    17-499
    Ruano v. Sessions
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A073 564 952


                             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.

          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
    18th day of January, two thousand eighteen.

    PRESENT:
              DENNIS JACOBS,
              REENA RAGGI,
              PETER W. HALL,
                   Circuit Judges.
    _____________________________________

    EDDY RUANO,
              Petitioner,

                        v.                                       17-499

    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
              Respondent.
    _____________________________________

    FOR PETITIONER:                   Elyssa Williams, Formica Williams,
                                      P.C., New Haven, CT.

    FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
                                      Attorney General; John S. Hogan,
                                      Assistant Director; Lindsay Corliss,
                                      Trial Attorney, Office of Immigration
                                      Litigation, United States Department
                                      of Justice, Washington, DC.
     UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.

     Petitioner Eddy Ruano, a native and citizen of Guatemala,
seeks review of a February 3, 2017, decision of the BIA affirming
an April 12, 2016, decision of an Immigration Judge (“IJ”) ordering
Ruano’s removal and denying his application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Eddy Ruano, No. A 073 564 952 (B.I.A. Feb.
3, 2017), aff’g No. A 073 564 952 (Immig. Ct. Hartford Apr. 12,
2016).   We assume the parties’ familiarity with the underlying
facts and procedural history in this case.

     Ruano entered an Alford plea for the offense of risk of injury
to a minor in violation of Conn. Gen. Stat. § 53-21(a)(1), for
which crime he was sentenced to eight years’ incarceration. Ruano
was charged as removable on the grounds that a conviction under
that statute constitutes (1) a crime of child abuse, neglect, or
abandonment under 8 U.S.C. § 1227(a)(2)(E)(i); and (2) an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).        See 8
U.S.C. § 1101(a)(43)(A). Each basis is independently sufficient
for removal.

     Here, the IJ conducted a categorical analysis to conclude
that Ruano was removable for a crime of child abuse, but expressly
found that the Government had failed to establish that Ruano’s
conviction constituted an aggravated felony.      In affirming the
IJ’s conclusion that Ruano was removable, the BIA noted Ruano’s
failure to challenge the crime-of-child abuse determination. [CAR
at 3.] To the extent he attempts to do so for the first time on
appeal, we decline to entertain that challenge. See Lin Zhong v.
U.S. Dep't of Justice, 480 F.3d 104, 122 (2d Cir. 2007). Were we
to do so, however, we would adopt the IJ’s well-reasoned conclusion
that Ruano is removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i)
for a conviction that constitutes a crime of child abuse, neglect,
or abandonment, but not separately removable as an aggravated
felon. See Florez v. Holder, 779 F.3d 207, 211-212 (2d Cir. 2015).

     It is not clear whether the BIA deemed Ruano separately
removable as an aggravated felon or simply ineligible for
withholding of removal on that ground pursuant to 8 U.S.C. §
1231(b) or for relief under the CAT. The point need not detain
us because the government does not urge the first determination,
which we, therefore, discard. As to withholding of removal, the
IJ and BIA found Ruano ineligible for such relief because his
offense constitutes a “particularly serious crime.” See 8 U.S.C.
§ 1231(b)(3)(B)(ii). It is argued that the IJ’s analysis of the

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aggravated felony charge with respect to the particularly serious
crime bar erroneously placed the burden on Ruano to prove that his
actual conduct does not match the federal definition of an
aggravated felony. See Martinez v. Mukasey, 551 F.3d 113, 121-22
(2d Cir. 2008).    However, the IJ also found that “[a]ssuming
arguendo that [Ruano’s conviction] is not an aggravated felony ...
the offense remains a particularly serious crime” based on the
nature of the conviction, the type of sentence imposed, and the
circumstances of the conviction.       J. App’x at 51; see also
Nethagani v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008). The record
supports this conclusion.        Thus, any error respecting an
aggravated felony assessment is harmless as “it is clear that the
agency would adhere to its prior decision in the absence of error.”
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.
2006).

     The IJ and BIA found that Ruano had failed to sustain his
burden to show that he would suffer persecution or torture if
returned to Guatemala. The agency’s determination is supported
by substantial evidence, as the IJ conducted a thorough and
reasoned analysis of the country conditions in Guatemala. Cf. id.
at 341-42. Thus, even in the absence of a particularly serious
crime, Ruano does not qualify for withholding of removal or relief
under the CAT. See 8 U.S.C. § 1231(b); 8 C.F.R. §§ 1208.16(c),
1208.18(a)(1)-(8).

     For the foregoing reasons, the petition for review is DENIED.
In addition, the stay of removal granted by this court’s December
1, 2017 order is hereby lifted.

                         FOR THE COURT:
                         Catherine O’Hagan Wolfe, Clerk of Court




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