Strangulation Offenses Constitute Particularly Serious Crimes Under INA § 1231(b)(3)(B)(ii)

Introduction

The Second Circuit’s summary order in Jimenez v. Bondi (2025) addresses the scope of withholding of removal and Convention Against Torture (“CAT”) relief for noncitizens with aggravated‐felony convictions. Dayvid De Oliveira Jimenez, a Brazilian national convicted under Connecticut’s second‐degree strangulation statute, sought asylum, withholding of removal and CAT protection. The Board of Immigration Appeals (“BIA”) denied his continuance request, upheld the Immigration Judge’s (“IJ”) denial of relief, and refused to reopen or reconsider. In four consolidated petitions (23-6005, 23-6143, 23-6895, 24-665), the Second Circuit examined jurisdictional limits, statutory standards for “particularly serious crimes,” and the evidentiary showing required for CAT deferral. The court ultimately denied review or dismissed all petitions.

Summary of the Judgment

The Court of Appeals for the Second Circuit held that:

• Jimenez’s second‐degree strangulation conviction is a “particularly serious crime” under INA § 1231(b)(3)(B)(ii) despite a suspended sentence under five years, rendering him ineligible for withholding of removal.
• He failed to meet the burden for CAT deferral because he did not credibly show a pattern of torture or government acquiescence more likely than not to occur upon return to Brazil.
• The denial of a continuance, the BIA’s refusal to remand or reopen, and its denial of reconsideration were not abuses of discretion or denied due process.
• The petition challenging the BIA’s denial of reopening and administrative closure was untimely and lacked an arguable basis, warranting dismissal and denial of in‐forma‐pauperis status.

Analysis

Precedents Cited

• Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520 (2d Cir. 2005): Explains how to review an IJ’s decision as modified by the BIA.
• Nasrallah v. Barr, 590 U.S. 573 (2020): Leaves open whether factual‐review limits apply to withholding of removal.
• In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007) and Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008): Articulate the two‐step “particularly serious crime” analysis and relevant factors (nature, facts, sentence, danger to community).
• Ming Dai v. Barr, 593 U.S. 357 (2021): Authorizes an immigration adjudicator to discredit credible testimony when contradicted by strong evidence, such as a final conviction.
• Quan­tanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021): Defines the applicant’s burden for CAT relief and standards for reviewing factual findings.
• Flores v. Holder, 779 F.3d 159 (2d Cir. 2015): Addresses continuance requests before an IJ.
• Paucar v. Garland, 84 F.4th 71 (2d Cir. 2023): Reviews motions to remand for abuse of discretion.

Legal Reasoning

The court first confirmed its jurisdiction over constitutional claims and questions of law for aggravated‐felony removals (8 U.S.C. § 1252(a)(2)(C)–(D)), and recognized that CAT claims remain fully reviewable. It then applied the two‐step “particularly serious crime” test under § 1231(b)(3)(B)(ii):

1. Determine whether the statutory elements of second‐degree strangulation “potentially” bring it within the category of particularly serious crimes (yes, because it is a violent offense against the person).
2. Consider all reliable record evidence—conviction documents, sentencing, crime circumstances, and public‐safety danger factors—to decide if the specific conviction is particularly serious.

The BIA explicitly considered the violent nature of strangulation, Jimenez’s suspended three‐year sentence (deemed a “term of imprisonment” under 8 U.S.C. § 1101(a)(48)(B)), and the likelihood that the crime indicates danger to the community. Challenges to the plea’s factual basis and failure‐to‐warn claims were collateral attacks outside removal proceedings.

For CAT deferral, the court held that omissions in a written application and inconsistent testimony justified discounting Jimenez’s allegations of police torture, and background evidence did not compel the conclusion that gang torture or police acquiescence was more likely than not.

Finally, the court found no abuse of discretion in denying a continuance (no prejudice shown), refusing to remand or reopen (untimeliness and no material new evidence), and denying reconsideration (recycled arguments). A petition filed eight months after the final removal order, seeking administrative closure on a now‐rejected state‐court motion, lacked any arguable basis.

Impact

This decision reinforces the BIA’s two‐step approach to “particularly serious crimes,” confirming that:

• Violent offenses against the person—even with suspended sentences under five years—can be deemed particularly serious when the statutory elements involve bodily harm or threat.
• An IJ’s or BIA’s factfinding on CAT acquiescence will be upheld absent clear error, especially when the applicant omits critical allegations and relies on general country‐conditions evidence.
• Procedural defenses—untimely motions, failure to comply with Lozada for ineffective assistance claims, and failure to show prejudice—remain essential to deny reopening or reconsideration.

Practitioners must ensure that: criminal applicants provide consistent, comprehensive testimony; counsel follow Lozada when raising ineffective‐assistance claims; and new evidence for remand is timely and materially distinct from the record.

Complex Concepts Simplified

• Particularly Serious Crime: A conviction for an offense so grave (often violent) that it bars certain forms of protection from removal, even if the sentence is less than five years.
• Two‐Step Analysis:
  1. Check if the offense’s legal elements “potentially” qualify as particularly serious (violent vs. nonviolent).
  2. Review the actual conviction record—facts, sentence, danger—to confirm seriousness.
• CAT Acquiescence: The government’s deliberate failure to prevent torture when officials know it is occurring or likely to occur.
• Lozada Requirements: Procedural steps (affidavit, notice to former counsel, disciplinary filing) that a movant must follow to claim ineffective assistance in immigration proceedings.
• In Forma Pauperis (IFP): Permission to proceed without fees; denied here because the petition “lacks an arguable basis in law or fact.”

Conclusion

Jimenez v. Bondi clarifies that convictions for violent crimes such as strangulation—even if carrying suspended sentences under five years—meet the definition of “particularly serious crimes” barring withholding of removal. The decision underscores rigorous application of the two‐step test, firm standards for evaluating CAT claims, and strict enforcement of procedural rules on continuances, remands, and counsel‐ineffectiveness claims. Its precedent will guide immigration courts and practitioners in assessing aggravated‐felony removals and CAT petitions for years to come.