Jimenez v. Bondi: Clarifying the “Particularly Serious Crime” Standard and CAT Review in Removal Proceedings

Jimenez v. Bondi: Clarifying the “Particularly Serious Crime” Standard and CAT Review in Removal Proceedings

Introduction

Jimenez v. Bondi (2nd Cir. 2025) consolidates four challenges by Dayvid De Oliveira Jimenez, a Brazilian national, to Board of Immigration Appeals (“BIA”) orders denying him asylum-related relief and procedural requests in his removal proceedings. Jimenez, convicted in Connecticut of second-degree strangulation (an aggravated felony), sought withholding of removal under the Immigration and Nationality Act (“INA”), protection under the Convention Against Torture (“CAT”), continuances, remand to the Immigration Judge (“IJ”), reconsideration, reopening, and administrative closure. The Second Circuit denied relief on all fronts, framing key precedents and standards for future practice.

Summary of the Judgment

The Court of Appeals issued a summary order denying three consolidated petitions for review (23-6005, 23-6143, 23-6895) and dismissing a fourth (24-665). It held:

  • Jimenez’s strangulation conviction qualifies as a particularly serious crime, rendering him ineligible for withholding of removal under INA § 241(b)(3)(B);
  • He failed to carry his burden for deferral of removal under CAT, 8 C.F.R. § 1208.17, because (1) his testimony about past police abuse was inconsistent with his written application and (2) threats from a Brazilian gang were too remote and localized to establish “more likely than not” future torture;
  • The IJ did not prejudice Jimenez by denying a continuance, and any error would have been harmless given the IJ’s and BIA’s alternative findings;
  • The BIA properly denied motions for remand, reconsideration, reopening, and administrative closure, including because Jimenez failed to comply with Lozada’s ineffective-assistance procedures and did not timely show changed country conditions;
  • The petitions were therefore denied, in forma pauperis status was denied as to the fourth petition, and summary reversal was denied as moot.

Analysis

Precedents Cited

  • Xue Hong Yang v. DOJ, 426 F.3d 520 (2d Cir. 2005) & Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): Adoption of the IJ decision as modified by the BIA’s supplemental explanation.
  • 8 U.S.C. § 1252(a)(2)(C)–(D): Jurisdictional limits on review of factual findings in aggravated-felony removal orders, with an open question on withholding under the INA (Nasrallah v. Barr, 590 U.S. 573 (2020)).
  • In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007) & Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008): Two-step “particularly serious crime” analysis—elements and totality of circumstances (including dangerousness).
  • Ojo v. Garland, 25 F.4th 152 (2d Cir. 2022): Elements-plus-circumstances inquiry and sentence length factor (5-year rule).
  • Lanferman v. BIA, 576 F.3d 84 (2d Cir. 2009): Collateral challenges to state convictions are unavailable in removal proceedings.
  • Garland v. Ming Dai, 593 U.S. 357 (2021): An IJ may discredit testimony inconsistent with record evidence, even if otherwise credible.
  • Mu Xiang Lin v. DOJ, 432 F.3d 156 (2d Cir. 2005) & Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021): Burden and standard for CAT claims (“more likely than not” and “acquiescence”).
  • Matter of Sibrun, 18 I. & N. Dec. 354 (BIA 1983): Continuance standard—good-cause showing, diligence, and prejudice.
  • Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1998): Procedural prerequisites for ineffective-assistance-of-counsel claims—affidavit, notice to counsel, disciplinary complaint.
  • Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): Rejecting Chevron deference, but preserving agency actions upheld under Chevron unless statutory stare decisis dictates otherwise (Nehma v. Garland, 2023 WL 2910631 (2d Cir.)).

