21-6410

Rodriguez v. Garland

BIA

Mulligan, IJ

A040 074 654

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 9th day of September, two thousand 

twenty-four. 

PRESENT: 

WILLIAM J. NARDINI,

EUNICE C. LEE,

SARAH A. L. MERRIAM,

Circuit Judges. 

_____________________________________ 

VICTOR NICOLAS RODRIGUEZ, 

 Petitioner, 

v. 21-6410 

 NAC 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Alina Das, Esq.; Olivia Abrecht, Jessica 

Coffrin-St. Julien, Legal Interns, Immigrant
2 

Rights Clinic, Washington Square Legal 

Services, New York, NY. 

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant

Attorney General; Kiley Kane, Senior 

Litigation Counsel; Stefanie A. Svoren-Jay, 

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 Victor Nicolas Rodriguez, a native and citizen of the Dominican 

Republic, seeks review of a July 7, 2021, decision of the BIA affirming a December 

11, 2018, decision of an Immigration Judge (“IJ”) denying his motion to terminate 

removal proceedings and his applications for a waiver under former § 212(c) of 

the Immigration and Nationality Act (“INA”) and relief under the Convention 

Against Torture (“CAT”). In re Victor Nicolas Rodriguez, No. A040 074 654 (B.I.A. 

July 7, 2021), aff’g No. A040 074 654 (Immigr. Ct. N.Y.C. Dec. 11, 2018). We 

assume the parties’ familiarity with the underlying facts and procedural history. 

Under the circumstances, we have reviewed the IJ’s decision as modified 

and supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 
3 

520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 

Where, as here, the petitioner was ordered removed for an aggravated felony, our 

jurisdiction to review the final order of removal is limited to “constitutional claims 

or questions of law.” 8 U.S.C. § 1252(a)(2)(C), (D). Whether a conviction is an 

aggravated felony and whether a rule is impermissibly applied retroactively, as 

Rodriguez argues here, are questions of law that we review de novo. See Hylton 

v. Sessions, 897 F.3d 57, 60 (2d Cir. 2018); Domond v. U.S. INS, 244 F.3d 81, 84 (2d 

Cir. 2001). We review the BIA’s denial of a motion to remand for abuse of 

discretion. See Li Yong Cao v. U.S. Dep’t of Just., 421 F.3d 149, 157 (2d Cir. 2005). 

We review factual findings underlying the denial of CAT relief for substantial 

evidence and questions of law de novo. See Quintanilla-Mejia v. Garland, 3 F.4th 

569, 583 (2d Cir. 2021). 

A. Removability 

As an initial matter, the BIA did not affirm the IJ’s finding that Rodriguez 

was bound by his former counsel’s concession of removability and thus that 

finding is not before us. See Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 104, 122 (2d 

Cir. 2007) (“[W]e may consider only those issues that formed the basis for [the BIA] 

decision.”), abrogated on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 
4 

(2023); Xue Hong Yang, 426 F.3d at 522. 

 A non-citizen who has been convicted of an aggravated felony is removable. 

See 8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony includes a “crime of 

violence,” which the INA defines with reference to 18 U.S.C. § 16. 8 U.S.C. 

§ 1101(a)(43)(F). Section 16(a) defines a crime of violence as “an offense that has 

as an element the use, attempted use, or threatened use of physical force against 

the person or property of another.” 18 U.S.C. § 16(a). In Johnson v. United States, 

the Supreme Court interpreted a provision of the Armed Career Criminal Act 

(“ACCA”) that contains nearly identical language to § 16(a),* concluding that, in 

the context of defining a “‘violent felony,’ the phrase ‘physical force’ means violent

force—that is, force capable of causing physical pain or injury to another person.” 

559 U.S. 133, 140 (2010); see Stuckey v. United States, 878 F.3d 62, 68 n.9 (2d Cir. 2017) 

(“[T]he identical language of the elements clauses of 18 U.S.C. § 16(a) and 

§ 924(e)(2)(B)(i) means that cases interpreting the clause in one statute are highly 

persuasive in interpreting the other statute.”).

