         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




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