Filed: Oct. 13, 2017
Latest Update: Mar. 03, 2020
Summary: 16-2516 Hilario-Hilario v. Sessions BIA Bukszpan, IJ A055 015 119 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
Summary: 16-2516 Hilario-Hilario v. Sessions BIA Bukszpan, IJ A055 015 119 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 ..
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16-2516
Hilario-Hilario v. Sessions
BIA
Bukszpan, IJ
A055 015 119
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 13th day of October, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 BILMA ALTAGRACIA HILARIO-HILARIO,
14 Petitioner,
15
16 v. 16-2516
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Papu Sandhu,
27 Assistant Director; Victor M.
28 Lawrence, Senior Litigation
29 Counsel, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Bilma Altagracia Hilario-Hilario, a native and
6 citizen of the Dominican Republic, seeks review of a June 24,
7 2016, decision of the BIA, affirming a July 30, 2015, decision
8 of an Immigration Judge (“IJ”) denying Hilario-Hilario’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Bilma
11 Altagracia Hilario-Hilario, No. A055 015 119 (B.I.A. June 24,
12 2016), aff’g No. A055 015 119 (Immig. Ct. N.Y. City July 30,
13 2015). We assume the parties’ familiarity with the underlying
14 facts and procedural history in this case.
15 Hilario-Hilario was ordered removed based on a conviction
16 for an aggravated felony and controlled substance offense,
17 thereby limiting our jurisdiction to constitutional claims and
18 questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D). We
19 review such claims de novo. Pierre v. Holder, 588 F.3d 767,
20 772 (2d Cir. 2009). Hilario-Hilario’s aggravated felony
21 conviction bars asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii),
2
1 (b)(2)(B)(i), and she challenges only the denial of withholding
2 of removal and CAT relief. We find no error in the agency’s
3 denial of those forms of relief.
4 Hilario-Hilario’s conviction bars withholding of removal
5 if it is particularly serious. 8 U.S.C. § 1231(b)(3)(B)(ii).
6 Although her conviction is not per se particularly serious
7 because she was sentenced to only three years’ probation, the
8 agency is authorized to determine whether the conviction is
9 otherwise particularly serious. Id. § 1231(b)(3)(B);
10 Nethagani v. Mukasey,
532 F.3d 150, 155 (2d Cir. 2008). We
11 retain jurisdiction to determine whether the agency applied the
12 correct standard.
Nethagani, 532 F.3d at 154-55.
13 Hilario-Hilario’s aggravated felony conviction involved
14 drug trafficking, and thus is presumptively particularly
15 serious for the purposes of withholding of removal. To avoid
16 the bar, Hilario-Hilario had to show “extraordinary and
17 compelling circumstances” justifying a “rare” deviation from
18 the presumption. Matter of Y-L-, A-G-, and R-S-R-, 23 I. & N.
19 Dec. 270, 276-77 (B.I.A. 2002), overruled on other grounds by
20 Khouzam v. Ashcroft,
361 F.3d 161, 171 (2d Cir. 2004). As the
21 agency concluded, Hilario-Hilario offered no evidence “beyond
3
1 her own self-serving testimony,” to rebut the presumption. She
2 now argues that Matter of Y-L- suggests that “the Attorney
3 General was not referring to misdemeanor convictions” like hers
4 when it held that drug trafficking offenses are presumptively
5 particularly serious. However, Matter of Y-L- makes no such
6 distinction between felonies and misdemeanors. Rather, the
7 decision makes clear that a trafficking offense is particularly
8 serious unless the applicant can show, at a minimum, that the
9 conviction involved “(1) a very small quantity of controlled
10 substance; (2) a very modest amount of money paid for the drugs
11 in the offending transaction; (3) merely peripheral involvement
12 by the alien in the criminal activity, transaction, or
13 conspiracy; (4) the absence of any violence or threat of
14 violence, implicit or otherwise, associated with the offense;
15 (5) the absence of any organized crime or terrorist organization
16 involvement, direct or indirect, in relation to the offending
17 activity; and (6) the absence of any adverse or harmful effect
18 of the activity or transaction on juveniles.” Id. at 276-77.
19 Hilario-Hilario has not identified any error in the
20 particularly serious crime determination because she never
4
1 presented any argument or evidence to the agency to rebut the
2 presumption.
3 Hilario-Hilario remained eligible for deferral of removal
4 under the CAT despite her conviction. 8 C.F.R. § 1208.17(a).
5 But, as noted above, her conviction limits our jurisdiction to
6 “constitutional claims or questions of law.” 8 U.S.C.
7 § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 86
8 (2d Cir. 2015).
9 Hilario-Hilario’s sole challenge to the denial of CAT
10 deferral is that the agency overlooked evidence that the
11 Dominican government ignores the actions of drug dealers and
12 smugglers who would target her because they will perceive her
13 to have either been “involved in the drug trade[] or cooperated
14 against it” due to her light sentence. While it is true that
15 the agency may commit an error of law if “important” facts have
16 been “totally overlooked and others have been seriously
17 mischaracterized,” Mendez v. Holder,
566 F.3d 316, 323 (2d Cir.
18 2009), a review of the record reveals no such errors. We
19 “presume [the agency] has taken into account all of the evidence
20 before [it], unless the record compellingly suggests
21 otherwise.” Ahmed v. Lynch,
804 F.3d 237, 240 (2d Cir. 2015)
5
1 (quoting Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315,
2 336 n.17 (2d Cir. 2006)). The record does not suggest that the
3 agency overlooked evidence: the IJ considered
4 Hilario-Hilario’s testimony and evidence that there is “general
5 violence and crime” in the Dominican Republic. In essence,
6 what Hilario-Hilario challenges is the agency’s factual
7 determination that this evidence did not show that she would
8 more likely than not be tortured. This is a finding of fact
9 beyond our jurisdiction to review. See Ortiz-Franco,
782 F.3d
10 at 91; Hui Lin Huang v. Holder,
677 F.3d 130, 133-34 (2d Cir.
11 2012).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
6