 “We employ a ‘categorical approach’ to determine whether a state criminal 

* The ACCA, 18 U.S.C. § 924(e)(2)(B)(i), defines “violent felony” as any felony that 

“has an element the use, attempted use, or threatened use of physical force against 

the person of another.” 
5 

conviction constitutes an aggravated felony.” Flores v. Holder, 779 F.3d 159, 165 

(2d Cir. 2015). Under this approach, “[a] state offense categorically matches with 

a generic federal definition of a corresponding aggravated felony ‘only if a 

conviction of the state offense necessarily involved facts equating to the generic 

federal offense.’” Harbin v. Sessions, 860 F.3d 58, 64 (2d Cir. 2017) (quoting 

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). “Accordingly, only the minimum 

criminal conduct necessary to sustain a conviction under a given statute is 

relevant, and the factual aspects of a defendant’s situation are immaterial.” Dos 

Santos v. Gonzales, 440 F.3d 81, 84 (2d Cir. 2006) (quotation marks omitted). 

If a statute of conviction is divisible by “list[ing] elements in the alternative, 

and . . . creat[ing] a separate crime associated with each alternative element,” 

Harbin, 860 F.3d at 64, we apply a “modified categorical approach,” looking to the 

record of conviction to determine only the subsection that formed the basis for the 

conviction, Mathis v. United States, 579 U.S. 500, 505–06 (2016). “The court can 

then do what the categorical approach demands: compare the elements of the 

crime of conviction . . . with the elements of the generic crime.” Descamps v. 

United States, 570 U.S. 254, 257 (2013). 

At the time of Rodriguez’s conviction, as now, the Massachusetts statute he 
6 

was convicted under provides: 

Whoever, being armed with a dangerous weapon, assaults another 

with intent to rob or murder shall be punished by imprisonment in 

the state prison for not more than twenty years. Whoever, being 

armed with a firearm, shotgun, rifle, machine gun or assault weapon 

assaults another with intent to rob or murder shall be punished by 

imprisonment in state prison for not less than five years and not more 

than 20 years. 

Mass. Gen. Laws ch. 265 § 18(b). The statute is divisible because it sets out two 

alternative elements of an offense—“intent to rob or intent to murder.” Id.; see 

Descamps, 570 U.S. at 257 (A “divisible statute . . . sets out one or more elements of 

the offense in the alternative—for example, stating that burglary involves entry 

into a building or an automobile.”). Massachusetts case law supports this 

conclusion, providing that “[t]he elements of armed assault with intent to murder 

are that the defendant committed an assault, that he was armed with a dangerous 

weapon, and that he had the specific intent of murdering the victim in assaulting 

him.” Commonwealth v. Buttimer, 128 N.E.3d 74, 90–91 (Mass. 2019) (quotation 

marks omitted); cf. Commonwealth v. Rivera, 833 N.E.2d 1113, 1122 n.15 (Mass. 2005)

(“The elements of armed assault with intent to rob are that the defendant, armed 

with a dangerous weapon, assaults a person with a specific or actual intent to rob 

the person assaulted.”). Rodriguez’s record of conviction shows that he was 
7 

convicted of three counts of armed assault with intent to murder under chapter

265 section 18(b). 

The First Circuit has held that a conviction for armed assault with intent to 

murder under Massachusetts General Laws chapter 265 section 18(b) is 

categorically a “violent felony” under the ACCA. See United States v. Edwards, 857 

F.3d 420, 424–27 (1st Cir. 2017). The First Circuit explained that “[a]ccording to 

Massachusetts’s highest court—the Supreme Judicial Court—armed assault with 

an intent to murder requires proof of assault (while armed with a dangerous 

weapon) and a specific intent to kill that equates with malice, with malice (in this 

context) meaning a lack of justification, excuse, or mitigation.” Id. at 423 (quoting 

Commonwealth v. Vick, 910 N.E.2d 339, 350 (Mass. 2009)). The First Circuit 

continued that “[t]he bottom line is . . . that the intent-to-murder element makes it 

implausible that a defendant could be convicted under this statute based on an 

offensive-touching approach.” Id. at 425. We agree with the First Circuit’s 

reasoning. 