Legal Reasoning

1. Withholding of Removal (INA § 241(b)(3))
The Court applied a de novo review to legal questions, and held that Jimenez’s strangulation conviction, an aggravated felony, carries a particularly serious crime determination under INA § 1231(b)(3)(B)(ii). Although his sentence was suspended (less than 5 years), the IJ and BIA conducted the required two-step analysis: first, confirming the offense elements potentially place it in the “particularly serious” category (crime against a person with violence to the throat); second, weighing sentencing and danger factors under In re N-A-M- and Nethagani. The BIA explicitly considered the suspension, dangerousness, conviction facts, and legislative definition that “imprisonment” includes suspended terms. Jimenez’s attacks on plea validity and testimony about self-defense were barred collateral attacks on his conviction.

2. Deferral of Removal (CAT)
Under 8 C.F.R. §§ 1208.16(c), 1208.17, the Court reviews factual findings for substantial evidence. Two omissions in the written CAT application—prior police assaults—and the age and locality of gang threats undermined any “more likely than not” showing of torture or government acquiescence. General country-condition reports of police and gang violence cannot substitute for particularized evidence of a noncitizen’s individualized risk.

3. Procedural Requests
The IJ’s denial of a continuance was within calendar-management discretion; remand would have been futile because Jimenez’s proposed expert evidence could not overcome the BIA’s core factual findings on danger and remoteness. His remand motion failed the reopening standard (no timely changed country conditions). Reconsideration was properly denied where his motion merely rehashed rejected arguments. His reopening request under § 1229a(c)(7)(C) was untimely and lacked evidence of material changes. His ineffective-assistance claims failed for non-compliance with Lozada.

Impact

  • Reaffirms that aggravated-felony convictions against the person—even with suspended sentences—trigger the particularly serious crime bar when elements and circumstances so warrant.
  • Confirms the stringent standard for CAT relief: omissions in a counsel-prepared asylum application and stale, localized threats will defeat “more likely than not” torture claims.
  • Clarifies that harmless-error doctrine applies to continuance denials when BIA alternative findings foreclose relief.
  • Emphasizes strict adherence to procedural prerequisites for reopening, remand, and ineffective-assistance claims under Matter of Lozada.
  • Signals that Loper Bright does not unsettle settled BIA interpretations on “particularly serious crime” upheld under Chevron.

Complex Concepts Simplified

  • “Particularly Serious Crime”: A conviction that either by statutory elements or consideration of sentence, crime type, and underlying facts poses a high risk to society, barring withholding.
  • “Chevron” Deference: Courts historically defer to reasonable agency interpretations of ambiguous statutes. Loper Bright curtails this method, but leaves intact decisions justified under Chevron.
  • De Novo vs. Substantial Evidence: Legal questions (e.g., statutory interpretation) are reviewed from scratch; factual findings (e.g., likelihood of torture) require that the record “reasonably supports” the agency’s conclusions.
  • Court’s Jurisdictional Limitations: Under INA § 1252(a)(2)(C), courts cannot review factual findings supporting most aggravated-felony removal orders; constitutional and legal questions remain reviewable.
  • Lozada Requirements: To claim ineffective counsel before the BIA, a movant must (1) detail the attorney agreement, (2) notify counsel and allow response, (3) file or explain failure to file a disciplinary complaint.
  • In forma pauperis (“IFP”): Permission to litigate without fees, but frivolous petitions—lacking an “arguable basis in law or fact”—must be dismissed even if granted IFP.

Conclusion

Jimenez v. Bondi crystalizes the analysis for aggravated-felony bars to withholding, the rigorous proof required for CAT protection, and the procedural exactitude necessary in removal-related motions. The Second Circuit’s synthesis of statutory text, BIA precedent, and Supreme Court guidance underscores that noncitizens convicted of violent offenses face a formidable burden in asylum and related claims. Practitioners must meticulously compile evidence and comply with procedural mandates to seek continuances, reopenings, or claim ineffective assistance. This decision will serve as a touchstone for future litigation on particularly serious crimes, CAT review, and procedural safeguards in immigration proceedings.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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