11-4913-ag
Guevara v. Holder
                                                                                               BIA
                                                                                            Page, IJ
                                                                                       A094 389 074

                                  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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd
day of August, two thousand thirteen.

PRESENT:
            PIERRE N. LEVAL,
            JOSÉ A. CABRANES,
            CHESTER J. STRAUB,
                          Circuit Judges.
_____________________________________

FRANCISCO A. GUEVARA, AKA FRANCISCO ALEXANDER
GUEVARA GARCIA,

                    Petitioner,

                             v.                                     No. 11-4913-ag

ERIC H. HOLDER, JR., United States Attorney General,

                    Respondent.

_____________________________________

FOR PETITIONER:                                      JUDY RESNICK, Law Office of Judy Resnick,
                                                     Far Rockaway, NY.

FOR RESPONDENT:                                      ARTHUR L. RABIN (Stuart F. Delery, Shelley R.
                                                     Goad, Elizabeth R. Chapman, on the brief),
                                                     Office of Immigration Litigation, Civil
                                                         Division, United States Department of Justice,
                                                         Washington, DC.

        UPON DUE CONSIDERATION of this petition for review of an October 25, 2011
decision of the Board of Immigration Appeals (“BIA”), IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.

        Francisco A. Guevara, a native and citizen of El Salvador, seeks review of an October 25,
2011 decision of the BIA, which denied his request for a continuance and cancellation of removal
and affirmed a July 8, 2011 decision of an Immigration Judge (“IJ”). In re Francisco A. Guevara, No.
A094 389 074 (B.I.A. Oct. 25, 2011), aff’g No. A094 389 074 (Immig. Ct. N.Y. City, July 8, 2011).
We assume the parties’ familiarity with the underlying facts and procedural history in this case.

                                             DISCUSSION

        In the circumstances of this case, we review the IJ’s decision as supplemented by the BIA.
See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

                                                    A.

         Guevara first argues that the IJ erred by denying his request for a continuance to secure
counsel and to pursue a collateral attack on his assault conviction based on his criminal attorney’s
failure to inform him of the criminal consequences of his plea. Guevara’s arguments are unavailing.

          IJs have the authority to grant continuances “for good cause shown,” 8 C.F.R. § 1003.29,
and “are accorded wide latitude in calendar management,” Morgan v. Gonzales, 445 F.3d 549, 551 (2d
Cir. 2006). Accordingly, we review the BIA’s affirmance of the IJ’s decision to deny the continuance
for “abuse of discretion.” Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d 72, 80-81 (2d Cir. 2008); see
also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (noting that a court abuses its discretion if it “base[s]
its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or
render[s] a decision that cannot be located within the range of permissible decisions.” (internal
citations and quotation marks omitted)).

        Here, the IJ previously had granted Guevara seven continuances, the sum of which extended
his proceedings for more than three years. Two of those continuances were granted so that Guevara
could secure counsel, and the others were granted to provide him with time to prepare any
applications for relief from removal. Moreover, and contrary to Guevara’s assertions, he was not
abruptly left without counsel (he stated during proceedings that he dismissed his prior counsel and
then he waived his right to counsel), and he did not specifically request an eighth continuance to

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seek counsel. In fact, the ground upon which Guevara sought his eighth continuance was to pursue
a motion to vacate his criminal conviction. Nothing in the record before us indicates that Guevara
actually ever filed such a motion to vacate his criminal conviction in state court, however.

        We have stated that “the fact that [a party] may have a plausible challenge to his conviction[ ]
does not affect [its] finality for immigration purposes.” Hamilton v. Holder, 480 F. App’x 35, 37 (2d
Cir. 2012) (non-precedential summary order). Here, where Guevara has provided no indication that
he ever so much as filed a motion challenging his criminal conviction in state court, in spite of
having received multiple continuances from the IJ during which he could have done so, the decision
to deny him an eighth continuance during which he might (or might not) finally do so was not in
error. See 8 U.S.C. § 1101(a)(48)(A); see also Jimenez-Guzman v. Holder, 642 F.3d 1294, 1297 (10th Cir.
2011); Paredes v. Att’y Gen. of the U.S., 528 F.3d 196, 198-99 (3d Cir. 2008).

         In light of the seven continuances already granted, Guevara’s affirmed intent to proceed pro
se, and the lack of certainty as to when Guevara’s motion to vacate, if filed, would be adjudicated,
the IJ did not err, much less abuse his discretion, in denying an eighth continuance. See Sanusi v.
Gonzales, 445 F.3d 193, 200 (2d Cir. 2006) (“The IJ granted two continuances, and nothing in the
record suggests that his decision to deny a third request after months of delay was an abuse of
discretion, notwithstanding Sanusi’s contention that further evidence would be forthcoming.”).1

                                                            B.

         Guevara also argues that he is eligible for cancellation of removal because his conviction for
assault in the third degree, pursuant to New York Penal Law (“NYPL”) § 120.00, does not
constitute a crime involving moral turpitude (“CIMT”).2

        To the extent Guevara challenges the validity of his conviction, we lack jurisdiction to
consider that argument because it is a collateral attack on his conviction. See Lanferman v. BIA, 576
F.3d 84, 88 (2d Cir. 2009). We may review, however, the BIA’s determination that Guevara’s
conviction constitutes a CIMT. The BIA’s interpretation of the term “moral turpitude” is entitled to
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), but


1 Guevara’s argument that the IJ’s denial violated his due process rights to counsel and a full and fair hearing also lacks
merit because Guevara specifically waived his right to counsel, the IJ gave him ample time to prepare his case, and
nothing supports Guevara’s contention that a continuance must be granted to await adjudication of a pending motion to
vacate. See Hidalgo-Disla v. INS, 52 F.3d 444, 447 (2d Cir. 1995) (finding no due process violation when the IJ denied a
third adjournment for the alien to seek counsel when the IJ twice advised him of his right to counsel).

