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 
2

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 
5

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