Aviles-Tavera v. Garland

Summary

The Fifth Circuit denied a petition for review of a BIA decision holding that a noncitizen was statutorily ineligible for withholding of removal due to a particularly serious crime and not entitled to protection under the Convention Against Torture (CAT). The court held that issue preclusion did not bar the immigration judge from reexamining whether the petitioner's felony assault conviction was a "particularly serious crime" because the intervening decision in *United States v. Gracia-Cantu* (5th Cir. 2019) significantly changed the legal standard for analyzing whether the crime was a crime of violence under 18 U.S.C. § 16(a). The court also found that it had jurisdiction under *Kucana v. Holder* to review the particularly serious crime determination, and that substantial evidence supported the denial of CAT relief due to insufficient evidence of likely torture with government acquiescence.

Holdings

1. Because Gracia-Cantu created a significant and demonstratable change to the legal standard for the 'nature of the conviction' factor, issue preclusion does not apply, and the 2019 IJ could reexamine the determination.
2. Aviles failed to show that any alleged errors in the BIA's determination compel reversal. The BIA's determination that the conviction is a particularly serious crime is affirmed.
3. The BIA did not err; Aviles failed to show that the evidence compels a finding that it is more likely than not he would be tortured with state action if returned to Mexico.

Questions Presented

1. Whether the 2019 IJ was precluded by issue preclusion from reconsidering whether Aviles's felony assault conviction was a 'particularly serious crime' under the withholding of removal statute.
2. Whether the BIA erred in determining on the merits that Aviles's felony assault conviction was a particularly serious crime, making him statutorily ineligible for withholding of removal.
3. Whether the BIA erred in finding that Aviles did not meet his burden for protection under the Convention Against Torture.

Disposition

other