Argued: February 19, 2019
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") finding Banegas Gomez
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). We
conclude that Banegas Gomez's conviction for first-degree
assault under Connecticut law is an aggravated felony and
that the invalidation of 18 U.S.C. § 16(b) in
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), does not
necessitate a remand to the BIA for consideration of this
issue. This conclusion restricts our review to only
constitutional errors or errors of law, of which we see none
in the agency's decision. Lastly, we reject Banegas
Gomez's argument that Pereira v. Sessions, 138
S.Ct. 2105 (2018), is properly read to mean that the
Immigration Court that ordered his removal lacked
jurisdiction because the Notice to Appear ("NTA")
that was served on him failed to specify the time or date of
hearing, even though a Notice of Hearing containing the
requisite information subsequently issued. Accordingly, the
petition for review is DENIED.
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, 138 S.Ct. 1204 (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, 138 S.Ct. 2105 (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 Background[1]
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 ...