Rodriguez argues that the element of “intent to . . . murder” does not 

transform his statute of conviction into a crime of violence when none of the other 

elements involve violent force. He correctly contends that the first element of 
8 

assault does not require violent force because, under Massachusetts law, simple 

assault requires only offensive touching, which does not satisfy the violent force 

requirement. See Edwards, 857 F.3d at 424 (noting that spitting on someone or 

tickling them can constitute assault in Massachusetts (citing Commonwealth v. 

Cohen, 771 N.E.2d 176, 178 (Mass. App. Ct. 2002) and Commonwealth v. Hartnett, 

892 N.E.2d 805, 814 (Mass. App. Ct. 2008)); see also Johnson, 559 U.S. at 139–43 

(distinguishing offensive touching generally punishable as a misdemeanor from 

the physical force necessary to qualify as a violent felony). Rodriguez also notes 

that the statute under which he was convicted requires “being armed” with a 

dangerous weapon, but not that the weapon be used. Mass. Gen. Laws Ch. 265 

§ 18(b); see also Vick, 910 N.E.2d at 353 (“[A]rmed assault with intent to murder 

does not require proof that the assault was committed by use of the weapon, 

whereas assault and battery by means of a dangerous weapon causing serious 

bodily injury does.”). 

 However, Rodriguez’s statute of conviction also requires evidence of an 

“intent to . . . murder,” Mass. Gen. Laws Ch. 265 § 18(b), which inherently requires 

evidence of the threat of violent force. See Edwards, 857 F.3d at 425 (“[T]he intentto-murder element makes it implausible that a defendant could be convicted 
9 

under this statute based on an offensive-touching approach.”); see also Singh v. 

Barr, 939 F.3d 457, 462 (2d Cir. 2019) (stating that “deadly weapon[s] or dangerous 

instrument[s] . . . when used with intent to cause physical injury, inherently carry 

the risk of causing serious physical injury”). Accordingly, we hold that 

Rodriguez’s conviction for armed assault with intent to murder under 

Massachusetts state law constitutes an aggravated felony crime of violence. 

B. Waiver Under Former INA § 212(c) and Motion to Remand 

Rodriguez is not eligible for a waiver of deportability under former INA 

§ 212(c) because he was convicted of an aggravated felony in March 1997 and 

placed in removal proceedings after April 24, 1996. See Matter of Abdelghany, 26 

I. & N. Dec. 254, 272 (B.I.A. 2014) (“If an otherwise qualifying lawful permanent 

resident is removable or deportable by virtue of a plea or conviction entered 

between April 24, 1996, and April 1, 1997, he or she is eligible to apply for section 

212(c) relief in removal or deportation proceedings unless . . . [t]he applicant’s 

proceedings commenced on or after April 24, 1996, and the conviction renders the 

applicant deportable [for an aggravated felony].”); see also Centurion v. Holder, 755 

F.3d 115, 121–22 (2d Cir. 2014) (“It is well-settled in this Circuit that the application 

of [the statutory amendments that went into effect on April 24, 1996] to an alien 
10 

whose offense conduct preceded . . . [that] date is not impermissibly retroactive if 

the effective date preceded the conviction.”). 

Rodriguez argues that the aggravated felony bar to § 212(c) relief should not 

apply to cases, like his, where a lawful permanent resident rejected a plea offer 

that would have preserved eligibility for § 212(c) before a later guilty plea 

rendered him not eligible. He advanced this argument and submitted evidence 

of a rejected 1995 plea offer for the first time in his motion to remand filed while 

his appeal was pending with the BIA. 

“A motion to remand that relies on newly available evidence is held to the 

substantive requirements of a motion to reopen,” and may be denied if the movant 

does not provide “material, previously unavailable evidence.” Li Yong Cao, 421 

F.3d at 156. The BIA did not abuse its discretion in denying Rodriguez’s motion 

to remand because his evidence of a 1995 plea offer was neither material, nor 

previously unavailable. See id. 

The evidence of the 1995 plea offer was not material because, regardless of 

that offer, he nonetheless pled guilty and was convicted of an aggravated felony 

after the April 24, 1996, amendments that rendered him ineligible for § 212(c) relief. 