2  Contrary to the government’s assertion, Guevara’s cancellation of removal argument was sufficiently exhausted before
the agency because he challenged the cancellation of removal denial generally before the BIA, which affirmed the IJ’s
finding that he was ineligible for such relief due to his conviction. See Gill v. INS, 420 F.3d 82, 85-86 (2d Cir. 2005).
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“we review de novo the BIA’s finding that a petitioner’s crime of conviction contains those elements
which have been properly found to constitute a CIMT.” Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005).

        Whether an assault constitutes a CIMT requires “an assessment of both the state of mind
and the level of harm required to complete the offense.” In re Solon, 24 I. & N. Dec. 239, 242 (BIA
2007). When the statute at issue contains a specific-intent element, the BIA has required that the
resulting injury constitute material harm in order for the conviction to constitute a CIMT. See id.;
Matter of Sanudo, 23 I. & N. Dec. 968, 972-73 (BIA 2006). When the statute at issue requires only
general intent or recklessness (such as simple assault statutes), however, the BIA has required an
aggravating element to evidence the inherent vileness of the prohibited conduct. See Matter of
Ahortalejo-Guzman, 25 I. & N. Dec. 465 (BIA 2011) (explaining that simple assault does not
constitute a CIMT unless it “necessarily involves some aggravating factor that indicates the
perpetrator’s moral depravity, such as the use of a deadly weapon”); In re Fualaau, 21 I. & N. Dec.
475, 477-78 (BIA 1996).

       Guevara asserts that NYPL § 120.00 punishes injury caused both intentionally and
unintentionally, and that, as a result, the agency should have reviewed the factual circumstances of
his conviction to determine whether specific intent existed.

        In determining whether a crime constitutes a CIMT, “we apply either a ‘categorical’ or a
‘modified categorical’ approach.” Mendez v. Mukasey, 547 F.3d 345, 348 (2d Cir. 2008). “Under the
categorical approach, we look only to the minimum criminal conduct necessary to satisfy the
essential elements of the crime, not the particular circumstances of the defendant’s conduct.” Id.
But when the relevant criminal statute punishes “diverse classes of criminal acts, some of which
would categorically [constitute a CIMT,] and others of which would not,” we apply a “modified
categorical approach,” which permits a limited review of the “record of conviction for the . . .
purpose of determining whether the alien’s conviction was under the branch of the statute that”
constitutes a CIMT. Hoodho v. Holder, 558 F.3d 184, 189 (2d Cir. 2009) (internal quotation marks
and brackets omitted).

       In this case, NYPL § 120.00 provides,

       A person is guilty of assault in the third degree when: (1) [w]ith intent to cause
       physical injury to another person, he causes such injury to such person or to a third
       person; or (2) [h]e recklessly causes physical injury to another person; or (3) [w]ith
       criminal negligence, he causes physical injury to another person by means of a deadly
       weapon or a dangerous instrument.

NYPL § 120.00. “Physical injury” is defined as the “impairment of physical condition or substantial
pain,” id. § 10.00(9), and has been construed not to include “petty slaps, shoves, kicks and the like
                                                  4
delivered out of hostility, meanness and similar motives[ ],” People v. Henderson, 92 N.Y.2d 677, 680
(1999) (internal quotation marks omitted). New York courts have also required proof of actual
physical impairment or substantial pain to support a finding of “physical injury.” See People v. Estes,
517 N.Y.S.2d 230, 231 (N.Y. App. Div. 1987); People v. Strong, 689 N.Y.S.2d 341, 343 (N.Y. App.
Term 1999).

        Although NYPL § 120.00 is likely a divisible statute, inasmuch as subsections (2) and (3) do
not require a specific intent, we need not reach that question because Guevara was convicted under
subsection (1). See Moncrieffe v. Holder, 133 S. Ct. 1678, 1686-87 (2013). Subsection (1) involves an
intent to injure, and an action that causes physical impairment or substantial pain and goes beyond
“petty slaps, shoves, [and] kicks.” Henderson, 92 N.Y.2d at 680; see also NYPL § 10.00(9). In light of
these two elements, the BIA has determined that “a conviction under section 120.00(1) of the New
York Penal Law is a conviction for a crime involving moral turpitude.” Solon, 24 I. & N. Dec. at
245.

         While it can be difficult to define the boundaries of the amorphous concepts of “moral
turpitude,” and to answer whether the intent of the perpetrator was “evil,” we agree with the BIA’s
conclusion that a conviction under NYPL § 120.00(1) is a CIMT. Accordingly, the agency did not
err in finding that Guevara is statutorily ineligible for cancellation of removal. See 8 U.S.C.
§ 1229b(b)(1)(C); Solon, 24 I. & N. Dec. at 245-46.

                                           CONCLUSION

        We have considered all of Guevara’s arguments on appeal and find them to be without
merit. For the reasons stated, Guevara’s petition for review is DENIED. As we have completed
our review, any stay of removal that the Court previously granted in this petition is VACATED, and
any pending motion for a stay of removal in this petition is DISMISSED as moot.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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