Establishing the Particularly Serious Crime Bar in Withholding of Removal and CAT Deferral: Jimenez v. Bondi

Introduction

The case of Jimenez v. Bondi was decided by the United States Court of Appeals for the Second Circuit on April 10, 2025. Petitioner Dayvid De Oliveira Jimenez, a Brazilian national convicted in Connecticut of second-degree strangulation (an aggravated felony), sought review of four Board of Immigration Appeals (BIA) decisions: denial of a continuance, denial of asylum, withholding of removal and Convention Against Torture (CAT) relief, denial of reconsideration, and denial of reopening/administrative closure. The government, represented by the Department of Justice’s Office of Immigration Litigation, opposed all four petitions. Jimenez proceeded pro se. The key issues include (1) whether Jimenez’s conviction constitutes a “particularly serious crime” barring withholding of removal; (2) whether he established entitlement to deferral of removal under the CAT; (3) whether the immigration judge (IJ) abused discretion in denying a continuance; and (4) whether the BIA properly denied remand, reconsideration, reopening, and administrative closure.

Summary of the Judgment

The Second Circuit denied Jimenez’s consolidated petitions for review (Cases 23-6005, 23-6143, 23-6895) and dismissed the final petition (Case 24-665). The court held:

Jimenez’s conviction for second-degree strangulation under Conn. Gen. Stat. § 53a-64bb is a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii), rendering him ineligible for withholding of removal.
He failed to demonstrate that he is more likely than not to be tortured by or with the acquiescence of Brazilian government officials, therefore his CAT deferral claim fails under 8 C.F.R. § 1208.17.
The IJ’s denial of a continuance was not prejudicial, and any error was harmless given the BIA’s evaluation of the proffered evidence.
The BIA did not abuse its discretion in denying remand (new evidence), reconsideration, reopening, or administrative closure, and Jimenez forfeited any ineffective-assistance-of-counsel claim by failing to comply with Matter of Lozada.
The petition filed in Case 24-665 was untimely and lacked an arguable basis under 8 U.S.C. § 1229a(c)(7), and the request to proceed in forma pauperis was denied under 28 U.S.C. § 1915(e)(2).

Analysis

Precedents Cited

Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520 (2d Cir. 2005), and Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): procedural rules on reviewing IJ decisions as modified by the BIA.
Nasrallah v. Barr, 590 U.S. 573 (2020): scope of judicial review over withholding and CAT claims in aggravated felony cases.
Ojo v. Garland, 25 F.4th 152 (2d Cir. 2022), and In re N-A-M-, 24 I. & N. Dec. 336 (B.I.A. 2007): the two-step “particularly serious crime” analysis and the factors (nature of the crime, sentence imposed, dangerousness).
Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021): standard of review for CAT factual findings (substantial evidence) and the burden of proof under 8 C.F.R. § 1208.16(c).
Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1998): procedural prerequisites for ineffective-assistance-of-counsel claims.
Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): overruling the Chevron framework, but preserving agency actions upheld under Chevron as statutorily binding precedent.

Legal Reasoning

Withholding of removal entails a two-step inquiry: first, whether the elements of the offense bring it within the potential category of particularly serious crimes; second, if so, whether the Board has “considered all reliable information” (including conviction records, sentencing information, and danger to the community) and determined that the crime is particularly serious. Because Jimenez’s strangulation conviction is an offense against a person with the requisite physical harm, the court concluded that it is potentially within the ambit of particularly serious crimes. The BIA then applied factors from In re N-A-M- and Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008), and determined that even though his three-year sentence was suspended, the statutory definition of “term of imprisonment” under 8 U.S.C. § 1101(a)(48)(B) includes a suspended sentence. The court rejected Jimenez’s collateral attacks on plea validity as unavailable in removal proceedings (Lanferman v. BIA, 576 F.3d 84 (2d Cir. 2009)) and held that rejection of his testimony was permissible when contradicted by his conviction (Garland v. Ming Dai, 593 U.S. 357 (2021)).

CAT deferral requires proof that the applicant more likely than not would be tortured with the acquiescence of government officials. The IJ and BIA applied the regulatory framework (8 C.F.R. §§ 1208.16–18), rejected testimony omitted from counsel-prepared forms as inconsistent (Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018)), and found insufficient evidence of ongoing threats or government acquiescence. The court affirmed under substantial-evidence review.

The denial of a continuance was evaluated for abuse of discretion under Morgan v. Gonzales, 445 F.3d 549 (2d Cir. 2006), and Matter of Sibrun, 18 I. & N. Dec. 354 (B.I.A. 1983). Even if erroneous, any error was harmless because the BIA later assessed the expert report on the merits and found it unlikely to change the outcome.

Finally, motions to remand, reconsider, reopen, and administratively close are governed by strict procedural rules: a 90-day deadline for reopening based on changed country conditions, Lozada requirements for ineffective-assistance claims, and 8 C.F.R. §§ 1003.2(b) & (c) for reconsideration and remand. Jimenez failed to satisfy any of these standards, so the court affirmed the BIA’s discretionary denials.

Impact

This decision reinforces the Second Circuit’s established framework for applying the particularly serious crime bar and streamlines judicial review of CAT claims in aggravated felony cases. It underscores that suspended sentences count as “terms of imprisonment” and clarifies the limits of collateral attacks on state convictions in removal proceedings. The decision also highlights the procedural rigor required to challenge continuances, remand denials, and claims of ineffective assistance of counsel under Matter of Lozada. While Loper Bright’s rejection of Chevron deference looms over future rule-making challenges, the court reaffirmed that existing precedents upholding agency actions remain binding.

Complex Concepts Simplified

“Particularly Serious Crime” Bar: An aggravated felony conviction that either carries a five-year sentence or, under a two-step analysis, is so grave that it bars withholding of removal.
Chevron Deference: A doctrine by which courts historically deferred to reasonable agency interpretations of ambiguous statutes. Loper Bright (2024) has overruled it, but actions approved under Chevron remain binding.
CAT Deferral vs. Withholding of Removal: CAT deferral (under 8 C.F.R. § 1208.17) is available even when the particularly serious crime bar applies, but requires proof of likely torture with government acquiescence.
Matter of Lozada Requirements: To claim ineffective assistance, a movant must submit an affidavit detailing counsel’s agreement, evidence of notice to counsel, and proof of a disciplinary complaint (or explanation for its absence).
In Forma Pauperis (IFP) Dismissal: Under 28 U.S.C. § 1915(e)(2), a court may deny IFP status and dismiss a petition that lacks an arguable basis in law or fact.

Conclusion

Jimenez v. Bondi affirms the Second Circuit’s rigorous application of the particularly serious crime bar to aggravated felony convictions, clarifies the evidentiary and procedural thresholds for CAT deferral, and underscores the narrow scope for reopening or remanding removal orders. It reemphasizes that convictions—even with suspended sentences—count fully toward the bar, that collateral attacks on state pleas are disallowed, and that procedural safeguards like Lozada must be strictly followed. The judgment thus strengthens predictability in removal proceedings involving aggravated felonies and offers a comprehensive blueprint for litigants and agencies navigating the intertwined regimes of asylum, withholding of removal, and CAT deferral.