See Centurion, 755 F.3d at 123 (“[T]he critical inquiry is whether the new law 
11 

attaches new legal consequences to an alien’s conviction.”); see Domond, 244 F.3d 

at 84 (“It would border on the absurd to argue that these aliens might have decided 

not to commit drug crimes, or might have resisted conviction more vigorously, 

had they known that if they were not only imprisoned but also, when their prison 

term ended, ordered deported, they could not ask for a discretionary waiver of 

deportation.” (quotation marks omitted)). Second, the 1995 plea offer was for 15 

to 20 years in prison, which if he served more than 5 years of that sentence would 

have rendered him ineligible for § 212(c) under the law in place in 1995. See 

Matter of Abdelghany, 26 I. & N. Dec. at 272 (providing that an applicant is not 

eligible for § 212(c) relief if he serves “an aggregate term of imprisonment of at 

least 5 years as a result of one or more aggravated felony convictions entered 

between November 29, 1990, and April 24, 1996.”). 

Alternatively, the BIA reasonably found evidence of the 1995 plea offer to 

be previously available. Rodriguez argued that the evidence should be treated as 

previously unavailable because his former counsel was ineffective for failing to 

obtain it but, as the BIA found, counsel was not ineffective for failing to obtain 

immaterial evidence and Rodriguez had not satisfied the procedural requirements 

for raising an ineffective assistance of counsel claim by filing a disciplinary 
12 

complaint against counsel. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (“To 

prevail on a claim of ineffective assistance, [a movant] must show that . . . 

competent counsel would have acted otherwise . . . .” (quotation marks and 

citations omitted)); Jian Yun Zheng v. U.S. Dep’t of Just., 409 F.3d 43, 47 (2d Cir. 2005) 

(“[A]n alien who has failed to comply substantially with the [procedural] 

requirements in her motion to reopen before the BIA forfeits her ineffective 

assistance of counsel claim in this Court.”). 

Accordingly, because Rodriguez failed to show that the evidence of a 1995 

plea offer was material and previously unavailable, the BIA did not abuse its 

discretion in denying the motion to remand. See Li Yong Cao, 421 F.3d at 156. 

C. CAT Relief 

“Analysis of a CAT claim boils down to a two-step inquiry.” Garcia-Aranda 

v. Garland, 53 F.4th 752, 758 (2d Cir. 2022). The applicant must first show a 

likelihood that he will be tortured, see id., which means “greater than a fifty percent 

chance . . . that he will be tortured,” Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 

n.20 (2d Cir. 2003). The applicant must next show that the torture will be by or 

with the acquiescence of a government official. See Garcia-Aranda, 53 F.4th at 759; 
13 

Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). 

In assessing whether Rodriguez established a likelihood of torture, the IJ 

reasonably found that his fear of torture in the Dominican Republic was 

speculative because he had not seen the individuals that he fears in more than two 

decades and he did not know their current whereabouts. See Jian Xing Huang v. 

U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in the 

record . . . , [an applicant’s] fear is speculative at best.”); Mu-Xing Wang, 320 F.3d 

at 144 n.20. Contrary to his contention, the agency did not ignore his expert’s 

report. “We presume that an IJ has taken into account all of the evidence before 

him, unless the record compellingly suggests otherwise.” Xiao Ji Chen v. U.S. 

Dep’t of Just., 471 F.3d 315, 338 (2d Cir. 2006). The expert’s conclusion that 

Rodriguez would be at great risk for violent retribution in the Dominican Republic 

was based entirely on Rodriguez’s representation that the individuals he fears are 

very dangerous and vengeful and a statement from a Dominican official that 

contract killings in the country are often a result of conflicts over drugs or money 

that began in the United States. But the expert did not acknowledge or address 

the time that had passed since the conflict or the fact that Rodriguez lacked 

evidence of the whereabouts of the people he feared. Therefore, the report was 
14 

not material, and the record does not compel the conclusion that this evidence was 

ignored. See id. 

Because the agency’s likelihood finding was dispositive of CAT relief, we 

do not reach the agency’s alternative finding that he failed to establish the requisite 

government acquiescence. See Garcia-Aranda, 53 F.4th at 758–59; INS v. 

Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not 

required to make findings on issues the decision of which is unnecessary to the 

results they reach.”). 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court