of Immigration Appeals (BIA) denying his
motions to reopen or reconsider his removal proceedings.1 Remy was deemed
removable based on his 2001 “aggravated felony” assault conviction in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
Remy has filed petitions for review from both the BIA’s May 5, 2006 decision denying
his motion to reopen his removal proceedings and the BIA’s July 25, 2006 decision denying his
motion to reconsider the May 5, 2006 decision.
No. 06-60442
Massachusetts, under MASS. GEN. LAWS ch. 265, § 13A. See 8 U.S.C.
§ 1227(a)(2)(A)(iii). In his motions to reopen, Remy contended that he is entitled
to another review of whether his prior conviction qualifies as an “aggravated
felony” under Leocal v. Ashcroft, 543 U.S. 1 (2004), and Shepard v. United
States, 544 U.S. 13 (2005), which allegedly constituted intervening changes in
the law. Remy also argued that changed country conditions in Haiti–-the
ousting of Jean-Bertrand Aristide’s government in 2004–-warranted reopening
of his proceedings.
We review the denial of a motion to reopen under a “highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). Motions to reopen removal proceedings are “disfavored,” and “the moving
party bears a heavy burden.” Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549
(5th Cir. 2006) (internal quotation marks and citation omitted). Nonetheless, “a
denial based on an error of law constitutes an abuse of discretion, and [we]
review the BIA’s resolution of questions of law de novo.” Larin-Ulloa v.
Gonzales, 462 F.3d 456, 461 (5th Cir. 2006) (citations omitted).
The BIA did not abuse its discretion in denying Remy’s motions to
reopen.2 Remy’s primary contention is that the “assault and beat” language from
the charging instrument to which he pleaded guilty in Massachusetts was
insufficient by itself to show that the conviction was for a “crime of violence” so
as to qualify as an “aggravated felony.” The courts of appeals that have
addressed such an argument differ as to whether it is correct. Cf. United States
v. Jones, 235 F.3d 342, 347 (7th Cir. 2000), and United States v. Estevez, 419
F.3d 77, 82 (1st Cir. 2005). Moreover, contrary to Remy’s contention, Leocal and
Shepard have not changed this analysis, but instead have reinforced the
2
The Attorney General’s contention that Remy’s current argument is res judicata is
unavailing because Remy’s prior petitions for review were dismissed for lack of jurisdiction,
rather than “on the merits.” See Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000);
Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 562 (5th Cir. 1983).
2
No. 06-60442
“categorical approach” established in Taylor v. United States, 495 U.S. 575
(1990). Remy has not established that the BIA abused its discretion in denying
his motion to reopen on the ground that intervening changes in the law have
altered the conclusion that his Massachusetts assault conviction qualified as an
aggravated felony. See Zhao, 404 F.3d at 303. Similarly, even if we assume
arguendo that we have jurisdiction to review the BIA’s factual determination
regarding changed country conditions, Remy has not made a prima facie case
that the change in government in Haiti subjects him to a well-founded fear of
future prosecution. See INS v. Abudu, 485 U.S. 94, 104 (1988).
Remy has abandoned any challenge to the order denying his motion to
reconsider. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Remy’s petition for review is DENIED.
3